Ross v. Ragingwire Telecommunications, Inc.

Decision Date24 January 2008
Docket NumberNo. S138130.,S138130.
Citation42 Cal.4th 920,70 Cal.Rptr.3d 382,174 P.3d 200
CourtCalifornia Supreme Court
PartiesGary ROSS, Plaintiff and Appellant, v. RAGINGWIRE TELECOMMUNICATIONS, INC., Defendant and Respondent.

Joseph D. Elford, Oakland; Law Office of Stewart Katz, Stewart Katz and Costa Kerestenzis, Sacramento, for Plaintiff and Appellant.

Robert A. Raich, Oakland, for California legislators as Amicus Curiae on behalf of Plaintiff and Appellant.

Daniel Abrahamson, Tamar Todd and Theshia Naidoo, for American Pain Foundation, American Medical Women's Association, Lymphoma Foundation of America, American Nurses Association, California Nurses' Association, AIDS Action Council, National Women's Health Network, Doctors of the World-USA and Gay Men's Health Crisis as Amici Curiae on behalf of Plaintiff and Appellant.

Theodore Cody, Los Angeles, and David Goldberg, for Protection and Advocacy, Inc., and Equal Rights Advocates as Amici Curiae on behalf of Plaintiff and Appellant.

Jackson Lewis, D. Gregory Valenza, Marlena G. Gibbons, Patrick C. Mullin, Timothy C. Travelstead and Robert M. Pattison, San Francisco, for Defendant and Respondent.

Deborah J. La Fetra, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Respondent.

Suzanne B. Gifford and Richard A. Katzman, San Jose, for Santa Clara Valley Transportation Authority as Amicus Curiae on behalf of Defendant and Respondent.

Cook Brown, Dennis B. Cook, Sacramento, and Ronald E. Hofsdal, for Western Electrical Contractors Association as Amicus Curiae on behalf of Defendant and Respondent.

WERDEGAR, J.

The Compassionate Use Act of 1996 (Health & Saf.Code, § 11362.5, added by initiative, Prop. 215, as approved by voters, Gen. Elec. (Nov. 5, 1996)) gives a person who uses marijuana for medical purposes on a physician's recommendation a defense to certain state criminal charges involving the drug, including possession (Health & Saf.Code, § 11357; see id., § 11362.5, subd. (d)). Federal law, however, continues to prohibit the drug's possession, even by medical users. (21 U.S.C. §§ 812, 844(a)); see Gonzales v. Raich (2005) 545 U.S. 1, 26-29, 125 S.Ct. 2195, 162 L.Ed.2d 1; United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 491-195, 121 S.Ct. 1711, 149 L.Ed.2d 722.

Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.; see id., § 12940, subd. (a); hereafter the FEHA) or for wrongful termination in violation of public policy (see, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887, 66 Cal.Rptr.2d 888, 941 P.2d 1157; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 176-178, 164 Cal.Rptr. 839, 610 P.2d 1330). We conclude the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 882-883, 59 Cal.Rptr.2d 696, 927 P.2d 1200.) We thus affirm.

I. FACTS

This case comes to us on review of a judgment entered after the superior court sustained a demurrer to plaintiffs complaint without leave to amend. In this procedural posture, the only question before us is whether plaintiff can state a cause of action. In reviewing the complaint to answer that question, we treat the demurrer as admitting the complaint's well-pleaded allegations of material fact, but not its contentions, deductions or conclusions of law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, 40 Cal.Rptr.3d 205, 129 P.3d 394; Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) The complaint's allegations may be summarized for this purpose as follows:

Plaintiff Gary Ross suffers from strain and muscle spasms in his back as a result of injuries he sustained while serving in the United States Air Force. Because of his condition, plaintiff is a qualified individual with a disability under the FEHA and receives governmental disability benefits. In September 1999, after failing to obtain relief from pain through other medications, plaintiff began to use marijuana on his physician's recommendation pursuant to the Compassionate Use Act.

