The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
BRYAN PRINSEN and DANIEL ODEN PLAINTIFFS
v. Case No. 4:22-cv-4076
DOMTAR A.W., LLC DEFENDANT
ORDER
Before the Court is Defendant’s Motion for Judgment on the Pleadings. ECF No. 14.
Plaintiffs have responded. ECF No. 16. Defendant has replied. ECF No. 20. The Court finds the
matter ripe for consideration.
I. BACKGROUND
Plaintiffs Bryan Prinsen (“Prinsen”) and Daniel Oden (“Oden”) are former employees of
Defendant Domtar, A.W., LLC. (“Domtar”). Plaintiffs worked at Domtar’s pulp and paper mill
facility in Ashdown, Arkansas. Plaintiff Prinsen had been employed by Domtar for approximately
eleven years prior to his termination and was most recently employed as a “Loader for the A1 fluff
pulp machine.” Plaintiff Oden had been employed for approximately three years prior to his
termination and was most recently employed as a “No. 1 Pulp Mill Reserve.” For approximately
two years prior to their termination, Plaintiffs were qualifying medical marijuana patients under
Amendment 98 to the Arkansas Constitution (“Amendment 98”).
On February 4, 2022, Domtar entered into a new collective bargaining agreement with the
United Steelworkers Local 13-1327 Union (“Union”). ECF No. 7-1. The new collective
bargaining agreement implemented a revised Drug and Alcohol Policy that designated Domtar’s
facility as a drug-free workplace and outlined various drug testing requirements and procedures
for its employees. ECF No. 7-2. The Drug and Alcohol Policy listed Plaintiffs’ employment
positions among those labeled “safety sensitive.” ECF No. 7-2, p. 7-10. After the implementation
of the Drug and Alcohol Policy, Plaintiffs tested positive for marijuana and were put on
disciplinary suspension. Pursuant to the collective bargaining agreement, Plaintiffs and the Union
signed a Last Chance Agreement that required certain conditions to be met prior to being permitted
to return to work. ECF Nos. 7-5 and 7-6. The Last Chance Agreement required, among several
other things, that Plaintiffs produce a negative drug test prior to the end of their suspension period
in order to return to work. ECF Nos. 7-5 and 7-6. Plaintiff Oden was terminated from his
employment on June 13, 2022, for failing to adhere to the terms of the Last Chance Agreement.
Plaintiff Prinsen was terminated from his employment on July 12, 2022, for failing to adhere to
the terms of the Last Change Agreement.
Plaintiffs filed their initial Complaint in the Circuit Court for Little River County, Arkansas
on July 29, 2022. ECF No. 2-1, p. 1-8. Plaintiffs filed their First Amended Complaint on August
29, 2022. Id. at p. 13-21. Domtar subsequently removed the matter to this Court, alleging federal
jurisdiction pursuant to 28 U.S.C. § 1332.1 ECF No. 2. After the initial answer by Domtar (ECF
0F
No. 7), Plaintiffs submitted their Second Amended Complaint (ECF No. 9). Plaintiffs’ claim
alleges that Domtar violated their civil rights under the Arkansas Constitution by terminating their
employment because of their protected status as medical marijuana patients and engaging in
unlawful employment practices under the Arkansas Civil Rights Act, Ark. Code § 16-123-101, et
seq. (“ACRA”). ECF No. 9, p. 5-9. Specifically, Plaintiffs allege that Defendant violated
Amendment 98 § 3(f)(3)(A), which prohibits employers from terminating employees based on
their status as qualifying medical marijuana patients.
1 Plaintiffs are both citizens of Arkansas. Domtar is a limited liability company incorporated in Delaware. Domtar’s
Notice of Removal asserts that the damages sought by Plaintiffs exceeds $75,000, and Plaintiffs have not disputed that
the amount in controversy exceeds $75,000. Accordingly, the Court is currently satisfied that it has subject matter
jurisdiction over this action pursuant to 28 U.S.C. § 1332.
On December 19, 2022, Domtar filed the instant motion seeking judgment on the
pleadings. Domtar generally argues that its termination of Plaintiffs is clearly permitted under
Amendment 98 § 3(f)(3)(B)-(C) and that Plaintiffs’ alleged facts show that Domtar is entitled to
judgment in its favor. ECF No. 15, p. 6-21. Plaintiffs responded in opposition, generally arguing
that the Arkansas Constitution must be read in a manner that allows for the claim Plaintiffs have
alleged and that Plaintiffs’ positions were not properly designated as “safety sensitive.” ECF No.
