CRISTINA BARBUTO vs. ADVANTAGE SALES AND MARKETING, LLC, & another.
Suffolk. March 9, 2017. - July 17, 2017.
Supreme Judicial Court of Massachusetts
July 17, 2017
477 Mass. 456 (2017)
Present: GANTS, C.J., LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.
Discussion of
In a civil action arising from the plaintiff‘s termination from employment after she tested positive for marijuana as a result of her lawful medical use of marijuana, a Superior Court judge erred in dismissing the counts of the complaint alleging discrimination in employment on the basis of handicap, where the plaintiff was a “handicapped person” within the meaning of
In a civil action arising from the plaintiff‘s termination from employment after she tested positive for marijuana as a result of her lawful medical use of marijuana, a Superior Court judge properly dismissed the count of the complaint alleging violation of
CIVIL ACTION commenced in the Superior Court Department on September 4, 2015.
1Joanne Meredith Villaruz.
The Supreme Judicial Court granted an application for direct appellate review.
Matthew J. Fogelman (Adam D. Fine also present) for the plaintiff.
Michael K. Clarkson (M. Tae Phillips also present) for the defendants.
The following submitted briefs for amici curiae:
Elizabeth Milito, of the District of Columbia, & Gregory D. Cote for NFIB Small Business Legal Center.
Reid M. Wakefield & Constance M. McGrane for Massachusetts Commission Against Discrimination.
David A. Russcol & Chetan Tiwari for Massachusetts Employment Lawyers Association & others.
GANTS, C.J. In 2012, Massachusetts voters approved the initiative petition entitled, “An Act for the humanitarian medical use of marijuana,”
Background. “We review the allowance of a motion to dismiss de novo.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In deciding whether a count in the complaint states a claim under
As alleged in the complaint, the plaintiff, Cristina Barbuto, was offered an entry-level position with the defendant Advantage Sales and Marketing, LLC (ASM), in the late summer of 2014, and accepted the offer. An ASM representative later left a message for Barbuto stating that she was required to take a mandatory drug test. Barbuto told the ASM employee who would be her supervisor that she would test positive for marijuana. Barbuto explained that she suffers from Crohn‘s disease, a debilitating gastrointestinal condition; that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes; and that, as a result, she was a qualifying medical marijuana patient under Massachusetts law. She added that she did not use marijuana daily and would not consume it before work or at work.
Typically, Barbuto uses marijuana in small quantities at her home, usually in the evening, two or three times per week. As a result of her Crohn‘s disease, and her irritable bowel syndrome, she has “little or no appetite,” and finds it difficult to maintain a healthy weight. After she started to use marijuana for medicinal purposes, she gained fifteen pounds and has been able to maintain a healthy weight.
The supervisor told Barbuto that her medicinal use of marijuana “should not be a problem,” but that he would confirm this with others at ASM. He later telephoned her and confirmed that her lawful medical use of marijuana would not be an issue with the company.
On September 5, 2014, Barbuto submitted a urine sample for the mandatory drug test. On September 11, she went to an ASM training program, where she was given a uniform and assigned a supermarket location where she would promote the products of ASM‘s customers. She completed her first day of work the next day. She did not use marijuana at the workplace and did not report to work in an intoxicated state. That evening, the defendant Joanna Meredith Villaruz, ASM‘s human resources representative, informed Barbuto that she was terminated for testing positive for marijuana. Villaruz told Barbuto that ASM did not care if Barbuto used marijuana to treat her medical condition because “we follow [F]ederal law, not [S]tate law.”
Barbuto filed a verified charge of discrimination against ASM and Villaruz with the Massachusetts Commission Against Dis-
The judge allowed the motion as to all counts except the invasion of privacy claim. At the request of the plaintiff, the judge entered a separate and final judgment on the dismissed claims, and stayed the invasion of the privacy claim pending appeal. The plaintiff filed a notice of appeal regarding the dismissed claims, and we allowed the plaintiff‘s application for direct appellate review.
Discussion. 1. Massachusetts medical marijuana act. Under the medical marijuana act, a “qualifying patient” is defined as “a person who has been diagnosed by a licensed physician as having a debilitating medical condition“; Crohn‘s disease is expressly included within the definition of a “debilitating medical condition.”
Like Massachusetts, nearly ninety per cent of States, as well as Puerto Rico and the District of Columbia, allow the limited
2. Handicap discrimination. Under
The plaintiff alleges that she is a “handicapped person” because she suffers from Crohn‘s disease and that she is a “qualified handicapped person” because she is capable of performing the essential functions of her job with a reasonable accommodation to her handicap; that is, with a waiver of ASM‘s policy barring anyone from employment who tests positive for marijuana so that she may continue to use medical marijuana as prescribed by her physician.5 She adequately states a claim for handicap discrimination in violation of § 4 (16) if the allegations in her complaint, accepted as true, suffice to make a facial showing that she is a “qualified handicapped person” who was terminated because of her handicap. See Massachusetts Commission Against Discrimination, Guidelines: Employment Discrimination on the Basis of Handicap, Chapter 151B § IX.A.3 (1998) (MCAD Guidelines).
