Coats v. Dish Network, L.L.C. , 2013 Colo. App. LEXIS 616 ( 2013 )

Opinion by

CHIEF JUDGE DAVIDSON

{1 The primary question before us is whether federally prohibited but state-licensed medical marijuana use is "lawful ac tivity" under section 24-84-402.5, C.R.8.2012, Colorado's Lawful Activities Statute. If it is, employers in Colorado would be effectively prohibited from discharging an employee for off-the-job use of medical marijuana, regardless that such use was in violation of federal law. We conclude, on reasoning different from the trial court's analysis, that such use is not "lawful activity."

2 We also address whether a section 24-34-402.5 claim is equivalent to a tort for purposes of the mandatory attorney fees provision of section 18-17-201, C.R.S.2012. We conclude that the answer to this question is also no. Thus, we affirm in part and reverse in part.

I. Background

T3 After being terminated, plaintiff, Brandon Coats, filed a complaint against his former employer, defendant, Dish Networks, L.L.C.

T4 According to the complaint, plaintiff, a quadriplegic, is licensed by the state of Colorado to use medical marijuana pursuant to the Medical Marijuana Amendment, Colo. Const. art. XVIII, § 14 (Amendment). Plaintiff alleged that he used marijuana within the limits of the license, never used mariJuana on defendant's premises, and was never under the influence of marijuana at work. Defendant fired plaintiff after he tested positive for marijuana, which established a violation of defendant's drug policy. Nothing in the record indicates that defendant had any other justification for the discharge.

4 5 Plaintiff filed this action, claiming that his termination violated the Lawful Activities Statute, section 24-834-402.5, an employment discrimination provision of the Colorado Civil Rights Act (CCRA). The statute prohibits an employer from discharging an employee for "engaging in any lawful activity off the premises of the employer during nonworking hours," subject to certain exceptions. § 24-34-402.5. Defendant filed a motion to dismiss, arguing that the use of medical mariJuana was not "lawful activity" because it was prohibited under both state law and federal law.

1 6 The trial court addressed only the state law issue, and relying on Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 978 (Colo. App.2011), decided that plaintiff's medical marijuana use was not "lawful activity" under Colorado law. Id. (Amendment did not establish state constitutional right to state-licensed medical marijuana use, but rather created an affirmative defense from prosecution for such use). The court therefore dismissed the complaint for failure to state a claim. Subsequently, the court granted defendant's motion for attorney fees pursuant to section 18-17-201, agreeing with defendant that plaintiff's claim was a tort for purposes of that statute.

T7 Plaintiff separately appealed the judgment of dismissal and the attorney fees award. We have consolidated the cases. On different reasoning, we affirm the judgment dismissing plaintiff's complaint for failure to state a claim. See In re Marriage of Rodrick, 176 P.3d 806, 810 (Colo.App.2007) ("[aln appellate court may affirm a trial court's correct judgment based on different reasoning than the trial court used"). However, we reverse the order granting defendant its attorney fees.

II. State~Licensed Medical Marijuana Use Is Not "Lawful Activity" for Purposes of Section 24-34-402.5

8 At the time of plaintiff's termination, all marijuana use was prohibited by federal law. See 21 U.S.C. § 844(a); Gonzales v. Raich, 545 U.S. 1, 29, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (state law authorizing possession and cultivation of marijuana does not cireum-seribe federal law prohibiting use and possession); Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920, 70 Cal.Rptr.3d 382, 174 P.3d 200, 204 (2008) ("No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users." (citations omitted)). It remains so to date.

T9 Plaintiff acknowledges that medical marijuana use is illegal under federal law, but argues that his use was nonetheless "lawful activity" for purposes of section 24-34-402.5 because the statutory term "lawful activity" refers to only state, not federal law. We disagree.

