SUPERIOR COURT

CRISTINA BARBUTO VS. ADVANTAGE SALES AND MARKETING, LLC & another[1]

Docket: CIVIL ACTION No. 15-02677
Dates: May 31, 2016
Present:
County: SUFFOLK, ss.
Keywords: MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS

      The plaintiff, Cristina Barbuto ("Barbuto"), possesses a prescription for medicinal marijuana to treat Crohn's disease. Barbuto brought this action after Advantage Sales and Marketing, LLC ("ASM"), terminated her employment because she tested positive for marijuana during a urinary drug test. Barbuto's complaint alleges discrimination on account of her disability in violation of various provisions of G.L. c. 151B (Counts I, II, and III); invasion of privacy (Count IV); violation of an Act for the Humanitarian Medical Use of Marijuana, St. 2012, c. 369 ("the Act") and its implementing regulations (Count V); and termination in violation of public policy (Count VI). Before the court is the defendants' motion to dismiss all counts of Barbuto's complaint. For the reasons that follow, the defendants' motion is ALLOWED in part and DENIED in part.

DISCUSSION

  1. Disability Discrimination in Violation of G.L. c. 151B (Counts I, II, and III)

          Barbuto alleges that ASM discriminated against her on account of her disability when it failed to provide a reasonable accommodation by not allowing her to use marijuana for medicinal purposes. A qualified handicapped individual is "a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap." G.L. c. 151B, § 1(16). "A 'reasonable accommodation' is one which would not impose an undue hardship or burden on the entity making the accommodation." Peabody Props., Inc. v. Sherman, 418 Mass. 603, 608 (1994). An employer need not accommodate a handicapped individual if "substantial modification of employment standards" is required. Beal v. Board of Selectmen, 419 Mass. 535, 542 (1995).

          Barbuto's prescription for medicinal marijuana to treat Crohn's disease is lawful under the Act, which went into effect on January 1, 2013. Thus, the issue before the court is whether G.L. c. 151B requires ASM, a private employer, to accommodate Barbuto's use of marijuana as regulated by the Act. The parties have cited to no cases in Massachusetts that address this issue, and the court is aware of none. Accordingly, the court will interpret the Act in accordance with the plain meaning of its text. See Reading Coop. Bank v. Suffolk Constr. Co., 464 Mass. 543, 548 (2013); International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983) ("[T]he primary source of insight into the intent of the Legislature is the language of the statute.").

          A reading of the Act and its implementing regulations supports a finding that it does not require an employer to accommodate an employee's use of marijuana to treat a medical condition. The Act does not contain an anti-discrimination provision. To the contrary, it explicitly provides that "[n]othing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment." St. 2012, c. 369, § 7(D); see also 105 Code Mass Regs. § 725.650(B)(4). While the Act does not reference the "off-site" use of marijuana, it provides that "[n]othing in this law requires the violation of federal law or purports to give immunity under federal law. St. 2012, c. 369, § 7(F); see also 105 Code Mass. Regs. § 725.650(B)(6). The use of marijuana for medical purposes remains illegal under federal law. See 21 U.S.C. § 844(a).

          Similarly, there is no support for finding that G.L. c. 151B requires an employer to accommodate an employee's use of medical marijuana. Where states have legalized the use of marijuana for medicinal purposes, courts have held that the state disability discrimination statutes do not extend to marijuana use for medical purposes because such use remains illegal under federal law. See, e.g., Ross v. RagingWire Telecommc'ns, 174 P.3d 200, 204 (Cal. 2008) ("No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)) even for medical users . . . [and the California anti-discrimination law] does not require employers to accommodate the use of illegal drugs."); Brandon Coats v. Dish Network, LLC, 350 P.3d 849, 852 (Colo. 2015) (state-licensed medical marijuana use is not a "lawful activity" under Colorado employment discrimination law). Absent authority to hold otherwise, the court finds that ASM need not accommodate Barbuto's disability by allowing her to use a drug that remains illegal under federal law.

          Because the plaintiff cannot show that she is a qualified handicapped person capable of performing the essential functions of the position with reasonable accommodation, her claims related to G.L. c. 151B must fail.

  2. Invasion of Privacy in Violation of G.L. c. 214, § 1B (Count IV)

          In Count IV, Barbuto alleges that the defendants invaded her right to privacy under G.L. c. 214, § 1B when they required her to undergo drug testing through urinalysis. General Laws c. 214, § 1B, protects an individual's privacy from "unreasonable, substantial or serious" interference. "To determine whether an employer's drug testing policy violates its employees' rights under § 1B . . . [the court balances] the employees' interest in privacy against the employer's competing interest in determining whether [its employees are] using drugs." Webster v. Motorola, Inc., 418 Mass. 425, 431 (1994) (citation omitted). "[R]equiring an employee to submit to urinalysis involves a significant invasion of privacy." Id.

