COLORADO COURT OF APPEALS
Court of Appeals No. 11CA1982
Industrial Claim Appeals Office of the State of Colorado
DD No. 16415-2011
Charles M. Meyers,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Echosphere, LLC,
Respondents.
ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE RUSSEL
Furman, J., concurs
Webb, J., dissents
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced March 29, 2012
Charles M. Meyers, Pro Se
John W. Suthers, Attorney General, Tricia A. Leakey, Assistant Attorney
General, Denver, Colorado for Respondent Industrial Claim Appeals Office
No Appearance for Respondent Echosphere, LLCCharles M. Meyers appeals from an order issued by the
Industrial Claim Appeals Office (panel). Exercising jurisdiction
under sections 8-74-107 and 13-4-102(2)(a), C.R.S. 2011, we vacate
the order and remand for further proceedings.
I. Factual and Procedural Background
Meyers worked as a customer resolution specialist for
Echosphere, LLC. While at work, he was subjected to a random
drug test. He tested positive for marijuana and consequently was
fired from his job. A hearing officer ruled that Meyers could not
receive unemployment benefits because he was at fault for the
separation.
Meyers appealed to the panel, challenging the hearing officer's
decision. He argued that, because he had a state-issued medical
marijuana registration card, his use of marijuana was both lawful
and prescribed. Relying in part on Beinor v. Industrial Claim
Appeals Office, 262 P.3d 970 (Colo. App. 2011), the panel disagreed.
It concluded that Meyers was statutorily disqualified from receiving
benefits. See § 8-73-108(5)(e)(IX), C.R.S. 2011 (job separation due
to the “presence in an individual's system, during working hours, of
not medically prescribed controlled substances”).Meyers now turns to this court. Our review is limited:
1, We must accept the hearing officer's factual findings if they
are supported by substantial evidence in the record. See § 8-
74-107(4), C.R.S. 2011; Tilley v. Indus. Claim Appeals Office,
924 P.2d 1173, 1177 (Colo. App. 1996).
2. We must disregard evidence or arguments that were not
presented at the hearing. See § 8-74-107(1), C.R.S. 2011;
Magin v. Div. of Emp’t, 899 P.2d 369, 371 (Colo. App. 1995).
3. We similarly must disregard any argument that was not
presented to the panel. See QFD Accessories, Inc. v. Indus.
Claim Appeals Office, 873 P.2d 32, 33-34 (Colo. App. 1993).
Il. Discussion
Meyers challenges the panel's order on several grounds. We
reject most of his arguments but conclude that, as to one issue,
further findings are necessary.
A. Arguments Rejected
1. Protected lawful activity. Meyers asserts that he had the
legal right to use marijuana. And he asserts, relying on section 24-
34-402.5, C.R.S. 2011, that he was improperly fired for engaging in
this lawful activity, at home, during non-working hours.
2Assuming, without deciding, that Meyers’s assertions are true,
we conclude that he is not entitled to relief in this unemployment
compensation case. Meyers's sole remedy is to bring a separate
civil action for damages. See § 24-34-402.5(2)la), C.R.S. 2011.
2. Medically prescribed. Meyers argues that the panel erred in
concluding that marijuana is “not medically prescribed,” within the
meaning of section 8-73-108(5)(e)(X.5). We reject his arguments for
the reasons stated in Beinor, 262 P.3d at 973-75.!
3. Medical marijuana amendment. We similarly conclude, for
the reasons stated in Beinor, 262 P.3d at 975-77, that the medical
marijuana amendment invalidates neither employer's drug policy
nor section 8-73-108(5)(e)(IX.5).
1 Meyers suggests that, to avoid an “ex post facto” violation, Beinor
should apply only prospectively. We disagree. Ex post facto
analysis applies to legislative enactments, not to judicial decisions.
Rogers v. Tennessee, 532 U.S. 451, 456 (2001). And we perceive no
due process impediment to a retrospective application of Beinor, for
two reasons. First, it is far from clear that Beinor established a new
rule of law. {It did not overrule prior precedent, and its result is
fairly foreshadowed by the pertinent constitutional and statutory
text.) Second, even if Beinor established a new rule of law, its
retrospective application would further the rule's purpose and
would not be unjust. See Pollock v. Highlands Ranch Cmty. Ass'n,
140 P.3d 351, 355 (Colo. App. 2006) (stating the test for
determining whether a judicial decision should be given only
prospective effect}.4. Federal law. We decline to address Meyers’s arguments on
the construction and effect of federal law because these arguments
were not presented to the hearing officer. See § 8-74-107(1); Magin,
899 P.2d at 371.
B. Further Findings Necessary
Meyers contends that he was not at fault for the termination
because he could not have known that he could be fired for using
marijuana at home. We conclude that further findings are
necessary.
By statute, an individual may receive unemployment benefits
if he was “unemployed through no fault of his own.” § 8-73-
108(1){a), C.R.S. 2011. Thus, a claimant may receive benefits, even
under circumstances that would support disqualification, if the
facts show that he was not at fault for his separation from
employment. See Velo v. Emp't Solutions Pers., 988 P.2d 1139,
1142-43 (Colo. App. 1998) (after affirming applicability of
disqualifying provisions, remanding case for a new order based on
resolution of fault issues).
In this context, “fault” does not necessarily mean culpability.
Id. at 1142. Rather, a finding of fault requires only “a
4volitional act or the exercise of some control or choice in the
circumstances leading to the separation from employment such
that the claimant can be said to be responsible for the separation.”
Id.; Cole v. Indus. Claim Appeals Office, 964 P.2d 617, 618 (Colo.
App. 1998).
Under these standards, Meyers could not have been at fault if
he was never informed that he could be fired for reporting to work
with any detectable amount of THC in his system. See Nielsen v.
AMI Indus., Inc., 759 P.2d 834, 835 (Colo. App. 1988) (if employer's
policy was never communicated to the claimant, then he was not at
fault for discharge because he could not have been aware of his
choice on how to proceed, and thus could not have acted
volitionally); Zelingers v. Indus. Comm'n, 679 P.2d 608, 609-10
(Colo. App. 1984) (claimant not at fault for discharge when
employer's failure to inform her of the consequences of her actions
deprived her of the opportunity to act volitionally in the
circumstances resulting in her discharge).
Here, the hearing officer found that Meyers was subject to the
2009 version of Echosphere’s drug policy. The officer also found
that Meyers was aware of this version of the policy. (These findings
5are supported by substantial evidence and thus are binding on
appeal.) The 2009 policy states, in pertinent part, that “[nlo
employee shall report to work or be at work with alcohol or with any
detectable amount of prohibited drugs in the employee's system.”
However, the policy apparently does not identify or define
“prohibited” drugs. (We cannot review the policy ourselves because
the parties did not make it a part of the record on appeal.)
The hearing officer concluded that the policy satisfies section
8-73-108(5)(e)(IX.5), even though it does not identify marijuana as a
prohibited drug. Although correct, that conclusion does not resolve
whether Meyers knew that he could be fired for having THC in his
system.
We therefore conclude that the matter must be remanded for
findings and conclusions on whether Meyers was at fault for the
separation from employment because he knew, or reasonably
should have known, that the policy included marijuana.
Accordingly, the panel's order is vacated, and the case is
remanded for findings and conclusions on that issue only.
JUDGE FURMAN concurs.
JUDGE WEBB dissents.JUDGE WEBB dissenting,
For the reasons set forth in the dissent in Beinor v. Industrial
Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011), I would
reverse the panel's order. Therefore, I respectfully dissent.