Freeman Expositions, LLC v. Dist. Ct. , 2022 NV 77 ( 2022 )

138 Nev., Advance Opinion 77
IN THE SUPREME COURT OF THE STATE OF NEVADA
FREEMAN EXPOSITIONS, LLC, No. 83172
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
FIL
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
VERONICA BARISICH, DISTRICT
JUDGE,
Respondents,
and
JAMES ROUSHKOLB,
Real Party in Interest.
Original petition for a writ of mandamus challenging a district
court order denying in part a motion to dismiss.
Petition granted in part and denied in part.
Jackson Lewis P.C. and Lynne K. McChrystal and Paul T. Trimmer, Las
Vegas,
for Petitioner.
Gabroy Law Offices and Christian J. Gabroy, Henderson,
for Real Party in Interest.
Claggett & Sykes Law Firm and Micah S. Echols, Joseph N. Mott, and Scott
E. Lundy, Las Vegas,
for Amicus Curiae Nevada Justice Association.
SUPREME COURT
OF
NEVADA
(0) 1947A .41E1P
/2-3774fD
BEFORE THE SUPREME COURT, EN BANC 1
OPINION
By the Court, STIGLICH, J.:
Pursuant to the Nevada Constitution, the Legislature has
enacted laws permitting the use of cannabis to treat certain medical
conditions by qualifying patients. Nev. Const. art. 4, § 38; NRS Chapter
678C. The Legislature has additionally provided that employers "must
attempt to make reasonable accommodations for the medical needs or
employees who use medical cannabis outside of the workplace while
possessing a valid registry identification card, unless certain exceptions
apply. NRS 678C.850(3).
As a matter of first impression, we are tasked with interpreting
whether Nevada law provides employees who use medical cannabis with
workplace protections. We observe that the Legislature has clearly
distinguished between recreational and medical cannabis use in the
employment context, and we conclude that NRS 678C.850(3) provides
employees with a private right of action where an employer does not provide
reasonable accommodations for the use of medical cannabis off-site and
outside of working hours. As employees have a private right of action under
NRS 678C.850, we conclude that employees lack a cause of action in
circumstances such as these for tortious discharge or negligent hiring,
training, or• supervision. And we extend our recent decision in Ceballos v.
NP Palace, LLC, 138 Nev., Adv. Op. 58, 514 P.3d 1074 (2022), to hold that
1The Honorable Abbi Silver having retired, this matter was decided
by a six-justice court.
SUPREME COURT
OF
NEVADA
2
(0) 1947A aZaiNa
employees who use medical cannabis may not bring a claim against their
employer under NRS 613.333.
Accordingly, the district court properly declined to dismiss real
party in interest's claim under NRS 678C.850(3) but erred by not dismissing
the claims for tortious discharge; unlawful employment practices under
NRS 613.333; and negligent hiring, training, or supervision. Therefore, we
grant in part and deny in part this petition for a writ of mandamus.
FACTS AND PROCEDURAL HISTORY
Real party in interest James Roushkolb accepted a journeyman
position with petitioner Freeman Expositions, dispatched through a union.
While Roushkolb was tearing down a convention exhibit with another
employee, a large piece of plexiglass fell and shattered. Following the
incident, Freeman Expositions required Roushkolb to take a drug test, and
Roushkolb tested positive for cannabis. A collective bargaining agreernent
provision related to drug and alcohol use provided for zero tolerance, and
Freeman Expositions terminated Roushkolb and sent the union a letter
stating Roushkolb was no longer eligible for dispatch to Freeman
Expositions worksites. At the time, Roushkolb held a valid medical
cannabis registry identification card issued by the State of Nevada.
