loading
Ross v. Ragingwire Telecommunications, Inc.
Filed January 24, 2008, Ninth Circuit Court of Appeals
Cite as 2008 SOS 553
 
Discharged Employee’s Wrongful Termination Claims Denied

During his stint in the military, Gary Ross suffered back injuries which qualified him as a disabled, pursuant to the Fair Employment and Housing Act (FEHA). When Ross failed to relieve the chronic pain and muscle spasms using traditional medications, he consulted his physician who recommended to him the use marijuana (as permitted under the Compassionate Use Act of 1996, Health & Safety Code §11362.5).

Two years after he began using marijuana for therapy, Ross was offered a job as a lead systems administrator with Ragingwire Telecommunications, Inc. As pre-employment requirement, Ross was required to take a drug test in which he tested positive.

Despite providing a copy of the doctor’s recommendation, the company terminated Ross’ employment based on the drug test results.

Ross filed a wrongful termination suit and other related claims. Ross asserted that his disability and marijuana usage did not affect his ability to perform his job functions. According to Ross, the company had terminated him unlawfully based on his disability. Added to this, the company also failed to provide reasonable accommodation to him and the act of wrongful discharge was a violation of FEHA and public policy.

Ragingwire filed a demurrer, on the following grounds:

•    that marijuana was an illegal controlled substance under federal law
•    that the Compassionate Use Act has no provision which require employers to ignore a federal criminal violation and employ persons who test positive for marijuana

After hearing, the trial court decided in favor of Ragingwire and sustained the demurrer without leave to amend and enter judgment. The court concluded that Ross’s marijuana use violated federal law, making the practice unlawful even if there was no violation of state criminal laws due to the Compassionate Use Act.

In review, the court of appeal affirmed, holding that Ross could not state a claim for unlawful termination.

In sustaining the decision, the court established the following facts:

•    Employers have legitimate interests in not employing persons who use illegal drugs. As recognized by the California Supreme Court, such use often resulted in, increased absenteeism from work, diminished productivity, greater health costs and increased problems with respect to safety in the workplace, among other things.
•    The court found that nothing in FEHA precludes an employer from firing, or refusing to hire, a person who uses an illegal drug.
•    Further, because the possession and use of marijuana is illegal under federal law, a court has no legitimate authority to require an employer to accommodate an employee’s use of marijuana, even if it is for medicinal purposes and thus legal under California law.

Further, the appeals court opined that, if FEHA is to be extended to compel such an accommodation that is a public policy decision that must be made by the Legislature, or by the electorate via initiative (referendum), and not by the courts.

The California Supreme Court affirmed the judgment, holding that Ragingwire was entitled to terminate Ross for his use of marijuana.

In affirming the decision, the high court maintained the following important facts:

•    Marijuana does not have the same status as a legal prescription drug. Because possession and use of marijuana remains illegal under federal law, California voters could not pass a law legalizing marijuana use. Instead, they specifically exempted medicinal marijuana users, and the providers of medicinal marijuana, from criminal prosecution two specifically designated state statutes.
•    Given the narrow scope of the Compassionate Use Act, the court concluded that neither it nor the FEHA requires employers to accommodate the use of illegal drugs.
•    The act also did not provide Ross a basis upon which to state a claim for wrongful termination in violation of public policy. It does not speak of employment law and thus does not provide a public policy which would be contravened by an employee’s termination for medicinal marijuana use. Therefore, the Compassionate Use Act is not intended to address the respective rights and obligations of employers and employees, in regard to the issue.


Justices Joyce Kennard and Carlos R. Moreno agreed with the opinion of the majority, which held that because marijuana possession contravenes federal law, discharging an employee for using marijuana as recommended by a physician, would not support a claim of wrongful discharge in violation of public policy.

However, in dissenting, Justice Kennard, joined by Justice Moreno, reasoned that, unless an employer can demonstrate that an employee’s doctor-approved use of marijuana under the Compassionate Use Act while off duty and away from the jobsite, could affect the employer’s business operations in some way, or that the employer has offered another reasonable and effective form of accommodation, the employer’s discharge of the employee is disability discrimination prohibited by FEHA.

Associate Justice Kathryn Mickle Werdegar, joined by Chief Justice Ronald George, and Associate Justices Marvin Baxter, Ming Chin, and Carol Corrigan, concurred; Justices Kennard, joined by Moreno, J., concurring and dissenting.

In ruling, the California Supreme Court therefore affirmed a judgment which held that an employee’s use of marijuana pursuant to the Compassionate Use Act was not protected under the Fair Employment and Housing Act.


| More
First Name  
Last Name  
City  
State  
Phone  
Email  
Type  
Details  
Join Our Mailing List

  Type the letters below:  

Captcha Image
Follow us on Twitter
Facebook
Avvo Profile
Linkedin Profile
Rodney Mesriani on

Follow us on Twitter
Facebook
Avvo Profile
Linkedin Profile