Where Crohn‘s disease is characterized as a “debilitating medical condition” under the medical marijuana act, see
Where a plaintiff is handicapped and where she suffered an adverse employment action even though she was capable of performing the essential functions of her position with some form of accommodation, the plaintiff adequately alleges a claim of handicap discrimination if the accommodation that she alleges is necessary is facially reasonable. See Godfrey v. Globe Newspaper Co., 457 Mass. 113, 120 (2010). Because a reasonable accommodation claim may arise in a wide variety of contexts, courts are reluctant to set “hard and fast rules” as to when an accommodation is facially reasonable. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 n.5 (1st Cir. 2001). Generally speaking, however, a plaintiff must at least show that the accommodation is “feasible for the employer under the circumstances.” Id. at 259.
The defendants argue that Barbuto has failed to state a claim of handicap discrimination for two reasons. First, they contend that she has not adequately alleged that she is a “qualified handicapped person” because the only accommodation she sought — her continued use of medical marijuana — is a Federal crime, and therefore is facially unreasonable. See Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225, 1229 (D.N.M. 2016) (“medical marijuana is not an accommodation that must be provided for by the employer“); Ross v. Raging Wire Telecomm., Inc., 42 Cal. 4th 920, 926 (2008) (California‘s statute prohibiting handicap discrimination “does not require employees to accommodate the use of illegal drugs“). Second, they contend that, even if she were a “qualified handicapped person,” she was terminated because she failed a drug test that all employees are required to pass, not because of her handicap.
As to the defendants’ first argument, where an employee is handicapped because she suffers from a debilitating medical
Where no equally effective alternative exists, the employer bears the burden of proving that the employee‘s use of the medication would cause an undue hardship to the employer‘s business in order to justify the employer‘s refusal to make an exception to the drug policy reasonably to accommodate the medical needs of the handicapped employee. See Godfrey, 457 Mass. at 120, quoting Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 386 n.3 (1993) (“Once an employee ‘make[s] at least a facial showing that reasonable accommodation is possible,’ the burden of proof [of both production and persuasion] shifts to the employer to establish that a suggested accommodation would impose an undue hardship“). Because the burden of proving undue hardship rests with the employer, where an employee brings a handicap discrimination claim following her dismissal for the use of her prescribed medication, her complaint will state a claim for relief that will survive a motion to dismiss where it adequately alleges that she is a “qualified handicapped person” because she could have competently performed her job with the medication, and that allowing her to use the medication was at least facially a reasonable accommodation.
Under Massachusetts law, as a result of the act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Where, in the opinion of the employee‘s physician, medical marijuana is the most effective medication for the employee‘s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer‘s drug policy would be less effective, an exception to an employer‘s drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under
Our conclusion finds support in the marijuana act itself, which declares that patients shall not be denied “any right or privilege” on the basis of their medical marijuana use.
The act also makes clear that it does not require “any accom-
The fact that the employee‘s possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation. The only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.
Nor are we convinced that, as a matter of public policy, we should declare such an accommodation to be per se unreasonable solely out of respect for the Federal law prohibiting the possession of marijuana even where lawfully prescribed by a physician. Since 1970 when Congress determined that marijuana was a Schedule I controlled substance that, in contrast with a Schedule II, III, IV, or V controlled substance, “has no currently accepted medical use in treatment in the United States,” nearly ninety per cent of the States have enacted laws regarding medical marijuana that reflect their determination that marijuana, where lawfully prescribed by a physician, has a currently accepted medical use in treatment.8 See
In addition, even if the accommodation of the use of medical marijuana were facially unreasonable (which it is not), the employer here still owed the plaintiff an obligation under
As to the defendants’ second argument, where a handicapped employee needs medication to alleviate or manage the medical condition that renders her handicapped, and the employer fires her because company policy prohibits the use of this medication, the law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap. By the defendants’ logic, a company that barred the use of insulin by its employees in accordance with a company policy would not be discriminating against diabetics because of their handicap, but would simply be implementing a company policy prohibiting the use of a medication. Where, as here, the company‘s policy
Our conclusion that an employee‘s use of medical marijuana under these circumstances is not facially unreasonable as an accommodation for her handicap means that the dismissal of the counts alleging handicap discrimination must be reversed. But it does not necessarily mean that the employee will prevail in proving handicap discrimination. The defendant at summary judgment or trial may offer evidence to meet their burden to show that the plaintiff‘s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the defendants’ business. See Godfrey, 457 Mass. at 120. See also
Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer‘s contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety-sensitive employee subject to drug testing under the department‘s drug testing regulations from using marijuana. See
Whether the employer met its burden of proving that the requested accommodation would impose an undue hardship on the employer‘s business is an issue that may be resolved through a motion for summary judgment or at trial; it is not appropriately addressed through a motion to dismiss. Because the plaintiff‘s continued use of medical marijuana under these circumstances is not facially unreasonable as an accommodation for her handicap and because the plaintiff has adequately alleged that ASM failed to participate in an interactive process with the plaintiff to determine whether there was a reasonable accommodation for her handicap, we reverse the dismissal of count 1, alleging handicap discrimination. We also reverse the dismissal of counts 2 and 3 against Villaruz, which allege that she aided and abetted ASM‘s handicap discrimination and interfered with the plaintiff‘s exercise of her right to be free from handicap discrimination.