110 Like the trial court, we accept as true all averments of material fact and view the allegations of the complaint in the light most favorable to the plaintiff. See Hemmann Management Services v. Mediacell, Inc., 176 P.3d 856, 858 (Colo.App.2007). Interpreting the statutory term "lawful activity" presents a question of law that we review de novo. See Dubois v. People, 211 P.3d 41, 483 (Colo.2009). When interpreting a statute, we aim to ascertain and give effect to the intent of the legislature based on the plain and ordinary meaning of the statutory language. See McCall v. Meyers, 94 P.3d 1271, 1272 (Colo.App.2004). We may also examine the legislative history to discern the policy objective of a statute and to ensure that our interpretation is consistent with the legislature's intent. See Allstate Ins. Co. v. Schneider Nat'l Carriers, Inc., 942 P.2d 1352, 1356 (Colo.App.1997), aff'd sub nom. Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465 (Colo.1998).

{11 Section 24-34-402.5(1), C.R.S.2012, provides in pertinent part:

It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours....

{12 The statute does not define the word "lawful." Thus, we must look to its ordinary meaning. See Marks v. Koch, 284 P.3d 118, 123 (Colo.App.2011) ("When a statute does not define its terms but the words used are terms of common usage, we may refer to dictionary definitions to determine the plain and ordinary meanings of those words."); Mounkes v. Indus. Claim Appeals Office, 251 P.3d 485, 487 (Colo. ("if the statutory language is clear and unambiguous, we give the words their ordinary meaning and apply the statute as written"); Cerbo v. Protect Colorado Jobs, Inc., 240 P.3d 495, 501, n. 4 (Colo.App.2010) (to determine meaning of statutory term, we may look to dictionary definitions).

113 The plain and ordinary meaning of "lawful" is that which is "permitted by law." Black's Law Dictionary, 965 (Oth ed. 2009); see, e.g., Hougum v. Valley Memorial Homes, 574 N.W.2d 812, 820 (N.D.1998) (interpreting the word "lawful" in the North Dakota Human Rights Act to mean "authorized by law and not contrary to, nor forbidden by law" (citing Black's Law Dictionary 797 (5th ed. 1979))).

114 Thus, because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law, see, e.g., Raich, 545 U.S. at 29, 125 S.Ct. 2195 (federal Controlled Substances Act applies to state activities including marijuana use), for an activity to be "lawful" in Colorado, it must be permitted by, and not contrary to, both state and federal law. Conversely, an activity that violates federal law but complies with state law cannot be "lawful" under the ordinary meaning of that term. Therefore, applying the plain and ordinary meaning, the term "lawful activity" in section 24-34-402.5, means that the activity-here, plaintiff's medical marijuana use-must comply with both state and federal law. See generally Matthew C. Macy, Employment Low and Medical Marijuana - An Uncertain Relationship, 41 Colo. Law. 57, 60 (Jan.2012) (observing that medical marijuana's continuing illegality under federal law "likely will be sufficient to remove the employee from the protection of § [24-34-1402.5").

1 15 Based on the premise that the legislature intended that section 24-84-402.5 protect employees, plaintiff contends that we must read "lawful activity" to include activity that is prohibited by federal law, but not state law. However, while we agree that the general purpose of section 24-84-402.5 is to keep an employer's proverbial nose out of an employee's off-site off-hours business, see Hearing on H.B. 90-1123 before the S. Comm. on Business Affairs and Labor, 57th Gen. Assemb., 2d Sess. (Mar. 12, 1990) (statements of Sens. Meiklejohn, Wells, and Martinez), we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law.

116 First, while the statute promotes a "hands-off" policy for a broad range of off-the-job employee behavior, it still maintains the larger balance between employer and employee rights reflected in Colorado's law of at-will employment. See § 24-84-402.5(1)(a), C.R.S.2012 (employers may terminate an employee for lawful offthe-job activity if it "[rJelates to a bona fide occupational requirement or is reasonably and rationally related to ... employment activities and responsibilities"); see, e.g., Wisehart v. Meganck, 66 P.3d 124, 126 (Colo.App.2002) (at-will employment in Colorado allows either the employee or the employer to terminate employment at any time without cause; this balance "promotes flexibility and discretion for employees to seek the best position to suit their talents and for employers to seek the best employees to suit their needs").

