Curry v. MillerCoors, Inc.
Filing
13
ORDER granting 8 Motion to Dismiss Without Prejudice by Judge John L. Kane on 08/21/13.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02471-JLK
PAUL CURRY,
Plaintiff,
v.
MILLERCOORS, INC.,
Defendant.
ORDER GRANTING MOTION TO DISMISS
Kane, J.
This matter is before me on Defendant MillerCoors’s1 Motion to Dismiss the
Complaint of Plaintiff Paul Curry, Doc. 8.
Jurisdiction and Background
Mr. Curry commenced this action in the District Court for the City and County of
Denver, State of Colorado, by the filing on June 26, 2012, of a Summons and Complaint.
MillerCoors was served with the Summons and Complaint on August 28, 2012.
MillerCoors removed this case on September 17, 2012 to the United States District Court
for the District of Colorado per 28 U.S.C. § 1441 and § 1446 and D.C.COLO.L.Civ.R.
81.1. As fewer than thirty days had elapsed between MillerCoors’s filing a Notice of
Removal and Mr. Curry serving MillerCoors with the Summons and Complaint, removal
was timely under 28 U.S.C. § 1446(b).
1
I have used “’s” to construct the possessive form of MillerCoors. The Chicago Manual of Style indicates
that both “MillerCoors’” and “MillerCoors’s” are correct, but expresses a preference for the latter.
Particularly because MillerCoors is a proper noun, I share that preference and have accordingly adopted
that form throughout this Order.
Mr. Curry is a citizen of Colorado. He alleges that he is a current resident in
Denver, Colorado. Compl. ¶ 1. Moreover, he was an employee of MillerCoors in
Colorado for seven years and maintained a Colorado residence during that time. Compl. ¶
5 and Doc. 1-2 ¶¶ 4, 5. Mr. Curry held a Colorado driver’s license and paid taxes in
Colorado. Doc. 1-2 ¶¶ 6, 7. MillerCoors is a citizen of Delaware and of Illinois.
MillerCoors is incorporated in Delaware. Compl. ¶ 2. MillerCoors’s principal place of
business is in Illinois. Id., Doc. 1-2 ¶ 8. In the Complaint, Mr. Curry prays for an amount
calculated to compensate him for lost past and future earnings and other damages
allegedly incurred, costs and attorney fees, the total sum of which Mr. Curry estimates as
at least $75, 000. Accordingly, this Court has original jurisdiction per 28 U.S.C. §
1332(a) and removal is proper per 28 U.S.C. § 1441(b). MillerCoors has complied with
the applicable requirements of 28 U.S.C. § 1446(b) and (c).
According to the Complaint, Mr. Curry, a man suffering from hepatitis C,
osteoarthritis and pain, is licensed by the State of Colorado to use medical marijuana
pursuant to the Medical Marijuana Amendment, Colo. Const. Art. XVIII, § 14. Mr.
Curry alleges that he used marijuana within the limits of the license, never used
marijuana on MillerCoors's premises, and was never under the influence of marijuana at
work. MillerCoors fired Mr. Curry after he tested positive for marijuana, which
established a violation of MillerCoors's written drug policy. Nothing in the record
indicates that MillerCoors discharged Mr. Curry on any other ground.
Mr. Curry filed this action, claiming that his termination violated the employment
discrimination provisions found in C.R.S. § § 24-34-402(1)(a), C.R.S. § 24-43-402.5,
C.R.S. § 24 34-402(1)(d), and also that MillerCoors tortiously invaded his privacy.
MillerCoors filed the instant Motion to Dismiss, Doc. 8, arguing that each of Mr. Curry’s
claims fails under Fed.R.Civ.P 12(b)(6).
For the following reasons, I GRANT MillerCoors’s motion in totum.
Legal Standard
The United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 544 (2007) sets out the standard for considering a motion to dismiss for
failure to state a claim. It is no longer enough that a claim be conceivable; it must be
plausible. Id. at 570. The Tenth Circuit has characterized the standard as follows: “to
withstand a motion to dismiss, a complaint must contain enough allegations of fact ‘to
state a claim to relief that is plausible on its face.’” Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10 Cir. 2008), (quoting Twombly, 550 U.S. at 570). Furthermore:
[u]nder this revised standard, as we explained in Ridge at Red
Hawk, L.L.C. v. Schneider:
the mere metaphysical possibility that some
plaintiff could prove some set of facts in support
of the pleaded claims is insufficient; the complaint
must give the court reason to believe
that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.
