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Title: Colorado Supreme Court: Employers can fire for off-duty pot use
Source:
The Denver Post
URL Source: http://www.denverpost.com/marijuana ... ms-lower-court-rulings-medical
Published: Jun 15, 2015
Author: Alicia Wallace
Post Date: 2015-06-15 14:23:07 by cranky
Keywords: None
Views: 13178
Comments: 80
Lawyer for Dish Network employee fired after using medical pot to treat muscle spasms calls ruling "devastating". Brandon Coats, right, with his mother Donna Scharfenberg sitting by his side, Sept. 30, 2014. The Colorado Supreme Court on Monday affirmed lower courts' rulings that businesses can fire employees for the use of medical marijuana — even if it's off-duty. The 6-0 decision comes nine months after the state's highest court heard oral arguments in Brandon Coats' case against Dish Network. Coats, who had a medical marijuana card and consumed pot off-duty to control muscle spasms, was fired in 2010 after failing a random drug test. Coats challenged Dish's zero-tolerance drug policy, claiming that his use was legal under state law. The firing was upheld in both trial court and the Colorado Court of Appeals. DOCUMENT: Colorado Supreme Court affirms ruling When the case went to the state Supreme Court, legal observers said the case could have significant implications for employers across Colorado. They also noted that the ruling could be precedent-setting as Colorado and other states wrangle with adapting laws to a nascent industry that is illegal under federal law. As such, the question at hand is whether the use of medical marijuana — which is in compliance with Colorado's Medical Marijuana Amendment — is "lawful" under the state's Lawful Off-Duty Activities Statute. That term, the justices said, refers to activities 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," Justice Allison H. Eid wrote in the opinion. The justices said the court will not make a new law. Current Colorado law allows employers to set their own policies on drug use. Coats' attorney Michael Evans, of Centennial-based The Evans Group, called the decision "devastating." "For people like Brandon Coats, there really isn't a 'choice,' as MMJ is the only substance both he and his (Colorado-licensed) physicians know of to control his seizures due to his quadriplegia," Evans said. "He has to have it. " A silver lining of the decision, Evans said, is that it provides clarity in a "scary, gray area" of state law. "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," Evans said in a statement. Six of the seven justices decided on the case. Justice Monica Marquez recused herself because her father, retired Senior Judge Jose D.L. Marquez, was on the Court of Appeals panel that upheld Coats' firing. Sam Kamin, a law professor at the University of Denver, said the justices' decision comes as no surprise. "It's easy to make too much of this decision," he said. "It really comes down to interpreting this one word in this one statute." As a matter of statutory interpretation, the court got it right, he said. But for Coats and medical marijuana advocates, this is a blow, Kamin said. Coats was a "dream plaintiff" in that marijuana served as medicine, he said. Coats was rendered a quadriplegic by a car accident and used marijuana to control leg spasms. The cause likely would land in the hands of the state legislature, Kamin said. "I think (Coats') case is very sympathetic, and I think his case would be quite compelling before the legislature," Kamin said. 
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Begin Trace Mode for Comment # 70.
#1. To: cranky (#0)
It's a bullshit ruling. Can they also fire people for drinking away from the job if they aren't coming to work drunk?
"At Will" The Corporate Hive can fire anybody for anything. No cause? No problem. Just manufacture "perception" issues and Hasta La Vista Mr./Ms. "Tea Bagger".
"At Will" The Corporate Hive can fire anybody for anything. No cause? No problem. Just manufacture "perception" They can and will do it until they do this to someone who has a close relative that is a good lawyer.
Be interesting to see how this Navy Chaplain's complaint turns out: www.breitbart.com/big- gov.../11/naval-chaplain-files-formal-complaint-over-christian- persecution/ His situation is a good example of how "progressives" cooperate like social wolves hunting their prey.
www.breitbart.com/big- gov.../11/naval-chaplain-files-formal-complaint-over-christian- persecution/ Bad link.
www.breitbart.com/big- gov.../11/naval-chaplain-files-formal-complaint-over-christian- persecution/ by AUSTIN RUSE11 Jun 2015 Chaplain Wes Modder spends his days basically alone in the base chapel. He is no longer allowed into his office. By order of his commanding officer, he is not allowed even to speak to the sailors in his unit. If anyone from his unit comes into the chapel, he may not speak with them. His commanding officer, Captain Jon Fahs, has taken this unusual step because of complaints lodged against Modder by a handful of sailors who claim he is “unable to function in a pluralistic and diverse Navy.” Modder ran into the buzzsaw of political correctness related to human sexuality. Fahs requested various actions against Modder, including taking him off the promotions list, separating him for cause, and initiating a board of inquiry. None of that has happened yet and, in the meantime, Modder sits alone unable to help his fellow sailors. Modder was not even allowed to minister to his unit personnel after a recent suicide in the unit. Modder and his lawyers at the Liberty Institute have taken the highly unusual step of filing a complaint against his commanding officer. According to Modder’s lawyer Mike Berry, it is almost unprecedented for a subordinate officer to file such a complaint. An Article 138 complaint allows a subordinate to circumvent the chain of command and complain to higher-ups about a superior officer who has done something wrong. The Article 138 complaint would force his commanding officer to let Modder do his job and to do it in line with his endorsing denomination. Modder’s Article 138 complaint will go to Admiral John Richardson, Director for Naval Reactors, who is also President Obama’s nomination for Chief of Naval Operations and a seat on the Joint Chiefs of Staff. [snip]
I have no idea how his commanding officer can get away with that. He should complain to whatever organization runs the religious cult he belongs to,and have them sue the Navy. You can bet your ass the Navy would never try it if he were a Catholic Priest,a Rabbi,or a Muslim cleric.
