Jeffrey Alker Meyer, United States District Judge.
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
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).
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 posttraumatic 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
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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
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., ___ U.S. ___, 135 S.Ct. 1591, 1595, 191 L.Ed.2d 511 (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, 129 S.Ct. 1187, 173 L.Ed.2d 51 (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, 132 S.Ct. 2492, 183 L.Ed.2d 351 (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).
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 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, 125 S.Ct. 2195, 162 L.Ed.2d 1 (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, 125 S.Ct. 2195. 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, 121 S.Ct. 1711, 149 L.Ed.2d 722 (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, "state law is displaced only to the extent that it actually conflicts with federal law," and "a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it." Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 476, 116 S.Ct. 1063, 134 L.Ed.2d 115 (1996) (per curiam).
No court has considered whether the CSA preempts § 21a-408p(b)(3) or any other provisions of PUMA. So far as I can tell, there have been no cases interpreting PUMA at all. Although state and federal courts around the country have evaluated other States' medical marijuana statutes — including in the employment context — many of those cases are of limited value here, because the statutory provisions at issue in those cases are not analogous to the anti-discrimination provision of § 21a-408p(b)(3).
For example, defendant relies heavily on Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159, 230 P.3d 518 (2010), in which the Oregon Supreme Court determined that Oregon's medical marijuana statute was preempted by the CSA. Factually, the context in Emerald Steel is quite similar to this case: a plaintiff was fired by his employer one week after disclosing his status as a state-law-authorized user of medical marijuana. Legally, however, Emerald Steel is different, because Oregon's medical marijuana statute contains no provision explicitly barring
So Emerald Steel is distinguishable, because it did not concern a statutory anti-discrimination-against-use-of-medical-marijuana provision. Other factually similar cases are even more distinguishable, because they have been decided on statutory interpretation grounds rather than on preemption grounds. See, e.g., Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015) (plaintiff was not protected under statute that prohibited employer from terminating employee due to employee's participating in "lawful" activities off the premises of the employer during non-working hours, because court interpreted "lawful" to mean lawful under both state and federal law); Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435-36 (6th Cir. 2012) (Michigan's medical marijuana statute, which provides protection against disciplinary action by a "business," does not impose restrictions on private employers, as a matter of textual interpretation); Stanley v. Cty. of Bernalillo Comm'rs, 2015 WL 4997159, at *5 (D.N.M. 2015) (citing additional cases in which courts have "rejected the plaintiff's claims that state anti-discrimination laws prohibit private employers from terminating employees for state-authorized medical marijuana usage as a matter of statutory interpretation, and not on federal-preemption grounds").
Although most cases dealing with the CSA's preemption of state medical marijuana statutes have come out in favor of employers, these cases have not concerned statutes with specific anti-discrimination provisions; courts and commentators alike have suggested that a statute that clearly and explicitly provided employment protections for medical marijuana users could lead to a different result.
Defendant next contends that PUMA's anti-discrimination employment provision is preempted by the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). The ADA of course protects the rights of persons with disabilities to be free from discrimination, including discrimination in the employment context. Given the ADA's remedial purpose to protect employees from discrimination, it may seem odd to suppose that the ADA of all statutes should be understood to preclude the States from fighting employment discrimination of any kind.
Defendant nevertheless fashions its somewhat counterintuitive ADA preemption argument from a provision of the ADA — 42 U.S.C. § 12114 — that was crafted in order to make clear that the ADA does not extend its protections to persons who use illicit drugs or alcohol. This provision of the ADA contains numerous sub-provisions, several of which are important to consider here:
In essence, § 12114(a) creates an illicit-drug-use exception to the protections of the ADA, and then the rest of § 12114 outlines what steps that employers may take with respect to illicit drug use without violating the ADA.
Second, although the ADA refers to and contemplates employers' use of drug testing, it does so for a limited purpose to make clear that such use of drug testing is not itself a violation of the ADA. See 42 U.S.C. § 12114(b). Other than making clear what conduct does not violate the ADA, the ADA is not an employer's Magna Carta to engage in drug testing of all employees. That is why § 12114(d)(2) provides that the ADA does not "encourage, prohibit, or authorize" drug testing of applicants or employees. The fact that the ADA allows an employer to use drug testing without fear of facing liability under the ADA does not additionally and exorbitantly mean that the ADA was intended to categorically preclude the States from preventing an employer from taking adverse action against someone who fails any kind of a drug test.
Defendant relies heavily on the wording of § 12114(c)(4), which as noted above provides that an employer "may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee." On the basis of this text, defendant argues that its drug testing of plaintiff was a "qualification standard" that it was free under the ADA to impose against plaintiff as it would any other employee. But viewed in context of the purpose of the ADA and the accompanying sub-provisions of § 12114 that I have just discussed, I cannot agree with defendant's understanding that a drug test is itself a "qualification standard" within the meaning of this sub-provision, because the wording of this sub-provision further states that the "qualification standard" must be job-performance/behavior-related. There is no suggestion in this case that plaintiff's medicinal use of marijuana adversely would affect her job performance. Moreover, defendant's interpretation is at odds with § 12114(d)(2), insofar as defendant reads § 12114(c)(4) to authorize drug testing of applicants.
My conclusion that the ADA does not preempt PUMA's anti-discrimination employment provision is reinforced by consideration of the ADA's preemption "savings clause":
As the Supreme Court has acknowledged in a different context, the courts should not presume that Congress "hide[s] elephants in mouseholes." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). But that is what defendant presumes that Congress has done here — that Congress has used an exemption from the coverage scope of the ADA to preempt the States from prohibiting other forms of employment discrimination. I cannot agree. The ADA is an anti-discrimination statute that exempts the use of illegal drugs from its scope of protection. Beyond doing so, the ADA does not preclude the States from regulating employers who discriminate against employees who engage in the medicinal use of drugs in compliance with state law.
At most, defendant presents a convincing case that plaintiff could not seek relief under the ADA for defendant's rescission of her job offer. See, e.g., James v. City of Costa Mesa, 700 F.3d 394, 405 (9th Cir. 2012) ("We hold ... that the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use."). But the question here is not whether the ADA affords plaintiff relief. It is whether the ADA precludes Connecticut from granting plaintiff relief. I conclude that defendant has not shown a conflict between the ADA and PUMA that would justify preemption.
Defendant further argues that PUMA is preempted by the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq., because PUMA permits the use, dispensing, and licensing of medical marijuana, which has not been approved by the federal Food and Drug Administration. Doc. #18-1 at 22. Like the CSA, however, the FDCA does not purport to regulate employment, and my focus here is limited to the validity of PUMA's anti-discrimination-in-employment provision, § 21a-408p(b)(3). Because § 21a-408p(b)(3) neither conflicts with nor poses an obstacle to the goals of the FDCA, I conclude that the FDCA does not preempt § 21a-408p(b)(3).
In short, therefore, PUMA is not preempted by any federal laws. Accordingly, I will now turn to consider defendant's specific arguments with respect to each of the three counts of the complaint.
Defendant moves to dismiss plaintiff's PUMA claim under § 21a-408p(b)(3) on the ground that PUMA does not give rise to a private right of action. Both parties agree that PUMA lacks an explicit authorization for a private right of action but dispute whether there is an implied right of action.
There is a "presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute." Gerardi v. City of Bridgeport, 294 Conn. 461, 468, 985 A.2d 328 (2010). Plaintiff bears the burden of overcoming this presumption. In determining whether a plaintiff has met her burden, Connecticut courts look to three factors that are known as the "Napoletano factors." The first factor is whether plaintiff is one of the class for whose benefit the statute was enacted. The second factor is whether there is any indication of legislative intent, explicit or implicit, either to create a private right of action or to deny one. And the third factor is whether the recognition of a private right of action would be consistent with the underlying purposes of the legislative scheme. See ibid. (citing Napoletano v.
Once a plaintiff meets a "threshold showing that none of the three factors weighs against recognizing a private cause of action," courts consider "all evidence that could bear on each factor." Gerardi, 294 Conn. at 469, 985 A.2d 328. In undertaking this analysis, courts should "look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." Provencher v. Town of Enfield, 284 Conn. 772, 778-79, 936 A.2d 625 (2007). "The ultimate question is whether there is sufficient evidence that the legislature intended" to provide a private cause of action. Id. at 779, 936 A.2d 625.
Whether § 21a-408p(b)(3) provides a private cause of action is a question of first impression.
