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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: 13132
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 # 72.
#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.
He can't win the argument. Who is he arguing to? The Navy. The CO found, “inability to comfort and counsel in a manner that was respectful of the counselee while maintaining dignity and professionalism.” It is alleged he cannot properly perform the function of his job. That is what he must overcome.
He can't win the argument. Who is he arguing to? The Navy. That is the argument he can use when he is suing the Navy for damages for discrimination.
Suing the Federal government, in Federal court, for damages. There is a concept with high hopes (even assuming the allegation is true). http://law.justia.com/codes/us/2012/title-42/chapter-21/subchapter-vi/section-2000e-2/ §2000e–2. Unlawful employment practices (a) Employer practices It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. I assume that would have to be the nature of the complaint you envision. It will be impossible to establish the factual predicate that the Navy acted because of Modder's religion. He was referred to a board of inquiry because of his job performance. The limited prospects for squeezing any money out of the Navy would mean that there would be very little prospect of acquiring an attorney on a contingent fee basis. He would have to foot the bill. It would be in the tens of thousands of dollars with little prospect of getting anything in return. (This is true whether an argument has merit or not.) He cannot rely on a claim that the CO caused his (prospective at this time) separation. His CO referred it to a board of inquiry which will report its findings and, assuming the board finds separation to be indicated, it will go to the Navy bureaucracy to issue an actual separation order. The prospective named respondent in a civil suit being the Secretary of the Navy as head of the agency, not Modder's commanding officer. The recommendation goes to a Separation Authority. He would have to show that the Separation Authority discriminated against him. It's like the Godfather. They use buffers. The CO referred it to a Board of Inquiry for investigation. Good luck suing for that, or for following the findings and recommendations of the Board. If Modder gets separated, that will be decided by the Separation Authority, based on the findings of the Board of Inquiry and recommendation of the CO, and a Discharge Review Board. I believe the Separation Authority will be a flag officer. A Board of Inquiry is an administrative fact finding body and follows Hearing procedure, and does not follow the military Rules of Evidence with a few exceptions as described below. Arguments may be made after the testimony and statements of the parties, if any. http://usmilitary.about.com/od/justicelawlegislation/l/aadischarge1.htm http://www.npc.navy.mil/bupers-npc/reference/milpersman/1000/1900Separation/Documents/1920-210.pdf MILPERSMAN 1920-210, Types of Discharge for Officers At 4: Ultimate determination as to the type and character of separation of an officer shall be made by the Separation Authority. It is emphasized that a. certificates of discharge shall be issued from the Navy Department alone (under no circumstances shall a ship or station issue any form of certificate of discharge to a member separated from the service as a warrant or commissioned officer). b. certificates shall be issued only following separation from the service and not upon release to inactive duty. SECNAVINST 1920.6c, Administrative Separation of Officers ¶ 7b ¶ 13d Encl 1, ¶ 34 a. See paragraph 13.d. of basic instruction. b. Officers (not below the grade of major general or rear admiral) to determine, based on a record review, that an officer shall be required to show cause for retention in the military service. http://www.jag.navy.mil/library/instructions/5830_1A.pdf JAGINST 5830.1, Procedures Applicable to Courts and Boards of Inquiry At 2: At 9-10: a. Rights of a Party. A person duly designated a party before a Court or Board of Inquiry shall be advised of and accorded the following rights: (1) To be given due notice of such designation. (2) To be present during the proceedings, except in accordance with paragraph 9b below and when the investigation is cleared for deliberations. (3) To be represented by counsel. (4) To be informed of the purpose of the investigation and provided with a copy of the appointing order. (5) To examine and object to the introduction of physical evidence and written statements. (6) To object to the testimony of witnesses and to cross-examine witnesses. (7) To request that the Court or Board of Inquiry obtain documents and testimony of witnesses or pursue additional areas of inquiry. See paragraph 11f below. (8) To introduce evidence. (9) To not be called as a witness, but to testify at his request. (10) To refuse to self-incriminate. If a party is suspected of an offense, to be informed of the nature of the accusation and advised that he does not have to make any statement regarding the offense of which he is [9] - - - - - accused or suspected; and that any statement he makes may be used as evidence against him in a trial by court-martial. See paragraph 12d below. (11) To make a voluntary statement, sworn or unsworn, oral or written, to be included in the record of proceedings. (12) To make an argument at the conclusion of the presentation of evidence. (13) To be properly advised concerning the Privacy Act. (14) To challenge members of the Court or Board of Inquiry for cause stated to the court or board, Article 135(d), UCMJ. See paragraph 10f below. At 11: At 15: At 15-16: a. Rules of Evidence. Proceedings under this instruction are administrative and not judicial. Therefore, the Military Rules of Evidence (M.R.E.), other than M.R.E. 301, 302, 303, 412 and 501-507, will not be followed. See JAGMAN 0214 and paragraph 13 of this enclosure as to the standard of proof required to support findings of fact. b. Objections to Evidence. Any member, the counsel for the court or board, a designated party, counsel for a party, or the president may object to the Court or Board of Inquiry considering any evidence. The reason for the objection will be stated on the record. [15] - - - - - c. Rulings. A Court or Board of Inquiry is an administrative Fact-Finding Body and, as such, it is inappropriate except as detailed in this paragraph for the president to rule on objections to evidence. Rather, the objection should be noted for the record. The president may rule, subject to objection detailed in paragraph lid below, on the following matters: (1) Relevancy. Any information relevant to the investigation may be brought before the