Sixth Circuit Rules A Private Employer Can Fire You For Using Medical Marijuana-Wal-Mart Joseph Casias

[Michael Komorn]

Sixth Circuit Rules A Private Employer Can Fire You For Using Medical Marijuana

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File Name: 12a0343p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JOSEPH CASIAS,

Plaintiff-Appellant,

v.

WAL-MART STORES, INC.;WAL-MART

STORES EAST, L.P.; and TROY ESTILL,

Defendants-Appellees,

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No. 11-1227

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:10-cv-781—Robert J. Jonker, District Judge.

Argued: April 18, 2012

Decided and Filed: September 19, 2012

Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Scott Michelman, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, Santa Cruz, California, for Appellant. Susan M. Zoeller, BARNES &

THORNBURG, LLP, Indianapolis, Indiana, for Appellees. ON BRIEF: Scott

Michelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Santa Cruz,

California, Daniel S. Korobkin, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES

UNION FUND OF MICHIGAN, Detroit, Michigan, Daniel W. Grow, TARGOWSKI

& GROW, PLLC, Kalamazoo, Michigan, for Appellant. Susan M. Zoeller, BARNES

& THORNBURG, LLP, Indianapolis, Indiana, Michael P. Palmer, BARNES &

THORNBURG, LLP, South Bend, Indiana, for Appellees.

CLAY, J., delivered the opinion of the court, in which SUHRHEINRICH, J.,

joined. MOORE, J. (pp. 13–15), delivered a separate dissenting opinion.

1

No. 11-1227 Casias v. Wal-Mart, et al. Page 2

_________________

OPINION

_________________

CLAY, Circuit Judge. In this wrongful discharge action, Plaintiff Joseph Casias,

a former Wal-Mart employee, appeals the district court’s order denying his motion to

remand and the dismissal for failure to state a claim following his termination for failing

a drug test in violation of Defendants’ drug testing policy. Because we find no

reasonable basis to conclude that the non-diverse Defendant Troy Estill (“Estill”) would

be liable and because we hold that the Michigan Medical Marihuana Act (MMMA) does

not regulate private employment, we AFFIRM the judgment of the district court.

DISCUSSION

I. The Michigan Medical Marihuana Act

In 2008, Michigan passed the MMMA, Mich. Comp. Laws § 333.26421 et seq.,

to provide protections for the medical use of marijuana. The Act defines the term

“medical use” to include “the acquisition, possession, cultivation, manufacture, use,

internal possession, delivery, transfer, or transportation of marihuana or paraphernalia

relating to the administration of marihuana to treat or alleviate a registered qualifying

patient’s debilitating medical condition or symptoms associated with the debilitating

medical condition.” Id. § 333.26423(e). Although the Act broadly defines a

“debilitating medical condition,” only a “qualifying patient” or “primary caregiver” who

is issued a “registry identification card” by the Michigan Department of Community

Health are permitted to administer or use medical marijuana. Id. §§ 333.26423(h), (g),

(i). Thus any “qualifying patient” or “primary caregiver who has been issued and

possesses a registry identification card shall not be subject to arrest, prosecution, or

penalty of any manner, or denied any right or privilege, including but not limited to civil

penalty or disciplinary action by a business.” Id. §§ 333.26424(a),(b).

No. 11-1227 Casias v. Wal-Mart, et al. Page 3

II. Plaintiff’s termination from Wal-Mart

Plaintiff was an employee of Wal-Mart’s Battle Creek, Michigan store from

November 1, 2004 until November 24, 2009, when Plaintiff was terminated from Wal-

Mart after he tested positive for marijuana, in violation of the company’s drug use

policy.

Plaintiff was diagnosed with sinus cancer and an inoperable brain tumor at the

age of 17. During his employment at Wal-Mart, Plaintiff endured ongoing pain in his

head and neck. Although his oncologist prescribed pain relief medication, Plaintiff

continued to experience constant pain as well as other side effects of his medication.

After Michigan passed the MMMA in 2008, Plaintiff’s oncologist recommended that he

try marijuana to treat his medical condition. The Michigan Department of Community

Health issued Plaintiff a registry card on June 15, 2009, and, in accordance with state

law, he began using marijuana for pain management purposes. Plaintiff stated that the

drug reduced his level of pain and also relieved some of the side effects from his other

pain medication. Plaintiff maintains that he complied with the state laws and never used

marijuana while at work; nor did he come to work under the influence. Instead, Plaintiff

used his other prescription medication during the workday and only used the marijuana

once he returned home from work.