3. Implied private cause of action under the medical marijuana act. The plaintiff alleges in count 4 of her complaint that her termination was in violation of the medical marijuana act, which suggests that she claims she has a private cause of action under the act against an employer who terminates her employment for the lawful use of medical marijuana. When the voters approved the act through the initiative petition, two New England States, Rhode Island and Maine, already had enacted comparable statutes that expressly included provisions prohibiting employers from taking adverse employment action against an employee for his or her lawful use of medical marijuana. See
Legislative intent is “the determinative factor in deciding whether a private cause of action can be implied from a statute.” Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543 (1998), and cases cited. “[W]e have generally been reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference.” Id. at 544. Where a statute was enacted by the voters through an initiative petition, “it is to the wishes of the people, not the Legislature, that we must look.” Bates v. Director of Office of Campaign & Political Fin., 436 Mass. 144, 173 (2002).
In considering whether there is any such indication from the voters, we look to the closest equivalent to legislative history, which is the Information for Voters guide that is prepared by the Secretary of the Commonwealth and sent to each registered voter before the election.11 See Roe v. Teletech Customer Care Mgt. (Colorado) LLC, 171 Wash. 2d 736, 747 (2011) (“If there is ambiguity in an initiative, the court may look to extrinsic evidence of the voters’ intent such as statements in the voters’ pamphlet“). There is no indication from the guide that the voters understood they were creating a private right of action through passage of the initiative; the guide is silent with respect to adverse employment action arising from an employee‘s use of medical
We also consider whether the absence of a private cause of action would render the statute ineffective, and frustrate the voters’ purpose in approving the initiative. See Bates, 436 Mass. at 173-174, quoting Boston Elevated Ry. v. Commonwealth, 310 Mass. 528, 548 (1942) (“We will not impute to the voters who enacted the clean elections law an ‘intention to pass an ineffective statute’ “). Here, where a comparable cause of action already exists under our law prohibiting handicap discrimination, a separate, implied private right of action is not necessary to protect a patient using medical marijuana from being unjustly terminated for its use. The Legislature‘s provision of a separate remedy, especially, as here, a separate civil remedy, “weighs heavily against recognizing” an implied private right of action in a statute. See Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 373 (2008). Cf. Loffredo, 426 Mass. at 547, quoting Transamerica Mtge. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) (“[W]here a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it“).
In addition, as noted earlier, the drafters of the act appear to have recognized the existence of a cause of action for handicap discrimination by specifically not requiring “on-site” medical marijuana use as an “accommodation.”
We interpret statutes, where we can, to be in harmony with each other. See Carleton v. Commonwealth, 447 Mass. 791, 809 (2006); Charland v. Muzi Motors, Inc., 417 Mass. 580, 582-583 (1994). Recognizing an implied private right of action under the medical marijuana act for an employee could conflict with the employee‘s right of action under our antidiscrimination law,
4. Wrongful termination in violation of public policy. The plaintiff alleges in count 6 of her complaint a claim of wrongful
Conclusion. For the reasons stated above, we reverse the judge‘s allowance of the motion to dismiss the plaintiff‘s claim for handicap discrimination and the related claims under
So ordered.
Notes
In other published cases where State Supreme Courts have rejected employees’ claims for relief from their termination of employment because of their use of medical marijuana, the employees did not bring handicap discrimination
claims. In Coats v. Dish Network, LLC, 350 P.3d 849, 851 (Colo. 2015), the plaintiff brought a wrongful termination claim, alleging that his termination was in violation of a State statute that barred an employer from discharging an employee based on the employee‘s participation in “lawful activities” off-site during nonworking hours. The Supreme Court of Colorado affirmed the dismissal of the claim, concluding that the Legislature did not intend the statute to apply to an activity, such as the possession of marijuana, that was unlawful under Federal law. Id. at 853. In Roe v. Teletech Customer Care Mgt. (Colorado) LLC, 171 Wash. 2d 736, 760 (2011), the Washington Supreme Court affirmed the allowance of summary judgment in favor of the employer on the plaintiff‘s wrongful termination claims, holding that the State‘s medical marijuana law did not create a private right of action and did not proclaim a public policy prohibiting the discharge of an employee for medical marijuana use.