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Noffsinger v. SSC Niantic Operating Company LLC

United States District Court, D. Connecticut

August 8, 2017




         Connecticut is one of a growing number of States to allow the use of marijuana for medicinal purposes. Connecticut likewise bars employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the requirements of Connecticut law. By contrast, federal law categorically prohibits the use of marijuana even for medical purposes.

         This lawsuit calls upon me to decide if federal law preempts Connecticut law. In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. I conclude that the answer to that question is “no” and that a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason. Accordingly, I will largely deny defendant's motion to dismiss this lawsuit.


         For the last two decades, state legislatures across the United States have been passing laws to permit and regulate the use of marijuana for medicinal purposes. See National Conference of State Legislatures, State Medical Marijuana Laws (July 7, 2017). Connecticut is one of 29 States that have “comprehensive public medical marijuana and cannabis programs, ” and an additional 16 States have more limited programs allowing for the use of “low THC, high cannabidiol” products for particular medical reasons. Ibid.

         The range of state statutes provide different rights and remedies to medical marijuana users. While all protect qualified users from state criminal prosecution, many also include broader protections “stating that medical marijuana patients are not to be subject to ‘penalty, ' ‘sanction, ' or may not be ‘denied any right or privilege.'” Elizabeth Rodd, Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination, 55 B.C. L. Rev. 1759, 1768 (2014). Several States-including Connecticut- provide explicit protection against employment discrimination on the basis of the medicinal use of marijuana in compliance with state law. Ibid.[1]

         Notwithstanding the proliferation of state marijuana-use statutes, federal law stands to the contrary. The federal Controlled Substances Act classifies marijuana as a Schedule I substance, meaning that Congress has decided that “marijuana has no medicinal value.” Kathleen Harvey, Protecting Medical Marijuana Users in the Workplace, 66 Case W. Res. L. Rev. 209, 211 (2015). Given the proliferation of state medical marijuana laws, courts around the country are now confronted with the question of how these permissive state laws may reconcile-if at all- with federal law.

         In 2012, Connecticut enacted the Palliative Use of Marijuana Act (PUMA), Conn. Gen. Stat. § 21a-408 et seq. PUMA permits the use of medical marijuana for “qualifying patients” with certain debilitating medical conditions. The law exempts such patients, their primary caregivers, and prescribing doctors from state criminal penalties that would otherwise apply to those who use or distribute marijuana. It also sets forth a framework for a system of licensed dispensaries and directs the Department of Consumer Protection to adopt implementing regulations. Most importantly for purposes of this case-and in contrast to medical marijuana laws in many other States-PUMA includes a provision that explicitly prohibits discrimination against qualifying patients and primary caregivers by schools, landlords, and employers. See Conn. Gen. Stat. § 21a-408p(b).[2]

         Plaintiff's complaint alleges the following facts, which I accept as true for the purposes of this motion to dismiss. In 2012, plaintiff Katelin Noffsinger was diagnosed with post-traumatic stress disorder (PTSD). In 2015, her doctors recommended medical marijuana to treat her PTSD. She registered with the state Department of Consumer Protection as a qualifying patient under PUMA. After receiving her registration certificate, plaintiff began taking one capsule of Marinol, a synthetic form of cannabis, each night as prescribed.

         When she started taking Marinol, plaintiff was employed as a recreation therapist at Touchpoints, a long-term care and rehabilitation provider. In July 2016, plaintiff was recruited for a position as a director of recreational therapy at Bride Brook, a nursing facility in Niantic, Connecticut. After a phone interview, plaintiff interviewed in person on July 18 with Lisa Mailloux, the administrator of Bride Brook. During the interview, Mailloux offered plaintiff the position, and plaintiff accepted the offer the following day. On July 20, Mailloux contacted plaintiff to set up a meeting for July 25 to complete paperwork and a routine pre-employment drug screen. Mailloux also instructed plaintiff to give notice to Touchpoints so that plaintiff could begin working at Bride Brook on August 3. Plaintiff informed Touchpoints that her last day would be August 2.

         On July 25, plaintiff met with Mailloux as scheduled. At this meeting, plaintiff disclosed her disability of PTSD and explained that she was taking prescription marijuana as a “qualifying patient” under PUMA. Plaintiff showed Mailloux her registration certificate and explained that she took Marinol, but only in the evening before bed, and therefore she was never impaired during the workday. Plaintiff also offered to provide additional medical documentation, but Mailloux did not request it. Mailloux continued to process plaintiff's pre-employment documents and gave plaintiff a packet of documents to complete at home and bring back when she returned for orientation on August 3. At the same meeting, plaintiff provided defendant with a urine sample to be used as part of the pre-employment drug test.

         On August 2, the day before plaintiff was scheduled to start work at Bride Brook, the drug testing company used by Bride Brook called plaintiff to inform her that she had tested positive for cannabis. Plaintiff immediately called Mailloux and left a voice message in which she informed Mailloux of her call with the drug testing company and asked a question about the upcoming orientation session. Later that day, Mailloux called plaintiff back to inform her that Bride Brook was rescinding plaintiff's job offer because she had tested positive for cannabis. In the meantime, plaintiff's former position at Touchpoints had already been filled, so she was not able to remain employed there.

