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Ross v. Raging Wire Employer's Right to Fire Workers Held Sacred by California Supreme Court

Employer’s Right to Fire Workers Held Sacred by California Supreme Court

by FRED GARDNER

The boss’s sacred right to fire a worker supercedes the worker’s legal right to fire up a medicinal herb in his own house on his own time, the California Supreme Court has ruled in the case of Ross v. RagingWire. The Court had to violate its own logic in People v. Mower, a 2002 ruling that defined physician-approved cannabis users as equal to -"no more criminal than"- prescription-drug users.

Nobody knows how many California workers have been fired or threatened with termination or not hired in the first place because they tested positive for marijuana. Gary Ross was fired after testing positive by a company called RagingWire Telecommunications. He sued for discrimination, arguing that he had a doctor’s approval, was using legally under California law, and had never been impaired at work. RagingWire argued that they had a right to fire Ross for violating the federal marijuana prohibition.

The Sacramento Superior Court and the Third Appellate District Court found for RagingWire. Ross took his case to the California Supreme Court, represented by Sacramento defense specialist Stewart Katz and Joe Elford of Americans for Safe Access. On Jan. 24 a 5-2 majority issued its judgment for RagingWire, written by Justice Kathryn Mickle Werdegar, who should know better -her husband, David Werdegar, MD, used to run San Francisco General Hospital.

Werdegar’s key point is that Prop 215’s protections were very narrow. "The proponents of the Compassionate Use Act consistently described the proposed measure to the voters as motivated by the desire to create a narrow exception to the criminal law." The proponents she refers to are/is Bill Zimmerman, the campaign manager installed by East Coast masterminds to replace Dennis Peron as their price for funding a signature drive. Zimmerman wrote ballot arguments that weakened the initiative, presenting it merely as a defense in court instead of a bar to prosecution. Werdegar’s ruling acknowledges that "the measure’s opponents (her italics) argued the act would ‘make it legal to smoke marijuana in the workplace," but adds, amazingly, "the argument was obviously disingenuous [it was written by the Attorney General of California, Dan Lungren] because the measure did not purport to change the laws affecting public intoxication with controlled substances… Proponents reasonably countered the argument by observing that, under the measure, ‘police officers can still arrest for marijuana offenses. Proposition 215 simply gives those arrested a defense in court."

Attorney Joe Elford of Americans for Safe Access is not contemplating an appeal to the U.S. Supreme Court. "This is a purely state-law case," he says. "We had two causes of action under state law. The state’s highest court should be
determining state law. The US Supreme Court really has no business
interfering in state law."

ASA has been working with State Sen. Mark Leno on legislation that would prevent employers from discriminating against medical marijuana users. February 22 is the deadline for bills to be introduced. Anybody who thinks Gov. Schwarzenegger would sign such a bill -even with safety-sensitive positions excluded- can place a bet with fred@plebesite.com.

Attorney Bill Panzer says that the state Supreme Court ruling for RagingWire "brings to mind my old law school professor who used to say, ‘No case is ever decided on the law. First the judges decide what they want to do. Then they find the reasoning."

We’ll take potshots at Werdegar’s ruling in another column. Before he leaves the stage, let’s hear from Gary Ross. This interview was conducted the morning after his day in court, Nov. 7, 2007. He’s now working as a camp superintendent for a Sacramento non-profit.

Ross: It’s minimum wage, but that’s not my frustration. I’m used to the corporate world where we’re working on multi-million dollar contracts and if we run over budget we just get more money. Here, we need to change a light bulb we put in a request and hope it’s approved. But I like being out here on 25 acres.

PotShots: How did you get injured?

Ross: I was working on an airplane and I took a fall and landed right on my tailbone. I fractured two of the transverse processes in my lower back.

PS: When was this?

Ross: I was in the Air Force from 1979 to 1983. I was an E-3.

PS: What were you medicating with originally?

