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Title: Coats v. DISH, Colorado Trial Court, Case Dismissed, licensed medical marijuana user fired for positive THC test (29 Feb 2012)
Source:
Dist Ct Arapahoe Cty CO
URL Source: https://www.scribd.com/document/886 ... garding-Dish-Motion-to-Dismiss
Published: Sep 15, 2016
Author: Judge Elizabeth Beebe Volz
Post Date: 2016-09-15 17:47:19 by nolu chan
Keywords: None
Views: 3551
Comments: 11
Brandon Coats v DISH Network, LLC, Dist Ct Arapahoe Cty, CO, 11-CV-1464, ORDER RE DISH NETWORK LLC’S MOTION TO DISMISS (29 Feb 2012) Plaintiff: BRANDON COATS Case Number: 11-CV-1464 ORDER RE: DISH NETWORK LLC’S MOTION TO DISMISS THIS MATTER comes before the Court on Defendant Dish Network LLC's ("Dish") Motion to Dismiss pursuant to C.R.C.P. Rule 12(b)(5) failure to state a claim. The Court having reviewed the pleadings, file and applicable authorities, hereby Finds and Orders as follows: BACKGROUND On August 12, 2011 Plaintiff Brandon Coats ("Coats") a former employee of Dish filed a Complaint asserting a claim for relief pursuant to C.R.S. §24-34-402.5, alleging that he was wrongfully terminated from his employment as a telephone Customer Service Representative, following a random drug test that showed the presence of THC, a component of marijuana. (Complaint, ¶'s 5, 22, 27, 38, 39 and 49). It is undisputed for purposes of this Motion that Coats suffers from a "debilitating medical condition," that he was "placed on the Medical Marijuana Registry," and that his "use of medical marijuana was limited to use at his home." (Motion, ¶'s 2 and 3). On September 20, 2011 Dish filed the within Motion asserting that Coat's claim for relief pursuant to §24-34-402.5, which generally prohibits employers from terminating employees based on legal activities, must be dismissed as a matter of law because the consumption of marijuana, even by those persons on the Medical Marijuana Registry is not a "lawful activity." (Motion, pp. 3 . 4). Coats opposes the Motion, arguing that Article XVIII, Section 14 of the Colorado Constitution, the so-called Medical Marijuana Amendment, makes his use of medical marijuana lawful, notwithstanding the fact that the activity may be illegal under federal law. FINDINGS & ORDER Standard of Review "A motion to dismiss pursuant to C.R.C.P. 12(b)(5) tests the sufficiency of the complaint. [citation omitted] A reviewing court must accept all averments of material fact as true and view the allegations in the light most favorable to the plaintiff. [citation omitted] The court cannot grant a motion to dismiss for failure to state a claim unless it appears beyond doubt that no set of facts can prove that the plaintiff is entitled to relief. Lobato v. State, 218 P.3d 358, 367 (Colo. 2009). When addressing a motion to dismiss "the general rule is that, although a court primarily considers the pleadings, certain matters of public record may also be taken into account, and matters that are properly the subject of judicial notice may be considered without converting the motion into one for summary judgment." Walker v. Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006). Medical Marijuana Amendment The central issue in this matter is whether or not the use of marijuana in compliance with the Medical Marijuana Amendment constitutes a "lawful activity" protected by C.R.S. §24-34-402.5. Colorado Courts have interpreted the Medical Marijuana Amendment in a variety of circumstances. In circumstances substantially similar to the facts of this case, the Court of Appeals upheld a denial of unemployment benefits for an employee terminated because of his use of medical marijuana. Beinor v. Industrial Claim Appeals Office, 262 P.3d 970, 977 (Colo. App. 2011). The court in Beinor stated that its ruling was limited to deciding whether the use of medical marijuana pursuant to the referenced Constitutional Amendment shielded a person from a denial of unemployment benefits. Beinor, 262 P.3d at 976 ("We are not deciding whether the amendment limits an employer from discharging an employee for using medical marijuana.". Despite this statement the court indicated that the Medical Marijuana Amendment would not prevent an employer from discharging an employee for the use of medical marijuana. Beinor, 262 P.3d at 976 ("[W]e note that in the context of wrongful termination cases, language similar to [the unemployment benefits statute] has been interpreted not to require employers to accommodate employees' off-site use of medical marijuana.") In a more recent case the Court of Appeals interpreted the Medical Marijuana Amendment as merely providing "an exception from the state's criminal laws for any patient in lawful possession of a 'registry identification card' to use marijuana for medical purposes." People v. Watkins, 2012 WL 310776, p.4; 2012 COA 15: ¶23. The court in Watkins discussed the holding in Beinor that "the Amendment created a defense to criminal prosecution and is not a grant to medical marijuana users of an unlimited constitutional right to use the drug in any place or any manner." Watkins, 2012 WL 310776, p.4; 2012 COA 15: ¶25. These interpretations of the Medical Marijuana Amendment limit the effect of the amendment as an affirmative defense to criminal prosecution. The amendment does not make the use of medical marijuana a lawful activity, so as to preclude an employer from termination based on this conduct. CONCLUSION Because the Court finds that use of marijuana, even where such use is in full compliance with Colorado's Medical Marijuana Amendment, is not a lawful activity, Plaintiff's Complaint must be dismissed pursuant to C.R.C.P. 12(b)(5) for failure to state a claim. SO ORDERED THIS February 29, 2012. BY THE COURT: Elizabeth Beebe Volz DISTRICT COURT, ARAPAHOE COUNTY
STATE OF COLORADO
7325 South Potomac Street
Centennial, Colorado 80112
v.
Defendant: DISH NETWORK, LLC
Div. 309
District Court Judge
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#1. To: nolu chan (#0)
This is how they got my cousin. He would party on the weekends and work all week without doing any pot(Thats the way we all were back in the 80's. Work hard party even harder). Traces of pot stays in your system for along time even though all the affects are gone in hours. He got his random test and failed it for pot. Ruined his life. Got divorce, lost his kid to his POS wife and then he mentally lost it within a year. A fully functions person and a contributor to society now is on social security because he could not deal with the aftermath. As a result of not having a good father figure around it messed up his kid because of his POS ex-wife. The kid ended up being prescribed anti-depressants but never stopped smoking pot. He quit taking the anti-depressants which caused hit to go into a bigger cycle of depression until he blew his brains out. I think he was 18-20 years old Government should be ashamed of itself for destroying lives over pot.
I am not here to preach to you about how you shouldn’t smoke marijuana. I am not here to tell you what you are doing with your life is wrong or that you should live it my way. I am here to show other young people like me that sometimes marijuana is not the answer. I am not entirely against the use of this herb. There are many people out there who I know that benefit from using the oil, and even smoking it for health reasons. I understand people use it to cope with anxiety, PTSD, cancer and a range of other issues. However, I no longer think it should be legalized or distributed in Canada any differently than it already is. I think it should be easier to get it prescribed from doctors for people who truly need it—those need marijuana to cope. Yes, cope. That is ultimately the benefit of marijuana. I know clinical trials have shown that it may be possible to treat cancer with marijuana, but the American Cancer Society says, “While the studies so far have shown that cannabinoids can be safe in treating cancer, they do not show that they help control or cure the disease.” I was an avid smoker of marijuana for four years. For three of those years I smoked it every single day. I calculated my total sober days in this three year period I was probably sober for about three weeks. It started when I was going through a rough time in high school. I was deeply depressed, to the point of wanting to take my own life. I was self-harming— burning my skin with my straight-iron and or curling iron. I would cut up my hands with screw-drivers—it was pretty brutal. Then I met a guy at the end of high school who saw my cuts and wanted to help. So he told me, “Chelsea, the next time you feel this way. Call me and I’ll come pick you up.” So the next time I felt that dark I phoned him up. He came and picked me up, and asked me if I knew how to smoke out of a bong. I tried it and I loved it. All the sadness, guilt, loneliness, anxiety and depression were gone. Instead I didn’t feel anything and that was awesome. Then I started smoking marijuana everyday. I made new friends who smoked it. I dated guys who only smoked it. I would lash out at any loved one who got upset with me for being stoned at a family function saying, “I need it to make me happy.” I completely stopped taking my anti-depressants because those were chemicals and this was a herb from the ground. I thought I was going the natural way. This is when my downward spiral started. I changed. I became lazy. I replaced doing things I used to enjoy doing, that made me happy before—like writing, reading, playing video games, running and taking pictures— with taking tokes from the bong. I was spending $60 a week to keep up with my drug habit. When I woke up, I smoked marijuana. Before bed, I smoked marijuana. After work, I smoked marijuana. Every hour I was at my window lighting up my bong blazing away. I became forgetful. I would forget important things going on in my family’s life. I would ditch friends because I was too lazy, which is a nicer way of saying stoned, to go. My eating habits became awful. I lived off fast-food and chips because of the munchies. I can no longer eat a full meal without being stoned and I am still working on that. I did everything high. I was never myself. I was just floating through life on a cloud of smoky numbness. I couldn’t be excited when my brother called me to tell me how well he did on a report he wrote. I couldn’t be thoughtful and call my sister to let her know she did a good job on her public speech. I couldn’t hangout with my youngest sister without being agitated all the time. I only called them to talk or hangout when I decided it was a good time. The only people that would hang around me were those who either wanted to smoke my marijuana or just didn’t want to get high by themselves. Whenever I didn’t have marijuana or a place to blaze at, these same people stopped talking to me. All of my true, mature, caring friends—the ones who were there for me when I was sad or going through a hard time— stopped calling me. They stopped asking to hangout, because my conversations went from “I read this really interesting book the other day you should take a look at it” to “You should have seen the “nug” I got the other day, it was bigger than a frog I swear.” My brain was being fried. They were growing up and doing things with their lives while I was wasting my time and money. Now, not all of my friends did this. I am truly