17 Second, there is no reference in the legislative discussions to the word "lawful," or to whether, by the term "lawful activity," the legislature intended to include activities prohibited only by federal law. See Hearing on H.B. 90-1123 before the H. Comm. on Agriculture, Livestock and Natural Resources, 57th Gen. Assemb., 2d Sess. (Jan. 24, 1990); Second Reading of HB. 90-1123 before the H., 57th Gen. Assemb., 2d Sess. (Feb. 5, 1990); Third Reading of H.B. 90-1123 before the H., 57th Gen. Assemb., 2d Sess. (Feb. 7, 1990); Hearing on H.B. 90-1123 before the S. Comm. on Business Affairs and Labor, 57th Gen. Assemb., 2d Sess. (Mar. 12, 1990); Second Reading of H.B. 90-11283 before the S., 57th Gen. Assemb., 2d Sess. (Mar. 28, 1990).

1 18 Yet, notwithstanding state police powers generally, there are numerous activities, often of major import, that are controlled or regulated exclusively by federal law. Seq, eg., 8 U.S.C. § 1227(a)(1)(A) (no Colorado state law counterpart; persons entering United States without documentation subject to removal); 17 U.S.C. § 506 (no Colorado state law counterpart; establishes offense of infringing copyrights on certain works); see also U.S. Const. art. VI, el. 2 (Supremacy Clause).

1 19 Thus, forbidding a Colorado employer from terminating an employee for federally prohibited off-the-job activity is of sufficient policy import that we cannot infer, from plain statutory language to the contrary and silence in the legislative discussions, the legislative intent to do just that. See Allstate Ins. Co., 942 P.2d at 1356 ("One of the primary uses of legislative history as an aid to statutory construction is to discern the policy objective to be achieved by a statute, so that a court may consider the consequences of a proposed construction and adopt a reading that will achieve consequences consistent with legislative intent."); Grossman v. Columbine Medical Group, Inc., 12 P.3d 269, 271 (Colo.App.1999) (it is for the legislature, and not the courts, to enunciate the public policy of the state); see also Shipley v. People, 45 P.3d 1277, 1282 (Colo.2002) (special offender statute requiring specific "term" for sentencing did not limit court's discretion to impose penalties aside from incarceration because nothing in statutory language or legislative history suggested such intent); cf. Roe v. TeleTech Customer Care Management (Colorado) LLC, 171 Wash.2d 736, 257 P.3d 586, 597 (2011) (state medical marijuana amendment did not establish a public policy in favor of medical marijuana use on which a claim for wrongful discharge in violation of public policy could be based because, in part, that would require employers to allow employees to violate federal law).

1120 Moreover, a review of Colorado statutes shows that if the legislature had wanted to insulate employees from discharge for off-thejob activities illegal only under federal law, it knew how to accomplish that goal. Compare, eg., § 8-75-101(2)(a)(T), CRS. 2012 ("any other state law"), with § 18-17-103(6), C.R.S.2012 ("unenforceable under state or federal law"), § 11-59.7-104 (1)(b)(D(B), C.R.S.2012 ("obligation under federal law"), and § 83-6-115.5(1), C.R.S. 2012 (cannot interfere with "lawful" hunting, trapping, or fishing); see generally Students for Concealed Carry on Campus, LLC v. Regents of University of Colorado, 280 P.3d 18, 23 (Colo.App.2010) ("Had the legislature intended to exempt universities, it knew how to do so."), aff'd, 2012 CO 17, 271 P.3d 496.