Ross: Whatever was the popular medication for the VA at the time. Soma was popular for a while until they found it highly addictive and took it away. Flexoril. Valium. Percocet. Demarol. Vicodin. They finally landed me on Vicodin. That was their drug of choice for me. They gave me five milligrams plus 375 mg of aspirin. So if I need to take three or four of them I might be taking way too much aspirin. So there I was trying to solve a medical problem and I’m creating a new one for myself …

PS: Was the injury the reason you left the Air Force?

Ross: No. The military wasn’t for me.

PS: So you came back to civilian life and what happened next?

Ross: My daughter was born just before I got out. I couldn’t find work in Sacramento so I started working as a janitor for a base commissary up in Rapid City South Dakota -at Ellsworth Air Force Base, where my father-in-law was stationed. After a few months I ended up at the VA hospital because my back went out. That’s when I put in an application for a service-connected disability. I was granted it and became eligible for vocational rehabilitation, which is what started me going to college at National College in Rapid City. That’s how I got into the computer industry.

When I graduated I got a job with Compucom, which is a Compac- authorized reseller, and became certified. I was installing new systems, fixing Compacs and IBMs. Then I got a job as a UNIX administrator for a small company in Sacramento. And from there I blossomed into a consultant. I had a real love for it.

PS: Where are you from originally?

Ross: Born in San Francisco, grew up in San Bruno and Pacifica. When I was 14 my parents moved to Sacramento.

PS: Do you have any other kids?

Ross: I have a son who’s 21 who’s in the Army right now. He’s stationed at Fort Knox. It won’t be long before he gets in the rotation to go overseas. Which scares the heck out of me. My wife was killed in an auto accident this January.

PS: Sorry to hear that.

Ross: Twenty-four years. Don’t know life without her. We went everywhere together. She’d put up with all my multiple hospital trips. You don’t know how many times I’ve been in the hospital for my back. But she never gave up on me…

PS: How did you find marijuana?

Ross: I went to see Dr. Tod Mikuriya… In ’96 when the law passed I said, ‘Okay, let’s see what’s going to happen.’ And I started following the news. Of course, Dr. Mikuriya was all over the news, he was battling McCaffrey. I did some research and found that he’d been studying medical marijuana since 1965. So I said, ‘This is the man I need to talk to.’ I first saw him in 1999 and then saw him again for renewals. When I went back for a renewal he remembered me very well. He was a sharp man. Then when my case was filed in 2001 we had several discussions about it.

PS: How did getting approval to medicate with marijuana affect your VA situation?

Ross: I didn’t rush into the VA. Almost every doctor that I’ve talked to about alternative medicine has always laughed in my face.

PS: Let’s get back to your work history leading up to your hiring by RagingWire.

Ross: I was a consultant with Lucent Technologies in Alameda as a 1099 employee for 18 months. Lucent was making all the hardware for the dial-up communications for all the dotcoms. They were leasing the equipment to the dotcom and when they started to fail they were getitng all this equipment back and orders were canceled. And they had revved up to build more equipment.

Lucent went from $68 a share to a dollar a share, so they were starting to cut expenses and closing down offices, and the one I was working in was one of them, so I started looking for another job and I saw the RagingWire ad. I thought ‘Okay, I’ll become a regular employee, get some stock options, spend more time with my family.’

I had worked 18 months straight -took off one half day. At $110/hour you work a lot but as a contract employee there’s no sick time no vacation. I was on the road a lot and I stayed on a sailboat in the estuary.

PS: Are you a boat person?

Ross: Yes, I am. I could sail all day.

PS: Where did you see the ad for RagingWire?

Ross: on Monster.com. There’s about 10 interviews you have to go through. Before you start the interview process you have to be cleared by security. You fill out your application, give them your social security number and they run a background check on you. It can take months. I applied in January ’01 and I started in April or May. So, to go through that and get the job and then four days later get suspended -that was frustrating.

