Brandon Coats v. DISH Network, LLC

Colorado Supreme Court Case: Employment v. Off Duty Use of Medical Marijuana

CO Supreme Court Decision 6/15/15

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.”

Background Summary

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 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 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 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. 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 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.

On Monday, 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:

  1. 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.

  2. 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 State statutes.
  • Colorado courts have issued vastly inconsistent opinions interpreting medical marijuana use under the Constitution, making it murky water for employees and employers.
  • 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 assistance
  • 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 occupational qualifications 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 HERE.

See 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
  1. Coats, as a quadriplegic, suffers from a debilitating medical condition. Record PDF p. 20; p. 27, ¶2; p. 173, ¶2.
  2. On August 27, 2009, Coats was placed on the Medical Marijuana Registry. Record PDF p. 27, ¶2; p. 173, ¶2.
  3. 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 or others.
  4. Coats limited his use of medical marijuana to the privacy of his home. Record PDF p. 28, ¶3; p. 173, ¶2.
  5. 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.
  6. 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.
  7. Coats had little to no disciplinary history and received average or satisfactory performance reviews. Record PDF p. 6, ¶¶18-19; p. 151, ¶¶1-2.
  8. Coats tested positive for THC during a company drug test. Record PDF p. 28, ¶¶4-5; p. 125, ¶20.
  9. The drug test was accurate about the presence of THC. Record PDF p. 28, ¶¶4-5; p. 125, ¶20.
  10. 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.
  11. 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.
  12. 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, ¶¶1-2.
  13. DISH is a Colorado corporation. Record PDF p. 14; p. 125, ¶ 25; p. 143, ¶1.
  14. 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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