# Oral argument — Murray Fisher v. Airgas USA LLC > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A96702 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** December 7, 2023 ## Text Case number 23-3286, Murray Fisher v. Airgas USA LLC Arguments not to exceed 15 minutes per side Mr. Conway, you may proceed for the appellant Thank you May it please the court, I'm Mike Conway, I'm the appellant's counsel for Murray Fisher He's filed a lawsuit against Airgas, his former employer The issue is whether or not a summary judgment should have been granted on a Ohio revised code 411202 disability discrimination claim The facts are very straightforward My client had cancer, the defendant was aware of it The employer even accommodated the disability by giving him sick leave to treat for it He returned to work in October of 2020 He was under chemotherapy and experiencing great pain He could not drink or drink water or eat food Because of the pain he was taking lidocaine And he also used a legal substance called free hemp to deal with the pain I think he said a teaspoon a day or a couple times a day Free hemp is a legal product, the active ingredient is THCA THCA is not on a federal drug schedule And the evidence below shows that Eventually, my client came up positive By the way, I forgot to reserve my rebuttal time for five minutes My client came up positive on a drug screen And the drug report said THCA, not THC And my client informed the employer, the HR officer Bill Lowry That hey look, I'm taking this legal product He even gave him a picture of the jar And said you know I've got cancer and I'm in pain And I'm not using illegal drugs Real quick, do you have a page ID number for where the report said THCA? It would be We filed a motion to strike the affidavit of Todd Simo And I believe it was attached or it was discussed in that motion practice I don't have a page ID off the top of my head judge I'd have to look at the record What did the Simo, whatever his name is, the doctor's affidavit say? He said there was 25 nanograms per milliliter or microliter in my client's urine Microliter of, or nanograms of THCA I believe I found the document that I saw Which is at page 431, page ID Which is Simo, Dr. Todd Simo's affidavit Saying that the drug test showed that he had 25 ng slash ml nanograms per milliliter of THCA And you're saying that THCA is not a banned substance That's right your honor, under the federal laws I've researched You don't see THC as a controlled substance THC is And either way, the question is could a jury find that the employer discriminated against my client based on his disability There's no law or rule that says if you come up positive on a drug screen for any reason You have to be fired But there is a law that says you cannot discriminate based on disability But if the question is whether the employer honestly believed he had ingested marijuana as opposed to the hemp product I mean the same affidavit which is by the medical officer from Higher Right Says in paragraph 10 His result of 25 ng of THCA indicates the presence of marijuana So Higher Right is saying Whether you're right or wrong about the schedule Higher Right is saying this shows that he ingested marijuana And why doesn't that support their defense That we had it tested and retested Both times they're telling us he's positive for marijuana And so we fired him Well here's a great irony The district judge said the reason she didn't strike Simo's affidavit Was she said it didn't matter Because they don't have to prove he actually used marijuana You just have to really believe it Right Okay the problem with that is Is that that's why they fired him Because he used marijuana And if that's a contested issue How come a jury Okay the issue The only issue is discrimination Let's say They don't fire him In their minds for discrimination And if they have a good faith belief That he has committed some other infraction Right or wrong Then when they fire him for that infraction They're not firing him on the basis of discrimination That's if you believe me That's the law Well Judge You're saying Counsel this is Counsel this is where I think we got really distracted In all of the briefings Sorry Judge Moore if I interrupted you Yes He takes a test And his test is positive He asks for a retest And he tests positive He's still not happy about that So they refer him to the chief medical officer Who says yes He's positive for marijuana Now let's assume that you can quibble About every single one of those three And that it really wasn't marijuana But the company It seems to me bent over backwards To try to overcome This positive test So this guy could stay employed And he's failed at every step So I just don't understand Where you say the pretext is The pretext your honor is that Bill Lowry the HR officer Admitted he didn't care if the test results were accurate The pretext is The evidence shows that In Simon's affidavit He's vouching for the credibility of a test He didn't conduct And can't explain And did not explain And did not qualify himself as an expert Although he gave expert witness testimony And on top of that Higher Right The company that was supposed to do the test Didn't do the test It was Concentra Which makes the affidavit based on hearsay Now If they're saying that none of that matters Then I don't even know why we have the rules of evidence Because they're the ones who swore everything's true And said this is why we did it And then I say wait a minute here That affidavit's not admissible And the judge is saying Oh it doesn't matter They honestly believe the stuff You got a guy who said We can't accommodate this guy's disability When he tried to take sick leave Comes back and he denies He knew my client was using the hemp product That was a lie Caught him in his deposition