United States District Court, D. Arizona
ORDER
James
A. Teilborg Senior United States District Judge
Pending
before the Court is Defendant Wal-Mart Stores, Inc.'s
(“Defendant”) Motion for Summary Judgment (Doc.
32) and Plaintiff Carol M. Whitmire's
(“Plaintiff”) Rule 56(d) Application (Doc. 35 at
11-13). For the reasons set forth below, Plaintiff's Rule
56(d) Application is denied, and Defendant's Motion for
Summary Judgment is granted in part and denied in part.
I.
BACKGROUND
On or
about February 20, 2008, Defendant hired Plaintiff Carol M.
Whitmire (“Plaintiff”) as a Cashier in its Show
Low, Arizona store. (Docs. 36 ¶ 1; 33-1 at 11-12,
Whitmire Depo. at 35: 22-36:3, 38:1-13). During her new-hire
orientation, Plaintiff received training on Defendant's
Alcohol and Drug Abuse Policy, as well as its Discrimination
and Harassment Prevention Policy. (Docs. 33 ¶ 2; 36
¶ 2). Plaintiff also acknowledged and signed
Walmart's Alcohol and Drug Abuse Policy, indicating her
understanding that if “testing indicates the presence
of illegal drugs . . . in [her] body in any detectable
amount, [she] w[ould] be terminated.” (Docs. 33 ¶
5; 33-3 at 9; 36 ¶ 5). Plaintiff further acknowledged
the drug testing policies and procedures described in this
Alcohol and Drug Abuse Policy, “and the use by Wal-Mart
of results thereof in further determining [her] continued
employment.” (Doc. 33-3 at 9).
In
December 2013, after working as a Cashier for approximately
four years, Plaintiff was promoted to the position of
Customer Service Supervisor. (Docs. 33 ¶ 8; 36 ¶
8). On December 19, 2013, Plaintiff acknowledged that she had
the ability to perform the essential functions of this
Customer Service Supervisor position either with or without a
reasonable accommodation. (Docs. 33 ¶ 9; 33-3 at 25-27;
36 ¶ 9). These essential functions include
“maintaining a safe shopping environment, ”
“ensuring a safe work environment, ”
“[o]perat[ing] equipment, such as cash registers and
related tools, to process Customer purchases, ”
handling money, and “[s]upervis[ing] Associates.”
(Docs. 33 ¶ 10; 33-3 at 25; 36 ¶ 10).
In or
about the end of 2013 or beginning of 2014, Plaintiff
obtained an Arizona medical marijuana card, which she
maintained during her employ at Walmart. (Docs. 33
¶¶ 12-13; 36 ¶¶ 12-13). Plaintiff claims
she smokes medical marijuana just before bed as a sleep aid
and to help treat the chronic pain she suffers due to
arthritis and a prior shoulder surgery. (Doc. 36 ¶¶
34-36, 39-40). Plaintiff also asserts that she has never
brought marijuana to work or used or been impaired by it
during her hours of employment. (Doc. 36 ¶ 38).
In
January 2016, Defendant modified its Alcohol and Drug Abuse
Policy to expressly state that employees are prohibited from
“[r]eporting to work under the influence of drugs or
alcohol, including medical marijuana.” (Docs. 33-3 at
12; 36 ¶ 2). Defendant's amended Alcohol and Drug
Abuse Policy also requires employees to submit to a drug or
alcohol test if they suffer a workplace injury “that
requires medical treatment from an outside health care
provider.” (Doc. 33-3 at 14).
In
March 2016, Plaintiff transferred to Defendant's Taylor,
Arizona store. (Docs. 36 ¶ 1; 33-1 at 11-12, Whitmire
Depo. at 35: 22-36:3, 38:1-13). While working on May 21, 2016
in the Taylor store, a bag of ice fell on Plaintiff's
wrist as she was leveling the bags in the ice machine. (Docs.
33 ¶ 16; 36 ¶ 16). Plaintiff reported this incident
to Management and filed an Associate Incident Report with
Defendant that same day. (Docs. 33 ¶ 16; 36 ¶ 16;
36-1 at 12, 32). However, Plaintiff finished her shift and
did not seek any medical attention on May 21, 2016 because
she did not feel the incident was serious enough. (Docs. 33
¶ 17; 36 ¶ 17; 36-1 ¶ 15). Defendant's
Associate Accident Review Form indicates that Defendant did
not find Plaintiff responsible for the incident. (Doc. 36-1
at 32 (“Not conclusive that the associate did not
follow safe work practices[.] . . . This could have just as
easily happened to a customer.”)).
