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Whitmire v. Wal-Mart Stores Inc.

United States District Court, D. Arizona

February 7, 2019

Carol M Whitmire, Plaintiff,
v.
Wal-Mart Stores Incorporated, Defendant.

          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 ‚Äúthere ...


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