In November 2009, Plaintiff injured himself at work by twisting his knee the

wrong way while pushing a cart. Plaintiff contends that he was not under the influence

of marijuana at the time of his accident. Although Plaintiff came to work the next day,

he had trouble walking and was driven to the emergency room by a Wal-Mart manager

to receive treatment. Since Plaintiff was injured on the job, he was administered a

standard drug test at the hospital in accordance with Wal-Mart’s drug use policy for

employees. Prior to his drug test, Plaintiff showed his registry card to the testing staff

to indicate that he was a qualifying patient for medical marijuana under Michigan law.

Plaintiff then underwent his drug test, wherein his urine was tested for drugs.

One week later, Defendant notified Plaintiff that he tested positive for marijuana.

Plaintiff immediately met with his shift manager to explain the positive drug test.

No. 11-1227 Casias v. Wal-Mart, et al. Page 4

Plaintiff showed the manager his registry card and also stated that he never smoked

marijuana while at work or came to work under the influence of the drug. Plaintiff

explained that the positive drug test resulted from his previous ingestion of marijuana

within days of his injury in order to treat his medical condition. The shift manager made

a photocopy of Plaintiff’s registry card.

The following week, Wal-Mart’s corporate office directed the store manager,

Defendant Troy Estill, to fire Plaintiff due to the failed drug test, which was in violation

of the company’s drug use policy. Wal-Mart did not honor Plaintiff’s medical marijuana

card. Plaintiff sued Wal-Mart and Estill in state court for wrongful discharge and

violation of the MMMA, arguing that the statute prevents a business from engaging in

disciplinary action against a card holder who is a qualifying patient. Defendants

thereafter removed the case to federal court based on diversity jurisdiction under

28 U.S.C. §§ 1332, 1441(a), and moved to dismiss the action for failure to state a claim.

Plaintiff moved to remand the case to state court on the basis that Defendant Estill is a

Michigan citizen, as is Plaintiff, and was properly joined, therefore eliminating diversity

jurisdiction. Plaintiff also opposed Defendants’ motion to dismiss.

The district court denied Plaintiff’s motion to remand and granted Defendants’

motion to dismiss. The district court held that Estill was fraudulently joined and could

not be held liable under Michigan law because he did not make the decision to terminate

Plaintiff, nor did he have the authority to fire Plaintiff. Therefore, the district court

determined that Estill’s citizenship should be disregarded for purposes of determining

diversity jurisdiction. In addition, the district court held that the MMMA does not

protect Plaintiff’s right to bring a wrongful termination action because the MMMA does

not regulate private employment. Plaintiff now appeals.

DISCUSSION

I. Motion to Remand

We review a district court’s ruling on the issue of jurisdiction de novo, but the

district court’s factual findings are reviewed for clear error. Coyne v. American Tobacco

No. 11-1227 Casias v. Wal-Mart, et al. Page 5

Co., 183 F.3d 488, 492 (6th Cir. 1999). “When a non-diverse party has been joined as

a defendant, then in the absence of a substantial federal question the removing defendant

may avoid remand only by demonstrating that the non-diverse party was fraudulently

joined.” Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999)

(citation omitted). Fraudulent joinder is “a judicially created doctrine that provides an

exception to the requirement of complete diversity.” Coyne, 183 F.3d at 493 (quoting

Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998) (alteration in

original)). A defendant is fraudulently joined if it is “clear that there can be no recovery

under the law of the state on the cause alleged or on the facts in view of the law . . . ”

Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994) (citation omitted).

The relevant inquiry is whether there is “a colorable basis for predicting that a plaintiff

may recover against [a defendant].” Coyne, 183 F.3d at 493. “The removing party bears

the burden of demonstrating fraudulent joinder.” Alexander, 13 F.3d at 949 (citation

omitted).

When deciding a motion to remand, including fraudulent joinder allegations, we

apply a test similar to, but more lenient than, the analysis applicable to a Rule 12(b)(6)

motion to dismiss. See Walker v. Philip Morris USA, Inc., 443 Fed. App’x 946, 952–54

(6th Cir. 2011). As appropriate, we may “pierce the pleading” and consider summary

judgment evidence, such as affidavits presented by the parties. Id. The court may look

to material outside the pleadings for the limited purpose of determining whether there

are “undisputed facts that negate the claim.” Id. at 955–56.

Plaintiff argues that the district court improperly asserted diversity jurisdiction

because Defendant Estill, a Michigan citizen, was a proper defendant in this case.

According to Plaintiff, Defendant Estill participated in the tortious conduct alleged by

Plaintiff by firing him from his position at Wal-Mart, and therefore was personally liable

and properly joined in this action. In response, Defendants contend that Plaintiff failed

to establish a colorable claim because Defendant Estill had no involvement in Plaintiff’s

termination. Defendants further argue that, under Michigan law, corporate agents cannot

be liable for a wrongful discharge action.

No. 11-1227 Casias v. Wal-Mart, et al. Page 6

In dismissing Plaintiff’s motion to remand on the grounds of fraudulent joinder,

the district court concluded that personal liability did not attach to Defendant Estill. In

reaching this conclusion, the district court relied on federal and state cases that discuss

employee liability. See, e.g.,Freeman v. Unisys Corp., 870 F. Supp. 169, 173 (E.D.

Mich. 1994); Champion v. Nationwide Security, Inc., 205 Mich. App. 263, 266 (1994),

rev’d on other grounds, 450 Mich. 702 (1996); Urbanski v. Sears Roebuck & Co., No.

211223, 2000 WL 33421411, at * 3 (Mich. Ct. App. May 2, 2000); Bush v. Hayes,

282 N.W. 239, 240–41 (Mich. 1938); and Allen v. Morris Bldg. Co., 103 N.W. 2d 491,

493 (Mich. 1960). The district court also relied on a number of undisputed facts,

including:

[That] Wal-Mart’s corporate office in Arkansas, not Mr. Estill, made the

decision to terminate Mr. Casias. In fact, Wal-Mart employed a specific

drug screening department at its corporate headquarters for precisely this

type of situation. Neither Mr. Estill nor any other individual store

manager had the authority or the discretion to vary from the decisions

made by Wal-Mart’s Drug Screening department in Arkansas.

Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914, 916 (W.D. Mich. 2011). We agree

with the district court’s conclusion that the record is void of any evidence that would

support a conclusion that Defendant Estill intended to cause an adverse action against

Plaintiff or was a causal factor in the discharge of Plaintiff. Defendant Estill’s role was

to simply communicate the decision. On this basis, we decline to adopt Plaintiff’s

argument which, by extension, could make any individual who participates in the

“communication” of a corporate decision a proper defendant in a cause of action.

We recognize that our holding is in some tension with tort law precedent. Under

the traditional doctrine of proximate cause, a tortfeasor is sometimes, but not always,

liable when he intends to cause an adverse action, Staub v. Proctor Hosp., 131 S.Ct.

1186 (2011), or when he provides significant input into the ultimate employment

decision. Chattman v. Toho Tenax America, Inc., 686 F.3d, 339, 351 (6th Cir. 2012).

Michigan courts have held that, “a corporate employee or official is personally liable for

all tortious or criminal acts in which he participates, regardless of whether he was acting

on his own behalf or on behalf of the corporation.” Att’y Gen. v. Ankersen, 385 N.W.

No. 11-1227 Casias v. Wal-Mart, et al. Page 7

2d 658, 673 (Mich. Ct. App. 1986); see Warren Tool Co. v. Stephenson, 161 N.W. 2d

133, 148 (Mich. 1968) (applying Michigan tort law and holding that “the agents and

officers of a corporation are liable for torts which they personally commit, even though

in doing so they act for the corporation, and even though the corporation is also liable

for the tort.”) (citations omitted). There is, however, an absence of guidance from

Michigan courts on the issue of a corporate employee’s personal liability and the

required level of individual participation necessary to establish a common-law wrongful

termination action. We therefore consider Defendant Estill’s liability in a wrongful

termination suit in the context of other Michigan laws.

Under the Michigan Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp.