On May
23, 2016, Plaintiff notified Human Resources of continued
swelling and pain in her wrist. (Docs. 33 ¶ 18; 36
¶ 18). Just before 2:00 a.m. on May 24, 2016, Plaintiff
smoked medical marijuana prior to going to sleep. (Docs. 33
¶ 19; 36 ¶ 19; 36-1 ¶ 18). Later that same day
(May 24, 2016), Plaintiff clocked in to her scheduled shift
at 2:00 p.m., and told Personnel Coordinator Debra Vaughn
that her wrist still hurt. (Docs. 33 ¶¶ 20-21; 36
¶¶ 20-21). Pursuant to Walmart policy, Ms. Vaughn
directed Plaintiff to an urgent care clinic for a wrist
examination and post-accident urine drug test. (Docs. 33
¶ 21; 36 ¶ 21). Except for this visit to the urgent
care clinic on May 24, 2016, Plaintiff never missed any time
at work as a result of her wrist injury. (Docs. 33 ¶ 31;
36 ¶ 31).
At the
urgent care clinic, Plaintiff's arm was x-rayed, and she
submitted a urine sample for the drug test. (Docs. 33 ¶
22; 36 ¶ 22). Following this drug screen, Plaintiff
claims that she returned to work and informed Ms. Vaughn that
the clinic had not taken a copy of her medical marijuana
card, even after Plaintiff informed the clinic of her medical
marijuana usage and cardholder status. (Doc. 36 ¶¶
43-44). At this time, Plaintiff asserts that Ms. Vaughn took
a copy of the medical marijuana card. (Doc. 36 ¶ 44).
This was the first time that Plaintiff informed anyone at
Walmart that she had a medical marijuana card. (Docs. 33
¶ 14; 36 ¶¶ 14, 45). Plaintiff also never
informed anyone at Walmart that she had a disability. (Docs.
33 ¶ 15; 36 ¶ 15).
Plaintiff's
May 24, 2016 drug screen tested positive for marijuana
metabolites at a quantitative value of greater than 1000
ng/ml. (Doc. 33-3 at 33).[1] In a signed declaration, Ms. Vaughn
stated that, “upon reasonable belief, Plaintiff's
May 24, 2016 positive test result for marijuana indicated
that she was impaired by marijuana during her shift that same
day.” (Doc. 33-3 at 23, Vaughn Decl. ¶
14).[2]
On May 31, 2016 (prior to the test result being reported to
Defendant), Plaintiff had a follow-up interview with a
Medical Review Officer to discuss her positive drug screen,
at which Plaintiff told the Medical Review Officer that she
had an Arizona-issued medical marijuana card. (Docs. 36
¶ 46; 36-1 at 26). The Medical Review Officer verified
Plaintiff's medical marijuana card that same day. (Doc.
36-1 at 26).
In
June, Plaintiff received a letter dated June 7, 2016 from the
Industrial Commission of Arizona alerting Plaintiff that her
employer's insurance carrier had been notified of her
workers' compensation claim. (Doc. 36-1 at 10). That same
month, Plaintiff received two Notices of Claim Status from
the Industrial Commission of Arizona regarding her
workers' compensation claim, both of which were dated
June 22, 2016. (Id. at 14, 16). One of these letters
indicated that Plaintiff's claim was accepted, but that
no compensation would be paid. (Id. at 14). The
other letter stated that Plaintiff's injury had not
resulted in permanent disability, and indicated that
temporary compensation and active medical treatment
terminated on May 24, 2016 because “claimant was
discharged.” (Id. at 16).
Following
the injury-causing incident on May 21, 2016, Plaintiff
continued working full-time until she was suspended due to
her positive drug test on July 4, 2016. (Doc. 36 ¶¶
25, 49). On July 22, 2016 Defendant terminated Plaintiff,
only citing her positive drug test as the reason for her
termination. (Docs. 33 ¶ 26; 33-3 at 35; 36 ¶ 26).
Plaintiff admits that she has no evidence that Defendant
terminated her because of her status as a medical marijuana
cardholder. (Docs. 33 ¶ 33; 36 ¶ 33). Aside from
her termination, Plaintiff does not feel that Defendant
discriminated against her in any way. (Docs. 33 ¶ 28; 36
¶ 28).
On
March 22, 2017, Plaintiff dual-filed a charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and the Arizona Attorney
General's Office, Civil Rights Division. (Docs. 36 ¶
73; 36-1 at 22). After receiving her Notice of Right to Sue
from the Arizona Attorney General's Office on June 6,
2017, (Docs. 36 ¶ 74; 36-1 at 24), Plaintiff filed her
Complaint on June 9, 2017, (Doc. 1). Plaintiff's
Complaint alleges that she was wrongfully terminated and/or
discriminated against in violation of the Arizona Medical
Marijuana Act (“AMMA”), A.R.S. § 36-2813(B),
the Arizona Civil Rights Act (“ACRA”), A.R.S.
§ 41-1463(B), the Arizona Employment Protection Act
(“AEPA”), A.R.S. § 23-1501(A)(3)(b), and the
Arizona workers' compensation statutes, A.R.S.
