"Dish says, ‘Judge, you can’t force employers to keep these people on the payroll,’" Evans maintains. "And we argue, ‘Judge, if you don’t, you’re basically sentencing 175,000 people to the unemployment line’" — the figure referring to his estimate of the total number of Coloradans who’ve been approved to use medical marijuana since it became legal to do so.
Dish, for its part, doesn’t comment on the specifics of employee matters. But in an e-mail to the New York Times for a 2010 story that mentioned Coats, company spokeswoman Francie Bauer wrote, "As a national company with more than 21,000 employees, Dish Network is committed to its drug-free workplace policy and compliance with federal law, which does not permit the use of marijuana, even for medicinal purposes."
According to the original complaint, filed in Arapahoe County District Court and on view below along with several other related documents, Coats, who’s in his early 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, he’s been confined to a wheelchair, 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, the suit 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.
Cut to May 2010, when Coats was ordered to take a random drug test. According to the suit, he told the employee administering the test that he was a medical marijuana patient. But his status wasn’t taken into account when he registered a positive reading for THC.
Upon learning of these results a few days later, Coats again noted that he was a medical marijuana patient. In response, the agent sharing the news allegedly said, "That doesn’t matter. That is just Colorado state law and does not apply to your job."
Employees in the Dish human resources department were less immediately dismissive, due in part to the quality of his job evaluations.
"We have his performance reviews from all three years, and all of them are satisfactory," Evans says. "He performed well, and he was never high on the job — and they concede they never determined he was."
Nonetheless, after two weeks, Coats was fired for violating the company’s drug policy. "THC can stay in the system for thirty to 45 days," Evans notes, "and they argue that the presence of any THC is grounds for dismissal."
Evans doesn’t see this contention as unreasonable in every situation. "You could say there are occupations that nobody would want an employee to have THC in his system. A roofer. A bus driver. But Mr. Coats sat at a desk all day long. He’d push a button and answer a phone call. He’s a desk jockey and didn’t have a dangerous occupation."
In the end, though, Evans never got the chance to make distinctions like this one in open court. On February 29 of this year, District Judge Elizabeth Beebe Volz granted Dish’s motion to dismiss before anyone set foot in a courtroom.
In her findings, Volz cited two cases — most prominently one involving Jason Beinor, a medical marijuana patient sacked from his street sweeping job after failing a drug test. The elements of the Coats and Beinor cases aren’t identical; the latter dealt with an unemployment benefit claim, not his firing. Yet Volz describes the circumstances as "substantially similar," and she notes that the Beinor finding came up in a Court of Appeals opinion in a subsequent matter, People v. Watkins. The latter ruling "interpreted the Medical Marijuana Amendment" — Amendment 20 — "as merely providing ‘an exception from the state’s criminal laws for any patient in lawful posession of a "registry identification card" to use marijuana for medical purposes,’" she writes.
As such, Volz believes that these interpretations "limit the effect of the amendment as an affirmative defense to criminal prosecution" but don’t "make the use of medical marijuana a lawful activity, so as to preclude an employer from termination based on this conduct."
Hence, she found that "use of marijuana, even where such use is in full compliance with Colorado’s Medical Marijuana Amendment, is not a lawful activity" and rejected Coats’s complaint.
Evans is appealing the dismissal — a decision for which he believes Dish wants Coats to pay dearly. "They filed a single motion to dismiss, which the trial court approved, and now they’re seeking $44,000 in attorney fees from Brandon," he says. "That’s their strategy: ‘We don’t want you to appeal, so we’ll make this so expensive.’ But we’re fighting those fees and continuing with the appeal."
In the meantime, Coats remains unemployed, as he has been since being being dumped by Dish in 2010. "Employers catch on very quickly as to why he’s been terminated," Evans says. "So, with this being an unresolved issue, he’s enrolled in a community college while he’s been looking for employment and waiting for this issue to be resolved."
The appeal is expected to continue moving forward over the next month or so, with an opening brief describing why the case should be reversed and remanded to be followed by a response within thirty days. There’s also the possibility that the State of Colorado could file an amicus brief — although Evans can’t predict at this point who officials might back.
"I don’t know if they’ll take the side of the employees who could lose their jobs or the corporations," he admits. "Their budget crises has been all but alleviated because of medical marijuana, and if they go with the corporations, they’ll have to pay state benefits for unemployment. So it will be interesting to see what side they take."
Whatever happens, Evans hopes Coats will have an opportunity to personally share his experiences. "The Court of Appeals can request oral arguments," he says, "and I’d love nothing better than to wheel Brandon Coats into that courtroom."
News Hawk – 420 Warrior 420 MAGAZINE
Location: Arapahoe County, CO
Source: Denver Westword
Author: Michael Roberts
Copyright: © 2012 Denver Westword, LLC.