16, p. 5-8. Domtar argues in reply that a straightforward reading of Amendment 98 clearly
precludes Plaintiffs’ claims. ECF No. 20, p. 2-10.
II. STANDARD OF REVIEW
A. Applicable Law and Statutory Interpretation
Federal courts sitting in diversity generally apply the substantive law of the forum state.
See Holbein v. TAW Enterprises, Inc., 983 F.3d 1049, 1061 (8th Cir. 2020) (citation omitted).
Arkansas substantive law applies because Arkansas is the forum state, Plaintiffs’ claim is pursuant
to the Arkansas Constitution, and the parties’ arguments presume the application of Arkansas law.
However, federal procedural law governs the procedural standards for diversity cases. Smith v.
Toyota Motor Corporation, 964 F.3d 725, 728 (8th Cir. 2020).
When the highest court of the forum state has not addressed the state law issue presented
to a federal court sitting in diversity, the federal court must rule in the manner it believes the highest
forum court would rule. See Holbein, 983 F.3d at 1061. The Arkansas Supreme Court summarized
its approach to statutory interpretation by stating:
In determining the meaning of a statute, the first rule is to construe it just as it reads,
giving the words their ordinary and usually accepted meaning in common language.
This court construes the statute so that no word is left void, superfluous, or
insignificant, and meaning and effect are given to every word in the statute if
possible. When the language of a statute is plain and unambiguous and conveys a
clear and definite meaning, there is no need to resort to rules of statutory
construction. However, this court will not give statutes a literal interpretation if it
leads to absurd consequences that are contrary to legislative intent.
SubTeach USA v. Williams, 2010 Ark. 400, at 7, 373 S.W.3d 884, 888-89 (internal citations
omitted).
B. Judgment on the Pleadings Standard
A party may move for judgment on the pleadings after the pleadings have closed. Fed. R.
Civ. P. 12(c). In deciding a Rule 12(c) motion, courts apply the same legal standard used for a
motion to dismiss under Rule 12(b)(6). Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th
Cir. 2009). A pleading must state “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To meet this standard and to survive a Rule 12(b)(6)
motion, a complaint need only state factual allegations sufficient to raise a right to relief above the
speculative level that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Courts deciding a Rule 12(c) motion are required to accept as true the complaint’s well-
pled allegations and must resolve all inferences in the plaintiff’s favor. Wishnatsky v. Rovner, 433
F.3d 608, 610 (8th Cir. 2006). However, this tenet does not apply to legal conclusions, “formulaic
recitation of the elements of a cause of action,” or naked assertions which are so indeterminate as
to require further factual enhancement. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th
Cir. 2009). “Judgment on the pleadings is appropriate only when there is no dispute as to any
material facts and the moving party is entitled to judgment as a matter of law.” Wishnatsky, 433
F.3d at 610.
When considering a motion for judgment on the pleadings, courts must generally ignore
all materials outside the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th
Cir. 1999). However, courts may consider “some materials that are part of the public record or do
not contradict the complaint . . . as well as materials that are necessarily embraced by the
pleadings.” Id. (internal quotation marks omitted). “If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
III. DISCUSSION
A. Amendment 98 and ACRA
Amendment 98 is known as the “Arkansas Medical Marijuana Amendment of 2016.” Ark.
Const. Amend. 98, § 1. Amendment 98 defines “Qualifying Patient” as a “person who has been
diagnosed by a physician as having a qualifying medical condition and who has registered with
the department under § 5 of this amendment.” Id. § 2(14)(A). Section 5 of Amendment 98 details
the necessary steps to be registered as a “Qualifying Patient” permitted to use prescription medical
marijuana and receive a registry identification card. Id. § 5(a)(1)-(3).
Section 3(f)(3)(A) of Amendment 98 states that “[a]n employer shall not discriminate
against an applicant or employee in hiring, termination, or any term or condition of employment,
or otherwise penalize an applicant or employee, based upon the applicant’s or employee’s past or
present status as a qualifying patient.” However, § 3 of Amendment 98 also precludes claims
against employers for certain actions taken against qualifying patients:
(B) A cause of action shall not be established against an employer based upon, and
an employer is not prohibited from, any of the following actions:
(i) Establishing and implementing a substance abuse or drug-free workplace
policy that may include a drug testing program that complies with state or
federal law and taking action with respect to an applicant or employee under
the policy; [or]
(iii) Acting to exclude a qualifying patient from being employed in or
performing a safety sensitive position based on the employer's good faith
belief that the qualifying patient was engaged in the current use of
marijuana.
Id. § 3(f)(3)(B)(i) and (iii).