§§ 23-901, et seq. (Doc. 1 at 1,
4-6).[3] Defendant filed an Answer on August 11,
2017 denying that it wrongfully terminated, discriminated
against, or engaged in any conduct toward Plaintiff creating
liability. (Doc. 6 at 1). In its Answer, Defendant also
alleged as an affirmative defense that it “has
established a policy and implemented a drug testing program
in compliance with Arizona law, so its actions toward
Plaintiff are protected from litigation under A.R.S. §
23-493.06, ” Arizona's Drug Testing of Employees
Act (“DTEA”). (Id. at 9).
On
February 5, 2018, Defendant responded to Plaintiff's
First Set of Interrogatories, stating that “Defendant
does not contend Plaintiff was employed in a safety-sensitive
position as defined under Arizona law.” (Docs. 15; 36-1
at 74-75). However, Defendant thereafter filed a Motion for
Summary Judgment which argued, in part, that Plaintiff was in
a safety sensitive position, (Doc. 20), and supplemented its
interrogatory answer to say the same, (Doc. 28). As a result,
the parties attended a Discovery Dispute Hearing on August
22, 2018, at which the Court ordered that Defendant's
supplemental response to its interrogatory answer (Doc. 28)
be struck as untimely, and precluded any argument by
Defendant that Plaintiff was in a safety sensitive position.
(Doc. 31). The Court also struck Defendant's Motion for
Summary Judgment (Doc. 20), Plaintiff's Response (Doc.
24), and Defendant's Reply (Doc. 29). (Doc. 31).
On
August 30, 2018, Defendant re-filed its Motion for Summary
Judgment (Doc. 32), to which Plaintiff filed a Response and
Rule 56(d) Application (Doc. 35) on October 1, 2018. On
October 18, 2018, Defendant filed a Reply in support of its
Motion for Summary Judgment. (Doc. 37).[4] After hearing
oral argument on November 13, 2018, the Court issued an Order
on November 21, 2018 declining to rule on Defendant's
Motion for Summary Judgment (Doc. 32) until it received
supplemental briefing 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 amend or implicitly repeal sections
36-2813(B)(2) and 36-2814(A)(3) of 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). (Doc. 44). The
parties each filed briefs addressing these issues on December
7, 2018. (See Docs. 48; 49).
On
November 21, 2018, Plaintiff filed a Notice of Constitutional
Question (Doc. 45) pursuant to Fed.R.Civ.P. 5.1(a) and
certified that she served a copy of this Notice on the
Attorney General for the State of Arizona via certified mail,
return receipt requested on that same date. The Court served
its Certification of Constitutional Question (Doc. 46) in
accordance with Fed.R.Civ.P. 5.1(b) and 28 U.S.C. §
2403(b) via certified mail on the Attorney General for the
State of Arizona on November 27, 2018. The Attorney General
did not intervene within sixty days from the date Plaintiff
filed her Notice of Constitutional Question-the deadline set
in the Court's Certification Order in accordance with
Fed.R.Civ.P. 5.1(c). (Doc. 46 at 2). However, the State of
Arizona did enter an appearance as a proposed amicus
on January 22, 2019. (Docs. 53; 54). Finding that allowing
the State of Arizona's proposed amicus curiae
brief in support of no party would aid the Court in resolving
the pending matters, the Court granted the State of
Arizona's Motion for Leave to File Amicus Curiae Brief
(Doc. 54) on January 23, 2019. (Doc. 55).[5] The Court now
rules on Defendant's Motion for Summary Judgment (Doc.
32) and Plaintiff's Rule 56(d) Application (Doc. 35 at
11-13).
II.
SUMMARY JUDGMENT STANDARD
Summary
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A party asserting that a fact
cannot be or is genuinely disputed must support that
assertion by . . . citing to particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits, or declarations, stipulations
. . . admissions, interrogatory answers, or other materials,
” or by “showing that materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Id. 56(c)(1)(A-B). Thus,
summary judgment is mandated “against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Initially,
the movant bears the burden of demonstrating to the Court the
basis for the motion and the elements of the cause of action
upon which the non-movant will be unable to establish a
genuine issue of material fact. Id. at 323. The
burden then shifts to the non-movant to establish the
existence of material fact. Id. A material fact is
any factual issue that may affect the outcome of the case
under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant
“must do more than simply show that there is some
metaphysical doubt as to the material facts” by
“com[ing] forward with ‘specific facts showing
that there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A
dispute about a fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party. Liberty Lobby, Inc., 477 U.S. at
248. The non-movant's bare assertions, standing alone,
are insufficient to create a material issue of fact and
defeat a motion for summary judgment. Id. at 247-48.
However, in the summary judgment context, the Court construes
all disputed facts in the light most favorable to the
non-moving party. Ellison v. Robertson, 357 F.3d
1072, 1075 (9th Cir. 2004).
