Carlson v. Charter Communications
ORDER granting 50 Charter's Partial Motion to Dismiss Plaintiff's Second Amended Complaint. Signed by Judge Sam E Haddon on 8/11/2017. (HEG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
AUG I I 2017
Clerk, U.S. District Court
District Of Montana
No. CV 16-86-H-SEH
Pending before the Court is Charter Communications, LLC's ("Charter")
Partial Motion to Dismiss Plaintiff's Second Amended Complaint:' Count I Wrongful Discharge; Count II - Retaliatory Discharge in Violation of Section 3971-317, MCA; Count III - Declaratory Judgment- As Applied Challenge to
Section 50-46-320( 4)(b ), and (5), MCA; and Count IV - Discrimination Under the
Montana Human Rights Act. 2 Dismissal of Counts I, III, and IV is sought.
Jurisdiction is grounded in diversity of citizenship. 3 Hearing on the motion was
held on August 10, 2017.
Plaintiff commenced employment with Charter, and its predecessors, in
2001. In 2010, he was issued a medical marijuana card under Montana state law
to treat "chronic low back" and "stomach pain" when not working, operating
heavy equipment, or driving. 5
On January 25, 2016, Plaintiff, while operating a company-owned vehicle
on the job, hit a pole with the vehicle. 6 He was administered two urinalysis tests
within 48 hours of the accident in which he tested positive for THC. 7 His
employment with Charter was terminated on February 9, 2016. 8
Three arguments are asserted by Charter in support of partial dismissal: ( 1)
Plaintiffs wrongful discharge and discrimination claims fail under the plain
See Doc. 22 at if 4.
See Doc. 22 at iii! 5, 8, 11.
See Doc. 22atifif17-18.
See Doc. 22 at iii! 23, 25, 26. "THC" stands for "tetrahydrocannabinols." Hemp Indus.
Ass'n v. Drug Enforcement Admin., 357 F.3d 1012, 1013 (9th Cir. 2004).
See Doc. 22 at if 28.
language of the Montana Medical Marijuana Act ("MMA"); 9 (2) federal
preemption warrants dismissal of the declaratory judgment claim; and (3) even if
marijuana use could be deemed a substantive right, Plaintiff's equal protection and
substantive due process rights were not violated. 10
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires a pleading to "contain a
'short and plain statement of the claim showing that the pleader is entitled to
relief."' 11 "[A] complaint must contain sufficient factual matter, accepted as true,
to 'state a claim to relief that is plausible on its face"' to survive a motion to
dismiss. 12 "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." 13
"Under Rule 12(b)(6) a complaint should not be dismissed unless it appears
beyond doubt that plaintiff can prove no set of facts in support of his claim that
See Mont. Code Ann.§§ 50-46-301 to 50-46-345 (2017).
See Doc. 50.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting Bell At!. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
Id. at 678 (quoting Twombly, 550 U.S. at 570).
"Id. (citing Twombly, 550 U.S. at 556).
would entitle him to relief." 14 Dismissal, however, is appropriate "ifthere is a lack
of a cognizable legal theory or if there is an absence of facts alleged under a
cognizable legal theory." 15
"The Supremacy Clause [of the United States Constitution] establishes that
federal law 'shall be the supreme Law of the Land ... any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding."' 16 "'Federal preemption
occurs when: (1) Congress enacts a statute that explicitly preempts state law; (2)
state law actually conflicts with federal law; or (3) federal law occupies a
legislative field to such an extent that it is reasonable to conclude that Congress
left no room for state regulation in the legislative field.'" 17
'"Conflict preemption is implicit preemption of state law that occurs where
there is an actual conflict between state and federal law. "' 18 Conflict preemption,
Ronan Tel. Co. v. Alltel Commc'n, Inc., No. CV 06-99-MDWM, 2007 WL 433278, at
Heise, 879 F.2d 572, 576 (9th Cir. 1989)).
*1 (D. Mont. Feb. 2, 2007) (citing Tanner v.
Id. (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
PL/VA, Inc. v. Mensing, 564 U.S. 604, 617 (2011) (quoting U.S. Const. Art. VI, cl. 2).
CT/A-The Wireless Ass'n v. City of Berkeley, 854 F.3d 1105, 1121 (9th Cir. 2017)
(quoting Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010)).
Id. (quoting McClellan v. I-Flow Corp., 776 F.3d 1035, 1039 (9th Cir. 2015)).
sometimes referred to as implied preemption, "arises either when 'compliance with
both federal and state regulations is a physical impossibility ... or when state law
stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress."' 19
"In evaluating whether federal law has preempted state law, [the Court]
must (1) look to 'the purpose of Congress [as] the ultimate touchstone,' while also
(2) 'start[ing] with the assumption that the historic police powers of the States
were not to be superseded ... unless that was the clear and manifest purpose of
Congress."' 20 "In considering whether a state law is conflict-preempted, '[the
Court] "consider[s] the relationship between state and federal laws as they are
interpreted and applied, not merely as they are written.""' 21
Charter is a federal government contractor required to comply with the
Drug-Free Workplace Act ("DFWA"). 22 Under the DFWA,"[a] person other than
an individual shall not be considered a responsible source ... for the purposes of
being awarded a [federal] contract ... unless the person agrees to provide a drug-
Id. (quoting McClellan, 776 F.3d at 1039).
McClellan, 776 F.3d at 1039 (quoting Wyeth v. Levine, 555 U.S. 555, 565 (2009)).
Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014) (quoting Ting
v. AT&T, 319 F.3d 1126, 1137 (9th Cir. 2003)).