Making misrepresentation Saying he never communicated with Higher Right Or knew my client was using hemp When he knew that wasn't true And the boss My client's own boss Christopher Major Said don't fire him And Major's boss said don't fire him You got two employers Saying don't fire this guy So a question that has been bugging me Is that in looking at the evidentiary material In our record It strikes me that your client Did in fact tell various people At the company That he was taking hemp After the first positive test And when we see the CMO affidavit Saying that he tested positively For THCA And my understanding is THCA is legal In hemp That the problem in marijuana Is THC Am I correct on that? So then why doesn't this Completely pierce The idea that there was an honest belief In the reliability of the test So even if you're going To the honest belief rule Why doesn't your client win? He should win Because the honest belief Isn't based on reliable information And the employer knows it And the employer chose A policy of ignorance My client offered them information That Major's boss And his boss believed were accurate Major's even testified I believe that Murray Is telling the truth And he says he took a legal product My guy was dying of cancer It's undisputed I mean it's not like he's some Recreational drug user That is partying at work There's no evidence Anything he did interfere with his work Everything that That came up in the test Comes from outside work And he's never a threat to the safety Of anybody at the workplace They should have said Look, I know we got a dispute About this test We also know you've got cancer And have been dying of it And you're trying to deal with the pain And we're going to accommodate that And you've got a guy Lowery Saying no we're not And he's choosing not to Investigate even He doesn't even care Whether the drug test is accurate He's saying we got the result we want No need to look further That's the problem Did your client ask for an accommodation To be allowed to use hemp? Yes He asked He wanted to be able to use that product When he could not eat Or swallow water And the really only accommodation he asked Was to be able to get medical care For his condition That's really it Because he was able to work The judge did not dispute We made out a prima facie case The only issue is this honest belief Which is a subjective defense Pitted against subjective evidence And the trouble with that is It's like saying I'm the president I can declassify top secret documents By just thinking about it So I didn't break the law That's the problem It's just too easy When the employer is told The boss doesn't want him fired And they know he's dying from cancer And he's not using He told them he proved he's not using illicit drugs This test says THCA not THC Circumstances show The jury could find That we got a dispute And I don't believe this employer Because this guy has a problem With this guy having cancer And working here And I think that's why this case Should have gone to the jury So to clarify THCA is a legal substance Correct It is lawful to have THCA Right In your system And what does the company policy prohibit Is it simply failing a drug test They said it was For failing a drug test And that See the problem is Is that you can get a lot of mileage Out of that and avoid being sued For discrimination by making a claim As simple as that The judge cited the Bailey case Bailey versus real time staffing I'm only going to use about another minute Of my rebuttal They cited real time Bailey versus real time staffing As the case that this case should be judged by But Bailey is Distinguishable on its facts Bailey had HIV Never told anybody And he got fired After testing positive for I think it was marijuana And the theory was Now that we've tested positive You know I've got a disability And you can't fire me That's not what happened here My client had The defendant had known My client had a disability of cancer for months But the opponent didn't know The company didn't know He was taking hemp Well he had no reason to tell them Until the test result came in I mean he was using a legal product It wouldn't make any sense for him to say You know I've got to let you know I'm using this legal product It might come up on the test Because he had no reason to suspect it would It was a legal product So it would be like requiring your client To say to the employer I'm eating a lot of broccoli Because broccoli is good for my cancer Hemp is Yeah I mean Broccoli actually is good for cancer That's why it's confused It's got really antioxidants in it We've taken you beyond here Alright thank you I respectfully request reversal and remand Good morning your honors And may it please the court Jason Huskin for Appellant Airgas If I could go really quickly to the death Of the plaintiff For About 30 seconds I think the court should order Mr. Fisher To move to substitute Within a reasonable period of time Otherwise this appeal Is moot At this point Order the substitution Order the substitution It would seem of his wife And would you Agree that the claims Survive under Ohio law So the Suggestion came a couple days ago Our initial research Suggests that A claim for compensatory damages Would I believe what Plaintiff is seeking in his Amended petition is 15 million dollars For compensatory Punitive Damages Cost fees My understanding at least under this courts case law Is that the punitive Damages claim Would not survive But the compensatory would We are here on state law Claims right Not on federal ADA claims I can only tell you what I know With this juncture And without a motion to substitute No but I'm asking The basic complaint That was thrown out By the district court Was on state law It is on state law And it's not a federal Case it's a diversity