When the HR manager was getting my package together and sending me my offer letter and all that -along with the information where to take the drug screen- she had a family emergency and had to leave town. I received the package on the Friday before I was supposed to start. I got the paperwork at 11 o’clock via Fed Ex and I was at the clinic in downtown Sacramento by 12. I expected the clinic to return the results that day.

There was nothing said, and I started on Monday and my assumption was that there was no problem. Then on Thursday they called me in and said that my results came back and I had a positive result for THC.

That’s when I explained that I had a doctor’s recommendation, and I showed it to them. They told me they were going to put me on suspension until they could verify the information. I thought that was it -they’d call Dr. Mikuriya and he’d validate my recommendation and I’d go back to work.

The director of HR called me up on the following Thursday and said "We’ve decided to terminate you." She gave me a form saying I was being terminated for THC. She also presented me with a five- or six-page document and said if I’d sign the document they’d give me two weeks pay or something like that and I would release them from all civil responsibility for terminating me for THC in my system. So I told her I wasn’t going to sign it, I was going to take it home and think about it. I gave it to my lawyer, Stewart Katz.

PS: Why do they drug test in the computer industry?… It’s not like you’re operating heavy equipment. What’s the concern?

Ross: I don’t know. I’ve known companies that are straight-up government contractors and they don’t give drug tests. And I’ve worked for others that had nothing to do with government and they drug test. I’ve been wondering: how many state employees use medical marijuana? Are federal dollars being withheld from California because state employees use medical marijuana?

RagingWire doesn’t have any government contracts. All they do is house computers. They’re a secure building -a colo [co-location], like Quest or Level 5. They guarantee internet connection, electricity and security. They don’t actually touch the computers that are in there. They don’t go out and build anything, they’re not a manufacturer. The only thing the federal government might do is put their computers in there, but I’ve never seen a government computer in a colo.

PS: Why would a company use a colo insead of their own office building? Why is it a superior place to house your computers?

Ross: The colo can guarantee you 99.9 percent up time. You’ll have electricity 24/7, you’ll have a connection to the internet, that kind of thing. Lucent has their own, IBM has their own. Most of the dotcoms were run out of office buildings that didn’t have the facility to handle the server hook-ups. Their electricity depended on the building superintendent. RagingWire had a good idea and a good location, their problem was that they were way at the end of the curve. The dotcom explosion was ending when they got going. Office space had reached eight or nine dollars a square foot in San Francisco and then it started coming down.

PS: What exactly were you going to be doing for RagingWire?

Ross: I was going to be an on-site repair person. So if your company had computers at RagingWire and there was a problem that required service and you didn’t feel like sending your UNIX admin up, I’d be able to take care of it. I was also taking care of the servers.

PS: You must be highly skilled. There’s lots of troubleshooters out there but you were a troubleshooter for the troubleshooters.

Ross: That’s correct. What I used to do -what I love to do- is, I was the guy on the front line who would parachute into companies and fix their problems and move on to the next. I was always on an airplane somewhere. I always ended up at the end of the week with one or two one-way tickets that I didn’t use. Like I’d fly into Cincinnati and when I finished instead of going home they wanted me to go to Texas. And after I fixed the problem in Texas they’d tell me there’s a problem in Rhode Island. Because I flew so much I always flew first class. I stayed in 4-star hotels and ate at 4-star restaurants and I really enjoyed it.

PS: How was your back in this period? How often would you have to take the drugs the VA had given you?

Ross: I was going through 180 Vicodin every three months. And allthat aspirin, which was my big concern. A neighbor of mine was taking pills to help his kidney but they were hurting his liver. So he went to an herbologist and they detoxified his body and taught him how to take care of himself rather than taking medication and next thing you know his liver and his kidney were both doing better. So I’m like ‘Wait a minute.’ As I did more research I found out that pharmaceutical companies spend a lot of time convincing the doctors and the future doctors that they’ve got the cure-all. So they come out of college already brainwashed.

PS: In my experience they come out of college idealistic and something happens during the course of their medical education that changes their perspective. One factor is the huge debts they’ve got coming out of med school. They want to make as much money as possible as fast as possible.

