MEDICAL MARIJUANA AND DISABILITY DISCRIMINATION

Is NYS law more encompassing than NYC law? 

Scholl v. COMPASS GROUP USA, INC., Dist. Court, SD New York 2022:

"Defendants seek summary judgment on Plaintiff's claim under the New York City Human Rights Law. They contend that while New York State law recognizes a person's status as a certified medical marijuana patient as a basis for a claim of disability discrimination, the New York City Human Rights Law does not. Def. Mem. at 6-9. Defendants argue that while the State expanded the definition of disability to include anyone who has a medical marijuana certification, the City chose not to do the same, and "there is no provision in the City Code that recognizes a certified medical marijuana user as `per se' disabled under the local law." Def. Mem. at 7.

Defendants are correct. This Court is "bound" to "apply the law as interpreted by New York's intermediate appellate court[,]" unless there is strong reason to believe the New York Court of Appeals, which has not ruled on the issue, would reach a different conclusion. Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999). Last year, in a similar case on which Plaintiff represents that he patterned his complaint, the First Department held: "The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not." Gordon v. Consol. Edison Inc., 190 A.D.3d 639, 640 (1st Dep't 2021). There is no reason to think the New York Court of Appeals would disagree, since the text of the City's definition of disability cannot reasonably be construed to include being a certified medical marijuana patient. "The term `disability' means any physical, medical, mental or psychological impairment, or a history of such impairment." N.Y.C. Admin. Code § 8-102(16)(a). As the Appellate Division explained, "certification as a medical marijuana patient is . . . a legal classification. It is not a `physical, medical, mental, or psychological impairment.'" Gordon, 190 A.D.3d at 640 (quoting N.Y.C. Admin. Code § 8-102).

It is beyond dispute that the New York City Human Rights Law does not recognize marijuana use as a protected disability. As noted, the text of the City Code does not define disability to include being a certified medical marijuana patient. Indeed, the City's definition of disability expressly provides: "In the case of alcoholism, drug addiction, or other substance abuse, the term `disability' . . . does not include an individual who is currently engaging in the illegal use of drugs when the [employer] acts on the basis of such use." N.Y.C. Admin. Code § 8-102(16)(a) (emphasis added). Marijuana remains an illegal controlled substance under federal law. See 21 CFR § 1308.12. Thus, the City law does not provide a remedy when an employer declines to hire an individual who is engaging in marijuana use.

In the face of controlling authority that being a certified medical marijuana patient is not, itself, a disability under the NYCHRL, Scholl contends that the City law still required Defendants to hire Scholl and allow him to use marijuana as an accommodation "to treat his underlying medical condition," chronic back pain. Pl. Opp. at 1-2, 4-7. Defendants respond that Scholl's complaint clearly alleges that "his status as a certified medical marijuana patient," not back pain, "is the basis for his being `disabled' in this action." Def. 56.1 ¶ 15; see Pl. 56.1 ¶ 15 ("Admit."); Def. Mem. at 6, 11 ("Plaintiff repeats that [being a certified medical marijuana patient] is the basis of his disability at least ten times in his pleading"). Defendants further assert that there is no admissible evidence in the record that Scholl informed Defendants that he suffered from back pain, let alone was disabled on that basis. Def. Mem. at 10-11 (citing Vitti v. Macy's Inc., 758 F. App'x 153, 157 (2d Cir. 2018) (employer who acts without knowledge of a disability cannot be said to have discriminated on the basis of that disability)).

The Court has carefully reviewed the complaint, all of the submissions in connection with the motion for summary judgment, and the parties' representations on the record at oral argument. Scholl clearly made a strategic decision to prosecute this case, from its inception, on the theory that being a certified medical marijuana user is, itself, a protected disability. The complaint repeatedly defines Scholl's disability as "being a certified medical marijuana patient." Cmpl. ¶ 34; see id. ¶¶ 1, 29 ("Defendants suddenly rescinded Plaintiff's job offer and denied him employment solely due to his disability (certified medical marijuana patient)"), 30 ("Defendants penalized Plaintiff . . . because of his certified use of medical marijuana"), 33, 35, 36 ("Defendants discriminated against, failed to accommodate, and refused to hire, Plaintiff solely due to his disability (certified medical marijuana patient)"), 37 ("But for the fact that Plaintiff was disabled (certified medical marijuana patient), Defendants would not have terminated his employment"), 44, 47 ("Defendants engaged in an unlawful discriminatory practice in violation of New York City Administrative Code § 8-107(1)(a) by discriminating against Plaintiff because of his disability, denying him employment, and refusing to provide Plaintiff with a reasonable accommodation for his disability (certified medical marijuana patient)"), 51.