Roushkolb filed suit, asserting five claims against Freeman
Expositions: (1) unlawful employment practices under NRS 613.333;
(2) tortious discharge; (3) deceptive trade practices; (4) negligent hiring,
training, and supervision; and (5) violation of the medical needs of an
employee pursuant to NRS 678C.850(3).2 Freeman Expositions moved to
2After Roushkolb initiated his suit, the Legislature recodified NRS
Chapter 453A as NRS Chapter 678C. See generally 2019 Nev. Stat., ch. 595,
§ 245, at 3896; 2019 Nev. Stat., ch. 595, § 83-171, at 3790-3834. While the
SUPREME COURT
OF
NEVADA
(0) I947A
3
dismiss. The district court dismissed the claim for deceptive trade practices,
allowing the others to proceed. Freeman Expositions petitioned for a writ
of mandamus, seeking dismissal of the remaining claims. This court
directed an answer from Roushkolb and allowed the Nevada Justice
Association to appear as amicus curiae in support of Roushkolb.
DISCUSSION
A writ of mandamus may be issued by this court to compel the
performance of an act that the law requires or to control a district court's
arbitrary or capricious exercise of discretion. NRS 34.160; Int'l Game Tech.,
Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558
(2008). This extraordinary relief may be available if a petitioner does not
have a plain, speedy, and adequate remedy in the ordinary course of law.
NRS 34.170. Whether to consider a writ petition is within this court's sole
discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818
P.2d 849, 851 (1991). Generally, this court will not consider a writ petition
challenging an interlocutory order denying a motion to dismiss because an
appeal from a final judgment is an adequate and speedy legal remedy. Int'l
Game Tech., 124 Nev. at 197, 179 P.3d at 558-59. "Nonetheless, we have
indicated that we will consider petitions denying motions to dismiss when
either (1) no factual dispute exists and the district court is obligated to
dismiss an action pursuant to clear authority under a statute or rule, or
(2) an important issue of law needs clarification and considerations of sound
judicial economy and administration militate in favor of granting the
petition." Id. at 197-98, 179 P.3d at 559; see also Buckwalter v. Eighth
parties discuss this claim under NRS Chapter 453A, the recodification did
not substantially change the operative statutes at issue here, and we refer
to the current codification.
SUPREME COURT
OF
NEVADA
4
(0,1 1947A .1114P)D
Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d 920, 921 (2010) (explaining
that this court may entertain writ petitions challenging an order denying a
motion to dismiss when "the issue is not fact-bound and involves an
unsettled and potentially significant, recurring question of law").
Freeman Expositions and Roushkolb both argue that this court
should clarify Nevada's laws regarding medical cannabis in the employment
context. We agree. We recently decided related employment issues
concerning adult recreational cannabis in Ceballos, but that case did not
present the question of whether employers must accommodate employees
using medical cannabis. Although we recognize that Freeman Expositions
has a legal remedy, judicial economy would be served by clarifying the
recurring issues of statewide importance presented in this petition.
The district court properly denied Freeman Expositions' motion to dismiss
the claim under NRS 678C.850(3) but erred by not dismissing the claims for
tortious discharge; violation of NRS 613.333; and negligent hiring,
supervision, and training
"Statutory interpretation is a question of law that [this court]
review[s] de novo, even in the context of a writ petition." Int'l Game Tech.,
124 Nev. at 198, 179 P.3d at 559. Pursuant to NRCP 12(b)(5), a court may
dismiss a claim for "failure to state a claim upon which relief can be
granted." A claim should be dismissed "only if it appears beyond a doubt
that [the nonmoving party] could prove no set of facts, which, if true, would
entitle it to relief," treating its factual allegations as true and drawing all
inferences in its favor. Buzz Stew, LLC v. City of North Las Vegas, 124 Nev.
224, 228, 181 P.3d 670, 672 (2008).
Whether NRS 678C.850(3) provides a private right of action
Freeman Expositions argues that the district court should have
dismissed Roushkolb's NRS 678C.850(3) claim alleging a violation of its
duty to provide reasonable accommodations for his medical needs because
SUPREME COURT
OF
NEVADA
(0) 1947A (442A4.)