          Here, accepting the facts alleged in the complaint as true, the court finds that Barbuto has stated a claim for invasion of privacy. Barbuto alleges that the drug test was unreasonable and not commensurate with her job duties or with the type of business and industry in which ASM is engaged. See Byrne v. Massachusetts Bay. Transp. Auth., 196 F. Supp. 2d 77, 85 (D. Mass. 2002) ("The only time the Supreme Judicial Court has held that a drug testing procedure violated § 1B was in a case where the employee being tested was not engaged in a dangerous or safety-sensitive occupation."), citing Webster, 418 Mass. at 433 (noting that any nexus between plaintiff's job responsibilities and risk of harm to human health and safety were "attenuated"). These allegations are sufficient to withstand the defendants' motion to dismiss.

  3. The Act and Implementing Regulations (Count V)

    Barbuto's claim that the defendants violated the Act must fail because the Act provides no private right of action. Section 1 of the Act sets forth a statement of purpose: "The citizens of Massachusetts intend that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana . . . . St. 2012, c. 369, § 1 (emphasis added). Sections 2 through 5 of the Act provide "protection from state prosecution and penalties." Id. at § 2-5. Thus, it is clear that the purpose of the Act is to decriminalize the use of marijuana for medicinal purposes under Massachusetts law. See Sullivan v. Brookline, 435 Mass. 353, 360 (2001) ("[S]tatutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.").

    In support of her argument that the Act also protects employees from adverse employment action, Barbuto cites to Section 4, which provides that "any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions." St. 2012, c. 369, § 4. The court is not persuaded by Barbuto's interpretation of the phrase "any right or privilege" in light of the title of Section 4, "Protection from State Prosecution and Penalties for Qualifying Patients and Personal Caregivers," and the remaining text of the Act that seeks solely to prohibit "punishment under state law." St. 2012, c. 369, §§ 1, 4. Because the Act provides no private right of action against an employer, Count V must be dismissed.

    The court's holding is consistent with the law of other jurisdictions, where, in the absence of express statutory language prohibiting adverse employment action on account of an employee's use of medicinal marijuana, courts have held that state marijuana acts contain no private right of action. Compare Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012) (holding that Michigan Medical Marijuana Act did not give employee private right of action against employer because Act does not regulate private employers), with Savage v. Maine Pretrial Servs., Inc., 58 A.3d 1138, 1143 (Me. 2013) (holding that, because Maine Medical Use of Marijuana Act has specific provision precluding employer from discriminating against medical marijuana user, the Act provides private right of action for qualifying patients who have been discriminated against by employers).

  4. Termination in Violation of Public Policy (Count VI)

     Barbuto alleges that she was terminated in violation of public policy when she was terminated for exercising her right under Massachusetts law to use marijuana for medicinal purposes. While a court will look to statutes to determine what is clearly established public policy, "it is not necessarily true that the existence of a statute relating to a particular matter is by itself a pronouncement of public policy that will protect, in every instance, an employee from termination." King v. Driscoll 418 Mass. 576, 583-584 (1994).

     The Act guarantees Barbuto the right to use marijuana for medicinal purposes without being subjected to criminal prosecution or civil penalties. The Act does not, however, evince a clear public policy to forbid an employer from discharging an employee when the employee uses medicinal marijuana. See Casias, F.3d 428 at 436-437 (holding that Michigan Medical Marijuana Act does not restrict private employer's ability to discipline employees for medical marijuana use and, therefore, Act could not support wrongful termination claim); Roe v. TeleTech Customer Care Mgmt., LLC, 257 P.3d 586, 594-95 (Wash. 2011) (holding that Washington State Medical Use of Marijuana Act does not proclaim sufficient public policy to support cause of action for wrongful termination); Ross, 174 P.3d at 208 (holding that employee terminated for authorized medical marijuana use cannot state cause of action for termination in violation of public policy). Thus, Count VI must be dismissed.

ORDER

     For the foregoing reasons, it is hereby ORDERED that the defendants' motion to dismiss is ALLOWED as to Counts I, II, III, V and VI, and DENIED as to Count IV.

Robert N. Tochka
Justice of the Superior Court

footnotes

      [1] Joanne Meredith Villaruz ("Villaruz").