The complaint makes two passing mentions of back pain. First, immediately after alleging that Scholl was "denied employment due to his disability (certified medical marijuana patient)," the complaint adds that Scholl "was denied a reasonable accommodation for his disability (denied employment because he was utilizing medical marijuana to treat his chronic back pain)." Cmpl. ¶ 1 (emphases omitted). The complaint later mentions that Scholl became a certified medical marijuana patient because of a "back injury he suffered when he was younger." Cmpl. ¶ 16. But Scholl makes clear that, in the claim at issue on summary judgment, that the disability Defendants allegedly failed to accommodate is Scholl being a "certified medical marijuana patient." Cmpl. ¶ 47. The complaint specifically alleges that Defendants engaged in unlawful discrimination under the New York City law by "refusing to provide Plaintiff with a reasonable accommodation for his disability (certified medical marijuana patient)"). Cmpl. ¶ 47 (emphasis added).

The complaint never alleges that Defendants denied Scholl employment because of his back pain or that Defendants even knew Scholl had back pain. On the contrary, the complaint repeatedly alleges that Defendants refused to employ Scholl "solely" because he was a "certified medical marijuana patient." Cmpl. ¶ 29; accord, e.g., 30 ("Defendants penalized Plaintiff . . . because of his certified use of medical marijuana."). Similarly, Scholl specifically alleges that he "informed" Defendants that he "was a certified medical marijuana patient," but he never alleges that he informed Defendants that he suffered from back pain. Cmpl. ¶ 22.

At oral argument, Plaintiff's counsel conceded that he patterned the complaint in this case after the complaint in Gordon, in which the plaintiff unsuccessfully argued that being a certified medical marijuana patient is a disability under the NYCHRL.^[2] Tr. at 25:20-21. That is clearly the theory of the complaint in this case. Furthermore, as became clear at oral argument, Plaintiff's counsel relied on the theory that Scholl's disability was only his certification as a medical marijuana patient throughout the discovery period in this case. Specifically, when Defendants first requested medical records, seeking "all documents concerning any disability," Plaintiff's counsel produced only Scholl's medical marijuana certification and otherwise objected that the request sought "irrelevant information." Tr. at 12:23-24, 13:4-6. In other words, Plaintiff's counsel, from the outset, took the position that the only relevant document concerning any disability in this case was Scholl's medical marijuana certificate. Later, when Defendants asked Plaintiff to complete a HIPAA authorization, so Defendants could access whatever medical records Scholl had submitted to obtain his medical marijuana certificate, Plaintiff's counsel responded: "Such a request seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence." Tr. at14:16-19. Again, Plaintiff's counsel strategically chose to litigate this case on the theory that Scholl's disability was only his medical marijuana certification, and not any underlying condition. See Tr. at 13:4-10, 14:12-19, 46:12-16. Scholl could have sought leave to amend after the ruling in Gordon, and produced discovery about his asserted childhood back injury, but he chose not to change his strategy.

Instead, Scholl insists that this Court should rule that the NYCHRL applies to Scholl merely because "by the very nature of having a medical marijuana certificate, a person must suffer from an underlying medical condition." Pl. Opp. at 7. Such a ruling would vitiate the logic of Gordon that the "City HRL does not" recognize such certification, by itself, "as a protected disability." Gordon, 190 A.D.3d at 640. This Court is bound by Gordon. See Pahuta, 170 F.3d at 134. Scholl failed to allege that he suffered from, and that Defendants knew of, a disability other than his "certified use of medical marijuana." Cmpl. ¶ 30. Thus, there is no genuine issue as to any material fact, and Defendants are entitled to a judgment as a matter of law on Scholl's claim under the New York City Human Rights Law."