At the
summary judgment stage, the Court's role is to determine
whether there is a genuine issue available for trial. There
is no issue for trial unless there is sufficient evidence in
favor of the non-moving party for a jury to return a verdict
for the non-moving party. Liberty Lobby, Inc., 477
U.S. at 249-50. “If the evidence is merely colorable,
or is not significantly probative, summary judgment may be
granted.” Id. (citations omitted).
III.
ANALYSIS
Defendant
moves for complete summary judgment on Plaintiff's
lawsuit, claiming there is no genuine issue of material fact
on any of Plaintiff's claims. (Doc. 32 at 1, 16). In
opposition, Plaintiff asks that the Court deny summary
judgment on all counts and enter partial judgment for
Plaintiff on liability on her AMMA and AEPA claims pursuant
to Fed.R.Civ.P. 56(f). (Doc. 35 at 1). Alternatively,
Plaintiff requests that the Court's ruling be deferred
under Fed.R.Civ.P. 56(d). (Id. at 11-13, 17). The
Court now addresses each of Plaintiff's claims, and all
related arguments, in turn.
A.
Discrimination under the AMMA, and Wrongful Termination
under the AMMA and AEPA
Plaintiff
alleges that Defendant discriminated against her in violation
of the AMMA, A.R.S. § 36-2813(B), by suspending her
without pay and then terminating her because of her positive
drug screen.[6] (Doc. 1 at 3-5). Plaintiff also contends
that Defendant wrongfully terminated her in violation of the
AEPA, A.R.S. § 23-1501(A)(3)(b), by firing her because
of her positive drug screen in violation of the public policy
set forth in A.R.S. § 36-2813(B) of the
AMMA.[7] (Doc. 1 at 4).
1.
The AMMA
In the
November 2010 general election, Arizona voters enacted the
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.[8] Id. (citing A.R.S. §§
36-2801(3), (13); 36-2804.02). The AMMA includes an
anti-discrimination provision, A.R.S. § 36-2813(B),
which provides, in pertinent part, that:
Unless a failure to do so would cause an employer to lose a
monetary or licensing related benefit under federal law or
regulations, an employer may not discriminate against a
person in hiring, termination or imposing any term or
condition of employment or otherwise penalize a person based
upon . . . [a] registered qualifying patient's 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.
A.R.S. § 36-2813(B).
The
AMMA also provides that it does not require “[a]n
employer to allow . . . any employee to work while under the
influence of marijuana, ” and does not
“prohibit[] an employer from disciplining an employee
for . . . working while under the influence of
marijuana.” Id. § 36-2814(A)(3)-(B).
However, “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. § 36-2814(A)(3).
2.
Whether the AMMA Provides a Private Cause of Action
In the
second count of her Complaint, Plaintiff alleges that
Defendant discriminated against her in violation of the AMMA,
A.R.S. § 36-2813(B), by suspending her without pay and
then terminating her because of her positive drug screen.
(Doc. 1 at 4-5). Defendant contends that this discrimination
claim under the AMMA fails as a matter of law because the
AMMA does not provide a private cause of action. (Doc. 32 at
5). As there are no reported Arizona decisions discussing a
private right of action for employment discrimination under
the AMMA, this appears to be a question of first impression.
“When a federal court must determine a novel issue of
state law, the court attempts to predict how the state's
highest court would decide the issue.” Picht v.
Peoria Unified Sch. Dist. No. 11 of Maricopa Cty., 641
F.Supp.2d 888, 899 (D. Ariz. 2009) (citing Ariz. Electric
Power Coop. v. Berkeley, 59 F.3d 988, 991 (9th Cir.
1995)).
“When,
as here, a statute does not expressly create a cause of
action to enforce its terms, that statutory
‘silence' is not dispositive.” Gersten v.
Sun Pain Mgmt., P.L.L.C., 395 P.3d 310 (Ariz.Ct.App.
2017) (citing Napier v. Bertram, 954 P.2d 1389, 1391
(Ariz. 1998)). Rather, “determining whether a statute
implicitly creates a private right of action requires
considering ‘the context of the statutes, the language
used, the subject matter, the effects and consequences, and
the spirit and purpose of the law.'”
Picht, 641 F.Supp.2d at 899 (quoting
Transamerica Financial Corp. v. Superior Court, 761
P.2d 1019, 1020 (Ariz. 1988)); see Napier, 954 P.2d
at 1391-92. “A private cause of action has been implied
when no other remedy for violation of the statute was
available.” Id. (citing Douglas v. Window
Rock Consolidated Sch. Dist. No. 8, 78 P.3d 1065, 1069
(Ariz.Ct.App. 2003)). Applying these principles here, the
Court holds that A.R.S. § 36-2813(B) creates a private
cause of action for its alleged violation.