493 F.3d 1174, 1177 (10 Cir. 2007) (emphasis in original).
The burden is on the plaintiff to frame a “complaint with
enough factual matter (taken as true) to suggest” that he or
she is entitled to relief. Twombly, 127 S. Ct. at 1965.
Id. at 1247. More recently, the Supreme Court clarified the pleading requirements set
forth in Twombly:
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570,
127 S.Ct. 1955. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Id., at 556, 127 S.Ct. 1955. The
plausibility standard is not akin to a “probability requirement,”
but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Ibid. Where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of
‘entitlement to relief.’” Id., at 557, 127 S.Ct. 1955 (brackets
omitted).
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Disability Discrimination per C.R.S. § 24-34 402(1)(a)
Mr. Curry’s first claim is for disability discrimination under C.R.S. § 24-34
402(1)(a), which statute provides in pertinent part as follows:
(1) It shall be a discriminatory or unfair employment practice:
(a) For an employer to refuse to hire, to discharge, to promote or
demote, to harass during the course of employment, or to
discriminate in matters of compensation, terms, conditions, or
privileges of employment against any person otherwise
qualified because of disability, race, creed, color, sex, sexual
orientation, religion, age, national origin, or ancestry; but, with
regard to a disability, it is not a discriminatory or an unfair
employment practice for an employer to act as provided in this
paragraph (a) if there is no reasonable accommodation that the
employer can make with regard to the disability, the disability
actually disqualifies the person from the job, and the disability
has a significant impact on the job.
C.R.S. § 24-34 402(1)(a).
Mr. Curry alleges that “MillerCoors discharged [Mr. Curry] . . . because of the
treatment that [Mr. Curry] was using to manage the symptoms of his disabling medical
conditions.” Compl. ¶ 31. The “treatment” at issue is Mr. Curry’s allegedly infrequent
use of medical marijuana. Id. ¶¶ 17, 28, 29. Mr. Curry asserts that he “did not require
any accommodation for this treatment because he only used medical marijuana off-duty
and his disability, as well as the treatment of his disability, did not have a significant
impact on his job.” Id. ¶ 31.
Mr. Curry’s first cause of action fails to state a claim for which relief can be
granted. His allegation that he was terminated because of using medical marijuana to
treat medical conditions does not pass muster because a positive test for marijuana,
whether from medical or any other use, is a legitimate basis for discharge under Colorado
law. See Slaughter v. John Elway Dodge Southwest/Autonation, 107 P.3d 1165, 1170
(Colo. App. 2005) (C.R.S. § 8-73-108(5)(e)(IX.5) “clearly establishes that it is acceptable
for an employer to have a written drug policy and to terminate an employee as the result
of a drug test showing the presence of marijuana in the employee’s system during
working hours”); Benoir v. Industrial Claim Appeals Office, 262 P.3d 970, 977 (Colo.
App. 2011) (ruling employee at fault under C.R.S. § 8-73-108(5)(e)(IX.5) for separation
from employment, despite constitutional amendment allowing medical marijuana).
Mr. Curry simply alleges MillerCoors’s enforcement of its drug-free workplace
policy. See Compl. ¶¶ 28, 29. Enforcing its policy is a lawful basis for MillerCoors’s
decision to discharge Mr. Curry. Slaughter, 262 P.3d at 1170; see also Kosmicki v.
Burlington Northern & Santa Fe Ry. Co., 545 F.3d 649, 650 (8th Cir. 2008) (Americans
with Disabilities Act case ruling that employee’s violation of employer policy by both (a)
failing to provide employer complete factual information regarding his treatment and
medication on a medical screening questionnaire and (b) working while taking
prescription drugs that affected his cognitive abilities, were legitimate non-discriminatory
reasons for discharge); 42 U.S.C. § 12114(c)(3) (employer may require employees to
conform with requirements of Drug Free Workplace Act [41 U.S.C. §§ 8101-8106]);
21U.S.C. § 812(c)(c)(17) (listing THC, a component of marijuana, on schedule I). Mr.
Curry does not allege that MillerCoors applied its drug-free workplace policy differently
or more stringently on employees licensed to use medical marijuana who test positive for
the drug than it does on any other group of employees.
