DISH's firing of paralyzed medical marijuana patient heading to state supreme court

In 2012, Brandon Coats, a paralyzed medical marijuana patient fired by DISH for failing a drug test, filed a complaint over the issue in Arapahoe District Court. When he lost there, attorney Michael Evans brought the case to the Colorado Court of Appeals, where jurists also rejected Coats's argument. But Evans wasn't ready to give up. This past July, he submitted what he described to us as the final document in an effort to get the Colorado Supreme Court to take on the matter -- and at last, the jurists have agreed to take another look at this potentially groundbreaking case.

"It was such a great feeling," Evans says of the moment when he learned the Supreme Court had granted certiorari -- the technical term for accepting the case. "We've worked really hard on this case for four years.

"We don't make any presumptions about how they're going to rule," he adds, "but the fact that they took the case communicates to me that they're saying, 'This is an important issue, your client is important, and we need to resolve this issue for your client and employers as well.'"

As we've reported, Coats, who's in his thirties, is paralyzed over 80 percent of his body. At age sixteen, he was a passenger in a vehicle that crashed into a tree.

Since then, Coats has used a wheelchair to get around, but he's fully capable of working -- and in 2007, he was hired by DISH as a customer service representative. Over the years that followed, his original lawsuit contends that prescription medicine Coats took to treat involuntary muscle spasms began to fail. When searching for a way to deal with these symptoms, his physicians recommended that he supplement his regimen with medical marijuana. He received his state-issued license for MMJ in August 2009 and found that cannabis helped alleviate his spasms. However, the complaint stresses that he never used marijuana at his job during work hours or anywhere on the company's premises.

In May 2010, Coats was ordered to take a random drug test. He's said to have told the employee administering the test that he was an MMJ patient, but this wasn't taken into account when he registered a positive for THC. The agent who broke the news allegedly told him that his status as a patient didn't matter: "That is just Colorado state law and does not apply to your job." Two weeks later, Coats was fired for violating the company's drug policy.

Evans took DISH to court, arguing that Coats's activities were constitutionally protected. But in February 2012, Araphaoe District Judge Elizabeth Beebe Volz granted DISH's motion to dismiss. Among the cases she cited to justify this ruling was one involving Jason Beinor, a medical marijuana patient sacked from his street sweeping job after failing a drug test.

In the wake of more judicial machinations, the Coats case reached the Colorado Court of Appeals. But in a 2-1 decision, the court sided with DISH. The majority decision, written by Judge Janice Davidson and on view below in its entirety, is summarized like so:

The primary question before us is whether federally prohibited but state-licensed medical marijuana use is "lawful activity" under section 24-34-402.5, C.R.S. 2012, Colorado's Lawful Activities Statute. If it is, employers in Colorado would be effectively prohibited from discharging an employee for off-the-job use of medical marijuana, regardless that such use was in violation of federal law. We conclude, on reasoning different from the trial court's analysis, that such use is not "lawful activity."
The bottom line: Because marijuana remains against federal law, employers can use that standard rather than state law as a rationale for banning worker use even off the job.

Quizzed after this ruling, Evans said, "This was a hard decision, because there are a lot of competing interests. So I think they did what was safe. And I also think there's one level above them.

"That's what happens a lot of the time. Trial judges and then Court of Appeals judges may side on the conservative side with an abundance of caution and let somebody else take the risk -- like the Colorado Supreme Court. If anyone is going to tell the federal government that state law is going to prevail in this case, it's going to be the Colorado Supreme Court."

Continue for more about MMJ patient Brandon Coats and the Colorado Supreme Court, including a photo and original documents. On July 5 of last year, as Evans wrote in his online synopsis of developments to date, Coats filed a petition for certiorari on whether the Colorado Lawful Activities Statute should have protected him against DISH's actions. DISH offered a response on July 19, with Evans following up with a document of his own on July 30.

Back then, Evans argued that the results of the Supreme Court taking a pass on the case would have been devastating. Via e-mail, he wrote, "Practically, Colorado employers will have little to no incentive to retain their patient-employees," he maintained. "There are over 140,000 registered medical marijuana patients in Colorado who use medical marijuana to treat a serious illness or disability. That is in addition to unregistered patients. The average patient is 41 years old, which makes it likely that in addition to being employed, they have a family, and possibly a mortgage."

Now that the court has announced its intentions, Evans has 42 days to file a brief, with DISH getting the same span to respond. The justices will announce their take some time after that -- likely by summer.

He's confident members of the court will look at the case with fresh eyes, rather than being biased against Coats because he's lost at lower levels. "I don't think they care what anybody's done in the past," Evans allows.

Does Evans think the court took on the case in part because of the launch of recreational marijuana sales, which potentially increases the number of employees who may run afoul of workplace drug testing many fold? Possibly, he says, but he makes it clear that Coats's case is different. "This was for medical use," he stresses. "It was needed, not wanted. So we try to distinguish it on that spectrum."

At present, Coats remains unemployed, as he has been since DISH let him go. "It's kind of an inverse relationship," Evans says. "The more popular this case gets, the less likely an employer would be to hire him. They might be like, 'I don't want the guy who took DISH to the Supreme Court.'"

How did Coats react to the news regarding the Supreme Court? "He's totally psyched," Evans says. "He told me a bunch of his friends and family have been calling him up. He's not presuming a decision, either. He's just happy they're going to look at it."

Look below to see the Coats case document filed by Evans in July, followed by the Court of Appeals ruling:

Brandon Coats Reply in Support of Amended Petition

Colorado Court of Appeals: Brandon Coats Ruling

Send your story tips to the author, Michael Roberts.

More from our Marijuana archive: "Medical marijuana card not a license to smoke on probation, court rules."

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts