Coats v. Dish Network, L.L.C.

• Decision Date: 25 April 2013
• Docket Number: Court of Appeals No. 12CA1704,Court of Appeals No. 12CA0595
• Citation: 2013 COA 62
• Parties: Brandon Coats, Plaintiff-Appellant, v. Dish Network, L.L.C., Defendant-Appellee.
• Court: Colorado Court of Appeals

2013 COA 62

Brandon Coats, Plaintiff-Appellant,

v.Dish Network, L.L.C., Defendant-Appellee.

Court of Appeals No. 12CA0595 Court of Appeals No. 12CA1704

COLORADO COURT OF APPEALS

Announced April 25, 2013

Arapahoe County District Court No. 11CV1464

Honorable Elizabeth B. Volz, Judge

JUDGMENT AFFIRMED AND ORDER REVERSED

Division A

Opinion by CHIEF JUDGE DAVIDSON

Márquez*, J., concurs

Webb, J., dissents

Thomas K. Carberry, Denver, Colorado; The Evans Firm, LLC, Michael D. Evans, Denver, Colorado, for Plaintiff-Appellant

Martinez Law Group, P.C., Meghan W. Martinez, Denver, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2012.

¶1 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."

¶2 We also address whether a section 24-34-402.5 claim is equivalent to a tort for purposes of the mandatory attorney fees provision of section 13-17-201, C.R.S. 2012. We conclude that the answer to this question is also no. Thus, we affirm in part and reverse in part.

I. Background

¶3 After being terminated, plaintiff, Brandon Coats, filed a complaint against his former employer, defendant, Dish Networks, L.L.C.

¶4 According to the complaint, plaintiff, a quadriplegic, is licensed by the state of Colorado to use medical marijuana pursuant to the Medical Marijuana Amendment, Colo. Const. art. XVIII, § 14 (Amendment). Plaintiff alleged that he used marijuana within the limits of the license, never used marijuana on defendant's premises, and was never under the influence of marijuana at work. Defendant fired plaintiff after he tested positive for marijuana, which established a violation of defendant's drug policy. Nothing in the record indicates that defendant had any other justification for the discharge.

¶5 Plaintiff filed this action, claiming that his termination violated the Lawful Activities Statute, section 24-34-402.5, an employment discrimination provision of the Colorado Civil Rights Act (CCRA). The statute prohibits an employer from discharging an employee for "engaging in any lawful activity off the premises of the employer during nonworking hours," subject to certain exceptions. § 24-34- 402.5. Defendant filed a motion to dismiss, arguing that the use of medical marijuana was not "lawful activity" because it was prohibited under both state law and federal law.

¶6 The trial court addressed only the state law issue, and relying on Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 978 (Colo. App. 2011), decided that plaintiff's medical marijuana use was not "lawful activity" under Colorado law. Id. (Amendment did not establish state constitutional right to state-licensed medical marijuana use, but rather created an affirmative defense from prosecution for such use). The court therefore dismissed the complaint for failure to state a claim. Subsequently, the court granted defendant's motion for attorney fees pursuant to section 13-17-201, agreeing with defendant that plaintiff's claim was a tort for purposes of that statute.

¶7 Plaintiff separately appealed the judgment of dismissal and the attorney fees award. We have consolidated the cases. On different reasoning, we affirm the judgment dismissing plaintiff's complaint for failure to state a claim. See In re Marriage of Rodrick, 176 P.3d 806, 810 (Colo. App. 2007) ("[a]n appellate court may affirm a trial court's correct judgment based on different reasoning than the trial court used"). However, we reverse the order granting defendant its attorney fees.

II. State-Licensed Medical Marijuana Use Is Not "Lawful Activity"

for Purposes of Section 24-34-402.5

¶8 At the time of plaintiff's termination, all marijuana use was prohibited by federal law. See 21 U.S.C. § 844(a); Gonzales v. Raich, 545 U.S. 1, 29 (2005) (state law authorizing possession and cultivation of marijuana does not circumscribe federal law prohibiting use and possession); Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 204 (Cal. 2008) ("No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users." (citations omitted)). It remains so to date.

¶9 Plaintiff acknowledges that medical marijuana use is illegal under federal law, but argues that his use was nonetheless "lawful activity" for purposes of section 24-34-402.5 because the statutory term "lawful activity" refers to only state, not federal law. We disagree.