Despite concern for Mr. Curry’s medical condition, anti-discrimination law does
not extend so far as to shield a disabled employee from the implementation of his
employer’s standard policies against employee misconduct. See EEOC, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act ¶¶ 35, 36 (October 17, 2002) (explaining that an employer is not required
to excuse a violation of a uniformly applied conduct rule that is job-related and consistent
with business necessity, even if the misconduct is the result of a disability). In other
words, a termination for misconduct is not converted into a termination because of a
disability just because the instigating misconduct somehow relates to a disability.
Therefore, though Mr. Curry may never have used medical marijuana absent his
disability, MillerCoors did not unlawfully terminate him “because of” his disability.
Invasion of Privacy
Mr. Curry’s second claim is for invasion of privacy based on two alleged
intrusions upon seclusion.2 Compl. ¶¶ 38, 50, 53. First, he alleges that MillerCoors’s
“medical marijuana disclosure policy purports to require MillerCoors to gain access to
information about patients in the state health agency’s confidential registry.” Id. ¶ 44; see
also id. ¶¶ 40, 50, & 57. Second, he alleges he did not consent to the drug screens
administered on March 3, 2011. Id. ¶¶ 53 &56. After first setting forth the pertinent legal
considerations, I will address each allegation in turn, finding neither succeeds.
The Restatement (Second) of Torts § 652B (1981) states that: “[o]ne who
intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another
or his private affairs or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person.” See Doe v.
High-Tech Institute, Inc., 972 P.2d 1060, 1067 (Colo. App. 1998) (citing Restatement and
citing Grease Monkey International, Inc. v. Montoya, 904 P.2d 468 (Colo.1995) for
authority to rely on the Restatement). Additionally, a claim for intrusion upon seclusion
requires showing “an unreasonable manner of intrusion or an intrusion for an
unwarranted purpose.” Slaughter, 107 P.3d at 1171.
Privacy Claim Based On MillerCoors’s Policy
2
In the section of his Response concerning his privacy claim, Mr. Curry contends that MillerCoors’s policy
is itself “unconstitutional.” Doc. 10 at 15-16. Mr. Curry’s Complaint, however, uses provisions under the
Colorado Constitution and statutes to support the existence of a legal duty for a tort claim, not as the
basis for a separate claim of unconstitutionality. Compl. ¶¶ 41-42. As such, I will not here consider a
stand-alone constitutionality claim. The same Response section further contends that MillerCoors’s policy
is discriminatory. Doc. 10 at 13-15. As this assertion is also wanting in the Complaint, I again decline to
treat the issue.
Mr. Curry fails to state a privacy claim based on MillerCoors’s policy that
allegedly “required” him to disclose “private and confidential medical information.”
Compl. ¶ 50. MillerCoors’s policy required employees who are medical marijuana
patients to report their recommendations for medical marijuana. Compl. ¶ 19. However,
Mr. Curry does not allege that he complied with the policy. He did not report his
physician’s recommendation to MillerCoors. Compl ¶ 52. In the absence of an
allegation of a disclosure by Mr. Curry, there was no intrusion. Frye v. IBP, Inc., 15
F.Supp.2d 1032, 1046 (D.Kan.1998)(employee who did not comply with employer
request to submit to a drug test could not demonstrate an intrusion); see e.g., Greco v.
Halliburton Co., 674 F.Supp. 1447, 1451 (D.Wyo.1987)(plaintiff could not prove that
termination for refusal to submit to urinalysis was invasion of privacy); Jennings v.
Minco Technology Labs, Inc., 765 S.W.2d 497 (Tex. App.-Austin 1989, writ denied)
(where employee refused consent to drug test, employer not liable for invasion of
privacy); Gretencord v. Ford Motor Co., 538 F.Supp. 331, 333 (D.Kan.1982) (employee
who refused to let employer search vehicle could not sue for damages “as a result of an
act that did not occur.”)
Even were Mr. Curry to have disclosed his status as a medical marijuana patient,
an employer’s request for such information does not constitute “an unreasonable manner
of intrusion or an intrusion for an unwarranted purpose.” See Slaughter,107 P.3d at 1171
(rejecting employee's contention that an employee's right to refuse drug testing is clearly
expressed in the tort of invasion of privacy). Accordingly, Mr. Curry has no claim for
invasion of privacy based on MillerCoors’s policy.