         On August 22, 2016, plaintiff filed a complaint in Connecticut Superior Court, alleging three causes of action: (1) a violation of PUMA's anti-discrimination provision, Conn. Gen. Stat. § 21a-408p(b)(3), (2) a common law claim for wrongful rescission of a job offer in violation of public policy, and (3) negligent infliction of emotional distress. Plaintiff brings these claims against a single defendant, SSC Niantic Operating Company, LLC d/b/a Bride Brook Nursing & Rehabilitation Center. Defendant removed the case to federal court on the basis of diversity jurisdiction, and has now moved to dismiss on several grounds discussed below.


         The background principles governing a Rule 12(b)(6) motion to dismiss are well established. The Court must accept as true all factual matters alleged in a complaint, although a complaint may not survive unless its factual recitations state a claim to relief that is plausible on its face. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014). Moreover, “‘[a]lthough a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action . . . do not suffice'” to survive a motion to dismiss. Ibid. (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)). In short, my role in reviewing the motion to dismiss is to determine whether the complaint-apart from any of its conclusory allegations-sets forth sufficient facts to state a plausible claim for relief.


         Defendant's principal argument for dismissal is that PUMA is preempted by three different federal statutes: the Controlled Substances Act, the Americans with Disabilities Act, and the Food, Drug, and Cosmetic Act. Although defendant raises other challenges as well to each of plaintiff's claims, I will first address defendant's preemption arguments insofar as PUMA's validity under federal law impacts all of plaintiff's claims.

         The U.S. Constitution's Supremacy Clause provides that “the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. It follows that Congress may preempt a state law by means of a federal statute. Congress may accomplish this in several ways. It may do so expressly (“express preemption”), or it may preempt state law implicitly in circumstances where it is clear that Congress intended to occupy an entire regulatory field (“field preemption”). Congress may also preempt state law where state law stands as an obstacle to the objectives of Congress (“obstacle preemption”) or where simultaneous compliance with both federal and state law is impossible (“impossibility preemption”). See Oneok, Inc. v. Learjet, Inc., 135 S.Ct. 1591, 1595 (2015); Madden v. Midland Funding, LLC, 786 F.3d 246, 249-50 (2d Cir. 2015). In general, a federal statute will not be found to preempt claims arising under state law unless Congress's intent to do so is “clear and manifest.” Wyeth v. Levine, 555 U.S. 555, 565 (2009).

         Defendant argues that the Controlled Substances Act, Americans with Disabilities Act, and Food, Drug, and Cosmetic Act each invalidate PUMA under a theory of obstacle preemption. Under obstacle preemption, a state law is preempted where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona v. United States, 567 U.S. 387, 399 (2012).

         A defendant making an argument under obstacle preemption faces a heavy burden. “The mere fact of ‘tension' between federal and state law is generally not enough to establish an obstacle supporting preemption, particularly when the state law involves the exercise of traditional police power.” Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 241 (2d Cir. 2006). Rather, obstacle preemption precludes only those state laws that create an “actual conflict” with an overriding federal purpose and objective. See Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 162 (2d Cir. 2013). What constitutes a “sufficient obstacle” is “a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Ibid. (internal quotation marks omitted). But “the conflict between state law and federal policy must be a sharp one.” Marsh v. Rosenbloom, 499 F.3d 165, 178 (2d Cir. 2007) (internal quotation marks omitted). Indeed, there is no preemption unless “the repugnance or conflict is so direct and positive that the two acts cannot be reconciled or consistently stand together.” In re MTBE Prods. Liab. Litig., 725 F.3d 65, 102 (2d Cir. 2013).

         1. Controlled Substances Act

         Defendant first argues that PUMA is preempted by the Controlled Substances Act, 21 U.S.C. § 801 et seq. (“CSA”). Specifically, defendant contends that by “affirmatively authoriz[ing] the medical use, possession, cultivation, sale, dispensing, and distribution of marijuana, ” PUMA “stands as an impermissible obstacle to the basic purpose of the CSA.” Doc. #18-1 at 12. In response, plaintiff argues that because the CSA does not regulate the employment relationship, the employment anti-discrimination provision of PUMA does not conflict with or stand as an obstacle to the CSA. Doc. #27 at 11. I agree with plaintiff.

         The CSA makes it a federal crime to use, possess, or distribute marijuana. “The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.” Gonzales v. Raich, 545 U.S. 1, 12 (2005). To carry out these goals, “Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA.” Id. at 13. The CSA classifies marijuana as a Schedule I substance, which indicates the drug's “high potential for abuse, ” and the CSA allows no exceptions for medical use. 21 U.S.C. § 812; see also United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001).

         The CSA, however, does not make it illegal to employ a marijuana user. Nor does it purport to regulate employment practices in any manner. It also contains a provision that explicitly indicates that Congress did not intend for the CSA to preempt state law “unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.” 21 U.S.C. § 903.

         Defendant argues that PUMA stands as an obstacle to the CSA because it affirmatively authorizes the very conduct-marijuana use-that the CSA prohibits. But this argument is overbroad and overlooks the operative provision of PUMA that is at issue in this case: the specific provision of PUMA (Conn. Gen. Stat. § 21a-408p(b)(3)) that prohibits an employer from discriminating against authorized persons who use medicinal marijuana. Plaintiff contends that defendants have violated this particular provision, and plaintiff does not otherwise seek enforcement of PUMA en toto or of other provisions of PUMA. Accordingly, I must focus on PUMA's specific anti-employment discrimination provision rather than the statute as a whole, because in preemption cases, ‚Äústate law is displaced only to the extent that it actually conflicts with federal law, ...

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