I do. This would certainly not be a one-off occasion. And not only can the CO get away with it, there is not much Modder can do about it but throw himself at the feet of the CO and beg for mercy. Please note that Navy discipline functions differently than other services even though they all function under the UCMJ. In the Army, if the CO decides to award you non-judicial punishment (NJP) at "Office Hours," you can decline the penalty and demand a court-martial. Sailors on ships at sea cannot decline the NJP at what is called "Captain's Mast" in the Navy. 2012 Manual for Courts-Martial, page V-2: Except in the case of a person attached to or embarked in a vessel, punishment may not be imposed under Article 15 upon any member of the armed forces who has, before the imposition of nonjudicial punishment, demanded trial by court-martial in lieu of nonjudicial punishment. That sort of power can create a god complex. It's why we say that the closest thing we have to a god is the captain of a naval ship at sea. https://en.wikipedia.org/wiki/Wes_Modder Modder stepped in it and his assistant officer prepared and brought the case against him. The LTJG was in a prime position to document events and prepare the case. Modder, a member of the Pentecostal Assemblies of God denomination, has been removed from his post at NNPTC and temporarily reassigned to Naval Support Activity Charleston as a staff chaplain while Navy Personnel Command reviews Fahs’ recommendations. In a Feb. 17 memo to Navy Personnel Command, Fahs said that a command investigation, which was conducted following complaints from several sailors, found that Modder: Modder and his attorney, Mike Berry, denied that the chaplain said or did anything inappropriate, and filed a religious accommodation request with the Navy last week. Modder cannot prevail on a religious accomodation request to counsel homosexuals that they should pray away the gay. The CO finds a threat to good order and discipline. Defendant denies it. CO wins. Fahs said Modder failed in his duty to “be sensitive to the religious, spiritual, moral, cultural, and personal differences” of his fellow sailors, and demonstrated an “inability to comfort and counsel in a manner that was respectful of the counselee while maintaining dignity and professionalism.” [...] Modder has served in the Navy for 19 years. He stands to lose substantial retirement benefits if a potential board of inquiry forces him into early retirement before he reaches 20 years of service. The military here is clearly trying to set an example. Modder may have told the CO that he intends to keep doing what he has been doing. In that case, it is like challenging the CO to a dick measuring contest. Below is the 2014 DoD policy change. There is always the stuff about good order and discipline and unit cohesion. http://www.dtic.mil/whs/directives/corres/pdf/130017p.pdf DoD Instruction 1300.17, February 10, 2009; Incorporating Change 1, Effective January 22, 2014. SUBJECT: Accommodation of Religious Practices Within the Military Services Paragraph 4, b thru e: Red font indicates new content added in 2014 and with strikeout, deleted content. c. DoD has a compelling government interest in mission accomplishment, including the elements of mission accomplishment such as military readiness, unit cohesion, good order, discipline, health, and safety, on both the individual and unit levels. An essential part of unit cohesion is establishing and maintaining uniform military grooming and appearance standards. d. In so far as practicable, a Service member’s expression of sincerely held beliefs (conscience, moral principles, or religious beliefs) may not be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment. (1) In accordance with section 2000bb-1 of Title 42, United States Code (Reference (e)), requests for religious accommodation from a military policy, practice, or duty that substantially burdens a Service member’s exercise of religion may be denied only when the military policy, practice, or duty: (a) Furthers a compelling governmental interest. (b) Is the least restrictive means of furthering that compelling governmental interest. (2) Requests for religious accommodation from a military policy, practice, or duty that does not substantially burden a Service member’s exercise of religion should not be evaluated under the standard established in paragraph 4e(1). Under these circumstances, the needs of the requesting Service member are balanced against the needs of mission accomplishment. Only if it is determined that the needs of mission accomplishment outweigh the needs of the Service member may the request be denied. - - - - - His "cult" or whatever would not have standing to sue. He can waste his time trying. He should be prepared to be his own lawyer or have very deep pockets. Even if he had a good case, the Navy can litigate it from now until all avenues are exhausted or his finances are exhausted. And suit canot be brought in court until all administrative remedies have been exhausted. The process could take years. He cannot argue first amendment rights. He must argue against, “inability to comfort and counsel in a manner that was respectful of the counselee while maintaining dignity and professionalism.” Maybe the CO acted just because he hates Modder's "cult," or fundamentalists in general, but that would be a challenge to prove.
