CAN COLORADO EMPLOYERS TERMINATE YOU JUST FOR BEING A MEDICAL MARIJUANA PATIENT AND USING LAWFULLY AFTER HOURS, OFF THE PREMISES?
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. Read the complaint here.
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 in Colorado. 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 in the right hand column.
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 court did 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. You can read the legal arguments in Mr. Coats' Opening Brief (June 21, 2012), DISH Network's Response Brief, and Mr. Coats' Reply Brief (August 9, 2012). 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.
On April 25, 2013 the Colorado Court of Appeals published an 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. The Court will decide whether it will take the case at some point in the future. If they do decide to take the case, it means they will either change the ruling of the Court of Appeals, or change the legal analysis but arrive at the same result. If they do not take the case, then they indicate that they agree with the Court of Appeals decision and legal analysis.
Photo: DISH Network Main Corporate Offices in Englewood, Colorado.
On April 25, 2013 the Colorado Court of Appeals published an opinion in Brandon Coats v. DISH Network LLC. Read & download the full opinion here. Mr. Coats will ask the Colorado Supreme Court whether it agrees by filing a petition for certiorari. (The Court of Appeals did conclude that DISH was not entitled to attorney fees.) See news and media coverage on this case.
Photo: Attorney Michael D. Evans and client Brandon Coats.
The Undisputed Facts of the Case