See 41 U.S.C. §§ 8101 to 8106 (2012).
free workplace by" complying with seven enumerated requirements spelled out by
statute. 23 "Drug-free workplace" is statutorily defined as "a site of an entity ... at
which employees of the entity are prohibited from engaging in the unlawful
manufacture, distribution, dispensation, possession, or use of a controlled
substance .... " 24
The MMA, conversely, expressly permits "[a] registered cardholder who has
named a provider [to] possess up to 1 ounce of usable marijuana," 25 without
restriction as to time or place. Possession is plainly prohibited under the DFWA.
The actual conflict between Montana state law and federal law is clear. Charter
could not simultaneously permit marijuana use consistent with the MMA and at
the same time ensure a drug-free workplace as defined under the DFWA and as
required by law in order to maintain its federal contracts.
Plaintiffs assertion that he "has never used medical marijuana at work and
has never been under the influence of medical marijuana while working," 26 even if
accepted as true for purposes of this motion, does not alter the conclusion that the
See4I U.S.C. § 8102.
41 U.S.C. § 810l(a)(5)(B).
Mont. Code Ann.§ 50-46-319(l)(a).
Doc. 22 at if 42.
claim fails to survive. Such allegations are irrelevant to the conflict preemption
analysis. The question remains whether the state and federal law, as applied,
conflict, not whether Plaintiff hypothetically could comply with both.
Historic police powers of the states generally may include regulation of
matters of health and safety. The federal government nevertheless has
implemented extensive legislation regarding controlled substances which conflicts
with state law. 27 "Federal law ... still prohibits the use ... of marijuana, even if ..
. possessed pursuant to state-approved medical marijuana programs." 28 Marijuana
unequivocally remains a Schedule I controlled substance subject to criminal
penalty under federal law. 29
Plaintiffs reliance on United States v. Mclntosh 30 in asserting his "use of
medical marijuana was not an illegal use of controlled substance under state or
federal [law]" 31 is without merit. The Ninth Circuit has specifically stated, since
Mcintosh, the congressional "appropriations rider restricts only the DOJ's ability
See generally 21 U.S.C. §§ 801 to 971.
United States v. Kleinman, 859 F.3d 825, 831 (9th Cir. 2017).
See 21 U.S.C. § 812.
833 F.3d 1163 (9th Cir. 2016).
Doc. 22 at~ 36.
to use certain funds on particular prosecutions during a specific fiscal year[.]" 32
The Controlled Substances Act "continues to apply in all 50 states." 33 Preemption
warrants dismissal of the declaratory judgment claim.
Given that application of any conflicting state law is precluded by
controlling federal statutes, consideration of the constitutionality of Mont. Code
Ann. §§ 50-46-320( 4)(b) and (5) is neither necessary nor appropriate.
Montana Medical Marijuana Act
The MMA on its face likewise forecloses Plaintiffs claims under both the
Wrongful Discharge from Employment Act 34 and the Montana Human Rights
Act. 35 Neither act provides Plaintiff a safe harbor.
The MMA provides, in part:
(4) Nothing in this part may be construed to require:
(b) an employer to accommodate the use of marijuana by
a registered cardholder[.]
(5) Nothing in this part may be construed to:
United States v. Nixon, 839 F.3d 885, 887-88 (9th Cir. 2016).
Id. at 888.
See Mont. Code Ann.§§ 39-2-901 to 39-2-915.
See Mont. Code Ann. § § 49-1-101 to 49-4-51 !.
(b) permit a cause of action against an employer for
wrongful discharge pursuant to 39-2-904 or
discrimination pursuant to 49-1-102. 36
Plaintiffs claim for wrongful discharge alleges "Charter terminated Plaintiff
for legal use of medical marijuana, which was a prescribed, lawful treatment for a
diagnosed medical condition." 37 The discrimination claim similarly alleges
"Plaintiff was terminated based on his physical disability and his lawful use of
medical marijuana to treat a legitimate medical condition." 38
Clear limitations in the unambiguous language of the MMA bar both
Plaintiffs claims for wrongful discharge and for discrimination grounded in what
is alleged to be his lawful marijuana use. "Where the language of a statute is
plain, unambiguous, direct and certain, the statute speaks for itself and there is
nothing left for the court to construe. " 39
One of the stated purposes of the MMA is to "provide legal protections to
individuals with debilitating medical conditions ... who engage in the use of
Mont. Code Ann. § 50-46-320.
Doc. 22 at~ 50.
Doc. 22 at~ 72.
Dunphy v. Anaconda Co., 438 P.2d 660, 662 (Mont. 1968) (citation omitted); see also
Mont. Code Ann.§ 50-46-320.
marijuana to alleviate the symptoms of the debilitating medical condition." 40
However, the Montana "Legislature was highly cognizant of the fact that
marijuana remains a Schedule I controlled substance, illegal for all purposes,
under federal law." 41
Charter is entitled to dismissal of Counts I, III, and IV of the Second
Amended Complaint. A preliminary pretrial conference to establish a schedule for
further proceedings directed to Count II - Retaliatory Discharge in Violation of
Section 39-71-317, MCA, will be set by separate order of Court.
Charter's Partial Motion to Dismiss Plaintiff's Second Amended
Complaint42 is GRANTED.
/ / day of August, 2017.
United States District Judge
Mont. Code Ann. § 50-46-301(2)(b).
Mont. Cannabis Indus. Ass 'n v. State, 368 P.3d 1131, 1142 (Mont. 2016) (citation
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