5
NRS Chapter 678C does not provide a private right of action. Freeman
Expositions also argues that Roushkolb did not request an accommodation
for his use of medical cannabis. Roushkolb did not address the
accommodation issue before this court but argued below that he had sought
the accommodation of not being terminated for using medical cannabis
outside of the workplace during nonworking hours. He also argued below
that NRS 678C.850 would be nullified if no private right of action were
allowed because no administrative agency is empowered to enforce this
protection.
Under NRS 678C.850, an employer need not allow the medical
use of cannabis in the workplace or "modify the job or working conditions of
a person who engages in the medical use of cannabis that are based upon
the reasonable business purposes of the employer." NRS 678C.850(2)-(3).
Nevertheless, an
employer must attempt to make reasonable
accommodations for the medical needs of an
employee who engages in the medical use of
cannabis if the employee holds a valid registry
identification card, provided that such reasonable
accommodation would not:
(a) Pose a threat of harm or danger to persons
or property or impose an undue hardship on the
employer; or
(b) Prohibit the employee from fulfilling any
and all of his or her job responsibilities.
NRS 678C.850(3). The only employers exempted from this mandate are law
enforcement agencies. NRS 678C.850(4). The statute does not expressly
state that an employee has a private right of action should an employer not
attempt to accommodate medical cannabis users. See NRS 678C.850.
Where a statute does not expressly provide a private right of
action, it may nevertheless support an implied right of action if the
SUPREME COURT
OF
NEVADA
(0) I947A
6
Legislature intended that a private right of action may be implied. Neville
v. Eighth Judicial Dist. Court, 133 Nev. 777, 781, 406 P.3d 499, 502 (2017).
To determine the Legislature's intent, we consider "(1) whether the
plaintiffs are of the class for whose special benefit the statute was enacted;
(2) whether the legislative history indicates any intention to create or deny
a private remedy; and (3) whether implying such a remedy is consistent
with the underlying purposes of the legislative scheme." Baldonado v.
Wynn Las Vegas, LLC, 124 Nev. 951, 958-59, 194 P.3d 96, 101 (2008)
(cleaned up) (addressing factors set forth by the Supreme Court in Cort v.
Ash, 422 U.S. 66, 78 (1975)). These factors are not necessarily dispositive,
as the critical factor is whether the Legislature intended to sanction a
private right of action. See Transamerica Mortg. Advisors, Inc. v. Lewis,
444 U.S. 11, 15-16, 20 (1979) (concluding that whether a private remedy
exists ultimately rests with legislative intent).
Looking to the Legislature's intent, we conclude that NRS
678C.850 provides an implied private right of action. First, Roushkolb is
indeed part of the class for whose benefit the statute was enacted because
Roushkolb held a valid medical cannabis registry card and was an employee
of Freeman Expositions who sought to use medical cannabis. See generally
NRS Chapter 678C (concerning decriminalizing medical cannabis, the
process for lawful use, and the regulation of medical cannabis production
and sales, among other miscellaneous provisions). Second, reviewing the
legislative history, the Legislature added subsection NRS 678C.850(3) in
2013 and did not express an intention to create or deny a private remedy
under the statute. 2013 Nev. Stat., ch. 547, § 24.3, at 3726. The
Legislature, however, explained that it modeled the statute on Arizona's
medical cannabis statutes, Hearing on S.B. 374 Before the Assemb. Comm.
SUPREME COURT
OF
NEVADA
(0) I947A
7
on Judiciary, 77th Leg. (Nev., June 1, 2013), and a federal district court in
Arizona concluded that the analogous Arizona law provided an implied
cause of action because one was needed to implement the statutory
directive, Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 775-76 (D.
Ariz. 2019). See 73 Am. Jur. 2d Statutes § 79 (Aug. 2022 update)
(recognizing that a court may give decisions of another state's courts great
weight in construing statutes modeled after those of that other state). And
third, we conclude that implying a private cause of action to enforce NRS
678C.850 is consistent with the underlying purposes of NRS Chapter 678C.