Laws. § 37.2101 et seq., a supervisor can be personally liable as an employer’s agent for

discriminatory employment actions if he or she “is responsible for making personnel

decisions.” Urbanski, No. 211223, 2000 WL 33421411, at * 3 (citing Jenkins v. Se.

Mich. Chapter, Am. Red Cross, 369 N.W. 2d 223 (Mich. Ct. App. 1985)).

Similarly, in the context of conversion cases, personal liability attaches when a

Defendant “actively participates” in the conversion. See Citizens Ins. Co. of Am. v.

Delcamp Truck Ctr., Inc., 444 N.W.2d 210, 213 (1989) (“When conversion is committed

by a corporation, the agents and officers of the corporation may also be found personally

liable for their active participation in the tort, even though they do not personally benefit

thereby.” (citations omitted)); Trail Clinic, P.C. v. Bloch, 319 N.W. 2d 638, 642 (1982)

(“This Court has held that where a defendant acts on his own behalf or as an officer or

agent of a corporation he is personally liable for the torts in which he actively

participated.” (citations omitted)). Thus, Michigan courts recognize limitations on the

ability to attach personal liability to corporate actors. Defendant Estill’s actions fall

squarely within those limitations. In this case, Defendant Estill was not a participant in

the decision to terminate Plaintiff’s employment and merely communicated the corporate

decision to Plaintiff. His mere acquiescence to the command from Wal-Mart’s corporate

office to communicate Plaintiff’s termination does not render him subject to personal

liability.

No. 11-1227 Casias v. Wal-Mart, et al. Page 8

Therefore, we find that the district court appropriately held that Defendant

Estill’s limited involvement in Plaintiff’s discharge did not subject him to liability. The

district court did not err in its conclusion that the state court complaint failed to state a

plausible claim against Defendant Estill.

II. Motion to Dismiss

Plaintiff next claims that the plain language and policy of the MMMA protects

patients against disciplinary action in a private employment setting for using marijuana

in accordance with Michigan law.

We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss

for failure to state a claim. Vibo Corp. Inc. v. Conway, 669 F.3d 675, 683 (6th Cir.

2012). In order to entitle the plaintiff to relief, the complaint “does not need detailed

factual allegations” but should identify “more than labels and conclusions.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.”’ Ashcroft v. Iqbal, 556 U.S. 662,

678 (quoting Twombly, 550 U.S. at 570).

A. Statutory Interpretation

According to the MMMA,

A qualifying patient who has been issued and possesses a registry

identification card shall not be subject to arrest, prosecution, or penalty

in any manner, or denied any right or privilege, including but not limited

to civil penalty or disciplinary action by a business or occupational or

professional licensing board or bureau, for the medical use of marihuana

in accordance with this act . . . .

Mich. Comp. Laws § 333.26424(a). The parties’ dispute focuses on the use of the word

“business” and whether the word simply modifies the words “licensing board or bureau,”

or in the alternative, whether “business” should be read independently from “licensing

board or bureau.”

No. 11-1227 Casias v. Wal-Mart, et al. Page 9

Under Michigan law, courts interpreting statutes “must review the entire law

itself in order to arrive at the legislative intent and provide an harmonious whole. If the

intent is evident from this comprehensive review of the statute, [then the] inquiry ends

and [the court] employ the plain intent.” Grand Traverse Cnty. v. State, 538 N.W. 2d

1, 4 (Mich. 1995) (citation omitted). When the “language used is clear and the meaning

of the words chosen is unambiguous, a common-sense reading of the provision will

suffice, and no interpretation is necessary.” People v. Lee, 526 N.W. 2d 882, 885 (Mich.

1994) (quoting Karl v. Bryant Air Conditioning, 331 N.W.2d 456 (1982)) (internal

quotation marks and citations omitted)). Only if the “statute is of doubtful meaning or

ambiguous, is the ‘door . . . open to a judicial determination of the legislative intent.”’

Id. (quoting Knapp v. Palmer, 37 N.W. 2d 679, 681 (1949)).

The district court concluded that “the MMMA does not regulate private

employment; [r]ather the Act provides a potential defense to criminal prosecution or

other adverse action by the state.” Casias, 764 F. Supp. 2d. at 922–23 (emphasis in

original) (citation omitted). Specifically, the court concluded that the “MMMA contains

no language stating that it repeals the general rule of at-will employment in Michigan

or that it otherwise limits the range of allowable private decisions by Michigan

businesses.” Id. (emphasis in original). Moreover, the district court found that the word

“business” does not govern private employment actions. Id.

