Ross v. RagingWire Telecommunications, Inc.

174 P.3d 200, 70 Cal. Rptr. 3d 382, 42 Cal. 4th 920, 57 A.L.R. 6th 727, 20 Am. Disabilities Cas. (BNA) 223, 2008 Cal. LEXIS 784
CourtCalifornia Supreme Court
DecidedJanuary 24, 2008
DocketS138130
StatusPublished
Cited by89 cases

This text of 174 P.3d 200 (Ross v. RagingWire Telecommunications, Inc.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 70 Cal. Rptr. 3d 382, 42 Cal. 4th 920, 57 A.L.R. 6th 727, 20 Am. Disabilities Cas. (BNA) 223, 2008 Cal. LEXIS 784 (Cal. 2008).

Opinions

Opinion

WERDEGAR, J.

The Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5, added by initiative, Prop. 215, as approved by voters, Gen. Elec. (Nov. 5, 1996)) gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges involving the drug, including possession (Health & Saf. Code, § 11357; see id., § 11362.5, subd. (d)). Federal law, however, continues to prohibit the drug’s possession, even by medical users. (21 U.S.C. §§ 812, 844(a)); see Gonzales v. Raich (2005) 545 U.S. 1, 26-29 [162 L.Ed.2d 1, [924]*924125 S.Ct. 2195]; United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 491-495 [149 L.Ed.2d 722, 121 S.Ct. 1711].)

Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; see id., § 12940, subd. (a); hereafter the FEHA) or for wrongful termination in violation of public policy (see, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887 [66 Cal.Rptr.2d 888, 941 P.2d 1157]; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 176-178 [164 Cal.Rptr. 839, 610 P.2d 1330]). We conclude the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 882-883 [59 Cal.Rptr.2d 696, 927 P.2d 1200].) We thus affirm.

I. FACTS

This case comes to us on review of a judgment entered after the superior court sustained a demurrer to plaintiff’s complaint without leave to amend. In this procedural posture, the only question before us is whether plaintiff can state a cause of action. In reviewing the complaint to answer that question, we treat the demurrer as admitting the complaint’s well-pleaded allegations of material fact, but not its contentions, deductions or conclusions of law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 [40 Cal.Rptr.3d 205, 129 P.3d 394]; Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241].) The complaint’s allegations may be summarized for this purpose as follows:

Plaintiff Gary Ross suffers from strain and muscle spasms in his back as a result of injuries he sustained while serving in the United States Air Force. Because of his condition, plaintiff is a qualified individual with a disability under the FEHA and receives governmental disability benefits. In September 1999, after failing to obtain relief from pain through other medications, plaintiff began to use marijuana on his physician’s recommendation pursuant to the Compassionate Use Act.

On September 10, 2001, defendant RagingWire Telecommunications, Inc., offered plaintiff a job as lead systems administrator. Defendant required plaintiff to take a drug test. Before taking the test, plaintiff gave the clinic that [925]*925would administer the test a copy of his physician’s recommendation for marijuana. Plaintiff took the test on September 14 and began work on September 17. Later that week, the clinic informed plaintiff by telephone that he had tested positive for tetrahydrocannabinol (THC), a chemical found in marijuana. On September 20, defendant informed plaintiff he was being suspended as a result of the drug test. Plaintiff gave defendant a copy of his physician’s recommendation for marijuana and explained to defendant’s human resources director that he used marijuana for medical purposes to relieve his chronic back pain. Defendant’s representative told plaintiff that defendant would call his physician, verify the recommendation, and advise him of defendant’s decision regarding his employment. On September 21, defendant’s board of directors met to discuss the matter and, on September 25, defendant’s chief executive officer informed plaintiff that he was being fired because of his marijuana use.

Plaintiff’s disability and use of marijuana to treat pain, he alleges, do not affect his ability to do the essential functions of the job for which defendant hired him. Plaintiff has worked in the same field since he began to use marijuana and has performed satisfactorily, without complaints about his job performance.

Based on these allegations, plaintiff alleges defendant violated the FEHA by discharging him because of, and by failing to make reasonable accommodation for, his disability. (Gov. Code, § 12940, subd. (a).) Plaintiff also alleges defendant terminated his employment wrongfully, in violation of public policy. (See Stevenson v. Superior Court, supra, 16 Cal.4th 880, 887; Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 170, 176-178.) The superior court sustained defendant’s demurrer without leave to amend and entered judgment for defendant. The Court of Appeal affirmed. We granted plaintiff’s petition for review.

H. DISCUSSION

A. The FEHA

The FEHA declares and implements the state’s public policy against discrimination in employment. (Gov. Code, §§ 12920-12921.) The particular section of the FEHA under which plaintiff attempts to state a claim, Government Code section 12940, provides that “[i]t shall be an unlawful employment practice . . . (a) For an employer, because of the . . . physical disability [or] medical condition ... of any person, to refuse to hire or employ the person ... or to bar or to discharge the person from employment . ...” An employer may discharge or refuse to hire a person who, because of a disability or medical condition, “is unable to perform his or her [926]*926essential duties even with reasonable accommodations.” (Id., § 12940, subd. (a)(1), (2).) The FEHA thus inferentially requires employers in their hiring decisions to take into account the feasibility of making reasonable accommodations.

Plaintiff, seeking to bring himself within the FEHA, alleges he has a physical disability in that he “suffers from a lower back strain and muscle spasms in his back . . . .” He uses marijuana to treat the resulting pain. Marijuana use, however, brings plaintiff into conflict with defendant’s employment policies, which apparently deny employment to persons who test positive for illegal drugs. By denying him employment and failing to make reasonable accommodation, plaintiff alleges, defendant has violated the FEHA.

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Bluebook (online)
174 P.3d 200, 70 Cal. Rptr. 3d 382, 42 Cal. 4th 920, 57 A.L.R. 6th 727, 20 Am. Disabilities Cas. (BNA) 223, 2008 Cal. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-ragingwire-telecommunications-inc-cal-2008.