The Legislature enacted NRS Chapter 678C to enforce the Nevada
Constitution, see Nev. Const. art. 4, § 38(1), and to allow Nevadans who
suffer from certain medical conditions to be able to obtain medical cannabis
safely and conveniently, see NRS 678A.005(2). NRS Chapter 678C provides
that the Division of Public and Behavioral Health of the Department of
Health and Human Services is tasked with enforcing many provisions, but
the chapter is silent as to enforcement regarding employment issues arising
out of NRS 678C.850. Further, we find no other statute that provides
medical cannabis users with a cause of action against an employer who
violates the directive of NRS 678C.850(3). In light of these considerations,
we conclude that the Legislature intended to provide a private right of
action to implement its mandate in NRS 678C.850(3).
Other jurisdictions have determined that similar statutes
directing employers to accommodate employees using medical cannabis
provide a private cause of action, even where the legislators did not include
such a remedy in the statutory scheme. Cf. City of Las Vegas v. Cliff
Shadows Profl Plaza, LLC, 129 Nev. 1, 9 n.4, 293 P.3d 860, 865 n.4 (2013)
(looking to the decisions of other jurisdictions when confronting matters of
SUPREME COURT
OF
NEVADA
(0) 1947A
8
first impression). As previously indicated, a federal district court in Arizona
concluded that there was an implied private right of action in Arizona's
medical cannabis antidiscrimination statute. Whitmire, 359 F. Supp. 3d at
781. That court specifically observed that the employee fell within the class
sought to be protected by the statute, there was no indication of legislative
intent to deny a remedy, and implying a private cause of action would give
force to the public policy sought to be advanced by the statutory scheme. Id.In Palrniter v. Commonwealth Health Systems, Inc., 260 A.3d 967 (Pa.
Super. Ct. 2021), an intermediate Pennsylvania appellate court held that
that state's legislature intended to provide an implied private cause of
action for the employment-discrimination prohibition in the state's medical
cannabis statutes. Id. at 975-76. Though the statutes did not state an
explicit remedy, the court looked to "the mischief to be remedied, the object
to be obtained, and the consequences of a particular interpretation" and
concluded that a private right of action was implied to implement "a public
policy designed to protect certified users of medical marijuana from
employment discrimination and termination." Id. at 976-77. And a federal
district court in Connecticut performed a comparable analysis and likewise
concluded that that state's medical cannabis statute provided an implied
private right of action. Noffsinger v. SSC Niantic Operating Co., 273 F.
Supp. 3d 326, 338-40 (D. Conn. 2017). In line with these other jurisdictions,
we find an implied right of action under NRS 678C.850, where an employer
does not follow the Legislature's directive that an employer must attempt
to accommodate an employee who uses medical cannabis, unless certain
SUPREME COURT
OF
NEVADA
(0) 1947A
9
exceptions apply.3 Accordingly, Freeman Expositions has not shown that
writ relief is warranted to remedy the district court declining to dismiss this
claim.
Tortious discharge claim
Freeman Expositions next argues the district court should have
dismissed Roushkolb's claim for tortious discharge because an at-will
employee can generally be terminated for any reason, unless the dismissal
offends strong and compelling public policy, which Freeman Expositions
asserts does not exist here.4 Roushkolb counters that his tortious discharge
claim was properly allowed to proceed because allowing an employer to
terminate employees using medical cannabis outside of the workplace
offends public policy. He asserts that employees will be forced to choose
between employment or medical care if employees are denied the
protections of Nevada's medical cannabis laws.
An employer commits tortious discharge if they terminate an
employee for reasons that violate public policy. D'Angelo v. Gardner, 107
Nev. 704, 712, 819 P.2d 206, 212 (1991). "[T]ortious discharge actions are
3We are not presented here with resolving what an employer must do
to satisfy its obligation to "attempt to make reasonable accommodations for
the medical needs of an employee who" uses medical cannabis.