We agree with the district court and find that the MMMA does not impose

restrictions on private employers, such as Wal-Mart. Where as here, the “statute does

not define one of its terms[,] it is customary to look to the dictionary for a definition”

and be mindful that “undefined words are given meaning as understood in common

language, taking into consideration the text and subject-matter relative to which they are

employed.” Lee, 526 N.W.2d at 885 (citation and internal quotation marks omitted);

see also West Town Line Assocs., LLC v. Mack & Meldrum Assocs., LLC, 2010 WL

785938 (Mich. Ct. App. 2010) (finding that the dictionary definition of the word

“business” meant a “commercial enterprise carried on and for profit,” and “commercial,

industrial, or professional dealings” or “an affair or matter”). Plaintiff’s interpretation

No. 11-1227 Casias v. Wal-Mart, et al. Page 10

is entirely inconsistent with state law precedent, which requires us to “interpret the

words in their context and with a view to their place in the overall statutory scheme.”

Manuel v. Gill, 753 N.W. 2d 48, 56 (Mich. 2008); G.C. Timmis & Co. v. Guardian

Alarm Co., 662 N.W. 2d 710, 714 (2003) (“It is a familiar principle of statutory

construction that words grouped in a list should be given related meaning.”) (citations

omitted).

Based on a plain reading of the statute, the term “business” is not a stand-alone

term as Plaintiff alleges, but rather the word “business” describes or qualifies the type

of “licensing board or bureau.” Mich. Comp. Laws § 333.26424(a). Read in context,

and taking into consideration the natural placement of words and phrases in relation to

one another, and the proximity of the words used to describe the kind of licensing board

or bureau referred to by the statute, it is clear that the statute uses the word “business”

to refer to a “business” licensing board or bureau, just as it refers to an “occupational”

or “professional” licensing board or bureau. The statute is simply asserting that a

“qualifying patient” is not to be penalized or disciplined by a “business or occupational

or professional licensing board or bureau” for his medical use of marijuana.

Plaintiff also argues that the plain language of the statute somehow regulates

private employment relationships, restricting the ability of a private employer to

discipline an employee for drug use where the employee’s use of marijuana is authorized

by the state. We find, however, that the statute never expressly refers to employment,

nor does it require or imply the inclusion of private employment in its discussion of

occupational or professional licensing boards. The statutory language of the MMMA

does not support Plaintiff’s interpretation that the statute provides protection against

disciplinary actions by a business, inasmuch as the statute fails to regulate private

employment actions.

We also note that other courts have found that their similar state medical

marijuana laws do not regulate private employment actions. See Johnson v. Columbia

Falls Aluminum Co., 350 Mont. 562, 2009 WL 865308, at *2 (Mont. 2009) (“The

[Medical Marijuana Act] MMA specifically provides that it cannot be construed to

No. 11-1227 Casias v. Wal-Mart, et al. Page 11

require employers ‘to accommodate the medical use of marijuana in any workplace.”’)

(quoting MCA § 50-46-205(2)(b)); Roe v. TeleTech Customer Care Mgmt., LLC,

216 P.3d 1055 (Wash. Ct. App. 2009) (“t is unlikely that voters intended to create

such a sweeping change to current employment practices [under the Medical Use of

Marijuana Act].”); Ross v. Ragingwire Telecomms., Inc., 174 P.3d 200, 203 (Cal. 2008)

(“Nothing in the text or history of the Compassionate Use Act [California’s medical

marijuana law] suggests the voters intended the measure to address the respective rights

and duties of employers and employees.”) Thus, in addition to being unpersuasive on

its face, Plaintiff’s interpretation of the MMMA, which would proscribe employer

terminations of qualified medical marijuana users, is in direct conflict with other states

which have passed similar legislation.