Privacy Claim Based On The Drug Screens
Mr. Curry alleges that “MillerCoors intentionally interfered with Mr. Curry's
privacy when it took saliva samples from him without his consent.” Compl. ¶ 56. In his
statement to the Colorado Civil Rights Commission (“CCRC”) in support of his Charge
of Discrimination, however, Mr. Curry directly contradicts his allegation by reporting, “I
voluntarily submitted to this drug screen on two separate occasions on March 3, 2011.”
Doc. 8, Ex. B at 6.
Given this contradiction of material fact, I cannot rule that MillerCoors did not
invade Mr. Curry’s privacy on the ground that he gave his consent.3 I will rule, however,
that MillerCoors did not invade Mr. Curry’s privacy for at least two other reasons.
First, Colorado law, specifically, C.R.S. § 8-73-108(5)(e)(IX.5), “plainly
recognizes an employer's right to conduct drug testing.” Slaughter, 107 P.3d at 1170.
Although the facts of Slaughter involved recreational marijuana use as opposed to
medical marijuana use, Benior makes plain that amendments to the Colorado Constitution
or new statutes concerning medical marijuana do not render tortious an employer’s
policies concerning marijuana. Benior, 262 P.3d at 967 (holding that the Colorado
3
Of course, as the Motion is currently postured as a Motion to Dismiss, whereby only the sufficiency of a
plaintiff’s complaint is tested, I may not in any event rely on the Charge of Discrimination to question Mr.
Curry’s allegation. As MillerCoors notes, however, Fed. R.Civ.P 12(d) allows me to convert a motion to
dismiss into one for Summary Judgment under Fed. R.Civ.P. 56, and doing so would permit me to
consider all properly submitted evidence, including, for example, Mr.Curry’s Charge of Discrimination.
Such would not be helpful in this instance, however, because the allegation and the evidence extrinsic to
the complaint are at odds and summary judgment requires that there be no genuine dispute of material
fact.
Constitution as amended with respect to medical marijuana “does not give medical
marijuana users the unfettered right to violate employers' policies and practices regarding
use of controlled substances.”)
Second, Mr. Curry has no claim based on the drug screens because such tests are
not offensive to a reasonable person. The tests involved Mr. Curry having to hold a swab
in his mouth. There are no allegations that Mr. Curry had the swab forced into his mouth,
that the swab pained him in anyway, that he had to hold the swab in his mouth for a
significant length of time, etc. There is no allegation suggesting that the mouth swab test
was anything other than minimally intrusive. Because Mr. Curry does not allege that the
method of the test—swabbing for saliva—is highly offensive and because I see no way a
jury could reasonably consider the test highly intrusive, I find Mr. Curry’s claim fails.
See Frye, 15 F.Supp.2d at 1042.
Lawful Activities Statute
For Mr. Curry’s third cause of action, he alleges that MillerCoors violated C.R.S.
24-34-402.5(1). Specifically, he alleges that MillerCoors discharged him for using
medical marijuana during non-working hours. Compl. ¶ 66.
C.R.S. § 24-34-402.5 prohibits an employer from terminating an employee “due to
that employee’s engaging in any lawful activity off the premises of the employer during
nonworking hours.” The statute creates a cause of action for intentional discrimination.
See Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 375 (Colo. 1997) (“a jury instruction
submitted pursuant to this statute would necessarily include an element providing that
the employee was discharged because he or she engaged in lawful activity . . .”).
Employers may raise a defense that the employer’s restriction on off-work activities
“relates to a bona fide occupational requirement or is reasonably and rationally related to
the employment activities and responsibilities of a particular employee or a particular
group of employees . . .” or “is necessary to avoid a conflict of interest with any
responsibilities to the employer or the appearance of such a conflict of interest.” C.R.S. §
24-34-402.5.
Mr. Curry mistakenly suggests that “lawful” in this statute is restricted in meaning
to Colorado law, under which it is indeed legal to use marijuana. The Colorado Court of
Appeals recently explained in Coats v. Dish Network, L.L.C., 2013 WL 1767846 (Colo.