4Freeman Expositions' arguments based on the at-will doctrine are
misplaced. While employees in Nevada are rebuttably presumed to be at-
will and subject to termination "at any time and for any reason or no
reason," Martin v. Sears, Roebuck & Co., 111 Nev. 923, 926-27, 899 P.2d
551, 553-54 (1995), we have recognized that "the type of employment—
either at-will or by contract—is immaterial to a tortious discharge action,"
Allum v. Valley Bank of Nev., 114 Nev. 1313, 1317, 970 P.2d 1062, 1064
(1998). Further, Roushkolb's employment was governed by a collective
bargaining agreement that provided the employer the right to issue a
disciplinary letter of no dispatch for cause.
SUPREME COURT
OF
NEVADA
(0) I 947A 4,4EPP
10
severely limited to those rare and exceptional cases where the employer's
conduct violates strong and compelling public policy." Sands Regent v.
Valgardson, 105 Nev. 436, 440, 777 P.2d 898, 900 (1989). Where the
Legislature has provided an employee with a statutory remedy, that remedy
will be instructive as to whether the public policy at issue rises to the level
of supporting a claim for tortious discharge. Id. This court has recognized
three instances where an employer violated "strong and compelling public
policy": (1) when an employee was terminated for refusing to engage in
unlawful conduct, Allurn, 114 Nev. 1313, 970 P.2d 1062; (2) when an
employee was terminated for refusing to work in unreasonably dangerous
conditions, D'Angelo, 107 Nev. 704, 819 P.2d 206; and (3) when an employee
was terminated for filing a workers' compensation claim, Hansen v.
Harrah's, 100 Nev. 60, 675 P.2d 394 (1984).5 Conversely, this court has
rejected other claims even though the employers allegedly violated public
policy created by the Nevada Legislature. See, e.g., Chavez v. Sievers, 118
Nev. 288, 293-94, 43 P.3d 1022, 1025-26 (2002) (declining to recognize a
public policy exception to the at-will doctrine for a racial discrimination
claim against a small employer not subject to Nevada anti-discrimination
laws); Sands Regent, 105 Nev. at 439-40, 777 P.2d at 899-900 (declining to
allow an employee to recover under a tortious discharge theory for age
discrimination).
Here, the use of medical cannabis distinguishes these facts from
our recent analysis regarding an employee fired for using recreational
51n dicta, we have also endorsed tortious discharge claims when
employees were terminated for reporting an employer's illegal activities to
the authorities and for performing jury duty. Ceballos, 138 Nev., Adv. Op.
58, 514 P.3d at 1078 (collecting cases).
SUPREME COURT
OF
NEVADA
(0) 1947A
11
cannabis. In Ceballos, we explained that the appellant did not have a claim
for tortious discharge because in NRS 678D.510(1)(a), the Legislature
expressly permitted employers to maintain and enact policies prohibiting or
restricting their employees from using recreational cannabis. 138 Nev.,
Adv. Op. 58, 514 P.3d at 1079 (discussing NRS 678D.510(1)(a)). In contrast
here, the Legislature has provided that employers, except law enforcement
agencies, "mu.st attempt to make reasonable accommodations" for
employees who use medical cannabis outside of the workplace. See NRS
678C.850(3). Thus, while Nevada public policy supports safe and
reasonable access to both medical and recreational cannabis, see NRS
678A.005(2)(a), (b), the Legislature provided specific protections for
employees using medical cannabis that it did not for those using
recreational cannabis. Public policy thus supports broader protections for
medical cannabis.
Nevertheless, the Legislature set forth the means by which
employers and employees should negotiate an employee's medical cannabis
use by providing that employers must attempt to accommodate the
employee. NRS 678C.850(3). The remedy it provided shows that medical
cannabis users are protected in employment, but only to the extent that
employers must attempt to accommodate their medical needs. This
prohibition against employment discrimination is qualified and does not
mandate a particular response by employers. Therefore, the public policy
protected here is not so strong anci compelling as to support a claim for
tortious discharge, particularly where an employee may seek recourse
through a private cause of action under NRS 678C.850(3). See Noffsinger,
273 F. Supp. 3d at 340-41 (concluding that Connecticut medical cannabis
statutes implied a private right of action for employment discrimination and
SUPREME COURT
Or
NEVADA
(0) I947A 44 1
,DIr>
12
rejecting a public policy tort claim as precluded by the private right of
action). Accordingly, we conclude that Freeman Expositions has shown that
writ relief is warranted as to Roushkolb's tortious discharge claim.