[ 21 In support of plaintiff's assertion that under the statute, activity that violates federal law is "lawful," the dissent cites to cases stating that state courts construing a term in a state statute usually decline to seek guidance from a federal definition of that term. See, e.g., Cox v. Microsoft Corp., 290 A.D.2d 206, 206-07, 737 N.Y.S.2d 1, 2 (2002) (federal case law is irrelevant to state court's determination of whether trebling of damages is "penal" as that term is used in state statute). While this proposition is generally true, any federal definition of "lawful activity" was of no relevance to our analysis here.

€22 In a different argument, relying on People v. Tilehkooh, 118 Cal.App.4th 1433, 7 Cal.Rptr.3d 226 (2008), plaintiff also contends that interpreting the term "lawful activity" to implicate both state and federal law improperly "compels" Colorado to enforce federal criminal law. We disagree, and instead follow the reasoning of People v. Watkins, 2012 COA 15, ¶ 33, 282 P.3d 500, which rejected the proposition set forth by the California court in Tilekhkooh that the state court was effectively enforcing federal law through a state statute by revoking probation based on a violation of federal law. See Watkins, ¶¶ 33-34, 282 P.3d 500. Just as revoking state probation for a violation of federal law does not result in a federal charge or sentence, section 24-84-402.5 does not enforce federal law by excluding from its protection individuals who were terminated for violating federal law.

4 23 Thus, because plaintiffs state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law, we conclude that it was not "lawful activity" for the purposes of section 24-34-402.5. Based on this disposition, we need not address plaintiffs arguments concerning whether the Amendment created a state constitutional right to medical marijuana use.

III. Defendant is Not Entitled to Attorney Fees Pursuant to Section 13-17-201

{24 After the court dismissed plaintiffs claim, defendant moved for attorney fees pursuant to section 18-17-201, which mandates an award of reasonable attorney fees to a defendant when a court dismisses, pursuant to C.R.C.P. 12(b), an "action( ] brought as a result of ... an injury ... occasioned by the tort of any other person." § 18-17-201.

4 25 The court granted defendant's motion, determining that section 18-17-2011 applied because plaintiff's claim constituted a tort claim. On appeal, plaintiff contends that this conclusion was incorrect. We review this issue de novo, and agree with plaintiff. See Robinson v. Colorado State Lottery Division, 179 P.3d 998, 1009 (Colo.2008) (reviewing de novo whether section 183-17-201 applies).

[4] 126 Initially, we reject defendant's assertion that plaintiff failed to properly preserve this issue for our review. To the contrary, plaintiff's response to defendant's motion sufficiently alerted the trial court that plaintiff was contesting the characterization of his claim as a tort for the purposes of section 18-17-201. See Qwest Services Corp. v. Blood, 252 P.3d 1071, 1087-88 (Colo.2011) (issue of lack of limiting instruction preserved for appeal even though party failed to ask for limiting instruction because party "directed the trial court's attention" to the issue).

127 To determine whether section 13-17-201 applies to plaintiff's claim, we "focus on the manner in which [the claim was] pleaded." Dubray v. Intertribal Bison Co-op., 192 P.3d 604, 607 (Colo.App.2008); see also Robinson, 179 P.3d at 1009 (the controlling issue is how the plaintiff has characterized the claim in the complaint).

[28 Here, the complaint pleaded a single claim based on a violation of section 24-34-402.5, which, as discussed, is an employment discrimination provision of the CCRA. See Watson v. Public Service Co., 207 P.3d 860, 865-66 (Colo.App.2008) (General Assembly placed section 24-84-402.5 within the "discriminatory or unfair employment practices" section of the CCRA). The complaint does not refer to or imply a tort claim, and the only damages plaintiff specifically requests are back pay and benefits (the sole remedies authorized by section 24-34-4025), cf. Goodson v. American Standard Ins. Co., 89 P.3d 409, 415 (Colo.2004) (traditional tort principles include availability of compensatory damages for emotional distress, pain and suffering, inconvenience, fear and anxiety, and impairment of quality of life).

129 Defendant asserts, nevertheless, that a section 24-34-402.5 claim is the equivalent of an invasion of privacy tort, and, even if not, exhibits sufficient general tort characteristics to be equivalent to a tort claim. We disagree with both arguments.

