Emerald Steel Fabricators, Inc. v. Boli, 3004.
| Decision Date | 11 June 2008 |
| Docket Number | 3004.,A130422. |
| Citation | 186 P.3d 300,220 Or. App. 423 |
| Parties | EMERALD STEEL FABRICATORS, INC., Petitioner, v. BUREAU OF LABOR AND INDUSTRIES, Respondent. |
| Court | Oregon Court of Appeals |
Terence J. Hammons, Eugene, argued the cause for petitioner. With him on the briefs was Hammons & Mills.
Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Paula A. Barran, Portland, Craig L. Leis, and Barran Liebman LLP filed the brief amicus curiae for Associated Oregon Industries.
Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.
Emerald Steel Fabricators, Inc. (employer) petitions for judicial review of a final order of the Bureau of Labor and Industries (BOLI) that found that, by discharging one of its employees (complainant) because of his medical marijuana use, employer failed to reasonably accommodate complainant's disability as required by Oregon statutes on unlawful discrimination against disabled persons, ORS 659A.110-659A.145. On review, employer asserts two assignments of error and argues that BOLI erred (1) in finding that employer was obligated to reasonably accommodate complainant's marijuana use; and (2) in denying employer the right to a jury trial in violation of Article I, section 20, of the Oregon Constitution. For the reasons that follow, we conclude that employer did not raise any of the issues below that it asserts in its first assignment of error and that employer's second assignment of error is without merit. Accordingly, we affirm.
The relevant facts are stated in BOLI's order and are not challenged on review. Employer is a steel fabricator doing business in Oregon. In 2003, employer used a staffing company to screen prospective employees. The staffing company referred complainant to employer to fill a position as a drill press operator. Complainant was interviewed by employer's machine shop foreman and was offered the position. Complainant accepted.
Employer's policy when hiring temporary employees through the staffing company was to evaluate them after a minimum of three months. At that point, if there was enough work to justify hiring the employee on a permanent basis, the employee would be required to undergo a comprehensive drug screen at a local hospital to test for the presence of illegal drugs. In fact, during complainant's job interview, the machine shop foreman told him that, at the end of 90 days, he would be required to take a drug test before he could be hired as a permanent employee. Employer also had a written drug policy, but complainant was never shown a copy of that policy.
At the time that complainant interviewed with employer, he was participating in Oregon's medical marijuana program because of nausea, severe stomach cramps, and vomiting.1 Complainant did not mention the fact that he possessed an OMMA card because he feared that he would not be hired. When complainant first reported for work at employer's facility, no one asked him whether he would submit to a drug test or whether he had already submitted to a drug test for the staffing company.2
Complainant performed satisfactorily as a drill press operator and, on two occasions, told his immediate supervisor, the shop foreman, that he liked the job and wanted to keep it. After a few weeks on the job, the supervisor gave complainant a $1.00 per hour pay raise, which was the supervisor's general practice with temporary employees.
While working for employer, complainant continued to experience nausea and severe stomach cramps. To relieve the nausea and cramps, he used marijuana one to three times per day, depending on his symptoms. Complainant never used marijuana while at work or while on employer's property, and his supervisor never suspected that complainant was using marijuana or any other drug.
Nevertheless, in March 2003, complainant told the supervisor that he needed to talk with him about his "medical problem" to see whether it would affect his chances of being hired as a regular employee. Although he did not explain his specific medical problem, complainant explained to the supervisor that he had an OMMA card, that he had tried other medications, and that marijuana worked best for him. He showed the supervisor the documentation for his OMMA card, including the paperwork completed by a physician, and told the supervisor that he hoped that the revelation of his marijuana use would not get him fired. The supervisor told complainant that he did not know the answer and that he would talk it over with employer's owner.
The supervisor then met with employer's owner to discuss complainant's disclosure of his marijuana use and OMMA card. The supervisor explained that complainant had told him that marijuana was the only drug that he could take to alleviate his medical problem and that complainant was doing a "reasonably good job" operating the drill press. The supervisor and owner then discussed whether complainant should be hired and decided that there was no need to hire him as a regular employee.
A week after disclosing his OMMA card, complainant told the supervisor that he was planning to move to a different residence and needed to know whether employer was going to hire him as a regular employee. The supervisor told him that employer no longer needed his services.
In May 2003, complainant filed a complaint with BOLI's Civil Rights Division, alleging that he was the victim of unlawful employment practices. After investigating the complaint, BOLI issued formal charges against employer on the grounds that employer had (1) discharged complainant because of his disability in violation of ORS 659A.112(2)(c) and (g); and (2) failed to reasonably accommodate complainant's disability in violation of ORS 659A.112(2)(e) and (f).3 In its answer, employer asserted a number of affirmative defenses, four of which are relevant to the issues before us:
(Paragraph numbers omitted.)
A hearing on the charges was held in late January 2005—two weeks after this court issued its decision in Washburn v. Columbia Forest Products, Inc., 197 Or.App. 104, 104 P.3d 609 (2005), a case involving disability discrimination claims by an employee who participated in Oregon's medical marijuana program. Because it affected the way in which the issues in this case were framed below and, consequently, the arguments made on review, we pause briefly to describe Washburn.
In Washburn, the plaintiff suffered from muscle spasms that, left untreated, limited his ability to sleep. He had previously treated the spasms with prescription medicine but obtained a medical marijuana card because the marijuana was a more effective treatment than prescription drugs. The use of marijuana, however, caused the plaintiff to violate his employer's workplace drug policy. 197 Or.App. at 106-07, 104 P.3d 609. After his employer discharged him as a result of his inability to comply with its drug policy, the plaintiff brought a claim against his employer alleging that it had failed to meet its obligation to reasonably accommodate his disability under ORS 659A.112(2)(e). Id.
In response to the complaint, the employer moved for summary judgment on the grounds that (1) the plaintiff was not a qualified individual with a disability (and therefore was not protected by Oregon disability discrimination law) and (2) the OMMA does not require employers to accommodate medical marijuana users. The trial court granted summary judgment in favor of the employer on both grounds. We reversed. Id. at 116-17, 104 P.3d 609.
Our opinion in Washburn touched on three discrete issues. First, we concluded that the plaintiff was, in fact, disabled—despite the fact that mitigating measures were available that rendered the limitation of his life activities less than substantial. Id. at 111, 104 P.3d 609. Second, we rejected the employer's arguments based on ORS 475.340(2), a statute in the OMMA that provides that nothing in the OMMA shall be construed to require "[a]n employer to accommodate the medical use of marijuana in any workplace." That statute, we held, was inapplicable because the plaintiff had not "used" marijuana in the workplace; rather, he simply had evidence of marijuana consumption in his bloodstream. Third, we rejected the employer's argument that the actions that it took were authorized or required by the federal Drug-Free Workplace Act of 1988, 41 U.S.C. §§ 701-07.4 As in the...
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Emerald Steel Fabricators Inc v. Bureau Of Labor And Indus.
...The Court of Appeals declined to reach that question, reasoning that employer had not preserved it. Emerald Steel Fabricators, Inc. v. BOLI, 220 Or.App. 423, 186 P.3d 300 (2008). We allowed employer's petition for review and hold initially that employer preserved the question that it sought......
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