grateful for all the people in my life who called me despite everything— despite the fact that my whole life revolved around pot. I was into guys who smoked pot. I had friends who smoked pot. I knew where to find a hook-up for pot. And the friends who smoked it weren’t friends if I didn’t. Marijuana actually made my anxiety worse. I started to become paranoid about going out in public because I thought everyone knew I was stoned. I couldn’t go into places with large groups without having anxiety attacks. My depression got worse because I locked myself in my house all day and I stopped doing things that made me happy. I was numb—all the time. My anxiety got so bad that I had to leave my home, my boyfriend and my job to move back with my mom and get help. I couldn’t function on a daily basis without having at least five panic attacks— paranoid thought attacks. I was missing out on great opportunities because I had zero motivation. I had to come to the realization that I had gotten this low through my own choices and actions. Once I made this step, how many of my stoner friends have called me to see how I’m doing? Zero. I haven’t been off the pot for a long time now, but since I have, my thoughts have been healthier, my relationships are slowly mending and I’m slowly getting my life back. However, when I’m bored, I find myself thinking things like, “Man, I wish I could take a fat bong rip right now.” I am fully aware of how dumb that sounds. How immature. How little of my good qualities these thoughts actually reflect. I abused marijuana. I’m sure there are people out there that can function fully and still have great relationships while living thehigher life. I’m so happy it works for you, but for me it just didn’t. I’m not here to judge, look down on or resent anyone. You do your thing and I’ll do mine. For me, smoking marijuana was not the answer. If I had used alcohol like I used marijuana to cope with life, I would be an alcoholic. If I used cocaine in the same way, I would be an addict. It’s the same thing. To truly work on ourselves you have to be ourselves, and when we are in an altered state of mind, we are not ourselves. How can we be happy with who we are if we aren’t actually being who we are? I hope that marijuana becomes more available medically, for those who need it. However, I don’t think it should be freely available to anyone to abuse it as I have. Especially not young people. I was a child when I started using marijuana and I did not know how to use moderation. May my story be of benefit and may you know that you have the freedom to live your life the way you want to. I hope you make good use of that freedom. Via Chelsea Perron http://www.elephantjournal.com/2015/08/how-marijuana-ruined-my-life/.
But he knew his employer randomly tested for pot. Which, in the 80's, was an illegal drug even at the state level. But he continued using. And that's the government's fault? In some states your employer can fire you for smoking legal tobacco outside of work. So his smoking illegal pot doesn't get any sympathy from me.
Some people have addictive personalities. If not drugs it could be porn, sex, work, TV or whatever. You should never let something control your life and you should be the master of your life.
We all smoked pot where I lived growing up. You were more likely to smoke pot than not. Pot does not affect you once the main affects are gone. As long as we allow alcohol we should allow pot which is less harmful than alcohol. Its really a natural crime to prohibit pot and allow alcohol.
That's a St. Elizabeths Mental Hospital prescription drug story, from the first guy to successfully scale the White House fence. Foster MacKenzie III, aka Root Boy Slim George W. Bush kicked him out of the Delta Kappa Epsilon fraternity at Yale. He died at age 48, having been on prescription drugs for many years. https://en.wikipedia.org/wiki/Root_Boy_Slim Advocating marijuana legalization is not the same thing as advocating marijuana use. Recently some state rep who advocated against mandatory motorcycle helmet use died in a motorcycle accident. But in spite of his work against that state law, he was wearing a helmet when he had the accident, but died anyway. This person was apparently able to use $60 a week worth of pot for some years even though it was illegal. The testimony is certainly valuable for others to read and be educated on the harmful side of recreational marijuana. I say marijuana use should not be widespread, and I myself do not advocate it's recreational use. But keeping it illegal is not necessarily the best means to that end, and in fact, can itself result is harm coming to people, as Justified illustrated with his cousin's experience. Between the two cases, two people came to harm, one because marijuana was illegal, and other in spite of it being illegal. Where then, was the benefit in these 2 cases of having marijuana illegal? Freedom is about having the right to make choices in life, and removing choices that are harmful to oneself is not freedom. When you take away people's freedom, you also take away their responsibility, and when you do that, you take away their ability to take care of themselves and make good decisions for themselves. I'm all for education, like the account you posted, Gatlin, so people can be better enabled to make good decisions about how they manage their lives. But in my view, making things illegal because people can hurt themselves with them is not the answer, and in fact, can make things worse, as Justified illustrated.