Section
36-2813(B) of the AMMA does not provide an express cause of
action. However, the parties disagree on whether Gersten
v. Sun Pain Mgmt., P.L.L.C., 395 P.3d at 313, holds that
there is no implied private cause of action under the AMMA.
(See Docs. 32 at 5-6; 35 at 3-5). Specifically,
Defendant cites Gersten for the proposition that
“the AMMA has been held not to provide either an
express or implied private cause of action, ” (Doc. 32
at 5), whereas Plaintiff claims that Defendant's reliance
on this Arizona Court of Appeals decision is mistaken because
“Gersten cannot be read for such a blanket
statement, ” (Doc. 35 at 4). On this point, the Court
agrees with Plaintiff.
In
Gersten, a physician discharged a patient for
obtaining a registry identification card to use medical
marijuana. Gersten, 395 P.3d at 311-12. Suing his
former physician for damages and equitable relief, the
patient alleged that the physician's conduct constituted
a violation of A.R.S. § 36-2813(C).[9] Id. at
312. The Superior Court granted the physician's motion to
dismiss under Arizona Rule of Civil Procedure 12(b)(6) for
failure to state a claim on the grounds “that A.R.S.
§ 36-2813(C) did not create a private cause of action
for its alleged violation.” Gersten, 395 P.3d
at 312.
Upon
the patient's appeal, the Arizona Court of Appeals noted
that although § 36-2813(C) ensures “that
qualifying patients will not ‘otherwise' be
disqualified from medical care solely because of their
authorized use of medical marijuana, ” the appellate
court stressed that § 36-2813(C) does not
“obligate a physician to extend or continue medical
care to a qualifying patient.” Id. at 313.
Consequently, the appellate court agreed with the court below
that § 36-2813(C) does not create a private cause of
action. Id. However, in reaching this decision,
Gersten expressly distinguished the physician
provision, § 36-2813(C), from the anti-discrimination
provision, § 36-2813(B):
The wording of A.R.S. § 36-2813(C) does not . . .
attempt to regulate the relationship between a physician and
patient. This distinction becomes clear when examining
A.R.S. § 36- 2813(C) in context and comparing it to
other provisions of the Act that attempt to regulate the
conduct of schools, landlords, and employers. For
example, A.R.S. § 36-2813(A) provides that “[n]o
school or landlord may refuse to enroll or lease to and may
not otherwise penalize a person solely for his status as a
cardholder, unless failing to do so would cause the school or
landlord to lose a monetary or licensing related benefit
under federal law or regulations.” In a similar vein,
A.R.S. § 36-2813(B) provides that, with certain
exceptions, an employer may not discriminate against a person
in hiring, terminating, or imposing any term or condition of
employment. Unlike these provisions, A.R.S.
§ 36-2813(C) imposes no affirmative obligation on a
physician to treat or continue treating a qualifying patient.
Given this, there is no basis for implying a private cause of
action against a physician to enforce an affirmative
obligation to treat or continue treating a qualifying patient
that does not exist under A.R.S. § 36-2813(C).
Id. at 313-14 (emphasis added).
This
distinction drawn by the appellate court in Gersten
insinuated that, unlike § 36-2813(C), an implied private
cause of action exists under § 36-2813(B) because this
subsection imposes on employers an affirmative obligation to
abide by the antidiscrimination mandate of the statute.
Section 36-2813(C) is also distinguishable from the
anti-discrimination provision, § 36-2813(B), because
there is a pre-existing mechanism for wronged patients to
enforce violations of § 36-2813(C) by submitting a
complaint to the Arizona Medical Board to investigate and
discipline a physician for unprofessional conduct, which
includes the violation of any state law applicable to the
practice of medicine, such as the AMMA. Gersten, 395
P.3d at 314. In contrast, “there is no such independent
enforcement mechanism against employers” for violations
of § 36- 2813(B). (Doc. 35 at 5). This suggests that an
implied private cause of action is needed to implement the
directive of § 36-2813(B). See Picht, 641
F.Supp.2d at 899 (“A private cause of action has been
implied when no other remedy for violation of the statute was
available.”).
In
support of her argument that an implied private right of
action exists in § 36- 2813(B) of the AMMA, Plaintiff
points to H.B. 2541, which the Arizona Legislature passed in
April 2011 in response to the enactment of the AMMA. (Doc. 35
at 5). H.B. 2541 amended A.R.S. § 23-493.06(A)(6) of the
DTEA to expand protections for employers who terminate an
employee “based on the employer's good faith belief
that [the] employee had an impairment while working while on
the employer's premises or during hours of
employment.” See DRUGS, 2011 Ariz. Legis.
Serv. Ch. 336 (H.B. 2541) (West). H.B. 2541 also added the
“safety-sensitive” concept to §
23-493.06(A)(7) of the DTEA, which permits an employer to
“exclude an employee from performing a safety-sensitive
position” if the employer has a “good faith
belief that the employee is engaged in the current use of any
drug” which “could cause an impairment.”