B. Public Policy Interpretation

For similar reasons, we dismiss Plaintiff’s argument that Plaintiff’s discharge

was contrary to public policy. The district court held that the MMMA did not regulate

private employment but that the statute could potentially provide a defense to criminal

prosecution or any other adverse action by the state. The district court concluded,

therefore, that private employees are not protected from disciplinary action as a result

of their use of medical marijuana, nor are private employers required to accommodate

the use of medical marijuana in the workplace. In rendering its decision, the district

court explained that Michigan voters could not have intended such consequences and

that accepting Plaintiff’s argument would create a new category of protected employees,

which would “mark a radical departure from the general rule of at-will employment in

Michigan.” Casias, 764 F.Supp. 2d at 922.

We agree with the district court that accepting Plaintiff’s public policy

interpretation could potentially prohibit any Michigan business from issuing any

disciplinary action against a qualifying patient who uses marijuana in accordance with

the Act. Such a broad extension of Michigan law would be at odds with the reasonable

expectation that such a far-reaching revision of Michigan law would be expressly

enacted. Such a broad extension would also run counter to other Michigan statutes that

No. 11-1227 Casias v. Wal-Mart, et al. Page 12

1We need not address the issue of whether federal law preempts the MMMA based on our finding

that the MMMA does not regulate private employment.

clearly and expressly impose duties on private employers when the duties imposed

fundamentally affect the employment relationship. See, e.g., Michigan Elliott-Civil

Rights Act of 1976, Mich. Comp. Laws § 37.2202(1) (“An employers shall not . . .

discriminate against an individual with respect to employment . . . ”); Persons With

Disabilities Civil Rights Act of 1976, Mich. Comp. Laws § 37.1102(1) (“[A]n employer

shall not . . . discharge or otherwise discriminate against an individual . . . because of a

disability . . . ”); and Michigan’s Occupational Safety and Health Act, Mich. Comp.

Laws § 4008.1002 (“This act shall apply to all places of employment in the state . . . .

”). The MMMA does not include any such language nor does it confer this responsibility

upon private employers. We therefore reject Plaintiff’s policy argument.1

CONCLUSION

For these reasons, we AFFIRM the judgment of the district court.

No. 11-1227 Casias v. Wal-Mart, et al. Page 13

_____________

DISSENT

_____________

KAREN NELSON MOORE, Circuit Judge, dissenting. Plaintiff Joseph Casias

lives in Michigan. Defendant Troy Estill lives in Michigan. The parties in this case are

not diverse. In determining that the district court nonetheless had diversity-based

subject-matter jurisdiction over this state-law case on the basis of fraudulent joinder, the

majority improperly answers an unsettled question of Michigan law, contrary to our

caselaw directing us to resolve ambiguities in state law in favor of remand. Moreover,

the majority reaches out to answer this first unsettled question of Michigan law in order

to address a second unsettled question of Michigan law. In so doing, we overstep our

bounds as a federal court, and I respectfully dissent.

A defendant is fraudulently joined, and the court may disregard his citizenship

for diversity jurisdiction purposes, only if “‘it be clear that there can be no recovery

under the law of the state on the cause alleged or on the facts in view of the law.’”

Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994) (quoting Bobby

Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir. 1968)). The

question is whether “‘there is arguably a reasonable basis for predicting’” that the

allegedly fraudulently joined defendant could be liable. Id. (quoting Bobby Jones

Garden Apartments, 391 F.2d at 176); see also Coyne v. Am. Tobacco Co., 183 F.3d 488,

493 (6th Cir. 1999) (no fraudulent joinder “if there is a colorable basis for predicting that

a plaintiff may recover against non-diverse defendants”). Because cases that are in

federal court on the basis of diversity jurisdiction involve questions of state law, the

values of federalism and comity instruct that a federal court “must resolve ‘all disputed

questions of fact and ambiguities in the controlling . . . state law in favor of the non

removing party.’” Coyne, 183 F.3d at 493 (quoting Alexander, 13 F.3d at 949). The

question of whether “‘there is arguably a reasonable basis for predicting’” that a

defendant could be liable is not the same as whether such a claim would succeed.

Alexander, 13 F.3d at 949 (citation omitted).

No. 11-1227 Casias v. Wal-Mart, et al. Page 14

1The majority cites two cases for the proposition that “Michigan courts recognize limitations on

the ability to attach personal liability to corporate actors.” Interestingly, both cases held that the actor

involved was personally liable. See Citizens Ins. Co. of Am. v. Delcamp Truck Ctr., Inc., 444 N.W.2d 210

(Mich. Ct. App. 1989); Trail Clinic, P.C. v. Bloch, 319 N.W.2d 638 (Mich. Ct. App. 1982).