case It's a diversity case So we would look at Ohio law Whatever Ohio law Whatever Ohio law says Second question On a preliminary note I was a little bit troubled about the removal To federal court because there was a non-diverse Defendant here And You know The non-diverse Claimant Sorry the non-diverse defendant But why was there Not a lack Of complete diversity When you removed the case So I think there are three ways To look at it So it was A pejorative term It was a snap removal Mr. Majors who was the form defendant Was named He was never served In the four week Interim between when we were served And When we removed What was his role Or who is he He was the supervisor Of Mr. Fisher The original complaint does not purport To state a claim against him He's in the caption And the allegations say a couple things About him So One way to find That jurisdiction is appropriate would be to say That snap removal is appropriate You've said that In McCall vs. Scott 239 F 3rd 808 In note 2 of that opinion This court said Where there is complete diversity of citizenship The inclusion of an Unserved resident defendant In the action does not Indicate removal Under the form defendant rule Another way you could look at it Is that there was Complete diversity At the time of the judgment This court said In gen tech building products Which is 491 F 3rd 320 That where removal Is improper But a final judgment issues with jurisdiction Existing at that time If the plaintiff did not Move to remand state court The judgment stands And I should point out on this point That I think Mr. Majors was dismissed About 6 to 8 weeks after it had been removed So do you think gen tech is still good law? Yes definitely Was there a motion to remand? There was never a motion to remand No Do you think some fraudulent joinder Theory would have supported jurisdiction? Fraudulent joinder was stated As a basis for removal In the notice of removal Yes And then A third way you could do it I don't know I'm interested in what's right It's not just some Clay object That we are moving around Right What do you think is right? I think the best way I think the best and clearest way To do it under your precedence That represent a holding As opposed to something that lower courts In this circuit have Deemed dicta Is gen tech Which is if the Removal is improper but a final Judgment issues with jurisdiction Existing at that time If the plaintiff did not move to remand To state court the judgment stands That's what happened here That's the best way in my view to resolve Did Did Mr. Fisher Before he was fired Did he I think Judge Moore may have alluded to this Did he inform Airgas That he Was taking this hemp product I mean did he inform Airgas he was taking the hemp product Before the second retest is my question He informed My understanding is that he informed Airgas that he was taking The free hemp product Before the second test but not The first test And the second test as I understand It took like ten or So days I'm estimating You correct me Ten or so days to be completed so there was a Substantial period of time perhaps Two weeks Tell me if I'm wrong between The receipt of the first test And the receipt of the second test I am not I don't recall I don't recall the exact number of days Really to go directly to your question So You pointed out that Dr. Simoes Affidavit says THCA Let's assume that's the one It does it's right here It also says ergo marijuana It also says That You know Mr. Fisher's drug test Result of 25 Something whatever THCA sorry Indicates the presence of marijuana In the test subject specimen sample Then you have the original drug test Which is at page ID 424 It's exhibit H To the motion for summary judgment Drug testing Drug testing does not meet Company standards Drug testing positive result Test name marijuana result positive So that's the actual Report of the first drug test That's the report of the first It doesn't say THC It doesn't say THCA It just says positive for marijuana It doesn't say either And that's when Mr. Fisher Says to the company Hey I'm taking hemp I never took marijuana So how can you have an honest belief If we just cut to the chase How can you have an honest belief That he is taking marijuana When you have this doctor Who says it's THCA When THCA is hemp Not marijuana There is the later statement That says THCA THCA indicates the presence of marijuana But you have Mr. Fisher continually saying I don't take drugs I'm somebody who's got half a liver I've had all this chemo I'm taking hemp Because I'm hoping it will make me Be able to let stuff go down my esophagus I think I would put it this way You've got an initial drug test That says he tested positive for marijuana You've got an affidavit That says both THCA And that says marijuana Why don't you have an obligation to ask somebody Could this be hemp Isn't that fair Well they retested a second time But they're retesting the same sample So it's not a big shock that it would come out the same I think the state of Ohio retests The same sample as well I don't think it's anything novel To retest the same sample I mean you've said that Mr. Fisher tells them I'm taking this hemp product He's obviously got this extraordinary Circumstance that would make that Pretty credible So I mean Why didn't your client Have some obligation To do some reasonable investigation About whether it might be hemp Rather than marijuana That is a predicate for the honest belief rule That it has to be Kind of a reasonable determination Not crazy, not derelict Etc. I think they made a reasonably informed decision To You know To terminate him based on the failed drug test But we're That's not engaging my question I get that there are two failed drug tests I get that they fire him for that reason But if he In between the two Tells them