Relevant to § 3(f)(3)(B)(iii), “safety sensitive position” is defined as:
“[A]ny position designated in writing by an employer as a safety sensitive position
in which a person performing the position while under the influence of marijuana
may constitute a threat to health or safety, including without limitation a position:
(i) That requires any of the following activities:
(a) Carrying a firearm;
(b) Performing life-threatening procedures;
(c) Working with confidential information or documents pertaining
to criminal investigations; or
(d) Working with hazardous or flammable materials, controlled
substances, food, or medicine; or
(ii) In which a lapse of attention could result in injury, illness, or death,
including without limitation a position that includes the operating,
repairing, maintaining, or monitoring of heavy equipment, machinery,
aircraft, motorized watercraft, or motor vehicles as part of the job duties[.]
Id. § 2(25)(B). “‘Current use of marijuana’ is presumed when a positive test result for marijuana
occurs.” Id. § 2(20)(B). Suspending or terminating employees pursuant to Section 3(f)(3)(B) is
an authorized and protected action by an employer. Id. § 3(f)(3)(C)(iv).
“The Arkansas Civil Rights Act provides citizens of this state legal redress for civil-rights
violations of state constitutional or statutory provisions, hate offenses, and discrimination
offenses.” Greenlee v. J.B. Hunt Transport Services, 2009 Ark. 506, at 3-4, 342 S.W.2d 274, 277.
Under ACRA, every person who, acting under color of law, deprives an individual of their rights
under the Arkansas Constitution shall be liable to the injured party. Ark. Code Ann. § 16-123-
105(a). Under Ark. Code § 16-123-105(a), the alleged misconduct must be done by one who can
be considered a state actor. See Rudd v. Pulaski County Special School Dist., 341 Ark. 794, 797-
98, 20 S.W.3d 310, 312-13 (Ark. 2000). ACRA also establishes the right of an individual to be
free from discrimination in obtaining and holding employment because of their race, religion,
gender, national origin, or disability. Ark. Code Ann. § 16-123-107(a)(1).
B. Parties’ Arguments and Court Analysis
Defendant Domtar primarily argues that the facts alleged by Plaintiffs indicate that
Domtar’s action in terminating Plaintiffs’ employment is explicitly permitted under Amendment
98. Domtar first contends that the clear language of Amendment 98 § 3(f)(3)(A) only prohibits
firing an employee based on their “status” as a past or present qualifying patient, and not for their
use of marijuana. ECF No. 15, p. 13-15. Domtar then contends that the claim put forth by
Plaintiffs is explicitly barred under Amendment 98 §§ 3(f)(3)(B)(i) and (iii) because it relates to
actions Domtar took to implement a drug-free workplace and exclude qualifying patients from
safety sensitive positions, respectively. Id. at p. 15-19. Domtar also argues that Plaintiffs’ claim
fails under ACRA because it alleges no deprivation of a right by a state actor and because it alleges
no employment discrimination based on any of the statutorily protected categories. Id. at p. 20-
21. Finally, Domtar argues that Plaintiffs’ execution of the Last Chance Agreements, which noted
that continued employment is conditioned on adherence to its terms, functioned as a waiver of
Plaintiffs’ claim. Id. at p. 21-23.
Plaintiffs’ response in opposition first argues that the instant motion should be evaluated
as a motion for summary judgment because of Domtar’s reliance on the Drug and Alcohol Policy
and Last Chance Agreements, which were not attached to Plaintiffs’ pleading.2 ECF No. 16, p. 2-
1F
5. Next, Plaintiffs argue that the legislative history of Amendment 98 requires that it be read to
protect them from the adverse employment action taken against them by Domtar. Id. at p. 10-15.
Plaintiffs then argue that their claim is clearly applicable under the plain text of Amendment 98.
Id. at p. 16-24. Plaintiffs contend that they were indisputably “qualifying patients” afforded the
employment protections of Amendment 98 § 3(f)(3)(A). Id. at p. 16-17. Plaintiffs then contend
that the drug free workplace provision of § 3(f)(3)(B)(i) cannot be read to permit firing for a
positive marijuana test without contradicting the employment protections afforded by§ 3(f)(3)(A).
Id. at p. 17-19. Plaintiffs also contend that they were not employed in positions designated as
safety sensitive under § 3(f)(3)(B)(iii). Id. at p. 19-24. Plaintiffs support this contention by arguing
that: 1) Domtar did not truly “designate” their positions in writing as safety sensitive because all
other employees at the facility were similarly designated, 2) that the designation was not “in
writing” because the Drug and Alcohol Policy was adopted after Plaintiffs had already been
employed by Domtar, and 3) that the inclusion of every other position in the list of safety sensitive
positions means that Plaintiffs’ positions were not genuinely safety sensitive. Id. Plaintiffs also
argue that their claim is proper under ACRA because their status as qualifying medical marijuana
patients should afford them protections from discrimination in employment based upon disability.