Unlawful employment practices under NRS 613.333
Freeman Expositions next argues the district court should have
dismissed Roushkolb's NRS 613.333 claim alleging unlawful employment
practices because the statute does not protect an employee's use of medical
cannabis. Roushkolb and amicus counter that NRS 613.333 protects
medical cannabis users in employment contexts because medical cannabis
is a lawful product in Nevada.
NRS 613.333 provides employment protections for the lawful
use of products outside of the workplace. Pursuant to NRS 613.333(1),
[ilt is an unlawful employment practice
for an employer to.. . [d]ischarge . . . any
employee . . . because the employee engages in the
lawful use in this state of any product outside the
premises of the employer during the employee's
nonworking hours, if that use does not adversely
affect the employee's ability to perform his or her
job or the safety of other employees.
An employee who is discharged in violation of this protection may bring a
civil action against the employer. NRS 613.333(2).
In Ceballos, we interpreted NRS 613.333 and clarified that
recreational cannabis use is not covered by this statute because cannabis
possession remains illegal under the federal Controlled Substances Act.
Ceballos, 138 Nev., Adv. Op. 58, 514 P.3d at 1077-78; cf. 21 U.S.C. § 844(a);
21 C.F.R. § 1308.11(d)(23). "Lawful use in this state" means lawful under
SUPREME COURT
OF
NEVADA
(0) 1947A
13
all law applicable in Nevada, including state and federal laws.6 Ceballos,
138 Nev., Adv. Op. 58, 514 P.3d at 1078. Because medical cannabis
possession remains illegal under federal law, we extend our interpretation
of NRS 613.333 to also apply to medical cannabis use. Therefore, we
conclude that NRS 613.333 does not provide a basis for a claim that alleges
employment discrimination for the use of medical cannabis as a product
lawfully used outside of the workplace. Accordingly, Roushkolb could not
state a claim on this basis, and Freeman Expositions has shown that writ
relief is warranted as to Roushkolb's NRS 613.333 claim.
Negligent hiring, training, and supervision claim
Lastly, Freeman Expositions argues the district court erred by
failing to dismiss Roushkolb's negligent hiring, training, and supervision
claim because there is no duty for employers to train employees on medical
cannabis laws and standards.7 Roushkolb counters that Freeman
Expositions was negligent because it did not properly train its employees
on medical cannabis and workplace rights.8
6We observe that Roushkolb's position would require NRS 613.333(1)
to protect lawful use under Nevada law. See Ceballos, 138 Nev., Adv. Op.
58, 514 P.3d at 1078.
7 Freeman Expositions also argues that NRS 613.330-.435 preempts
negligence claims alleging unlawful employment practices. We need not
reach whether medical cannabis use constitutes a "disability" within the
meaning of NRS 613.330 because Roushkolb alleged negligence, not
discrimination, in this claim.
8Roushkolb also argues that this negligence claim was based on
workplace safety issues related to the initial incident. We agree with
Freeman Expositions that such a workplace safety issue is preempted by
the Nevada Industrial Insurance Act. See Wood v. Safeway, Inc., 121 Nev.
724, 732, 121 P.3d 1026, 1031 (2005) (explaining that the Nevada Industrial
Insurance Act "provides the exclusive remedy for employees injured on the
SUPREME COURT
OF
NEVADA
14
(0) 1947A
"The tort of negligent hiring imposes a general duty on the
employer to conduct a reasonable background check on a potential employee
to ensure that the employee is fit for the position." Hall v. SSF, Inc., 112
Nev. 1384, 1392, 930 P.2d 94, 98 (1996) (internal quotation marks omitted).
