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Barbuto v. Advantage Sales and Marketing, LLC, et al. (Lawyers Weekly No. 10-120-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   SJC-12226   CRISTINA BARBUTO  vs.  ADVANTAGE SALES AND MARKETING, LLC, & another.[1]       Suffolk.     March 9, 2017. – July 17, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Marijuana.  Anti-Discrimination Law, Handicap, Employee, Termination of employment.  Employment, Discrimination, Termination.  Practice, Civil, Motion to dismiss.       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.     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 I-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 […]


Posted by Massachusetts Legal Resources - July 17, 2017 at 6:50 pm

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