Dish Backed for Axing Disabled Pot Smoker

(CN) - A Colorado quadriplegic who used legally sanctioned medical marijuana and lost his job with Dish Network cannot sue, the state appeals court ruled.

Dish fired Brandon Coats for violating its drug policy after he tested positive for marijuana, but Coast claimed in a wrongful termination complaint that he had acted within his license under the state's Medical Marijuana Amendment. The quadriplegic worker also noted that he had not used marijuana at work and was not under its influence on the job.

Arapahoe County Judge Elizabeth Volz dismissed the action after finding that Coats' use of marijuana was not a lawful activity. Though the Medical Marijuana Amendment established a defense from prosecution for users of the drug, it did not create a right to such use.

Volz also awarded the satellite television provider attorneys' fees on the basis that Coats had asserted a tort claim.

A divided three-judge panel of the Colorado Court of Appeals affirmed Thursday, citing the fact that marijuana use is illegal under federal law.

"Thus, forbidding a Colorado employer from terminating an employee for federally prohibited off-the-job behavior is of sufficient policy import that we cannot infer, from plain statutory language to the contrary and silence in the legislative discussions, the legislative intent to do just that," Chief Judge Janice Davidson wrote for the majority.

"Moreover, a review of Colorado statutes shows that if the legislature had wanted to insulate employees from discharge for off-the-job activities illegal only under federal law, it knew how to accomplish that goal," she added.

Attorneys' fees for Dish Network are improper, however, since Coats had sued for employment discrimination, according to the ruling.

Davidson noted that the panel disagreed with Dish's argument that "claim is the equivalent of an invasion of privacy tort, and, even if not, exhibits sufficient general tort characteristics to be equivalent to a tort claim."

In the dissent, Judge John Webb said he would have revived the claim Coats made for lawful off-duty conduct.

"In my view, 'lawful activity' under section 24-34-402.5, CRS 2012, Colorado's off-duty conduct statute, should be measured by state law," Webb wrote. "I further conclude that use of marijuana in a manner permitted by the Medical Marijuana Amendment, Colo. Const. Art. XVII, is lawful."

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