On September 10, 2001, defendant RagingWire Telecommunications, Inc., offered plaintiff a job as lead systems administrator. Defendant required plaintiff to take a drug test. Before taking the test, plaintiff gave the clinic that would administer the test a copy of his physician's recommendation for marijuana. Plaintiff took the test on September 14 and began work on September 17. Later that week, the clinic informed plaintiff by telephone that he had tested positive for tetrahydrocannabinol (THC), a chemical found in marijuana. On September 20, defendant informed plaintiff he was being suspended as a result of the drug test. Plaintiff gave defendant a copy of his physician's recommendation for marijuana and explained to defendant's human resources director that he used marijuana for medical purposes to relieve his chronic back pain. Defendant's representative told plaintiff that defendant would call his physician, verify the recommendation, and advise him of defendant's decision regarding his employment. On September 21, defendant's board of directors met to discuss the matter and, on September 25, defendant's chief executive officer informed plaintiff that he was being fired because of his marijuana use.

Plaintiffs disability and use of marijuana to treat pain, he alleges, do not affect his ability to do the essential functions of the job for which defendant hired him. Plaintiff has worked in the same field since he began to use marijuana and has performed satisfactorily, without complaints about his job performance.

Based on these allegations, plaintiff alleges defendant violated the FEHA by discharging him because of, and by failing to make reasonable accommodation for, his disability. (Gov.Code, § 12940, subd. (a).) Plaintiff also alleges defendant terminated his employment wrongfully, in violation of public policy. (See Stevenson v. Superior Court, supra, 16 Cal.4th 880, 887, 66 Cal. Rptr .2d 888, 941 P.2d 1157; Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 170, 176-178, 164 Cal.Rptr. 839, 610 P.2d 1330.) The superior court sustained defendant's demurrer without leave to amend and entered judgment for defendant. The Court of Appeal affirmed. We granted plaintiffs petition for review.

II. DISCUSSION
A. The FEHA

The FEHA declares and implements the state's public policy against discrimination in employment. (Gov.Code, §§ 12920-12921.) The particular section of the FEHA under which plaintiff attempts to state a claim, Government Code section 12940, provides that "[i]t shall be an unlawful employment practice ... [¶] (a) For an employer, because of the ... physical disability [or] medical condition ... of any person, to refuse to hire or employ the person ... or to bar or to discharge the person from employment ...." An employer may discharge or refuse to hire a person who, because of a disability or medical condition, "is unable to perform his or her essential duties even with reasonable accommodations." (Id., § 12940, subd. (a)(1) & (2).) The FEHA thus inferentially requires employers in their hiring decisions to take into account the feasibility of making reasonable accommodations.

Plaintiff, seeking to bring himself within the FEHA, alleges he has a physical disability in that he "suffers from a lower back strain and muscle spasms in his back...." He uses marijuana to treat the resulting pain. Marijuana use, however, brings plaintiff into conflict with defendant's employment policies, which apparently deny employment to persons who test positive for illegal drugs. By denying him employment and failing to make reasonable accommodation, plaintiff alleges, defendant has violated the FEHA. Plaintiff does not in his complaint identify the precise accommodation defendant would need to make in order to enable him to perform the essential duties of his job. One may fairly infer from plaintiffs allegations, however, that he is asking defendant to accommodate his use of marijuana at home by waiving its policy requiring a negative drug test of new employees.1 "Just as it would violate the FEHA to fire an employee who uses insulin or Zoloft," plaintiff argues, "it violates [the] statute to terminate an employee who uses a medicine deemed legal by the California electorate upon the recommendation of his physician." In this way, plaintiff reasons, "the [FEHA] works together with the Compassionate Use Act ... to provide a remedy to [him]."

Plaintiffs position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29, 125 S.Ct. 2195, 162 L.Ed.2d 1; United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. 483, 491-95, 121 S.Ct. 1711, 149 L.Ed.2d 722). Instead of attempting the impossible, as we shall explain, California's voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the...

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