Id. at p. 24-26. Finally, Plaintiffs argue that the Last Chance Agreement is unenforceable because
constitutional and statutory rights could not be waived in this circumstance. Id. at p. 26-27.
2 Plaintiffs contend that an Arkansas court faced with a motion for judgment on the pleadings on an identical claim
and in a similar procedural posture determined that the motion should be denied. Plaintiffs cite to Reed et al, v.
Northwest Arkansas Hospitals, LLC, 72CV-21-931, in which the Circuit Court of Washington County determined
that the company policy documents attached to the employer defendant’s motion was a matter outside the pleadings
and that the motion needed to be evaluated as one for summary judgment. ECF No. 16-1.
In reply, Domtar first argues that the instant motion should not be converted to one for
summary judgment because the exhibits attached to the instant motion were referenced and
embraced by Plaintiffs’ complaint. ECF No. 20, p. 2-4. Domtar then argues that a straightforward
reading of the text of Amendment 98 clearly precludes the exact claim brought by Plaintiffs and
that any examination of the legislative history of the amendment is wholly unnecessary. Id. at p.
4-9. Specifically, Domtar contends that Plaintiffs are falsely equating status as a qualifying patient
with actual use of marijuana. Id. at p. 5-6. Domtar notes that the employment protections of §
3(f)(3)(A) only apply to one’s status as a qualifying patient, while employers acting to terminate
an employee for the use of marijuana, whether through implementing a drug free workplace policy
or excluding an employee from a safety sensitive position, is clearly protected under the plain
language of §§ 3(f)(3)(B) and (C). Id. at p. 5-7. Domtar also argues that Plaintiffs’ assertion
regarding a failure to designate their positions as safety sensitive is without merit and directly
contradicted by their alleged facts. Id. at p. 7-9. Domtar contends that Plaintiffs’ argument
requires interpreting Amendment 98 to include additional conditions beyond its clear text and that
Planitffs’ own allegations, that the written Drug and Alcohol policy lists their positions as those in
the “safety sensitive” category, shows that Domtar adhered to every requirement of §
3(f)(3)(B)(iii). Id. Domtar then argues that Plaintiffs never made any allegations regarding
discharge based on disability in their complaint and thus have objectively failed to allege any claim
recognized under ACRA. Id. at p. 9-10. Lastly, Domtar argues that Plaintiffs’ argument regarding
the waiver of their rights does not apply to private employers and is also preempted by the Labor
Relations Management Act (“LRMA”). Id. at p. 10-12.
The Court finds that the instant motion should be granted. First, the Court notes that it
considers the Drug and Alcohol Policy as part of the pleadings. Though not specifically named or
attached to Plaintiffs’ complaint, they make reference to the policy and its impact on Plaintiffs in
support of their factual allegations that attempt to establish their claim. ECF No. 9, pp. 2, 4-5, 8.
Therefore, the Court finds that this document is among the “materials that are necessarily embraced
by the pleadings,” and that its use by the Court does not require converting the instant motion into
one for summary judgment. Porous Media Corp., 186 F.3d at 1079.
Next, taking the well-plead factual allegations as true and making all references in
Plaintiffs’ favor, the Court finds that Plaintiffs’ complaint alleges a claim that is clearly barred
under the plain language of § 3(f)(3)(B)(iii). Under §§ 3(f)(3)(B)(iii) and (C)(iv), employers are
explicitly protected against claims related to terminating a qualifying patient from a safety
sensitive position based upon a good faith belief that the patient was engaged in the current use of
marijuana. Under § 2(20)(B), “current use of marijuana” is be presumed after a positive test for
marijuana occurs. Plaintiffs’ factual allegations admit that they tested positive for marijuana after
implementation of the Drug and Alcohol Policy. Under § 2(25)(B), “safety sensitive position”
may be any position designated as such by the employer in writing. The Drug and Alcohol Policy
is part of the written agreement between Domtar and the Union and lists Plaintiffs’ employment
positions under the category heading for “Safety Sensitive Positions.” ECF No. 7-2, p. 7-10.
Noting that it must construe the statute “just as it reads” and give its words “common” meaning,
the Court views Plaintiffs’ alleged facts working in lockstep with the language of Amendment 98
in shielding Domtar from this claim. SubTeach USA, 2010 Ark. 400, at 7, 373 S.W.3d at 888-89.
