Brandon Coats v. DISH Network, LLC
Colorado Supreme Court Case: Employment v. Off Duty Use of Medical Marijuana
This morning, the Colorado Supreme Court decided in Coats v. DISH (attached),
that Colorado’s current laws – the most powerful in the world
– do NOT protect a medical marijuana patient-employees private,
off duty use of MMJ, even if they are not impaired at work. Quote from
the decision: “The supreme court holds that under the plain language
of section 24-34-402.5, C.R.S. (2014), Colorado’s “lawful
activities statute,” the term “lawful” refers only to
those activities that are lawful under both state and federal law. Therefore,
employees who engage in an activity such as medical marijuana use that
is permitted by state law but unlawful under federal law are not protected
by the statute. We therefore affirm the court of appeals’ opinion.”
Brandon Coats worked for Colorado-based DISH Network for 3 years in a
non-hazardous, telephone customer service call center. He was never impaired
at work, and only used after work in the privacy of his own home. DISH
was not a federal contractor, so any “Drug-Free Workplace Act”
did not apply. This case attracted national attention because it was the
‘perfect storm’ of facts, one that if Mr. Coats could not
win, it left serious doubt as to whom could. Most states courts and legislatures
have been waiting for Colorado to issue this decision first before deciding
how to structure their own state’s MMJ laws on employment. More
on the unique, actual facts of this case can be found here (as some reports
do not correctly have / understand the specific, narrow facts of this
case – especially the alleged work place policy argument). This
was a very tough decision for the Court, one they thought carefully about
for a year after briefing was finished July 2014. There were compelling
arguments and pressures on both sides. These included pressures from employers
and the CO Attorney General’s Office, as well as standing up to
federal law. Although naturally devastating for us, the silver lining
of this case, and why it was so important to be litigated by Mr. Coats
and his attorney Michael Evans for over 5 years against such an ominous
opponent, is that there was previously no clear definition on what an
employer and employee could do when it came to MMJ. It was a very scary
‘gray’ area for both sides. All of that hard work and risk
put into this case was not a waste, because at least now there is clear
communication for everyone on that issue from the Court. Notably, the
Court issues this decision after the legislative session had ended –
indicating they may have been waiting (due to the separation of powers)
for the CO House or Senate to act and fix the obvious problem. The Court
will not make new law, they will only interpret the Colorado’s constitutional
and statutory MMJ laws as written. Today’s decision means that until
someone in the House or Senate champions the cause, most employees who
work in a state with the world’s most powerful MMJ laws will have
to choose between using MMJ and work. (MMJ’s one downside is that
the inactive, non-impairing “residue” called THC-COOH or carby
THC stays in the system for up to 45 days and only a specific blood test
like the one used for years by police for DUI-D cases will determine actual
impairment based on type & amount of THC.) Brandon Coats did not receive
such a test by DISH, only a yes / no test on whether THC was present.
For people like Brandon Coats, there really isn’t a “choice”,
as MMJ is the only substance both he and his CO licensed physicians know
of to control his seizures due to his quadriplegia. He has to have it.
For a list of prior media interviews Brandon has given, as well as photos,
click here. Brandon Coats quote: “Although I’m very disappointed
today, I hope that my case has brought the issue of use of medical marijuana
and employment to light. If we’re making marijuana legal for medical
purposes we need to address issues that come along with it such as employment.
Hopefully views on medical marijuana – like the ones in my specific
case - will change soon.”
Brandon Coats filed suit against Colorado corporation DISH Network, LLC
in August 2011 for violating Colorado state statute
C.R.S. 24-34-402.5, which prohibits employers in Colorado from discriminating or terminating
employees for engaging in legal off-duty conduct in Colorado.
Despite federal law, the Colorado Constitution provides for both medical
and non-medical use of marijuana through
Art. XVIII, Sec. 14, and the more recent
Art. XVIII, Sec. 16. This was the first time that any employee had tried to sue their employer
under this state statue as it related to marijuana.
Mr. Coats is a quadriplegic who worked full-time at Colorado-based DISH
Network for 3 years as a telephone customer service representative. Mr.
Coats was also a Colorado resident and licensed medical marijuana patient
He used medical marijuana only after work hours in the privacy of his own home to help with his physical disabilities. Mr. Coats had satisfactory performance
reviews for all 3 years and was
never reported to be "high" or intoxicated at work. DISH only terminated Mr. Coats upon learning that he was a licensed patient
and using marijuana through the results of a blood test which revealed
the presence of THC in an unknown amount. (The presence of THC can remain
in the body for up to 40 days after use).
Mr. Coats argued that DISH violated this statute when it terminated his
employment based solely on the presence of Tetrahydrocannabinol (“THC”)
found in his body during a company drug test. The mere presence of THC
found in the body is not dispositive of marijuana intoxication, and the termination of Mr. Coats by DISH was
not based upon Coats being under the influence or intoxicated while at work,
exhibiting poor job performance, nor endangering the health or well-being
of any person. Mr. Coats never possessed or used marijuana at the work place, nor requested
any work place accommodation. As a telephone customer service representative,
Mr. Coats held an entry-level, non-hazardous occupation.
See the undisputed facts of this case below.
Trial Court Decision (February 29, 2012)
The Arapahoe County trial court dismissed Mr. Coats’ complaint against
DISH pursuant to C.R.C.P. 12(b)(5), on the grounds that the use of marijuana,
even when used in full compliance with Colorado’s Medical Marijuana
Amendment, is not a “lawful activity” under Colorado’s
Lawful Activity Statute because the Amendment is limited exclusively to
providing an affirmative defense to a criminal prosecution. The trial
not use any conflict with federal law as a basis for its decision.
Colorado Court of Appeals
Mr. Coats argued to the Court of Appeals that the Colorado Constitution
provides more than an affirmative defense to a criminal prosecution. Mr.
Coats also appealed (separately) the trial court's award of attorney
fees to DISH for a C.R.C.P. 12(b)(5) dismissal of what was categorized
as a "tort" claim. DISH sought over $40,000 in attorney fees
from Mr. Coats based on the filing of one motion. Although the trial court
reduced it to $12,000, Mr. Coats argued that it should be construed as
a civil rights claim under the Colorado Civil Rights Act.
April 25, 2013 the Colorado Court of Appeals published a 2-1 opinion in Brandon Coats
v. DISH Network LLC.
Read & download the full opinion here. The Court decided that the word "lawful" under the Colorado
Lawful Activities Statute implied both federal and state law, and because
federal law still prohibited marijuana use (as opposed to state law prohibition),
then the statute did not protect Mr. Coats. The Court of Appeals did conclude
that DISH was not entitled to any attorney fees.
Colorado Supreme Court
On July 5, 2013, Mr. Coats filed his petition for certiorari on whether
the Colorado Lawful Activities Statute should protect Mr. Coats. Based
on the trial court and appellate court holdings, the issue before the
Court was framed: Whether the Colorado’s Lawful Activities Statute,
§ 24-34-402.5, C.R.S., protects a sick or disabled employee from
being terminated by a Colorado employer for lawfully engaging in the use
of medical marijuana pursuant to Colo. Const. art. XVIII, § 14 after
work hours and off company property, and where despite the presence of
T.H.C., there is no additional evidence of impairment, poor performance,
occupational safety risk, or conflict with federal obligation? On July
19, 2013, DISH filed a response. The Plaintiff's Employment Lawyer's
Association also filed an amicus curiae brief for certiorari in support
of Mr. Coats. Mr. Coats also filed a reply in support of his petition.
January 27, 2014, the Colorado Supreme Court agreed en banc to review the Court of Appeals
decision for Mr. Coats case for the following 2 issues:
Whether the Lawful Activities Statute, C.R.S. section 24-34-402.5, protects
employees from discretionary discharge for lawful use of medical marijuana
outside the job where the use does not affect job performance.
Whether the Medical Marijuana Amendment makes the use of medical marijuana
“lawful” and confers a right to use medical marijuana to persons
lawfully registered with the state.
The decision to review the case means they will either change the ruling
of the Court of Appeals and the legal analysis, or change the legal analysis
but arrive at the same result.
On March 18, 2014, several Colorado businesses and organizations announced
they would like to team up to help Colorado-based DISH fight against quadriplegic
medical marijuana patient-employee Brandon Coats to uphold the April 2013
appellate ruling. In that list were:
- Denver Chamber of Commerce
- Mountain States Employers Council
- Colorado Hotel and Lodging Association
- Colorado Association of Commerce and Industry
- Colorado Association of Mechanical and Plumbing Contractors
- National Federation of Independent Businesses
- Colorado Contractors Association
- Colorado Mining Association
- Northern Colorado Legislative Alliance
- Colorado Competitiveness Council
- Climax Molybdenum Company
- Association of General Contractors
The concerns and agendas these employers attempt to advance are not simply
not present within the facts of this case.
On March 24, 2014 Attorney Michael D. Evans filed his Opening Brief that
makes the written arguments to Colorado Supreme Court on why Mr. Coats
should have been terminated by Colorado-based Dish Network for lawful
medical marijuana use.
To briefly highlight some of the points made in the opening brief:
- Medical marijuana use is a lawful activity in Colorado, not just an affirmative
defense to a criminal prosecution under Colo. Const. art. XVIII § 14.
- Job loss and employment discrimination for patient-employees are the very
types of problems Colorado Lawful Activities Statutes § 24-34-402.5
was created and designed to protect (previously protecting smokers, obesity,
sexual orientation from termination).
- The word “lawful” should not have two separate and distinct
meanings. What is considered “lawful” under the State Constitution
should be consistently interpreted with what is “lawful” under
- Colorado courts have issued vastly inconsistent opinions interpreting medical
marijuana use under the Constitution, making it murky water for employees
Coats suggests a more practical solution where
both sides win and avoid forcing a mutually exclusive choice for patients between health
care and employment and a repeal of Colorado’s medical marijuana
laws for patients who are gainfully employed.
- Colorado avoids the financial burden on unemployment and other governmental
- Both employees and employers retain all their existing rights under Colorado
laws – no change to the law is needed. A careful reading reveals that:
- Employers retain the right to fire impaired employees – no matter
what the substance. See § 24-34-402.5(1)(a)-(b), C.R.S., and §
14(5) and § 14(10)(b)
- Good employees who are not impaired, like Coats, retain their jobs and
ability to use effective medicine.
- Patient employees who are in dangerous / hazardous jobs, even though not
impaired, should be transferred to more appropriate positions / careers.
- At-will employment is a non-issue in this case for employers because it
does legally does not apply to these cases brought under the Colorado
lawful activities statute § 24-34-402.5, C.R.S.
Employer concerns about hazardous activities, safety concerns, work-place
accommodations, company drug policies, “zero-tolerance” policies,
“Drug Free Workplace” issues, federal contracts, or bona-fide
are not present in the facts of this specific case.
- Coats was a telephone customer service representative who sat in a wheelchair
pushing a button at a desk every day.
- There is no company drug policy from DISH actually in the record as evidence
before the court.
Employer concerns about m.m.j. adversely affecting employee performance,
attendance, or customer relations are also
not present in the facts of this specific case.
- Coats was neither impaired nor under the influence at work, and even had
satisfactory performance reviews for all three years.
- The health benefits of m.m.j. use decrease painful and embarrassing muscle
spasms, allowing Coats to work better for DISH.
- Employer drug testing for THC is outdated and inadequate to determine impairment
of mmj patient-employees. The technology and means to test for active
v. inactive THC and amounts already exists and is frequently used in DUID cases.
- The drug test Coats was administered only showed the presence of THC, not
the amount or type.
- The federal Controlled Substances Act banning marijuana use does not preempt
(supersede) Colorado’s ability to create medical marijuana laws,
and the two laws are legally allowed (and do in 21 other states) to peaceably co-exist.
- The federal government appears to be questioning the CSA themselves recently
and the Colorado Courts of Appeal have upheld the same interpretation
in December 2013.
