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Noffsinger v. SSN Niantic Operating Co., LLC

United States District Court, D. Connecticut

September 5, 2018



          Jeffrey Alker Meyer United States District Judge

         This is a case about a claim of employment discrimination on the basis of a person's use of medical marijuana as authorized under the Connecticut Palliative Use of Marijuana Act (PUMA), Conn. Gen. Stat. § 21a-408 et seq. PUMA prescribes qualifying conditions for a person to use marijuana for medicinal purposes. It also contains an anti-discrimination provision that bars an employer from refusing to hire a person or from discharging, penalizing or threatening an employee solely because of the person's status as a qualifying medical marijuana patient under state law. See Conn. Gen. Stat. § 21a-408p(b)(3).

         Plaintiff Katelin Noffsinger accepted a job offer from defendant SSC Niantic Operating Company, LLC d/b/a Bride Brook Health & Rehabilitation Center. But the offer was contingent on drug testing, and plaintiff told defendant that she was qualified under PUMA to use marijuana for medical purposes to treat her post-traumatic stress disorder. After her drug test came back positive for THC consistent with the use of marijuana, defendant rescinded its job offer.

         Plaintiff soon filed this lawsuit against defendant. I have previously ruled that PUMA creates a private right of action and that PUMA's anti-discrimination provision is not preempted by federal law. See Noffsinger v. SSC Niantic Operating Co. LLC, 273 F.Supp.3d 326 (D. Conn. 2017). Since then the parties have conducted discovery and have now cross-moved for summary judgment.

         For the reasons set forth below, I conclude that plaintiff is entitled to judgment as a matter of law in her favor on her claim of employment discrimination under PUMA. On the other hand, I will grant defendant's motion for summary judgment precluding plaintiff from recovery for attorney's fees and punitive damages for her PUMA claim, and I will also grant defendant's motion for summary judgment as to plaintiff's claim for negligent infliction of emotional distress.


         Plaintiff was diagnosed with post-traumatic stress disorder (PTSD) in 2012 after being in a car accident. Doc. #70-1 at 249-50. Her caregiver recommended treating her PTSD with medical marijuana, which she began using in 2015. Id. at 284. In accordance with PUMA, plaintiff registered with the Department of Consumer Protection in November 2015 as a qualifying patient for the use of medical marijuana. Id. at 288.

         In July of 2016, defendant recruited plaintiff for the position of Activities Manager at the Bride Brook Facility. Doc. #76-1 at 1 (¶ 1). In response to the outreach, plaintiff emailed a copy of her resume to defendant. Id. at 2 (¶ 2). Plaintiff subsequently spoke with defendant's administrator, Lisa Mailloux, and scheduled an in-person interview for July 18, 2016. See Id. (¶ 3). The interview was successful, and Mailloux offered plaintiff the position of Activities Manager subject to the completion of pre-employment screenings. Id. at 2-3 (¶¶ 4-6). Plaintiff accepted the offer on July 19. Id. at 3 (¶ 7).

         Plaintiff and Mailloux agreed that a follow-up visit would take place on July 25 for the completion of pre-employment papers, background check, and drug screen. Id. at 3-4 (¶¶ 8, 10). At this follow-up meeting, plaintiff disclosed to Mailloux her PTSD diagnosis and her participation in Connecticut's medical marijuana program. Id. at 4 (¶ 11). She explained that she took prescription marijuana in the evenings as a “qualifying patient” under PUMA and showed Mailloux her registration certificate and an empty pill container which displayed the name and dosage of her medical marijuana pills. Id. at 4-5 (¶¶ 11-12).

         Following her disclosure, plaintiff provided a urine sample for the pre-employment drug screen. Id. at 5 (¶ 13). The test produced an initial positive result for THC, a chemical component of marijuana. Id. (¶ 14). Per defendant's standard procedure, the sample was also sent to a third-party drug testing company for testing. Id. (¶ 13).

         After the meeting of July 25, Mailloux emailed the district human resources manager, Terri Taylor, to inform her that plaintiff was a medical marijuana user and tested positive for marijuana on the initial results from the urine sample. Id. (¶ 16). On July 29, Mailloux emailed Kate Warren, a compliance officer for defendant, and advised her that plaintiff “was on medical marijuana for night terrors, ” and she asked “how would that change the rational [sic] for hire [sic] based on the fact that we do not allow medical marijuana for our employees.. [sic] If there is a prescription and obviously has a diagnosis for it, how would that change the fact that we would not hire her?” Doc. #64-11 at 3.

         On August 1, 2016, Warren responded to this request by explaining that plaintiff could not be hired if the third-party drug testing company confirmed the positive marijuana test. Doc. #64-11 at 2. Warren specifically stated that plaintiff “will be disqualified” from the job if the third party test returned a positive result because “[m]edical marijuana is not an approved prescription, ” and “we use the [f]ederal law, which indicates marijuana is still illegal.” Ibid.

         On August 1, Mailloux emailed Taylor to ask when she could “officially” publicize that Bride Brook was still recruiting for an Activities Manager. Doc. #64-13 at 2. Taylor advised Mailloux to wait until the results from the third party drug tester were officially posted before publicizing the vacancy. Ibid.

         On August 2, the day before plaintiff was scheduled to start work at Bride Brook, the third party drug testing company informed plaintiff that she had tested positive for THC. Doc. #76-1 at 6 (¶ 19). Plaintiff immediately called Mailloux and left a voice message in which she informed Mailloux of a positive result for marijuana. Id. (ΒΆ 20). Within a few minutes, Mailloux returned plaintiff's call and informed her ...

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