He can certainly argue his religious freedom has been denied. Maybe the CO acted just because he hates Modder's "cult," or fundamentalists in general, but that would be a challenge to prove. While it isn't absolute "proof",he can argue that his CO has a record of NOT pursuing similar actions against other religious sects as an indication that he and his faith were discriminated against. I'm probably not the most religious guy you will ever meet,but even I can see this seems to be what has happened. Fair is fair.
He needs to provide relevant evidence that he can properly perform his job. He can argue that he is an aggrieved party and other stuff, but he would be doing it as a civilian without a military pension. His CO is a Captain (O-6 in the Navy) and it appears clear that he wants to get rid of Modder. It looks like they are going to hold a board and just push him out the gate. If the Board finds he should go, he may find himself gone. This is not a judicial matter, it is an administrative matter. It's not like he is getting a trial. And the military justice system is to promote good order and discipline. It's part of that federal law enforcement that I came to know and love. /sarc The CO is not demonstrating his fairness. He is demonstrating his power. Who is going to reverse him?
He should be able to get some of the sailors that came to him while they were both on AD to testify for him. The CO is not demonstrating his fairness. He is demonstrating his power. Who is going to reverse him? Anybody up the military food chain that is of equal or higher rank.
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#38. To: sneakypete (#1)
(Edited)
Can they also fire people for drinking away from the job if they aren't coming to work drunk?
#39. To: VxH (#38)
Can they also fire people for drinking away from the job if they aren't coming to work drunk?
#41. To: sneakypete (#39)
#42. To: VxH (#41)
Be interesting to see how this Navy Chaplain's complaint turns out:
#50. To: sneakypete, VxH (#42)
Be interesting to see how this Navy Chaplain's complaint turns out:
Bad link.
NAVAL CHAPLAIN FILES FORMAL COMPLAINT OVER CHRISTIAN PERSECUTION
#55. To: nolu chan (#50)
Chaplain Wes Modder spends his days basically alone in the base chapel. He is no longer allowed into his office. By order of his commanding officer, he is not allowed even to speak to the sailors in his unit. If anyone from his unit comes into the chapel, he may not speak with them.
#59. To: sneakypete (#55)
I have no idea how his commanding officer can get away with that.
3. Right to demand trial
On December 6, 2014, Modder's temporary lieutenant junior grade officer and assistant brought two Equal Opportunity representatives and a five-page complaint against him. The complaint was on the grounds of discrimination of sexual orientation and different standards of respect including that of pre-marital sex. Unbeknown to Modder, his assistant was a married homosexual.
Last month, NNPTC commander Capt. Jon Fahs requested that Navy chaplain Lt. Cmdr. Wesley Modder be “detached for cause.” Fahs also recommended Modder be denied promotion and made to show cause for retention in the Navy.
Congressional law and Defense Department regulations require the military to accommodate the religious beliefs of servicemembers to the extent practical and prohibits the military from taking disciplinary action against servicemembers or chaplains for expressing their religious views unless their actions and speech threaten “good order and discipline.”
“In your case, I find that your ability to express your religious beliefs during pastoral counseling has not been restricted or substantially burdened,” Fahs said. “The decision to relieve you from your duties is based on your failure to uphold … the professional standards of conduct and the guiding principles of the Chaplain Corps.”
b. In accordance with section 533(a)(1) of Public Law 112-239 (Reference (d)), as amended, unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Military Departments will accommodate individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs) of Service members in accordance with the policies and procedures in this instruction. This does not preclude disciplinary or administrative action for conduct by a Service member requesting religious accommodation that is proscribed by Chapter 47 of Title 10, United States Code (the Uniform Code of Military Justice), including actions and speech that threaten good order and discipline.
e. It is DoD policy that rRequests for religious accommodation shall will be resolved in a timely manner and should will be approved when accommodation would not adversely affect mission accomplishment, including military readiness, unit cohesion, good order, discipline, health and safety, or any other military requirement. For requests for religious accommodation when accommodation would adversely affect mission accomplishment: He should complain to whatever organization runs the religious cult he belongs to, and have them sue the Navy.
#61. To: nolu chan (#59)
He cannot argue first amendment rights.
#64. To: sneakypete (#61)
While it isn't absolute "proof", he can argue that his CO has a record of NOT pursuing similar actions against other religious sects as an indication that he and his faith were discriminated against. I'm probably not the most religious guy you will ever meet,but even I can see this seems to be what has happened.
Fair is fair.
#70. To: nolu chan (#64)
He needs to provide relevant evidence that he can properly perform his job.
Replies to Comment # 70.
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