United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO DISMISS
JEFFREY ALKER MEYER, UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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.
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
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.
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
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.
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.
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.
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
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).
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).
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).
Controlled Substances Act
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
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).
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.
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,
“state law is displaced only to the extent that it
actually conflicts with federal law, ...