Considering all that bears on each factor, I conclude that the legislature intended that § 21a-408p(b)(3) provide a private cause of action. Most importantly, without a private cause of action, § 21a-408p(b)(3) would have no practical effect, because the law does not provide for any other enforcement mechanism. "The absence of any enforcement mechanism militates in favor of authorizing a private right of action, thereby enabling those for whose benefit the statute was enacted to protect the rights conferred upon them by the legislature." Skakel v. Benedict, 54 Conn.App. 663, 688, 738 A.2d 170 (1999) (implying private right of action for injunctive relief to enforce right to confidentiality under Conn. Gen. Stat. § 17a-688(c) for lack of any alternative enforcement mechanism). By contrast, other recent decisions that have declined to imply a private right of action have relied heavily on the fact that the statute created an alternative enforcement mechanism. See Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 507-08, 43 A.3d 69 (2012) (no private right of action against employer under Conn. Gen. Stat. § 17a-101e for retaliation against employee who reported child abuse where statute expressly provided for right of Attorney General to bring a court action if employer violated statute); Gerardi, 294 Conn. at 471-72, 985 A.2d 328 (no private right of action against employer under Conn. Gen. Stat. § 31-48d(b)(1) for failure to give notice of employee monitoring because statute provides for enforcement of statute by the Labor Commissioner); J.P. Alexandre, LLC v. Egbuna, 137 Conn.App. 340, 357, 49 A.3d 222 (2012) (no private right of action for "taxpayer bill of rights" under Conn. Gen. Stat. § 12-39n because "the legislature expressly provided that the rights granted in § 12-39n shall be enforced by other parts of the general statutes, or by rules or regulations of the department of revenue services").
Defendant counters that PUMA delegates administrative oversight and enforcement authority to the Connecticut Department of Consumer Protection. But plaintiff correctly notes that while other sections of PUMA assign administrative authority to the Department of Consumer
Defendant argues in the alternative that it is exempt from § 21a-408p(b) and therefore could not have violated the statute as a matter of law. See Doc. #18-1 at 25-28. PUMA prohibits employers from refusing to hire qualifying patients, "unless required by federal law or required to obtain federal funding." § 21a-408p(b). As a nursing facility, defendant is subject to federal regulations that require compliance with federal, state, and local laws generally. Defendant argues that because the CSA prohibits marijuana use, defendant would be violating federal law (and thus violating the federal nursing home regulations that require compliance with federal law) by hiring plaintiff. This argument borders on the absurd. Because the act of merely hiring a medical marijuana user does not itself constitute a violation of the CSA or any other federal, state, or local law, defendant is not exempt from § 21a-408p(b).
Defendant next argues that § 21a-408p(b)(3) violates the Equal Protection Clause because it requires employers to treat one class of employees (medical marijuana users) differently than other similarly situated employees (recreational marijuana users). This argument is frivolous. "[A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Keane v. Fischetti, 300 Conn. 395, 406, 13 A.3d 1089 (2011); Nordlinger v. Hahn, 505 U.S. 1, 10-16, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (same). Here the legislature could rationally distinguish between favoring people who use marijuana for medicinal purposes under the careful guidance of a physician and people who use marijuana at their whim to get high. PUMA does not violate the Equal Protection Clause.
Count Two of the complaint alleges that defendant's refusal to hire plaintiff violated the public policy of the state of Connecticut. In her opposition brief, plaintiff clarifies that this is a common law claim based on Sheets v. Teddy's Frozen Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980). In Sheets, the Connecticut Supreme Court "recognize[d] an exception to the traditional rules governing employment at will so as to permit a cause of action for wrongful discharge where the discharge contravenes a clear mandate of public policy." Id. at 474, 427 A.2d 385. In other words, under Connecticut law, "[i]f an employer's reason for dismissal is `demonstrably improper' because it violates some important public policy, [an at-will] employee may recover for wrongful termination." Groth v. Grove Hill Med. Or., P.C., 2015 WL 4393020, at *9 (D. Conn. 2015).
Plaintiff seeks to extend Sheets to permit a cause of action for wrongful rescission of a job offer (as opposed to wrongful discharge) in violation of public policy. I need not decide whether Sheets applies in this situation, however, because "if a statute already provides a private right of action intended to vindicate the relevant public policy, the [public policy] claim will fail." Ibid. Because I have found that § 21a-408p(b)(3) contains a private right of action, I will dismiss plaintiff's public policy claim under Count Two of the complaint.
