Marijuana

Marijuana: Paralyzed MMJ patient plans Supreme Court appeal over DISH sacking

Last year, 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.

Now, those jurists have also rejected Coats's argument. But Evans says he and Coats aren't done fighting.

Next hoped-for stop: the Colorado Supreme Court. Details and documents below.

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 work, 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.

As we've noted, the elements of the Coats and Beinor matters aren't identical; the latter dealt with an unemployment benefit claim, not his firing. Yet Volz described the circumstances as "substantially similar," and she noted that the Beinor finding came up in a Court of Appeals opinion in a subsequent matter, People v. Watkins; that dispute involved an MMJ patient on probation who was told he couldn't medicate without violating his parole.

After 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.

Judge John Webb dissented to the ruling, writing, "In my view, 'lawful activity' under section 24-34-402.5, C.R.S. 2012, Colorado's off-duty conduct statute, should be measured by state law. I further conclude that use of marijuana in a manner permitted by the Medical Marijuana Amendment, Colo. Const. art. XVIII, § 14 (MMA), is lawful." But this opinion didn't sway his colleagues.

Evans's take?

Continue for more about the Brandon Coats ruling, including the complete decision.

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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

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