Ross: Every other commercial on TV is for pills. It’s a joke!

PS: When did you decide to fight RagingWire’s decision to terminate you?

Ross: Immediately.

PS: How did you find Stewart Katz?

Ross: I joined NORML. And I started going through their list of lawyers and calling them. None of them asked me any questions, they just turned me down. Either it wasn’t their specialty or there was nothing in it for them. Finally one of them referred me to Stewart. He asked me questions and -this is nothing against Stewart- he realized my salary was $74,000 and that there was a potential for some money. I found out a couple of days ago that if we prevail in civil court, then FEHA [the Fair Employment and Housing Act] will pay Stewart’s fees.

We filed the civil case and RagingWire immediately filed a demurrer and that’s what we’re fighting in the Supreme Court -the demurrer. [A demurrer is a statement by one party in a suit that even if the facts as stated by the other side are true, they aren't sufficient basis for a claim and therefore don't require a response.] If we prevail then we get to proceed in civil court. There are no facts in dispute here. In filing the demurrer they’re agreeing, "Yes, he’s disabled. Yes, he was terminated for THC in his system. But no, this did not create a tort [a legal wrong]."

PS: What questions did the judges ask and what do you think their decision is going to hinge on?

Ross: California law vs. federal law.

PS: How does federal law come into it. Joe Elford says there’s no federal law prohibiting employment by someone with THC in their system.

Ross: As I understand it, what people are calling "federal law" is just a policy, not a law. The federal government can generate policies all day long, but they can’t shove them down the throats of the states. We have dispensaries here in California, we have counties passing out cards, we have cities sanctioning growing. I thought I was safe. I thought this was an intrastate issue, not interstate commerce.

I thought my case was cut-and-dry. California voted for it. California employer. When I worked for a company in Denver called R Squared, my office was at my home in California. The labor laws that applied to me were California laws, not Colorado laws. They had a policy that you didn’t get paid vacation till you had worked for them for one year. But in California, vacation accrues monthly. So that’s how mine was handled.

I don’t know why the phrase "federal law" keeps popping up now. Except for certain safety situations there is no federal law requiring corporations to drug test their employees or to terminate them if they’re positive.
The Lauder case was interjected by the appellate court. The Lauder case talks about absenteeism and poor performance based on drug abuse and using medications -pharmaceuticals- without a doctor’s supervision. So it shouldn’t apply. Respondent’s counsel [RagingWire's lawyer] kept coming back to the Lauder case and saying, "This is going to be a bad employee." But Lauder says "if he’s not using it under a doctor’s care…"

One justice kept coming back to California law and respondent’s counsel kept going "federal federal federal." She created a scenario: "In California we apply FEHA to illegal immigrants who, if they were to step out of California, they’re going to get thrown in jail or taken back to Mexico. But here we allow them to work under California law…"

She asked respondent’s counsel, "What would you do?" And he pretty much said, "Ship ‘em all back. Federal law prevails. Get rid of them all." But if you were to nullify FEHA for all these workers, what you’re doing is giving employers a free hand to abuse them.

Migrant workers have been here since the U.S. was formed. And they weren’t illegal till we created a line and said "This is Texas." Realizing that immigration is not a problem that’s going to go away, we should deal with it and make it a better situation for everybody. I have no problem with applying FEHA to these people because I think it’s in everybody’s best interest. Being on the selfish side, I don’t want to pay five dollars for a tomato.

PS: What do you make of the coverage of your case?

Ross: I won’t see the stories till tomorrow. When I was getting ready to go on live TV last night, reporters from KTVU were beating me up with "federal law." I asked them a question back: "Where does federal law come in?" Their answer was "Well, it’s against the controlled substances act." But that’s a policy, not a law. If they had a law they would have shut every dispensary down the second it opened. Everyone [dispensary operators] would be in jail right now.

