Freeman Expositions, LLC v. Eighth Judicial Dist. Court of Nev.

520 P.3d 803

FREEMAN EXPOSITIONS, LLC, Petitioner,

v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Veronica Barisich, District Judge, Respondents,andJames Roushkolb, Real Party in Interest.

No. 83172

Supreme Court of Nevada.

Filed December 1, 2022

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.

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 of" 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. ––––, 514 P.3d 1074 (2022), to hold that 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 agreement 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 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. EighthJudicial 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 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 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, 95 S.Ct. 2080, 45 L.Ed.2d 26 (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, 100 S.Ct. 242, 62 L.Ed.2d...