Beyond hiring, an employer also "has a duty to use reasonable care in the
training, supervision, and retention of [its] employees to make sure the
employees are fit for their positions." Id. at 1393, 930 P.2d at 99. To
establish a claim for negligent hiring, training, retention, or supervision of
employees, a plaintiff must show (1) a duty of care defendant owed the
plaintiff; (2) breach of "that duty by hiring, training, retaining, and/or
supervising an employee even though defendant knew, or should have
known, of the employee's dangerous propensities; (3) the breach was the
cause of plaintiffs injuries; and (4) damages." Peterson v. Miranda, 57 F.
Supp. 3d 1271, 1280 (D. Nev. 2014).
Roushkolb alleged Freeman Expositions breached its duties "to
not hire individuals with a propensity of committing unlawful acts against"
him and to train and supervise its employees regarding medical cannabis
laws and termination procedures.9 Roushkolb did not allege that Freeman
Expositions failed to properly screen employees it hired, that it failed to
ensure that employees were suitable for their positions, or that it knew or
job, and an employer is immune from suit by an employee for injuries
arising out of and in the course of the employment" (internal quotation
marks omitted)).
9To the extent that Roushkolb argues that Freeman Expositions owed
him a duty to train other employees regarding medical cannabis law, he has
not supported that contention with cogent argument or relevant authority,
and we decline to address it. See Edwards v. Emperor's Garden Rest., 122
Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006).
SUPREME COURT
OF
NEVADA
(0) 1947A 4,064,4
15
should have known about an employee's dangerous propensities. A claim
for negligent hiring, training, or supervision contemplates liability for an
employer based on injuries caused by a negligently managed employee. See
Restatement of Employment Law § 4.04 (Am. Law Inst. 2015) ("Except to
the extent precluded by a workers'-compensation statute or other law, an
employer• is subject to liability for the harm caused an employee by
negligence in selecting, retaining, or supervising employees or agents whose
tortious acts resulted in the harm."). Insofar as Roushkolb alleges wrongful
conduct, the wrong perpetrated, if any, lies in his being terminated for using
medical cannabis. That is, it relates to the conduct of the employer, not
another employee, and so does not support a claim for negligent hiring,
training, or supervision. Accordingly, Roushkolb has failed to state a claim
for negligent hiring, training, or supervision upon which relief may be
granted. Therefore, Freeman Expositions has shown that writ relief is
appropriate in this regard.
CONCLUSION
The Legislature has enacted a statutory scheme permitting and
regulating the use of medical cannabis. As part of these statutes, it has
provided that employers generally "must attempt to make reasonable
accommodations for the medical needs of' employees who use medical
cannabis outside of the workplace. NRS 678C .850(3). Having considered
the public policy that the Legislature sought to advance in the medical
cannabis statutes, we conclude that NRS 678C .850(3) provides an employee
with a private right of action where an employer does not attempt to provide
reasonable accommodations for the use of medical cannabis off-site and
outside of working hours. In light of the private right of action under NRS
678C.850 that an employee may exercise, we conclude that an employee
may not assert a claim for tortious discharge for violating public policy
SUPREME COURT
OF
NEVADA
(0) I947A 4404D
16
concerning the use of medical cannabis. And we also conclude that an
employee who uses medical cannabis may not bring a claim against an
employer under NRS 613.333 and that the real party in interest here has
failed to /state a claim for negligent hiring, training, or supervision. We
therefore conclude that the district court properly declined to dismiss real
party in interest's claim under NRS 678C.850(3) but erred by not dismissing
the claims for tortious discharge; unlawful employment practices under
NRS 613.333; and negligent hiring, training, or supervision. Therefore, we
grant mandamus relief in part and deny it in part, and we direct the clerk
of this court to issue a writ of mandamus directing the district court to grant
Freeman Expositions' motion to dismiss with respect to the claims for
tortious discharge; unlawful employment practices under NRS 613.333; and
negligent hiring, training, or supervision.
Stiglich
We concur:
0,20 cL__5(S' , C.J.
Parraguirre
/ , J. J.
Hardesty Cadish
J
Pickering Herndon
SUPREME COURT
OF
NEVADA 17
(0) 1947A