I don’t know how the superior court changed its charter to quote federal law. I thought this was going to be an open and shut case in civil court. That’s how naïve I was when this first started. When ASA decided to join the team, that’s when I started to get a little nervous because it was starting to get bigger than me. And now it’s beyond me. I’m just a name on a piece of paper at this point.

PS: What was the courtroom scene like?

Ross: All the benches full, SRO in the overflow room, three cameras. Bill Pierce came up and introduced himself and thanked me. They just raided his dispensary [River City Patients Center in Sacramento.] They’re trying to scare everybody into submission. Sacramento is the feds’ backyard. In San Francisco there’s a lot more liberals and the feds don’t have the cooperation of the police.

PS: They do have the cooperation of the police. San Francisco looks better from afar.

Ross: How about Oakland?

PS: Three dispensaries left.The prohibitionists seem to be in the midst of a big, orchestrated rollback on every level.

Ross: And it’s not just medical marijuana. I was fighting a battle up in Happy Camp, California. There was a coalition from Colorado and their objective was to stop mining in all of the United States. Now if these people had any experience and came in and actually looked at the situation, they might have taken a different approach. Instead they come into a little town and find an adversary and bam there’s a lawsuit and you’ve got to spend 20 thousand in court.

There’s two groups in Happy Camp. The old loggers and the Karuk Indians. The Karuk Indians want all white men off the Klamath River, open up all the dams, no rafters, nothing. They’re fighting with the Forest Service, trying to stop the miners, trying to stop the Forest Service from cutting down the noxious weeds, clearing fire trails. All this stuff is being fought all the time there. The Karuk Indians don’t have any revenue, so there’s these outside organizations coming into this town of eleven hundred people and throwing millions of dollars around. And if they win there they’ll just move on to the next town.

They think the river’s being polluted. A better approach would be suction dredging -picking up the sediment, filtering through the heavies and dropping the light stuff. You’re not adding anything to the river -sediment is just debris that has washed into the river and shouldn’t be there. Why don’t they put a barge at the end of the dredge and let’s move this sediment out? We’re pulling lead, mercury, old cars, all these things are being pulled out of the river by the section dredgers. If they would embrace this, everybody would benefit. But that requires work, attendance. They just want to sit in a chair and give orders and have it all taken care of…

Some of these greenies don’t admit that sometimes there are necessary actions. They say nothing is ever necessary. It’s just naivete. I can’t say they’re stupid, they’re just not applying their intelligence. How do we get to the fire up there? It’s called a road.

PS: How long were you in Happy Camp?

Ross: I was up in the mountains for about three years. I lost a second IT job because of this. That’s why I dropped out of IT. The company was called Applied Materials. I applied for them and they didn’t give a drug screen and I didn’t mention it. I interviewed for them, it was a three or four month process, and they hired me and I started commuting down to Santa Clara. After I’d been working for them two months my supervisor called me in and said, "We have equipment up in Sacramento and we would rather just have you stay in Sacramento and work on that equipment."

I said, "Great, where’s it at?"

He said, "It’s at this company called RagingWire." I didn’t say anything. He gave me all the security clearance papaerwork I needed and made the phone call. I went up to Ragingwire, went up to Security, got my access badge, read my scan, all that stuff. Went into our cage where the computer equipment was and within five minutes three security guards came in and physically removed me from the building.

Then I called my employer and they arranged my return to the building but with many stipulations. After that RagingWire always took a half an hour to let me in the building. I would go up to security and the security guy would just walk out of the booth and come back in twenty minutes. Just harassment.

So, I finally get in, get to the booth and start working and they come into the cage and say "You need to move your car, that spot is reserved for somebody." There were no markings or anything. So I go out to move my car and then it’s another half hour to get back in. It takes me an hour and a half to do 15 minutes work.

There were two other Applied Materials employees who did their work in this cage. They would come in the morning and do their work and go home. Well, Raging Wire started calling Applied Materials and saying, "You can’t be in this building for any more than x number of hours at a time." So my co-workers would have to work for an hour or so and then leave the building. Come back. Work for an hour or so and then leave the building.