Here, it is far from clear that there is no “reasonable basis for predicting” that

Estill could be liable for wrongful termination under Michigan law. Under Michigan

law, “a corporate employee or official is personally liable for all tortious or criminal acts

in which he participates, regardless of whether he was acting on his own behalf or on

behalf of the corporation.” Att’y Gen. v. Ankersen, 385 N.W.2d 658, 673 (Mich. Ct.

App. 1986). Michigan courts have simply not addressed the issue of a corporate

employee’s personal liability in the context of a common-law wrongful-termination

claim and thus have not ruled on how such an employee “participates” in a wrongful

termination.1 In the context of a fraudulent-joinder ruling, federal courts are not free to

predict how a state court would rule on an unsettled issue of state law; if the state law

is unclear as to whether a non-diverse defendant could face liability, the federal court has

no subject-matter jurisdiction and must remand the case.

Even applying the standard for agency liability under Michigan’s Elliott-Larsen

Civil Rights Act (“ELCRA”), the issue of Estill’s liability under the circumstances in

this case is not clear. Michigan courts have held that “a supervisor need not have

complete authority over hiring, firing, promoting or disciplining” to be personally liable

as an employer’s agent for discriminatory-employment actions under the ELCRA.

Urbanski v. Sears Roebuck & Co., No. 211223, 2000 WL 33421411, at *3 (Mich. Ct.

App. May 2, 2000). Estill is the store manager, which certainly suggests some degree

of control over personnel decisions; more importantly for present purposes, Wal-Mart

has not shown that Estill lacked such control.

Indeed, Estill clearly had authority to terminate Casias, because he was the

person who actually fired Casias. See R. 1-3 (Estill Decl. at 4) (Page ID #37) (“I was

directed . . . to terminate Plaintiff’s employment for failing his drug test.”). Accordingly,

Estill is not like the human resources assistant in Urbanski who neither made nor had the

authority to make the challenged termination decision. See 2000 WL 33421411, at *4.

No. 11-1227 Casias v. Wal-Mart, et al. Page 15

2Federal district courts in Michigan are divided on whether a supervisor’s “informational input”

can subject him to liability for an unlawful employment action, compare Young v. Bailey Corp., 913 F.

Supp. 547, 551 (E.D. Mich. 1996) (liability), with Yanakeff v. Signature XV, 822 F. Supp. 1264, 1266 (E.D.

Mich. 1993) (no liability), and the Michigan courts have not addressed the issue.

3The district court repeatedly asserts that Estill simply communicated Wal-Mart’s termination

decision to Casias, but this is not an established fact. As noted above, Estill’s own declaration states that

Wal-Mart “directed [Estill] to terminate Plaintiff’s employment.” R. 1-3 (Estill Decl. at 4) (Page ID #37).

Similarly, Estill is not akin to the “receptionist or secretary who typed the termination

letter” in the district court’s hypothetical. Casias v. Wal-Mart Stores Inc., 764 F. Supp.

2d 914, 920 (W.D. Mich. 2011). A supervisor who fires an employee at the direction of

upper management is different from a co-worker who informs the employee of the

decision or a secretary who types the termination letter. At the least, Michigan courts

have not ruled on whether this distinction is relevant for purposes of establishing

liability, and the conclusion that it is relevant is reasonable.

Ultimately, too many questions remain unanswered regarding Estill’s role in

Casias’s termination to conclude that no reasonable possibility exists that Estill could

be liable as a participant in the termination. We do not know if Estill informed Wal-

Mart of the drug test results or if Estill was told of the results at the same time he was

told to fire Casias.2 We do not know if Estill took any action pursuant to Wal-Mart’s

directive to fire Casias other than telling Casias that he was fired; we do not know, for

example, whether Estill removed Casias from the payroll (or instructed human resources

to do so) or performed other tasks implementing the termination decision.3 These are

questions that could be answered in the course of discovery.

It is not clear whether Casias could prove that Estill participated in the allegedly

unlawful conduct, but the claim is sufficiently “colorable” to defeat an accusation of

fraudulent joinder and to mandate remand to state court. Therefore, I respectfully

dissent.