Id. According to Plaintiff, H.B. 2541 creates
“exceptions and modifications that directly impact
Subsection B” of § 36-2813 of the AMMA, thus
showing that “the Legislature believed that employers
had new exposure to private lawsuits because of the
AMMA.” (Doc. 35 at 5). The Court agrees, as the Fact
Sheet for H.B. 2541 explicitly mentions the AMMA before
introducing the above modifications to the DTEA. See
Arizona Senate Fact Sheet, 2011 Reg. Sess., H.B. 2541 (Mar.
25, 2011). That the Arizona Legislature made these
modifications to the DTEA to protect employers from
litigation suggests that the Legislature believed the AMMA
supplied an implied private right of action for employees
against employers allegedly violating § 36-2813(B) of
the AMMA.
While
Defendant claims that “[a]ll other courts considering
this issue have held that similar medical marijuana laws were
enacted to decriminalize medical marijuana use, not create an
implied cause of action against employers, ” (Doc. 32
at 6), the Court is not so convinced. In support of this
contention, Defendant cites Casias v. Wal-Mart Stores,
Inc., 695 F.3d 428 (6th Cir. 2012). In Casias,
the plaintiff, a medical marijuana user, contended that
Wal-Mart wrongfully discharged him in violation of
Michigan's Medical Marihuana Act (“MMMA”)
after he tested positive for marijuana in violation of
Wal-Mart's drug use policy. Id. at 431-32.
Appealing the district court's dismissal of his case, the
plaintiff argued that the MMMA, Mich. Comp. Laws §
333.26424(a), “protects patients against disciplinary
action in a private employment setting for using marijuana in
accordance with Michigan law.” Id. at 434.
Section 333.26424(a) of the MMMA provides, in relevant part:
A qualifying patient who has been issued and possesses a
registry identification card shall not be subject to arrest,
prosecution, or penalty in any manner, or denied any right or
privilege, including but not limited to civil penalty or
disciplinary action by a business or occupational or
professional licensing board or bureau, for the medical use
of marihuana in accordance with this act[.]
Mich. Comp. Laws § 333.26424(a).
Agreeing
with the district court that the “statute never
expressly refers to employment, nor . . . require[s] or
impl[ies] the inclusion of private employment in its
discussion of occupational or professional licensing boards[,
]” the Sixth Circuit affirmed. Casias, 695
F.3d at 436. After determining that the MMMA's language
did not support the plaintiff's interpretation that
§ 333.26424(a) provides protection against disciplinary
actions by a business because “the statute fails to
regulate private employment actions[, ]” the Sixth
Circuit concluded that § 333.26424(a), “does not
impose restriction on private employers, such as
Wal-Mart.” Id. at 435-36 (emphasis added).
Whereas
the MMMA statute in Casias “fails to regulate
private employment actions, ” Casias, 695 F.3d
at 436, section 36-2813(B) of the AMMA provides an
affirmative obligation on employers to abide by the
anti-discrimination mandate of the statute. See
A.R.S. § 36-2813(B) (“ . . . an employer may
not discriminate against a person in hiring, termination
or imposing any term or condition of employment or otherwise
penalize a person . . . .”) (emphasis added). Based on
the drastic dissimilarity of the medical marijuana statute at
issue in Casias to § 36-2813(B) of the AMMA,
the Court finds Defendant's extensive reliance on
Casias futile.
The
other cases cited by Defendant fare no better, as none of
these cases involve medical marijuana statutes with
anti-discrimination provisions even remotely similar to
§ 36-2813(B). Rather, “[e]ach of these cases
involves a statute or initiative that is either silent on
employment, or expressly authorizes discrimination against
medical marijuana users.” (Doc. 35 at 6); see Coles
v. Harris Teeter, LLC, 217 F.Supp.3d 185, 188 (D.D.C.