hey guys I'm taking hemp Which most people know is like Pretty close analog I guess To marijuana Why don't they have an obligation In order to satisfy the reasonable Diligence so to speak Predicate For the honest belief rule Why at that point do they not have an obligation To go check out In some manner Whether it actually might be hemp Rather than marijuana The law says their job is not to leave No stone unturned Right but this is a pretty big stone Isn't it I mean he's telling them It's not it's facially plausible So why is this just some Stray stone that we don't need to worry about As opposed to something a reasonable Person would Inquire into I think that Well I Think they did And they went back And they were told by higher right That the test was positive He asked for the second test Right Mr. Fisher asked for the second test That's not really air gas doing anything They're just being reactive there I mean they did Well that's That was the first time that the usage of the free Hemp was disclosed to him To air gas was at the time of the second test Did they do anything To research specifically Whether it might have been Hemp I'm not aware of anything in the record That shows that they did anything To research specifically Whether it was hemp But I'm also not aware of anything in the law That requires them to have done so You think a reasonable person Would have investigated that possibility Before firing him That's hard to say I You know I I I would think That an employer taking Reasonable steps Would do what was done here Which was you tell me You're taking a legal hemp product You ask for a second test I do I do a second test Before doing a second test I talk to my internal drug protocol expert Figure out What the right answers to your questions are And what we need to do Then when you ask to be reinstated A second time I consult with the chief medical officer At the outside contractor And You know He's telling me again That it's a positive Drug test I'm not required to leave Doestone unturned I've done quite a bit there By that point And You know I guess what ultimately happens In Bailey I don't want to completely rest on Bailey But you know they're entitled to believe The chief medical officer Over Mr. Fisher And So just if I can clarify The second test I see references in the record To it being a split sample So am I correct In understanding the record Being that He gave the one sample When he had the random drug test And he gave one sample And it's split And then they test it first And they get this positive result And then he says No, no, no I'm taking hemp, it's perfectly legal And then They do a second test Of that very same split sample The other half of the sample And it comes back the same Which if you have Legitimate testing That's not a big shock That the second test of the exact same sample Would come back the same Am I fairly characterizing what happened? It's a second test of the same sample Yes By the same lab presumably By the same lab, yes Isn't the whole purpose of the second test Even though it's the same sample with split The whole purpose of the test Is to see if there was an error Made during the first test It got contaminated or whatever And the second test Discloses That there was no error Yes, the second test is confirmatory Yes I have about 40 seconds left So the honest belief rule here then Would be saying in effect You can have an honest belief That Someone Who has tested positive For THCA Has imbibed Or ingested marijuana And you can Fire him for that Even though he says Hey guys You know I've had liver cancer And have been out For eight weeks and had half my liver Removed and such And I'm taking hemp Which is a legal product The honest belief rule Lets you fire the person I would characterize it A little bit differently One on the facts And I'll do that before I forget And if I can finish my answer And then another one on the law Actually I'm going to do the law first The law first is he needs to show That the real reason is discrimination And there's absolutely nothing in the record Zilch Not at SJ I mean he just needs to show That It's not worthy of credence And you can do that one of several ways At trial he needs to show And not only is your reason false It's also a pretext Well to make A prima facie case He needs to show At minimum that it was due in part To his disability As opposed to the drug test I mean we've been talking about The honest belief rule a lot But So And the conclusion in Bailey Which I believe is also a summary judgment Is that there's also no evidence showing That the real reason was discriminatory That's also true here On the facts I think the application of the Honest belief rule here Is a little bit more nuanced Than What you were suggesting Judge Moore I think what you have Is a scenario where you have You have a drug test That says test name Marijuana results positive And you have an affidavit that says You know That the THC indicates The presence of marijuana In the test subject's specimen sample And Could somebody say yes I'm going to hunt this down and track this down forever Yes But the law does not require that Was the affidavit Created after the lawsuit started? I believe this affidavit Does post-date the lawsuit Yes But he was consulted He was consulted prior To the termination decision And that was relayed to Mr. Fisher By the HRVP At Airgas And the same fact Was relied on correctly By the district court And we would ask That you affirm the district court I'm not sure that this ultimately makes any difference But in a case like this Where you're essentially Arguing over the results of a test Does he have the opportunity Under the company's policy To either Have the company retest it As opposed to a split sample Or alternatively Have his own test Done and submit that to