¶10 Like the trial court, we accept as true all averments of material fact and view the allegations of the complaint in the light most favorable to the plaintiff. See Hemmann Management Services v. Mediacell, Inc., 176 P.3d 856, 858 (Colo. App. 2007). Interpreting the statutory term "lawful activity" presents a question of law that we review de novo. See Dubois v. People, 211 P.3d 41, 43 (Colo. 2009). When interpreting a statute, we aim to ascertain and give effect to the intent of the legislature based on the plain and ordinary meaning of the statutory language. See McCall v. Meyers, 94 P.3d 1271, 1272 (Colo. App. 2004). We may also examine the legislative history to discern the policy objective of a statute and to ensure that our interpretation is consistent with the legislature's intent. See Allstate Ins. Co. v. Schneider Nat'l Carriers, Inc., 942 P.2d 1352, 1356 (Colo. App. 1997), aff'd sub nom. Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465 (Colo. 1998).

¶11 Section 24-34-402.5(1), C.R.S. 2012, provides in pertinent part:

It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours . . . .

¶12 The statute does not define the word "lawful." Thus, we must look to its ordinary meaning. See Marks v. Koch, 284 P.3d 118, 123 (Colo. App. 2011) ("When a statute does not define its terms but the words used are terms of common usage, we may refer to dictionary definitions to determine the plain and ordinary meanings of those words."); Mounkes v. Indus. Claim Appeals Office, 251 P.3d 485, 487 (Colo. App. 2010) ("if the statutory language is clear and unambiguous, we give the words their ordinary meaning and apply the statute as written"); Cerbo v. Protect Colorado Jobs, Inc., 240 P.3d 495, 501, n.4 (Colo. App. 2010) (to determine meaning of statutory term, we may look to dictionary definitions).

¶13 The plain and ordinary meaning of "lawful" is that which is "permitted by law." Black's Law Dictionary, 965 (9th ed. 2009); see, e.g., Hougum v. Valley Memorial Homes, 574 N.W.2d 812, 820 (N.D. 1998) (interpreting the word "lawful" in the North Dakota Human Rights Act to mean "authorized by law and not contrary to, nor forbidden by law" (citing Black's Law Dictionary 797 (5th ed. 1979))).

¶14 Thus, because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law, see, e.g., Raich, 545 U.S. at 29 (federal Controlled Substances Act applies to state activities including marijuana use), for an activity to be "lawful" in Colorado, it must be permitted by, and not contrary to, both state and federal law. Conversely, an activity that violates federal law but complies with state law cannot be "lawful" under the ordinary meaning of that term. Therefore, applying the plain and ordinary meaning, the term "lawful activity" in section 24-34-402.5, means that the activity – here, plaintiff's medical marijuana use – must comply with both state and federal law. See generally Matthew C. Macy, Employment Law and Medical Marijuana — An Uncertain Relationship, 41 Colo. Law. 57, 60 (Jan. 2012) (observing that medical marijuana's continuing illegality under federal law "likely will be sufficient to remove the employee from the protection of § [24-34-]402.5").

¶15 Based on the premise that the legislature intended that section 24-34-402.5 protect employees, plaintiff contends that we must read "lawful activity" to include activity that is prohibited by federal law, but not state law. However, while we agree that the general purpose of section 24-34-402.5 is to keep an employer's proverbial nose out of an employee's off-site off-hours business, see Hearing on H.B. 90-1123 before the S. Comm. on Business Affairs and Labor, 57th Gen. Assemb., 2d Sess. (Mar. 12, 1990) (statements of Sens. Meiklejohn, Wells, and Martinez), we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law.

¶16 First, while the statute promotes a "hands-off" policy for a broad range of off-the-job employee behavior, it still maintains the larger balance between employer and employee rights reflected in Colorado's law of at-will employment. See § 24-34-402.5(1)(a), C.R.S. 2012 (employers may terminate an employee for lawful offthe-job activity if it "[r]elates to a bona fide occupational requirement or is reasonably and rationally related to . . . employment activities and responsibilities"); see, e.g., Wisehart v. Meganck, 66 P.3d 124, 126 (Colo. App. 2002) (at-will employment in Colorado allows either the employee or the employer to terminate employment at any time without cause; this balance "promotes flexibility and discretion for employees to seek the best position to suit their talents and for employers to seek the best employees to suit their needs").

¶17 Second, there is no reference in the legislative discussions to the word "lawful," or to...