2016); Steele v. Stallion Rockies Ltd, 106 F.Supp.3d
1205, 1219 (D. Colo. 2015); Swaw v. Safeway, Inc.,
No. C15-939 MJP, 2015 WL 7431106, at *1 (W.D. Wash. Nov. 20,
2015); see also Roe v. TeleTech Customer Care Mgmt.,
LLC, 216 P.3d 1055, 1059-60 (Wash.Ct.App. 2009) (holding
that Washington State Medical Use of Marijuana Act, RCW
69.51A.040(1), did not create an implied cause of action
against employers who terminate, or fail to hire, an
individual solely based on his or her use of medical
marijuana where statute only created an affirmative defense
to state criminal prosecution for possession of marijuana and
did not “prohibit private employers from maintaining a
drug-free workplace and terminating employees who use medical
marijuana”); Ross v. RagingWire Telecomms.,
Inc., 174 P.3d 200, 205-07 (Cal. 2008) (holding that
disability discrimination provisions of California Fair
Employment and Housing Act did not require employer to
accommodate employee's use of medical marijuana where the
operative provisions of California's medical marijuana
statute, the Compassionate Use Act, Health & Saf. Code
§ 11362.5, “do not speak to employment law”
but, rather, “speak exclusively to the criminal
law”); Johnson v. Columbia Falls Aluminum Co.,
213 P.3d 789 (Table), 2009 WL 865308, at *2 (Mont. 2009)
(holding that Montana's Medical Marijuana Act, MCA
50-46-205(2)(b), did not provide employee with an express or
implied private right of action for negligence or negligence
per se against employer following employee's termination
for failing a drug test due to his medical marijuana use
where state's medical marijuana act was essentially a
“decriminalization” statute which specifically
provided that it could not be construed to require employers
“to accommodate medical use of marijuana in any
workplace”).
Defendant
also cites Coles v. Harris Teeter, LLC, where a
district court held that an employer's termination of an
employee who failed a drug test due to his use of medical
marijuana did not violate D.C.'s public policy of
allowing qualifying patients to use medical marijuana
prescribed by their physicians. 217 F.Supp.3d at 188. In
arriving at this conclusion, the court clarified that
D.C.'s Medical Marijuana Treatment Act, D.C. Code §
7-1671.01, et seq., “did not explicitly
mandate” that employers had to accommodate such legal
marijuana use, and, at most, “maintained a public
policy that decriminalizes and allows the consumption of
marijuana for private medical reasons”-a “far cry
from prohibiting employers from terminating such
users.” Id. In contrast to D.C.'s Medical
Marijuana Treatment Act, the AMMA goes one step beyond simply
decriminalizing medical marijuana for qualifying patients by
prohibiting employers from terminating such users unless the
qualifying patient used, ingested, possessed, was impaired by
or was under the influence of marijuana at work, or unless
the employer's failure to discriminate against that
qualifying patient would cause them to “lose a monetary
or licensing related benefit under federal law or
regulations.” A.R.S. §§ 36- 2813(B),
36-2814(A).
Similarly,
Steele v. Stallion Rockies Ltd fails to provide
support for Defendant's contention that there is no
implied cause of action in the AMMA, as that case also
involves a medical marijuana statute with little similarity
to § 36-2813(B). 106 F.Supp.3d at 1219. In
Steele, the district court dismissed the
plaintiff's claims alleging breach of contract and
discrimination in violation of the ADEA, ADA, and the
Colorado AntiDiscrimination Act where the plaintiff was
terminated for off-the-job use of medical marijuana because
the court found that Colorado's medical marijuana act did
not extend so far as to shield the plaintiff “from the
implementation of his employer's standard policies
against employee misconduct.” Id. at 1214,
1219 n. 6. Rather, as noted by Plaintiff, Colorado's
medical marijuana statute, Colo. Rev. Stat. Ann. §
18-18-406.3, fails to “mention employment at
all.” (Doc. 35 at 6). This is in stark contrast to the
anti- discrimination provision of the AMMA. See
A.R.S. § 36-2813(B). Moreover, Art. XVIII, sec. 14 of
the Colorado Constitution-passed by voters in response to
Colorado's medical marijuana statute-explicitly states:
“Nothing in this section shall require any employer to
accommodate the medical use of marijuana in any work
place.” Colo. Const. art. XVIII, § 14(10)(b).
Further,
the Washington medical marijuana statute at issue in Swaw
v. Safeway, Inc., RCW 69.51A.060, differs drastically
from § 36-2813(B) of the AMMA as well. Swaw,
2015 WL 7431106, at *1. In Swaw, the plaintiff
brought suit against his former employer, asserting that he
was discriminated against on the basis of his disabilities
when the employer fired him for testing positive for
marijuana, which the plaintiff used after hours pursuant to a
valid Washington state medical marijuana prescription.
Id. In granting the employer's motion for
judgment on the pleadings, the district court concluded that
RCW 69.51A.060 of Washington's Medical Use of Marijuana
Act “does not require employers to accommodate the use
of medical marijuana where they have a drug-free workplace,
even if medical marijuana is being used off site to treat an
employee's disabilities.” Id. (citing RCW
69.51A.060(6)[10] (“Employers may establish
drug-free work policies. Nothing in [the Medical Use of
Marijuana Act] requires an accommodation for the medical use
of cannabis if an employer has a drug-free
workplace.”)). In contrast, the AMMA makes no such
exception for employers who maintain drug-free workplace
policies. See A.R.S. § 36-2801 et seq.
