United States District Court, D. Arizona
ORDER
James
A. Teilborg Senior United States District Judge
Defendant
Wal-Mart Stores, Inc. (“Defendant”) has moved for
summary judgment. (Doc. 32). For the reasons set forth below,
the Court declines to rule at this time and, instead, orders
the parties to provide supplemental briefing.
I.
BACKGROUND
In the
November 2010 general election, Arizona voters enacted the
Arizona Medical Marijuana Act (“AMMA”), A.R.S.
§ 36-2801 et seq., by ballot initiative.
State v. Gear, 372 P.3d 287, 288 (Ariz. 2016). Under
the AMMA “a ‘qualifying patient' diagnosed
with a ‘debilitating medical condition' may obtain
a registry card from the Arizona Department of Health
Services” to buy and use medical marijuana.
Id. (citing A.R.S. §§ 36-2801(3), (13),
-2804.02). In addition to broadly immunizing qualified
patients from criminal and civil penalties for using medical
marijuana, [1] the AMMA also contains an
anti-discrimination provision, A.R.S. § 36-2813(B). This
portion of the AMMA provides, in relevant part, that an
employer may not discriminate against a registered qualifying
patient by terminating that individual based upon his or her
“positive drug test for marijuana components or
metabolites unless the patient used, possessed or was
impaired by marijuana on the premises of the place of
employment or during the hours of employment.”
Id. at § 36-2813(B)(2). While the AMMA does not
prohibit an employer from terminating an employee for
“working while under the influence of marijuana,
” id. at § 36-2814(B), the AMMA clarifies
that “a registered qualifying patient shall not be
considered to be under the influence of marijuana solely
because of the presence of metabolites or components of
marijuana that appear in insufficient concentration to cause
impairment, ” id. at § 36-2814(A)(3)
(emphasis added). Here, Carol M. Whitmire
(“Plaintiff”) claims that her termination
constitutes unlawful discrimination under the AMMA, A.R.S.
§ 36-2813(B). (Doc. 1 at 4-5).
In its
Answer and throughout its Motion for Summary Judgment,
Defendant asserts as an affirmative defense that it is
protected from litigation because “it has established a
policy and implemented a drug testing program” in
compliance with A.R.S. § 23-493.06 of Arizona's Drug
Testing of Employees Act (“DTEA”). (Doc. 6 at 9;
Doc. 32 at 9). This section of the DTEA exempts an employer
from liability for “actions based on the employer's
good faith belief that an employee had an impairment while
working while on the employer's premises or during hours
of employment.” A.R.S. § 23-493.06(A)(6). The DTEA
further states that an employer's good faith belief may
be based on “[r]esults of a test for the use of alcohol
or drugs.” Id. at § 23-493(6). Notably,
sections 23-493(6) and 23-493.06(A)(6) of the DTEA were
enacted by the Arizona Legislature in April 2011 via H.B.
2541 in response to the enactment of the AMMA. See
Arizona Senate Fact Sheet, 2011 Reg. Sess., H.B. 2541 (Mar.
25, 2011).
II.
ANALYSIS
It
appears to the Court that there is a conflict between the
AMMA and the DTEA, as the AMMA states that “a
registered qualifying patient shall not be considered to be
under the influence of marijuana solely because of the
presence of metabolites or components of marijuana that
appear in insufficient concentration to cause impairment,
” id. at § 36-2814(A)(3), whereas the
DTEA permits an employer to base its “good faith belief
that an employee had an impairment while working” on
the results of a drug test, id. at §§
23-493(6), -493.06(A)(6). It further appears to the Court
that the conflict between the AMMA and the DTEA-the former
being enacted by ballot initiative and the latter by the
Arizona Legislature-must be resolved in favor of rendering
the conflicting portions of the DTEA
unconstitutional.[2]
Should
the Court find that sections 23-493(6) and 23-493.06(A)(6) of
the DTEA unconstitutionally amended the AMMA, Defendant's
defense-that the results of Plaintiff's drug test, which
“was positive for marijuana metabolites at a level of
greater than 1000 ng/ml, the highest level the test could
record, ” gave Walmart “a good faith basis to
believe Plaintiff was impaired by marijuana” at
work-would fail. (Doc. 32 at 9). Further, there is no other
evidence indicating that Plaintiff was impaired at work or
expert testimony establishing that the level of metabolites
present in Plaintiff's positive drug screen demonstrates
that marijuana was present in her system in a sufficient
concentration to cause impairment. In the absence of any such
expert testimony or evidence demonstrating impairment, it
appears that it would be appropriate to grant summary
judgment to Plaintiff on her discrimination claim under the
AMMA pursuant to Fed.R.Civ.P. 56(f), [3] as sections 36-2813(B)(2)
and 36-2814(A)(3) of the AMMA grant Plaintiff protection
against termination in the absence of evidence that she was
impaired.
See A.R.S. § 36-2813(B)(2).[4]
Accordingly,
IT IS ORDERED that the parties shall file
simultaneous briefs by Friday, December 7,
2018 on: (1) why the Court should or should not hold
that sections 23-493(6) and 23-493.06(A)(6) of the DTEA
unconstitutionally amended the AMMA; and (2) if the Court
does find these sections of the DTEA unconstitutional under
the Voter Protection Act, why Plaintiff should or should not
be entitled to summary judgment on her claim under the AMMA
pursuant to Fed.R.Civ.P. 56(f). No. responses or replies to
the supplemental briefs will be permitted.
IT
IS FURTHER ORDERED that each brief shall not exceed
10 pages in length.
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Notes:
[1]
See A.R.S. §
36-2811(B)(1); Reed-Kaliher v. Hoggatt, 347 P.3d
136, 139 ...