App. 2013), however, that “lawful activity” for purposes of C.R.S. § 24–34–402.5
includes both federal and state law. “[B]ecause activities conducted in Colorado,
including medical marijuana use, are subject to both state and federal law, for an activity
to be “lawful” in Colorado, it must be permitted by, and not contrary to, both state and
federal law.” Id. at *2 (internal citation omitted).
Accordingly, because Mr. Curry’s state-licensed medical marijuana use was, at the
time of his termination, subject to and prohibited by federal law, it was not “lawful
activity” for the purposes of C.R.S. § 24–34–402.5.
Discriminatory or Unfair Employment Practice per C.R.S. § 24-34-401(1)(d)
Mr. Curry’s fourth and final cause of action is for violation of C.R.S. § 24-34402(1)(d). That statute provides that it is a discriminatory or unfair practice:
For any employer, employment agency, or labor organization to
print or circulate or cause to be printed or circulated any statement,
advertisement, or publication, or to use any form of application for
employment or membership, or to make any inquiry in connection
with prospective employment or membership that expresses, either
directly or indirectly, any limitation, specification, or
discrimination as to disability, race, creed, color, sex, sexual
orientation, religion, age, national origin, or ancestry or intent to
make any such limitation, specification, or discrimination, unless
based upon a bona fide occupational qualification or required by
and given to an agency of government for security reasons;
C.R.S. § 24-34-402(1)(d).
Mr. Curry alleges that “MillerCoors’ drug-free workplace policy makes an inquiry
in connection with membership that expresses a specification as to disability, specifically
membership as a medical marijuana patient.” Compl. ¶ 69. Further, Mr. Curry alleges
that “Mi1lerCoors discriminated against Plaintiff by making an inquiry in
connection with Plaintiff's membership as a medical marijuana patient that necessarily
implicates Plaintiffs debilitating medical conditions.” Id.
Mr. Curry’s last claim fails because he misconstrues the statute4. “Membership” as
contemplated by C.R.S. § 24-34-402(1)(d) refers to membership in a labor organization.
The statute forbids employers and labor organizations from excluding certain protected
classes from the recruiting process and likewise from attempting to recruit based on
discriminatory criteria, i.e., an employer cannot advertise an opening for a “100% healthy
white male.” See Brooke v. Restaurant Services, Inc., 906 P.2d 66, 66 n.3
4
MillerCoors also argues for dismissal on the grounds that 1) its tests are based upon a “bona fide
occupational qualification;” and 2) Mr. Curry failed to exhaust his administrative remedies. Because I find
the word “membership” as used in the statute does not allow Mr. Curry’s claim to survive, it is
unnecessary for me to consider these arguments.
(Colo.1995)(stating C.R.S. § 24-34-402(1)(d) prohibits discrimination in “employment
advertising” by any employer, employment agency, or labor organization).
Moreover, reading § 24-34-402(1)(d) in conjunction with other subsections
compels the conclusion that “membership” refers to membership in a labor organization.
“A term appearing in several places in a statutory text is generally read the same way
each time it appears.” Ratzlaf v. United States, 510 U.S. 135, 143 (1994). Section 24-34402(1)(c) makes it an unfair or discriminatory practice for “a labor organization to
exclude any individual otherwise qualified from full membership rights in such labor
organization, or to expel any such individual from membership in such labor
organization, or to otherwise discriminate against any of its members in the full
enjoyment of work opportunity because of disability…” Section 24-34-402(1)(e)
addresses “any person, whether or not an employer, an employment agency, a labor
organization, or the employees or members thereof.” “Membership” and “member”
relate back to a labor organization, just as “employee” in these statutes clearly relates
back to “employer” and “employment agency.”
Conclusion
For the reasons above, I GRANT MillerCoors’s Motion to Dismiss, Doc. 8, and
DISMISS WITHOUT PREJUDICE. Mr. Curry’s allegations unsuccessfully search and
stretch Colorado law for an employment claim related to the medical use of marijuana.
The alleged facts in this case make no such claim plausible. Mr. Curry, per
MillerCoors’s standard policies, took a drug screen that tested positive for cannabinoids.
Under established Colorado law, discharging an employee under these circumstances is
lawful, regardless of whether the employee consumed marijuana on a medical
recommendation, at home or off work.
DATED:
August 21, 2013
BY THE COURT:
s/John L. Kane
John L. Kane, U.S. Senior District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?