 

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

3000 Town Center, Suite, 1800

Southfield, MI 48075

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

 

Email: michael@komornlaw.com

Website: www.komornlaw.com

 

Check out our Radio show:

http://www.blogtalkradio.com/planetgreentrees

CALL IN NUMBER: (347) 326-9626

Live Every Thursday 8-10:00p.m.

 

PLANET GREENTREES

w/ Attorney Michael Komorn

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

[solabeirtan]

There isn't even a legal precedent for drug testing, is there Mike? Only if they make it a condition of employment, which seems like discrimination. It's Doctor prescribed and legal in MI [with card].

 

Here's another chapter in their agenda: Have your govt back a drug war while you run around the country bribing govt officials to build your boxes destined to interfere with local agricultaural and marketing policies.

 

Wall_Mart Initiative

[t-pain]

isnt this why its useful to get a script for marinol?

explain to the drug testers that marinol will test positive, and thus, is not marijuana?

 

still its discrimination. is he able to appeal to the mich supreme court?

i got confused with jurisdiction, federal and state moving target, etc.

 

wal-mart sure has some big fancy lawyers, thats one hell of a tough battle.

[nsmn8r]

I hate to say it, but I kind of agree with walmart on this one.

I mean fugh walmart for being dicks and everything, but I think a private employer should be able to hire and fire whoever they want for whatever reason they want. The courts and government should have nothing to do with it.

[restlesslegs]

He spoke at the rally today

[solabeirtan]

I hate to say it, but I kind of agree with walmart on this one.

I mean fugh walmart for being dicks and everything, but I think a private employer should be able to hire and fire whoever they want for whatever reason they want. The courts and government should have nothing to do with it.

 

Your last name must be Romney ?

 

Kinda hard to get decent employees with work conditions like you describe.

 

You don't own them because they are working for you. In fact you owe them big time. They are making you money.

 

... you gonna fire them for "whatever reason" ?

 

check your karma nsmn8r, how'd you feel getting dissed like dat.

 

Courts or government dont give a crap about workers rights either thats the problem.

Edited September 20, 2012 by solabeirtan

[Mememe]

there was a case that made the company pay unemployment to the newly fired patient.

[The Digital Nomad]

1. if anyone is fired for medical use of marijuana - you should file for unemployment and file a case against the employer - "wrongful termination due to health issues" -

the state of michigan will have to hear your case (an administrative judge in a building down in detroit, you need a lawyer). The good news - they have to issue your unemployment benefits in the mean time! ( I was wrongfully terminated from job, and state agreed! - Misconduct has to be willful, intentional, careless.)

2. If you LOSE the case, the unemployment agency will ask that you repay the benefits back. By this time, if you have not found another job - you can file for hardship relief. If you go to disability, you file for hardship relief of the unemployment repayment as you will never work again.

3. If you lost your job based on health issues, you should file for SSD, disability. It takes about 6 months of 'no work' before they pay you. This will cover you - after the unemployment runs out.

 

You can file for both online.

 

I had worked all my life, while being sick. I knew each job was 'at will' - but I knew I could get another job in an instant. Not anymore today.

Edited September 20, 2012 by The Digital Nomad

[nsmn8r]

Your last name must be Romney ?

 

Kinda hard to get decent employees with work conditions like you describe.

 

You don't own them because they are working for you. In fact you owe them big time. They are making you money.

 

... you gonna fire them for "whatever reason" ?

 

check your karma nsmn8r, how'd you feel getting dissed like dat.

 

Courts or government dont give a crap about workers rights either thats the problem.

 

 

Your last name must be Romney ?

 

Kinda hard to get decent employees with work conditions like you describe.

 

You don't own them because they are working for you. In fact you owe them big time. They are making you money.

 

... you gonna fire them for "whatever reason" ?

 

check your karma nsmn8r, how'd you feel getting dissed like dat.

 

Courts or government dont give a crap about workers rights either thats the problem.

 

Employers have rights too. Would you, as a private employer, want the government dictating to you who you can hire and fire?

 

I'm not saying firing the dude was a fair decision or a good business decision. Just saying it was their decision, not big brother's.

 

Karma runs strong over here bro.

 

I own a company and part of my employment criteria is that you must be able to fail a drug test. If you tinkle clean you're fired.

 

My company, my rules. As it should be.