Heard: March 9, 2017.
action commenced in the Superior Court Department on
September 4, 2015. A motion to dismiss was heard by Robert N.
Supreme Judicial Court granted an application for direct
Matthew J. Fogelman (Adam D. Fine also present) for the
Michael K. Clarkson (M. Tae Phillips also present) for the
following submitted briefs for amici curiae:
Elizabeth Milito, of the District of Columbia, & Gregory
D. Cote for NFIB Small Business Legal Center.
M. Wakefield & Constance M. McGrane for Massachusetts
Commission Against Discrimination.
A. Russcol & Chetan Tiwari for Massachusetts Employment
Lawyers Association & others.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
2012, Massachusetts voters approved the initiative petition
entitled, "An Act for the humanitarian medical use of
marijuana, " St. 2012, c. 369 (medical marijuana act or
act), whose stated purpose is "that there should be no
punishment under state law for qualifying patients . . . for
the medical use of marijuana." Id. at § 1.
The issue on appeal is whether a qualifying patient who has
been terminated from her employment because she tested
positive for marijuana as a result of her lawful medical use
of marijuana has a civil remedy against her employer. We
conclude that the plaintiff may seek a remedy through claims
of handicap discrimination in violation of G. L. c. 151B, and
therefore reverse the dismissal of the plaintiff's
discrimination claims. We also conclude that there is no
implied statutory private cause of action under the medical
marijuana act and that the plaintiff has failed to state a
claim for wrongful termination in violation of public policy,
and therefore affirm the dismissal of those
review the allowance of a motion to dismiss de novo."
Curtis v. Herb Chambers 1-95,
Inc., 458 Mass. 674, 676 (2011). In deciding whether a
count in the complaint states a claim under Mass. R.
Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we accept
as true the allegations in the complaint, draw every
reasonable inference in favor of the plaintiff, and determine
whether the factual allegations plausibly suggest an
entitlement to relief under the law. Id.
alleged in the complaint, the plaintiff, Cristina Barbuto,
was offered an entry-level position with defendant Advantage
Sales and Marketing (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.
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
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.
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,
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 federal law, not
filed a verified charge of discrimination against ASM and
Villaruz with the Massachusetts Commission Against
Discrimination (MCAD), which she later withdrew in order to
file a complaint in the Superior Court. The complaint
included six claims: (1) handicap discrimination, in
violation of G. L. c. 151B, § 4 (16); (2) interference
with her right to be protected from handicap discrimination,
in violation of G. L. c. 151B, § 4 (4A); (3) aiding and
abetting ASM in committing handicap discrimination, in
violation of G. L. c. 151B, § 4 (5); (4) invasion of
privacy, in violation of G. L. c. 214, § IB; (5) denial
of the "right or privilege" to use marijuana
lawfully as a registered patient to treat a debilitating
medical condition, in violation of the medical marijuana act;
and (6) violation of public policy by terminating the
plaintiff for lawfully using marijuana for medicinal
purposes. The second and third claims were brought against
Villaruz alone; the rest were brought against both ASM and
Villaruz. After unsuccessfully attempting to remove the case
to United States District Court, the defendants filed a
motion to dismiss the complaint in the Superior Court.
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