Court or Board of Inquiry. Relevant information means information having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. The president may rule that evidence is not relevant and exclude its consideration by the court or board. (2) Military Rules of Evidence. The president will make rulings on evidentiary objections to the Court or Board or Inquiry when the objection is based upon the following M.R.E.: 301, compulsory self-incrimination; 302, mental examination; 303, degrading questions; 412, relevance of victim's behavior or sexual predisposition; 501-504, dealing with privileges; 505, classified information; 506, Government information other than classified information; and 507, informants. In ruling on objections, the president will be guided by this instruction and the discussion of the above rules in MCM, 2005. d. Objections to Rulings. Should counsel for the Court or Board of Inquiry, a party or counsel for any party, object to a ruling, the objections will be noted for the record. Should a member object to the president's ruling on any matter, a vote shall be taken in closed session and the decision of the majority shall govern. The court or board may discuss the matter in closed session prior to voting. The president and all members will vote on the issue. In the case of a tie vote, the decision of the president shall govern. The objection and the results of the vote will be noted for the record. At 19: a. Report by the Court or Board. After all the evidence, statements, and arguments have been received, the Court or Board of Inquiry shall declare the inquiry closed. The president and members will then consider the evidence, statements, and arguments, and the instructions contained in the appointing order shall be carefully re-examined and scrupulously followed. At the request of the court or board, counsel for the court or board shall assist in the preparation of the findings of fact, opinions, and recommendations, or any part thereof. In so acting, counsel merely assists the court or board in the transcription of its report. Counsel for the court or board, and counsel for any party, are prohibited from taking part in any deliberations. The report of findings of fact, opinions, and recommendations shall become a part of the record. Dissenting views are authorized if the findings of fact, opinion, or recommendations are not unanimous. See enclosure (6).
#73. To: nolu chan (#72)
You should do something because it is the right thing to do,regardless of your chances of winning. You damn sure won't win if you surrender without fighting back.
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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.
#60. To: nolu chan (#59)
He cannot argue first amendment rights.
#63. To: sneakypete (#60)
He can certainly argue his religious freedom has been denied.
#69. To: nolu chan (#63)
(Edited)
He can certainly argue his religious freedom has been denied.
#72. To: sneakypete (#69)
That is the argument he can use when he is suing the Navy for damages for discrimination.
EQUAL EMPLOYMENT OPPORTUNITIES - 42 U.S.C. § 2000e-2 (2012)
Administrative Separations. Administrative separations cannot be awarded by a court-martial and are not punitive in nature. Enlisted personnel may be administratively separated with a characterization of service (characterized separation) or description of separation (uncharacterized separation) as warranted by the facts of the particular case.
3. Determination of Name and Character of Total Separation.
b. Officers being processed for separation for cause shall be processed expeditiously. Such officers should receive sufficient supervision to preclude adverse effects on the good order and discipline in their unit. Further, when local processing has been completed and separation has been recommended, the officer concerned shall be physically separated from the command whenever possible by means of leave, temporary reassignment, or other methods while processing is being completed by the chain of command.
d. The Chief of Naval Personnel (CHNAVPERS) and the Deputy Chief of Staff for Manpower and Reserve Affairs (DC (M&RA)) are designated as the Show Cause Authority for the Navy and the Marine Corps respectively, and are delegated the authority to review records to determine whether an officer should be required to show cause for retention in the Naval Service and to convene BOIs as provided in enclosure (8). CHNAVPERS may further delegate this authority to Commander, Navy Personnel Command (COMNAVPERSCOM) and Officers Exercising General CourtMartial Jurisdiction (OEGCMJ) with a Staff Judge Advocate (SJA) assigned. The CMC may further delegate this authority to the Director, Marine Corps Staff. Show Cause Authority may be further delegated within the Marine Corps to generals and lieutenant generals in command. Additionally, CHNAVPERS and DC (M&RA) are delegated the authority of approving Resignation/Discharge Orders and certificates in routine matters. CHNAVPERS may further delegate this authority to Commanding Officer, Naval Reserve Personnel Center (NAVRESPERSCEN) .
34. Show Cause Authority. Any of the following when expressly designated by SECNAV:
b. Board of Inquiry. A Board of Inquiry is an administrative, factfinding body authorized by reference (b), consisting of one or more commissioned officers.
9. Party to an Investigation.
(b) Spectators and publicity. Neither the public nor the news media will be permitted to make an audio or video recording, broadcast or televise, or take photographs of the court or board proceedings. A party may tape record proceedings only with the prior approval of the convening authority.
n. Arguments. After the testimony and statements by the parties, if any, counsel for the court or board and counsel for the parties may present argument if they so desire. The impartial role of the counsel for the court or board shall not be abandoned. If counsel for the court or board presents argument, his remarks should be in the nature of a summation of the evidence rather than partisan advocacy. Counsel for the court or board has the right to make the opening argument and, if any argument is made on behalf of a party, the closing argument in rebuttal. If multiple parties have been designated, their counsel shall present argument in the reverse order of seniority, the most junior party presenting the first argument. The court or board may set any reasonable limitation on the length of arguments.
11. Evidence.
14. Written Report by the Court or Board of Inquiry.
Replies to Comment # 72. Suing the Federal government, in Federal court, for damages. There is a concept with high hopes (even assuming the allegation is true).
End Trace Mode for Comment # 72.
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