Count Three of the complaint alleges a claim for negligent infliction of emotional distress. Plaintiff alleges that defendant — knowing that plaintiff suffered from PTSD — waited to rescind her job offer until one day before she was scheduled to begin work (and after she had already left her prior job), causing plaintiff to experience severe emotional distress, including anxiety, sleeplessness, and loss of appetite. The Connecticut Supreme Court has held that "[t]o prevail on a claim of negligent infliction of emotional distress, the plaintiff is required to prove that (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Hall v. Bergman, 296 Conn. 169, 182 n.8, 994 A.2d 666 (2010) (internal quotation marks and citation omitted).
A claim for negligent infliction of emotional distress cannot arise from conduct occurring in an ongoing employment relationship, as distinguished from conduct occurring in the termination of employment. See Perodeau v. City of Hartford, 259 Conn. 729, 749, 792 A.2d 752 (2002); see also Spano v. Gengras Motor Cars, Inc., 663 F.Supp.2d 75, 83-84 (D. Conn. 2009). But Perodeau did not address employment-related conduct that qualifies as neither "occurring in an ongoing employment relationship" nor "occurring in the termination of employment," such as an employer's decision to rescind a job offer.
Since Perodeau, Connecticut courts have not squarely decided whether a rescinded job offer could serve as the basis for a negligent infliction of emotional distress claim. The practical, workplace-related reasons set forth in Perodeau for precluding a claim for negligent infliction of emotional distress on the basis of events occurring in an ongoing employment relationship do not apply in the context of an employer who rescinds a job offer before the prospective employee can begin work. See Perodeau, 259 Conn. at 758, 792 A.2d 752. Because the withdrawal of a job offer is more akin to termination than to conduct occurring in an ongoing employment relationship, it seems consistent with Perodeau that a claim for negligent infliction of emotional distress could arise from the withdrawal of a job offer.
Plaintiff has otherwise alleged the basic elements for a claim of negligent infliction of emotional distress. She alleges that defendant's conduct in withdrawing her offer was unreasonable, that defendant should have realized that its conduct involved an unreasonable risk of causing severe emotional distress (particularly because she alleges that defendant knew she had PTSD), and that defendant's conduct did in fact cause her such distress. I will therefore deny the motion to dismiss as to Count Three.
Defendant argues that plaintiff's request for attorney's fees and costs (see Doc. #1-2 at 8) must be stricken as a matter of law, because plaintiff has failed to allege a statutory or contractual provision that provides such relief. Doc. #18-1 at 33-34. Plaintiff responds that defendant's request is premature and that plaintiff could ultimately receive attorney's fees through a punitive damages award. "At the motion to dismiss stage, plaintiffs need not prove that they are entitled to each form of relief sought, so long as they have adequately plead the underlying claim." SRSNE Site Grp. v. Advance Coatings Co., 2014 WL 671317, at *2 (D. Conn. 2014); see also ibid. (holding that "courts in this circuit have denied a defendant's
For the reasons explained above, defendant's motion to dismiss (Doc. #18) is GRANTED in part and DENIED in part. The motion is granted as to Count Two (violation of public policy), and denied as to Count One (violation of Conn. Gen. Stat. § 281-408p(b)(3)) and Count Three (negligent infliction of emotional distress).
It is so ordered.
The Massachusetts Supreme Court recently held that Massachusetts's medical marijuana statute, which does not explicitly protect employees against discrimination based on medical marijuana use, did not contain an implied cause of action to that effect either. But the Massachusetts Supreme Court, in that decision, also held that the aggrieved employee had a cause of action under a state disability discrimination statute, finding that "an exception to an employer's drug policy to permit its use is a facially reasonable accommodation" under the relevant state law. See Barbuto v. Advantage Sales & Marketing LLC, 477 Mass. 456, 78 N.E.3d 37, 45 (2017). The Massachusetts court emphasized that because "a comparable cause of action already exists under our law prohibiting handicap discrimination, a separate, implied right of action is not necessary to protect a patient using medical marijuana from being unjustly terminated for its use." Id. at 49.