On April 5, 2014, the Plaintiff's Employment Lawyers Association (PELA)
filed an amicus brief in support of Mr. Coats offering alternative arguments.
On April 16, 2014, Patient Caregiver Rights Litigation Project filed an
amicus brief in support of Mr. Coats offering alternative arguments.
On May 21, 2014, DISH Network filed its Answer brief. Also on May 21, 2014,
the Colorado Defense Lawyer's Association (CDLA) and Colorado Civil
Justice League (CCJL) and Colorado Attorney General Office filed amicus
briefs in support of DISH.
On May 22, 2014, the Colorado Mining Association filed an amicus brief
in support of DISH.
On September 30, 2014 the Colorado Supreme Court heard
oral arguments in the case.
On June 15. 2015, the Colorado Supreme Court issued an opinion. Decision
news and media coverage on this case.
Compare and distinguish the 2013 Coats v. DISH case from the 2011
Beinor v. Industrial Claim Appeals Office or the 2012
People v. Watkins case.
Photo: Attorney Michael D. Evans and client Brandon Coats.
The Undisputed Facts of the Case
- Coats, as a quadriplegic, suffers from a debilitating medical condition.
Record PDF p. 20; p. 27, ¶2; p. 173, ¶2.
- On August 27, 2009, Coats was placed on the Medical Marijuana Registry.
Record PDF p. 27, ¶2; p. 173, ¶2.
- Coats worked full time for DISH as a telephone customer service representative
for three years. Record PDF p. 27, ¶1. As such, Coats’ position
was not a high profile or hazardous occupation that would endanger himself
- Coats limited his use of medical marijuana to the privacy of his home.
Record PDF p. 28, ¶3; p. 173, ¶2.
- Coats never possessed or used medical marijuana while on company property,
whether before, during, or after work hours. Record PDF p. 28, ¶3;
p. 125, ¶19; p. 143, ¶1.
- DISH never accused or suspected Coats of being intoxicated or under the
influence while on company property, whether before, during, or after
work hours. Record PDF p. 36, ¶5; p. 151, ¶¶1-2.
- Coats had little to no disciplinary history and received average or satisfactory
performance reviews. Record PDF p. 6, ¶¶18-19; p. 151, ¶¶1-2.
- Coats tested positive for THC during a company drug test. Record PDF p.
28, ¶¶4-5; p. 125, ¶20.
- The drug test was accurate about the presence of THC. Record PDF p. 28,
¶¶4-5; p. 125, ¶20.
- The presence of THC is not dispositive about a person’s intoxication
or being under the influence of marijuana. Record PDF p. 36, ¶5;
p. 125, ¶22; p. 143, ¶1.
- DISH terminated Coats solely based on the drug test showing the presence
of THC in his system. Record PDF pp. 16-17; p. 28, ¶6; p. 36, ¶5;
p. 141, ¶1; p. 143, ¶1.
- DISH did not terminate Coats because of any evidence of intoxication or
being under the influence of marijuana at any time. Record PDF pp. 16-17;
p. 28, ¶6; p. 36, ¶5; p. 141, ¶1; p. 143, ¶1; p. 151,
- DISH is a Colorado corporation. Record PDF p. 14; p. 125, ¶ 25; p.
- Coats’ procurement and use of medical marijuana occurred within the
frame work of Colorado’s Medical Marijuana Amendment, including
but not limited to:
a. Residency in the State of Colorado; Record PDF p. 4, ¶4; p. 124,
¶17; p. 125, ¶27; p. 143, ¶1.
b. At all relevant times, possessed a valid state-issued marijuana card;
Record PDF p. 15; p. 124, ¶17; p. 143, ¶1. p. 143, ¶1.
c. Used and possessed equal to or less than the permitted amount; Record
PDF p. 124, ¶17, p. 143, ¶1.
d. A state-approved Colorado physician diagnosed and recommended marijuana
use to Coats as a patient after a legitimate examination. Record PDF p.
27, ¶2; p. 124, ¶ 17; p. 143, ¶1.
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