A. A Section 24-84-402.5 Claim Is Not an Invasion of Privacy Tort

130 The only invasion of privacy torts recognized in Colorado that are possibly analogous to a section 24-84-402.5 claim are intrusion upon seclusion and unreasonable disclosure of private fact. These torts protect an individual's privacy interest by prohibiting both an intentional intrusion on that interest and the discovery and disclosure of private information. See Doe v. High-Tech Institute, Inc., 972 P.2d 1060, 1065 (Colo.App.1998) (intrusion upon seclusion is intentional intrusion upon seclusion or solitude that would be offensive to a reasonable person; unreasonable disclosure of private fact requires disclosure of private fact to the public, which would be highly offensive to reasonable person).

31 In contrast, by its plain terms, seetion 24-34-402.5 offers no protection against intrusion into privacy or discovery and disclosure of private information. Instead, it protects an employee from discriminatory termination based on lawful, off-the-job activity.

1 32 Relying on Gwin v. Chesrown Chevrolet, Inc., 931 P.2d 466, 469 (Colo.App.1996) (without analysis, treating a section 24-84-402.5 claim as a privacy tort), defendant argues that section 24-84-402.5 is at its essence a privacy statute because it prohibits termination based on private activity. We disagree. While section 24-34-402.5 prohibits termination based on lawful, off-the-job activity that happens to be private, the private nature of the activity is not required by section 24-34-402.5. To the contrary, section 24-84-402.5 also prohibits termination based on lawful, off-the-job activity that is not private. See generally Banks v. Chesapeake & Potomac Telephone Co., 802 F.2d 1416, 1424 (D.C.Cir.1986) (two discrimination statutes not analogous where one "does not apply to many forms of discrimination remediable under [the other]"). Therefore, we disagree with defendant and Gwin, and conclude that a section 24-34-402.5 claim is not equivalent to an invasion of privacy tort because the interests protected by each are different.

B. A Section 24-84-402.5 Claim Does Not Exhibit Sufficient General Tort Characteristics

1 33 We are aware of no general authoritative definition of a tort to which we could usefully compare a section 24-34-402.5 claim. See, e.g., 1 Stuart M. Speiser et al., The American Low of Torts 5 (2003) ("[The abstraction 'tort' is not only nebulous but also protean.... 'A really satisfactory definition of a tort has yet to be found'" (quoting Prosser, Law of Torts 1 (4th ed.)).

134 However, the primary purpose of tort law is to compensate plaintiffs for injuries wrongfully suffered at the hands of others. See id. at 12 ("There are broad judicial utterances to the effect that, [ ] [the primary purpose of tort law is that of compensating plaintiffs for the injuries they have suffered wrongfully at the hands of others.[ J"); Robinson, 179 P.3d at 1003 (claim lies in tort for purposes of Colorado Governmental Immunity Act (CGIA) when "injury arises either out of conduct that is tortious in nature or out of the breach of a duty recognized in tort law, and ... relief seeks to compensate the plaintiff for that injury"); City of Colorado Springs v. Commers, 993 P.2d 1167, 1176 (Colo.2000) (for purposes of CGIA, torts are claims seeking "compensatory relief for personal injuries suffered as a consequence of prohibited conduct," whereas claims seeking to "redress discriminatory conduct and ... not compensate the plaintiff for any personal injuries" are not torts).

185 Defendant argues that plaintiff's complaint alleged a tort because it sought compensation, in the form of back pay, for the injury of being terminated based on lawful, off-the-job activity in violation of section 24-34-402.5.

