Judge Rules Against Employee Fired for Marijuana Use

Judge Rules Against Employee Fired for Marijuana Use

The News Journal | Jessica Masulli Reyes | August 21, 2016

Melanie Breech says she uses marijuana to cope with Lyme disease. Now it is causing a legal battle with Ocean View.

A former receptionist at the Ocean View Town Hall lost her job and now owes approximately $8,000 in unemployment benefits after a drug test for work turned into a legal battle over medical marijuana.

At the center of the fight is Melanie Breech – a 55-year-old Millsboro resident who says she uses marijuana daily to cope with Lyme disease. On the other side is Breech's employer, who fired her when she failed a drug test – and then refused to stop using marijuana and took to Facebook to complain.

This past week, a Superior Court judge weighed in.

Judge Richard F. Stokes rejected Breech's argument that she would have had a medical marijuana card in Delaware at the time of her drug test had the state's process moved faster. Instead, he found that the town's policy firmly states she could be fired for violating local, state and federal laws.

The ruling, which upheld a decision from an Unemployment Insurance Appeal Board, means Breech could now be responsible for paying back thousands of dollars in unemployment benefits that she previously received when a lower ruling went in her favor.

UD student charged with making marijuana treats

Bill sparks discussion of marijuana legalization

"I'm not working," Breech said. "They want all their money back, and I'm going to file bankruptcy because I do not have any intention of paying that money back."

Breech still has the option to appeal the ruling to the Delaware Supreme Court or file a civil lawsuit but has found it difficult to fight the case without an attorney.

"Basically, what we have here in Delaware is the state saying that medical marijuana is legal, but we have a judicial system that doesn't stand behind us," she said.

Eric Hacker, an attorney representing Ocean View, said the town did not want to comment on the litigation because the case is still pending.

While marijuana use remains illegal at the federal level, four states – Alaska, Colorado, Oregon and Washington – have legalized it.

Delaware, like other states, took the step last year of decriminalizing marijuana. This means possession of an ounce of the substance was downgraded from a criminal offense to a civil violation, like a parking ticket.

Delaware also has a medical marijuana program that was signed into law in 2011. Those who register with the state can use the program to purchase marijuana to treat the side effects of a handful of conditions, like cancer, multiple sclerosis and chronic seizures.

Breech is a cardholder in the program but was not at the time of her drug test last year.

She ingests edible marijuana to stop headaches, joint pain and tremors associated with her Lyme disease, she said. It also helps her concentrate, she said.

"It is just like pain medicine," she said. "If you truly need it, you are not using it to get high; you are using it for pain relief. The same applies to cannabis."

Breech first started working as a receptionist in the Ocean View Town Hall in 2003. She earned about $29,000 per year.

In April 2015, Breech was randomly chosen for a drug test with her employer. Immediately, she told her supervisor and the town manager that she used marijuana and would test positive. She also took to Facebook to voice her displeasure, according to court documents.

Sure enough, the test came back positive for marijuana on April 30.

Breech told The News Journal she was getting the marijuana she was using at the time from Colorado.

At a disciplinary hearing a few weeks later, she told her supervisor that she did not plan to stop using marijuana and was dismissive of using it only under Delaware's medical marijuana program, the town said in court documents.

The town subsequently fired her for the marijuana use, which violated town policy, and for insubordination and the Facebook comments, according to court documents.

Sussex candidate charged with drunken driving

Taxes: City finance director owes $28,000 to feds

Breech soon applied for unemployment benefits. Since then, her unemployment insurance case has bounced around.

First, a claims deputy determined that Breech was not eligible for unemployment benefits. Then, an appeals referee reversed the decision of the claims deputy and concluded she qualified for benefits.

Finally, after Breech had started receiving payments, the Unemployment Insurance Appeal Board ruled against her, finding that the town had just cause to fire Breech.

Breech appealed the insurance board's decision to Superior Court in December.

Breech's case has rested on a key argument. She claimed that her marijuana use is protected under the Delaware Medical Marijuana Act and that had the process for becoming a cardholder been quicker, she would have had one at the time of her drug test.

The town, however, has pointed out that she applied for a card only in April 2015 – at the same time that she found out she would be drug tested. It took about two months for her to be approved for a card.

The town has claimed in court filings that she has disregarded the town's employment policy, even though she was aware that she was violating it.

Judge Stokes agreed with the town in his ruling last week. He said she knew her marijuana usage was illegal but violated the policy anyway.

"Ms. Breech's argument that, had the process of becoming a cardholder been faster, her marijuana use would have been legal is without merit," he added. "The alleged delay in receiving the medical marijuana card has no bearing on the situation."