I am not here to tell you what you are doing with your life is wrong or that you should live it my way. I am here to show other young people like me that sometimes marijuana is not the answer. I am not entirely against the use of this herb. There are many people out there who I know that benefit from using the oil, and even smoking it for health reasons. I understand people use it to cope with anxiety, PTSD, cancer and a range of other issues. However, I no longer think it should be legalized or distributed in Canada any differently than it already is. I think it should be easier to get it prescribed from doctors for people who truly need it—those need marijuana to cope. Yes, cope. That is ultimately the benefit of marijuana. I know clinical trials have shown that it may be possible to treat cancer with marijuana, but the American Cancer Society says, “While the studies so far have shown that cannabinoids can be safe in treating cancer, they do not show that they help control or cure the disease.” If the people choose to legalize marijuana by removing the federal prohitibion, that is their choice. I would not have a tantrum about it, even though it offers problems. I am strongly opposed to those uninformed persons who seek to preach that it is now legal, and seek to inform people that they are now free to grow it, possess it, use it and distribute it without fear of legal consequences. I am even more strongly opposed to those informed people who know what they are saying is false, but seek to overwhelm the justice system with people, not including themselves, who act upon what they are told and then face the consequences. The fact is that marijuana is very clearly unlawful in all 50 states, the District of Columbia, and the incorporated territories of the USA. As shown by this case, and others, people can get ensnared by the legal consequences even though they are never subjected to any criminal prosecution. In paragraph 6 of the Colorado Supreme Court Opinion, they provided some very relevant information. (I will post that Opinion after posting the Appeals Court opinion). Presumably, Coats was "certain" of his rights, gave DISH the finger, and announced his intention to continue using marijuana. However, DISH had a zero tolerance policy, and his knowledge was "certain" but unfounded. What he really did was tie the hands of DISH and ensure his loss of employment. Had DISH kept him employed, in every future case the employee threatened with termination would have pleaded disparate treatment. That has won many, many a case, especially in government employment involving a union. There is a real danger when people go about selling the idea that the people have legal rights that do not exist. Some other person may buy what they are selling and find out about the consequences the hard way. If marijuana becomes legal, there will be problems for employers. If they do nothing, they can face legal liability for maintaining an unsafe workplace. A random drug test does not say where or when the substance was used. If employers do not fire employees for positive drug tests, and a fork lift driver, under the influence, drops a load of heavy pallets on someone's head, the employer may be sued for damages. Also, OSHA may come calling.
The pot lobbyists should be ashamed of their efforts to have people violate the law by misinforming them about the law, and wordsmithing laws in a deceptive manner deliberately designed to enable them to do so. In Colorado law they list allowable amounts of medical marijuana under State law and provide for an affirmative defense for larger amounts: While that wordsmithing may appear to the casual reader to say that marijuana is legal and you have an affirmative defense if caught and charged, it does not say that. An affirmative defense occurs when an otherwise unlawful act is excused by a specific provision of written law. The only way to claim an affirmative defense is to claim that the otherwise unlawful act occurred but that you qualify for the affirmative defense. Consider that a man is shot dead. You admit you shot him (homicide) but claim the affirmative defense of self-defense. If is is found that you acted in self-defense, your act is excused from prosecution. (homicide is not found to be legal, acting in self-defense is exempt from prosecution). As you may perceive, if your claim to the affirmative defense is not upheld, you experience the inconvenience of having declared that you committed a criminal act. So it is with the affirmative defense with pot. The only way you can claim it is to admit to a federal crime. You may be excused from a State prosecution, but you are without defense to a federal prosecution. The pot lobbyists tend not to tell you that. This is what the Colorado District Court was getting at when it stated: The affirmative defense does not make the make the use of medical marijuana a lawful activity. One might ask why provide an affirmative defense, leaving the underlying act unlawful? Why not just state clearly that the act is lawful? They could state that, under Colorado State law, the act is not unlawful. But any claim that the act is lawful is smashed by Gonzales v. Raich 545 U.S. 1, 29 (2005). These laws tend to be written by lobbyists for proposition states, bypassing