36 However, as discussed, section 24-84-402.5 is located in the "discriminatory or unfair employment practices" section of the CCRA. This placement demonstrates the General Assembly's intent that the purpose of the statute is not to compensate an individual for breach of a statutory duty, as defendant suggests, but to eliminate workplace discrimination based on lawful, off-the-job activity. See Brooke v. Restaurant Services, Inc., 906 P.2d 66, 71 (Colo.1995) ("the [CCRA] is not designed primarily to compensate individual claimants, but to eliminate unfair or discriminatory practices as defined by the Act"); Commers, 998 P.2d at 1174 (CCRA was designed primarily to eliminate discrimination and "any benefits to an individual claimant, such as the recovery of back pay, are 'merely incidental to the Act's greater purpose of eliminating workplace discrimination" (quoting Brooke, 906 P.2d at 71}; Watson, 207 P.3d at 866 (the CCRA "does not create" "a tort claim in the nature of compensation for personal injuries" (citing Conners, 993 P.2d at 1174)).

137 Moreover, in contrast to the broad compensation for pain and suffering, harm to reputation, emotional distress, and other injuries often available in a tort claim, section 24-34-402.5 authorizes only back pay and benefits that would have been due absent the discriminatory termination. § 24-34-4025; cf. Goodson, 89 P.3d at 415 (traditional tort principles include availability of compensatory damages for emotional distress, pain and suffering, inconvenience, fear and anxiety, and impairment of quality of life). Thus, section 24-84-402.5 excludes most traditional tort remedies, and simply restores the plaintiff to the wage and employment position he or she would have had absent the unlawful discrimination.

1 38 We are not persuaded to the contrary by defendant's citation to federal cases stating, in other contexts, that federal statutory discrimination claims are torts. Indeed, in most federal decisions analyzing whether a particular federal statutory discrimination claim sounds in tort, the result turns on the purpose of the statute and the nature of the remedy that Congress has provided, an approach consistent with our analysis and result here. See and compare, e.g., United States v. Burke, 504 U.S. 229, 241, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) (Title VII employment discrimination claim "whose sole remedial focus is the award of back wages" does not redress a tort-like personal injury), criticized on other grounds by O'Gilvie v. United States, 519 U.S. 79, 117 S.Ct. 452, 136 L.Ed.2d 454 (1996), with Curtis v. Loether, 415 U.S. 189, 195-96, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (discrimination claim based on fair housing provision of federal Civil Rights Act of 1968 sounds in tort because it is analogous to other recognized torts, but, "[mJore important, the relief sought here-actual and punitive damages-is the traditional form of relief offered in the courts of law"), and Meyer v. Holley, 587 U.S. 280, 285, 128 S.Ct. 824, 154 L.Ed.2d 753 (2008) (relying on reasoning of Curtis, 415 U.S. at 195-96, 94 S.Ct. 1005, to determine whether federal discrimination claim sounds in tort); see also McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1255 (10th Cir. 1988) (acknowledging split of authority on the issue of whether § 1981 claim sounds in tort or contract); see generally Wilson w. Gareiq, 471 U.S. 261, 268, 277, 105 S.Ct. 1988, 85 L.Ed.2d 254 (1985) (when forced to decide what state cause of action most closely resembles § 1983 claim for purposes of determining statute of limitations, court focused its analysis on "characterizling] the essence of the [§ 1983] claim" and the remedies provided by § 1983), superseded by statute, 28 U.S.C. § 1658, as recogpmized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377-78, 124 S.Ct. 1836, 158 LEd.2d 645 (2004) (28 U.S.C. § 1658 provides statute of limitations for § 1988 claims); Banks, 802 F.2d at 1424 (adopting Wilson v. Garcia analysis for same issue regarding § 1981 claims and holding that particular state statute not analogous to § 1981 because state statute "does not apply to many forms of discrimination remediable under § 1981").

T 39 Accordingly, we disagree with the trial court and conclude that plaintiff's claim was not a tort for purposes of an attorney fees award pursuant to section 18-17-201. Based on this disposition, we also decline defendant's request under section 13-17-201 for attorney fees on appeal.

The judgment dismissing plaintiff's complaint is affirmed and the order awarding attorney fees to defendant is reversed.

Marquez ^*, J., concurs Webb, J., dissents