After this Applied Materials didn’t want me in Sacramento any more. I went back to work in Santa Clara. I had been driving four miles to work everyday, now I’ve got to drive 120 miles to work every day because of RagingWire. Next thing I know I’m getting no assignments. Nothing. I’m not even getting a request to clear somebody’s voice mail or change a password or something. I’m just sitting there and that was it, the job was over.

PS: Did they fire you or just drive you out by not giving you anything to do?

Ross: They made me quit. I had been there five months. I liked my boss and I felt bad that I was a problem to him.

PS: And then you went up to Happy Camp to get away from the IT world?

Ross: Yeah. I just packed up my belongings and headed up to Happy Camp. Bought me a tent and moved into the woods.

PS: Where were your wife and kids?

Ross: My wife was with me. My son was 18, I left him at the house.

PS: He must have liked that.

Ross: Oh, yeah. My daughter had moved out already. She and her husband decided they wanted to move in, too, since we had all kinds of room. And I moved up to a 16-by-32 military vinyl tent which was extremely nice. I had solar panels, battery banks, generators, converters, I had a big screen TV, a stereo system, so I wasn’t really roughing it but I was in a tent.

PS: Do you own some land there?

Ross: No. The mining act of 1872 says that if you’re doing any kind of mining you have the right to stay near your equipment.

PS: Were you mining for gold with heavy equipment?

Ross: No, just panning. Dave McCracken is the Placer gold expert. He has a club up there. If you join the club it gives you access to 60 miles of mining claims. The average age of the membership is 68 years old. There’s all sorts of guys up there trying to reclaim their manhood, that kind of thing. There’s ex-Marine type guys. There’s a few guys up there recovering from open heart surgery.

PS: What’s the attitude towards marijuana in that community?

Ross: It’s like Humboldt County., everybody grows it. It’s a very liberal town. They do have a problem with methamphetamine. So there’s two sides of town. People who smoke marijuana don’t like methamphetamine and people who use methamphetamine don’t like marijuana. Not in every case but in general -they’re completely different worlds. There were two sides of Happy Camp. There’s the meth heads and the potheads.

What’s neat about Happy Camp is they have a very high success rate with high school students who progress onto higher education. These people don’t have to look at the register to tell you what change to give. I want my grandkids to be that well educated.

PS: What do you attribute that to?

Ross: Small classroom sizes, good teachers, less administration. The vice-principal, who also teaches, gets paid $60,000 in a community where a nice place to live costs $450. Property in town costs $20,000 an acre. Outside of town, 15 or 10. And there’s plenty of property. I was going to EMT training there. I was rescued by the volunteer ambulance driver so I decided that I was going to volunteer as an ambulance driver.

PS: Rescued? When?

Ross: May 14 ’05. I decided I was smart enough to get down a hill without a rope and I wasn’t. I sprained my ankle. Happy Camp rescued me and I decided, heck, what else am I going to do in Happy Camp? So I volunteered for an ambulance driver. To be an ambulance driver after one year you have to be an EMT-B. So I was taking my course. I was in my third week of EMT training the accident happened [in which Ross's wife died].

Virginia, who’s one of the cashiers at the local grocery store came out and drove my son and I out to the hospital. Frank, who was the only paid ambulance driver, was at the scene. People from the class were there. You know, small town pulling together to help. It was just really tough. My wife worked at the pizza parlor in town, everybody knew her. Happy Camp’s the kind of place where you stand on the street and half the cars going by, people wave at you.

The locals don’t take to outsiders coming in and mining for gold because they think they’re just taking resources from the town. Some of the Indians were my friends. No problem whatsoever. I’m a social person. I’m not even angry at RagingWire. They just decided that this is their policy and they’re going to enforce it. Personally, I think they’d be better off in Utah or some place.

FRED GARDNER edits O’Shaughnessy’s, the journal of Cannabis in Clinical Practice. New issue out next week. Reach him at fred@plebesite.com