Contrary
to the case law cited by Defendant, Plaintiff points to two
cases, Noffsinger v. SSC Niantic Operating Co. LLC,
273 F.Supp.3d 326, 339-40 (D. Conn. 2017) and Callaghan v
Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL
2321181, at *1 (R.I. Super. May 23, 2017), referring to
medical marijuana statutes with anti-discrimination
provisions analogous to § 36-2813(B) of the
AMMA.[11] In Noffsinger, the district
court considered whether a provision of Connecticut's
Palliative Use of Marijuana Act (“PUMA”), which
explicitly prohibits discrimination by employers against
qualifying patients who use marijuana outside the workplace,
provided an implied private right of action.
Noffsinger, 273 F.Supp.3d at 331, 339-40 (citing
Conn. Gen. Stat. § 21a-408p(b)(3)). There, a qualifying
patient under PUMA brought suit against an employer who
denied her a job position after she tested positive for
marijuana during a pre-employment screening, contending that
the employer's actions constituted a violation of
PUMA's anti-discrimination provision, Conn. Gen. Stat.
§ 21a-408p(b)(3). Id. at 331- 32. This
anti-discrimination provision states:
Unless required by federal law or required to obtain federal
funding: . . . (3) No. employer may refuse to hire a person
or may discharge, penalize or threaten an employee solely on
the basis of such person's or employee's status as a
qualifying patient or primary caregiver under sections
21a-408 to 21a-408n, inclusive. Nothing in this subdivision
shall restrict an employer's ability to prohibit the use
of intoxicating substances during work hours or restrict an
employer's ability to discipline an employee for being
under the influence of intoxicating substances during work
hours.
Conn.
Gen. Stat. § 21a-408p(b)(3).
Denying
the employer's motion to dismiss the qualifying
patient's claim under Conn. Gen. Stat. §
21a-408p(b)(3), the court concluded that PUMA's
anti-discrimination provision provides a private cause of
action. Noffsinger, 273 F.Supp.3d at 341, 343. In
arriving at this conclusion, the court considered how the
qualifying patient “certainly falls within the class
for whose benefit the statute was enacted, ” and found
“no indication of legislative intent to deny a private
cause of action” nor indication that a private cause of
action is inconsistent “with the underlying purposes of
the legislative scheme.” Id. at 339-40. The
court further noted that, “without a private cause of
action, § 21a-408p(b)(3) would have no practical effect,
because the law does not provide for any other enforcement
mechanism.” Id. at 340.
Similar
to Connecticut, Delaware also has an anti-discrimination
provision in its Medical Marijuana Act which is almost
identical to § 36-2813(B) of the AMMA:
Unless a failure to do so would cause the employer to lose a
monetary or licensing-related benefit under federal law or
federal regulations, an employer may not discriminate against
a person in hiring, termination, or any term or condition of
employment, or otherwise penalize a person, if the
discrimination is based upon . . . [a] registered qualifying
patient's 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.
Del. Code Ann. tit. 16, § 4905A(a)(3). Notably, a
Delaware Superior Court in and for Kent County recently
determined that the language of § 4905A(a)(3) creates an
implied private right of action. See Chance v. Kraft
Heinz Foods Co., No. CV-K18C-01-056 NEP, 2018 WL
6655670, at *6 (Del. Super. Ct. Dec. 17, 2018). In coming to
this decision, the superior court noted that the plaintiff, a
medical marijuana cardholder who was terminated for failing a
drug test, clearly “falls within the class of persons
for whose especial benefit the statute was enacted[.]”
Id. at *5. Further, the court determined that
recognizing an implied private right of action would advance
the purpose of § 4905A(a)(3) by protecting medical
marijuana patients from “discrimination based upon
their status, and from being penalized based upon that
discrimination, as with termination from employment.”
Id. Finally, the court found that the fact that the
state's medical marijuana act included an
anti-discrimination provision-but did not task any agency or
commission with its enforcement-demonstrated legislative
intent to remedy discrimination against registered
cardholders through private rights of action. Id. at
*6.
In
light of the similarity between the anti-discrimination
provisions at issue in Noffsinger and
Chance to A.R.S. § 36-2813(B), the Court finds
these cases highly persuasive. As in Noffsinger and
Chance, Plaintiff is a qualifying patient who
“falls within the class for whose benefit” the
AMMA was enacted. Noffsinger, 273 F.Supp.3d at 339;
Chance, 2018 WL 6655670, at *5; see also
Picht, 641 F.Supp.2d at 899 (“Whether the statute
especially benefits the person seeking redress is a factor in
the determination” of whether a statute implicitly
creates a private right of action) (citing Transamerica
Financial Corp., 761 P.2d at 1021). In consideration of
H.B. 2541's modifications to the DTEA intended to protect
employers from litigation, it is clear that the Arizona
Legislature believed employers had exposure to private
lawsuits for violations of § 36-2813(B) of the AMMA.
See Arizona Senate Fact Sheet, 2011 Reg. Sess., H.B.
2541 (Mar. 25, 2011). This suggests that “there ...