the company I don't know what the result Would be based on your answer But does he have the option of either of those? So under I don't think he has the first option under the policy I don't think There's anything in the policy that would prevent The second option That you're mentioning Which is to come back with his With his own With his own test And would there be Any such obligation At least arguably or hypothetically Here when you're claiming pretext To show that the reason was wrong Which is one of the three ways that you can show pretext By submitting his own evidence That aside from just saying I never adjusted marijuana Which I suppose Almost everybody that gets fired For failing a drug test says No it was second hand smoke I didn't do it So on and so forth What's the legal consequence If he had the second option And didn't avail himself of it When it's his burden to show Ultimately pretext Well In my view There are several things That he could have done Either in the litigation or prior to the litigation To make that Showing And it is You're correct That it is his burden Yes he could have had a sample tested Elsewhere And presented that to Airgas He could have Subpoenaed higher right During the course of the litigation I mean there are Ways that he could have Attempted to meet his burden He hasn't met it here Thank you May it please the court The reason That defendant Majors Was dismissed Was because the Defendants agreed to take the case To mediation in front of Judge Polster In U.S. District Court After it was removed And we were under the impression That the case was going to be resolved So to avoid You know Controversy and simplify matters We let him go He was served with the defendant at his place of employment With respect to The honest belief That's based on all the circumstances Smith vs. Chrysler Is the controlling case The honest belief has to be based on Reasonable Factors Here we hear Why didn't you get your own urine test Why didn't you subpoena higher right I could go on and on about dealing with higher right It's a whole other story But the fact of the matter is The report said THCA on it That's a legal substance So Their job is not to be a Toxicologist And the toxicologist apparently Is telling him THCA You know it's positive for THCA And ergo marijuana We don't know that Dr. Simo is a toxicologist He never submitted a resume Some kind of expert Medical officer I mean you understand my point I get your point your honor But there's no evidence That Simo even did anything Except repeat a report And sign it Because he never talked about How he knew the test was accurate How the test was conducted Matter of fact again it was conducted by consent Not higher right So we got a double hearsay on it And then on top of that Even if he submitted Urine and it was clean It's kind of like one of those DUI Cases you take when you've been in practice A month and a half And the cops say okay I took this guy's blood test And it's a urine test And it shows X, Y, and Z Well I went to the hospital We had my guy test and the doctor said it's clean And what's the judge say wait a minute That's not the test we're going to use Okay so I don't know that That would move the ball But I'm just saying there is a question of fact On the defendant's credibility here When they indicate That as Mr. Lowry You know he testifies I don't care if the guy He actually said it's in my brief Words to the effect that I don't care if he's disabled If he tests positive I'm firing him Well there's no rule saying You've got to fire somebody Just because they tested positive They can fire They can but he's disabled He's a different situation That almost goes That almost seems to cut in their favor If he's test positive For drugs I'm firing him I don't care what else Is going on here I.e. that's the reason Yeah but you can't do that to a disabled employee When you know it's a disability You know you've got to accommodate him He's requested an accommodation That's not the claim here No your honor The discrimination Against somebody you have to You know act adversely Because of that criterion That you know is the trigger For the discrimination Your honor he's not Like I say a recreational Drug user he's disabled He's using free hemp for treatment They were aware of it they didn't investigate it They have a duty to make sure That their decisions Are not discriminatory And they knew they were firing a disabled employee What specifically What concrete action Do you think they ought to have done In order to make their investigation Reasonable under the law I think they should have looked at The test results And said no no no this can't be THCA is legal And I'm going to not Who's they in that sentence I mean the company the HR department The HR department fired him not McLean's boss And The HR department is supposed to be able to second guess The toxicologist people and say Wait a minute wait a minute that's THCA And that isn't marijuana They can do whatever They want as long as it's legal But the problem I mean they can just They can choose not to hire A toxicologist at all And again we don't know who Simon was But the fact of the matter is They knew they were firing a disabled person Using a legal substance To treat for cancer And they indicated they don't care If their test is accurate Now how can you have good faith belief when you say It doesn't matter to me whether or not We got the right result I know you're disabled but I don't care How's that not discrimination It's discrimination and a jury could So fine And I think this case should reverse remand And that brings me to Two seconds left If there are no further questions Thank you very much Thank you both for your argument --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A96702. Public record. Not legal advice.