The Court is not persuaded by Plaintiffs’ arguments in opposition. Just as they do in their
complaint, Plaintiffs’ response consistently and erroneously treats employment protections for
one’s “status” as a qualifying patient under § 3(f)(3)(A) as equivalent to protections for the use of
marijuana. The reality of this difference within Amendment 98 is clear based upon the separate
and distinct definitions of “qualifying patient” and “current use of marijuana” under §§ 2(14)(A)
and 2(20), respectively. This distinction is also obvious in how § 3(f)(3)(B)(iii) instructs that
“current use of marijuana” is an action that could authorize an employer to terminate a “qualifying
patient.” Rather than creating harmony in reading Amendment 98, Plaintiffs’ interpretation in
treating status as a qualifying patient and marijuana use as equivalent creates discord within the
statute.
Plaintiffs’ argument regarding Domtar’s alleged failure to designate their positions as
“safety sensitive” is also not compelling. Plaintiffs’ complaint does not allege that their
employment positions could not reasonably be considered safety sensitive in light of the guidance
put forth in §§ 2(25)(B)(i) and (ii). Instead, Plaintiffs only provide conclusory statements that their
positions were not truly designated as safety sensitive, while also referencing the Drug and Alcohol
Policy that directly contradicts their assertion. Their employment positions were clearly listed
within the “Safety Sensitive Positions” section of that written document. The Court struggles to
imagine a more direct adherence to the definitional requirement under § 2(25)(B) that the safety
sensitive position be “designated in writing.”
Plaintiffs’ contention that Domtar failed to meet this requirement because of the inclusion
of all other employment positions within the “safety sensitive” category is also not persuasive.
Plaintiffs’ offered interpretation necessitates reading more requirements for designating a position
as safety sensitive than the clear text of § 3(f)(3)(B)(iii) or § 2(25)(B) contains. There is no
reference in the text to a limit on the number of employees that could be designated or a need to
weigh the appropriateness of any individual designation in light of other designations. Plaintiffs’
other contention that permitting all employees to be designated as such contradicts the intended
employment protections of § 3(f)(3)(A) is similarly unpersuasive. As the Court already noted, this
argument stems from Plaintiffs incorrectly equating the employment protection for an individual’s
“status” as a qualifying patient with employment protections for an individual’s use of marijuana.
Additionally, § 3(f)(3)(B)(i) authorizes an employer to voluntarily implement their own drug-free
workplace policy with corresponding drug testing to enforce such a policy. This further
demonstrates that the statute makes a clear distinction between the employment protection offered
to an individual’s “status” as a qualifying patient under § 3(f)(3)(A) and an employer’s authority
to prohibit marijuana use among its employees.
Plaintiffs’ complaint similarly fails to present any cognizable claim under ACRA.
Plaintiffs’ complaint contains no factual allegations that Domtar was a state actor, as required
under Ark. Code § 16-123-105(a). See Rudd, 341 Ark. 794, at 797-98, 20 S.W.3d at 312-13.
Plaintiffs’ complaint also fails to allege that their employment was terminated because of
discrimination based on any of the categories listed in Ark. Code. § 16-123-107(a). Plaintiffs’
only suggestion of their employment being illegally terminated because of protected disability
status under § 16-123-107(a) first occurred in their response to the instant motion and not in their
complaint. Accordingly, Plaintiffs have failed to allege any facts to support a claim pursuant to
ACRA.
In sum, the Court finds that Plaintiffs’ alleged facts in the complaint clearly demonstrate
that their claim is explicitly barred under Amendment 98 and that their claim is not recognized
under ACRA. Therefore, examining the instant motion in the light most favorable to Plaintiffs
and taking all of Plaintiffs’ well-plead facts as true, the Court finds that Plaintiffs’ have failed to
plead facts that make Domtar’s alleged misconduct sufficiently “plausible” to survive the instant
motion. See Iqbal, 556 U.S. at 678; Wishnatsky, 433 F.3d at 610. Because Plaintiffs’ claim clearly
fails under Amendment 98 and ACRA, it is unnecessary to examine or make determinations
regarding Plaintiffs’ waiver of rights through the Last Chance Agreement or federal preemption
under LRMA.
IV. CONCLUSION
For the reasons stated above, the Court finds that Defendant Domtar’s Motion for Judgment
on the Pleadings (ECF No. 14) should be and hereby is GRANTED. Each Plaintiff’s claim is
hereby DISMISSED WITH PREJUDICE. Defendant Domtar’s request for attorney’s fees and
costs is denied.
IT IS SO ORDERED, this 31st day of January, 2023.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge