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Barbuto v. Advantage Sales and Marketing, LLC

Supreme Judicial Court of Massachusetts, Suffolk

July 17, 2017

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

          Heard: March 9, 2017.

         Civil action commenced in the Superior Court Department on September 4, 2015. A motion to dismiss was heard by Robert N. Tochka, J.

         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.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          GANTS, C.J.

         In 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 claims.[2]

         Background.

         "We 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.

         As 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.

         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, 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 state law."

         Barbuto 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.

         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 ...


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