legislatures. The lobbyists who wrote this deceptive crap knew what they were doing. One may hear the repeated claims that this or that State law has not been overturned by the Federal courts. How true. The State law never says that the act is lawful under Federal law, or that Federal law does not apply. Their word salad decriminalizes marijuana pursuant to State law only. The affirmative defense applies to State prosecution only. As for the State drug schedule, marijuana remains a Schedule I drug. The word salad only affirms that the State will not prosecute pursuant to State law, if the accused qualifies for the affirmative defense. Cases show that claiming and relying upon the affirmative defense is fraught with danger. A large part of pot laws written by lobbyists is Madison Avenue-type salesmanship and puffery. Basic Outliue of Drug Schedules in Colorado Basic Outline of Drug Schedules in Colorado The vast majority of controlled substances in Colorado are categorized into one of five "schedules" based upon several factors. (Synthetic Cannabinoids and Salvia are not in the scheduled drugs and have their own statute.) This system generally follows the federal system for categorizing and scheduling controlled substances. • Schedule I drugs are defined as those with a high potential for abuse, no currently accepted medical use in the United States and lacks accepted safety for use under medical supervision. Examples include: opiates like heroin, LSD, psilocybin and psilocin (mushrooms), peyote, cathinone (bath salts), mescaline and marijuana. • Schedule II drugs are defined as having a high potential for abuse but have some currently accepted medical uses with severe restrictions and the abuse may lead to severe psychological or physical dependences. Examples include: Codeine, morphine, oxycodone, cocaine, methamphetamine, and methadone. • Schedules III - V are defined as drugs with accepted medical purposes, each category with a lesser potential for abuse as working down from III to V and a similar decrease in potential for physical or psychological dependency. This are the more typical non - pain killer type prescription drugs but can include significantly lower dose levels of schedule II drugs such as low levels of codeine in some prescription cough medicines.
I have not ignored you. I just do not have a lot of time right now and you deserve more than a little time.
I'm all for education, like the account you posted, Gatlin, so people can be better enabled to make good decisions about how they manage their lives. But in my view, making things illegal because people can hurt themselves with them is not the answer, and in fact, can make things worse, as Justified illustrated. Pinguinite posted on 2016-09-15 21:00:00 ET Reply Untrace Trace Private Reply Replies to Comment # 7. There are no replies to Comment # 7. Proof positive that a rational post about this issue will be ignored by the drug prohibitionists.
#2. To: Justified, nolu chan (#1)
Government should be ashamed of itself for destroying lives over pot.
#3. To: Justified (#1)
"Government should be ashamed of itself for destroying lives over pot."
#4. To: Gatlin (#2)
For me, smoking marijuana was not the answer. If I had used alcohol like I used marijuana to cope with life, I would be an alcoholic. If I used cocaine in the same way, I would be an addict. It’s the same thing.
#5. To: misterwhite (#3)
But he knew his employer randomly tested for pot. Which, in the 80's, was an illegal drug even at the state level.
#6. To: Gatlin, Dozin 'n Droolin, prescription drugs (#2)
Castle(C), Stein(G), Johnson(L)
#7. To: Gatlin, Justified (#2)
#8. To: Gatlin, Justified (#2)
I am not here to preach to you about how you shouldn’t smoke marijuana.
In May 2010, Coats tested positive for tetrahydrocannabinol ("THC"), a component of medical marijuana, during a random drug test. Coats informed Dish that he was a registered medical marijuana patient and planned to continue using medical marijuana. On June 7, 2010, Dish fired Coats for violating the company's drug policy.
#9. To: Justified (#1)
Government should be ashamed of itself for destroying lives over pot.
(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient's debilitating medical condition.
These interpretations of the Medical Marijuana Amendment limit the effect of the amendment as an affirmative defense to criminal prosecution. The amendment does not make the use of medical marijuana a lawful activity, so as to preclude an employer from termination based on this conduct.
[L]imiting the activity to marijuana possession and cultivation “in accordance with state law” cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “ ‘superior to that of the States to provide for the welfare or necessities of their inhabitants,’ ” however legitimate or dire those necessities may be.
Attachment D
#10. To: nolu chan (#8)
#11. To: Pinguinite, gatlin, nolu Chan, Y'ALL (#7)
Freedom is about having the right to make choices in life, and removing choices that are harmful to oneself is not freedom. When you take away people's freedom, you also take away their responsibility, and when you do that, you take away their ability to take care of themselves and make good decisions for themselves.
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