Former Town of Ocean View receptionist loses appeal in termination over drug test

 

GEORGETOWN — A former town of Ocean View receptionist’s positive drug test in 2015 justified termination and a denial of unemployment benefits that followed, a judge determined on Monday.

Arguing her appeal in Sussex County Superior Court, Millsboro resident Melanie N. Breech contended she was protected by the Delaware Medical Marijuana Act after a slowed process of becoming a cardholder for using the drug, according to court documents.

“Ms. Breech’s argument that, had the process of becoming a cardholder been faster, her marijuana use would have been legal is without merit,” Judge Richard F. Stokes wrote in a six-page opinion.

“Preliminarily, (Delaware Code) states ‘Nothing in this chapter prohibits and employer from disciplining an employee for ingesting marijuana in the workplace or working while under the influence of marijuana.’

“Notwithstanding that provision, none of the protections afforded by the DMMA applied to Ms. Breech because at the time of her violation, she was not a cardholder.

“The alleged delay in receiving the medical marijuana (card) has no bearing on the situation.”

The town referenced its policies regarding unlawful substance abuse, which Ms. Breech agreed to abide by with her signature on Sept. 16, 2009. Ms. Breech was hired on Oct. 30, 2003, and terminated on May 13, 2015, according to the opinion.

A claims deputy upheld the denied unemployment benefits on June 4, 2015, but an appeals referee reversed the decision on Aug. 21, 2015, “and concluded that Ms. Breech was qualified for benefits because she was discharged from her work without just cause.”

The town appealed the decision to the Unemployment Insurance Appeal Board, which ruled on Dec. 1, 2015, that Ms. Breech had been justifiably discharged, the opinion read; she appealed to Superior Court in timely fashion six days later.

“A review of the record demonstrates that despite an awareness of company policy, Ms. Breech freely and voluntarily admitted to using marijuana,” Judge Stokes wrote.

“(Town code) requires employees of the town to obey local, state, and federal rules. At the time of her drug test, marijuana usage was illegal. Accordingly, Ms. Breech’s violation of the town policy constitutes just cause for her termination.”

Reach staff writer Craig Anderson at canderson@newszap.com

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