Court Rejects Bias Claim Of Licensed Medical Marijuana Caregiver Fired From Restaurant For Selling Drugs

[bobandtorey]

An Outback Steakhouse employee who was fired for distributing drugs to a co-worker despite her status as a licensed medical marijuana caregiver has lost her suit alleging the termination was the result of age discrimination.

Plaintiff Bobbie Henry worked at an Outback in Flint, Michigan, where one of her marijuana patients was also an Outback co-worker. Henry and several other workers were terminated for selling drugs on the restaurant premises. When interviewed, Henry admitted she had sold medical marijuana to a co-worker.

The court found that even though Henry had a Michigan medical marijuana card, “state medical-marijuana laws do not, and cannot, supersede federal laws that criminalize the possession of marijuana,” and that marijuana remains illegal under the federal Controlled Substances Act.

The court rejected Henry’s claim that her sales to a patient cannot be a basis for termination. Instead, the court found that the Michigan Medical Marijuana Act does not impose restrictions on private employers and does not provide protection against disciplinary actions by an employer.

Henry’s age discrimination claim failed as a matter of law, the court said, because she was unable to show that Outback’s stated reason for her termination – selling drugs – was a pretext for age discrimination.

The case is entitled Henry v. Outback Steakhouse of Florida, LLC (E.D. Mich., decided 4/18/2017).

 

http://www.jdsupra.com/legalnews/court-rejects-bias-claim-of-licensed-97529/

[Restorium2]

the court found that the Michigan Medical Marijuana Act does not impose restrictions on private employers and does not provide protection against disciplinary actions by an employer.

 

 

 

MMM ACT 2008.......

© If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:

(1) disciplinary action by a business or occupational or professional licensing board or bureau; or

[Restorium2]

The court found that even though Henry had a Michigan medical marijuana card, “state medical-marijuana laws do not, and cannot, supersede federal laws that criminalize the possession of marijuana,” and that marijuana remains illegal under the federal Controlled Substances Act.

 

 

 

So a district judge in Flint;

Laurie Jill Michelson (born 1967) is a United States District Judge of theUnited States District Court for the Eastern District of Michigan and formerUnited States Magistrate Judge of the same court.

 

https://en.wikipedia.org/wiki/Laurie_J._Michelson

 

says the MMM Act of 2008 doesn't really exist. The state has been collecting our fees and issuing official licensing for no reason.... no protection. All the rest of the judges in Michigan are just full of shiet and she rules because she used to be a federal judge. 

[Highlander]

 

the court found that the Michigan Medical Marijuana Act does not impose restrictions on private employers and does not provide protection against disciplinary actions by an employer.

 

 

 

MMM ACT 2008.......

© If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:

(1) disciplinary action by a business or occupational or professional licensing board or bureau; or

 

 

 

Unfortunately, that section doesn't say that a pt or CG shall not be subject to disciplinary action by a business.  It says a business professional licensing board or a business bureau.  Outback Steakhouse isn't a business licensing board or a business bureau.   

[Restorium2]

That Walmart case with the brain tumor patient went to the COA and they said that employers can discriminate for medical marijuana usage. 

[Kingdiamond]

That was federal court, not state court.

If the above case was heard at the state level how can they  try to enforce the federal ban on cannabis in this ruling ?

[bax]

whats the appropriations bill say? did the DOJ spend money defending this lawsuit?

[bobandtorey]

That Walmart case with the brain tumor patient went to the COA and they said that employers can discriminate for medical marijuana usage. 

 

 

Walmart Joe ? that case did go to the Fed court IMHO because  it was Walmart $$$$$$$$$

[bobandtorey]

If the above case was heard at the state level how can they  try to enforce the federal ban on cannabis in this ruling ?

Thank you 

 

Sorry Mr. Kingdiamond but its like this until someone goes to a court room to see how things work they will never get whats really going on 

 

It is my own opinion 

[Restorium2]

Walmart Joe ? that case did go to the Fed court IMHO because  it was Walmart $$$$$$$$$

Either way, it killed the defense for patients getting fired for using cannabis. 

 

And it also poisons the well for other cases that fall close to it like this one where it's a caregiver selling to their patient at work. 

 

It empowers these 'legislate from the bench' type judges that like to take it one step further, mentioning that medical marijuana isn't real until the feds make it so. 

 

Always come back with your own brand of opinion on what the law does to balance out theirs. The law says you can't discriminate against patients for their choice of medicine and that extends to the workplace. This was a legal transfer at work on break time. 

[bobandtorey]

Of course i  agree 

 

 mentioning that medical marijuana isn't real until the feds make it so.? they will think of something else if it ever get the ok from the fed's 

[GregS]

She might appeal with the Ter Beek ruling. Make sense?

[GregS]

It doesn't make sense to me at first gloss, but that doesn't mean it's not a good idea, or that I'm not missing something. Can you find out more about the legal theory?

Well. There is this from Henry:

 

“...state medical-marijuana laws do not, and cannot, supersede federal laws that criminalize the possession of marijuana,...”

 

But is it a matter of jurisdiction? Is not jurisdiction a matter for the state because it is where the claim resides and the defendant is in compliance with the the MMMA? If that question can be resolved to the point that it is a state matter to try the charges under the MMMA, then something like the conclusion in Ter Beek:

 

"For the foregoing reasons, we hold that the Ordinance (and here substitute the term, Outback decision to terminate Henry) is preempted by § 4(a) of the Michigan Medical Marijuana Act, which in turn is not preempted by the federal controlled substances act."

 

...would be a legitimate defense.

 

It is Henry, and not Outback, who brought her case in the US District Court. Why not the state courts? Would that not offer the better protection? Is it possible that she drop the federal case and pursue it in the courts of the State of Michigan? Should any future plaintiff bring an action against an employer in the same?

 

I am aware that jurisdiction in tort law resides in the state where an offense occurs and a claim is made. For instance, where an employer and employee are engaged in a contract that requires compliance to terms, it is the state that controls performance in that contract unless the Commerce Clause supersedes, and that requires interstate issues, e.g., transport across state lines. This is a tort claim because it is between an employee and her employer in the State of Michigan, there are no interstate matters involved, and it is not a criminal matter.

Edited April 28, 2017 by GregS

[GregS]

Also see Circuit City v. Adams: https://www.law.cornell.edu/supct/html/99-1379.ZS.html

[GregS]

Soo, absent controlling authority under the Commerce Clause, employers and employees do not have standing to bring suit in federal court.

[GregS]

The age discrimination issue should be dropped. It is the reason she is in federal court. The company claim of "conduct unbecoming" derives entirely from her medical use of cannabis, and is subsequently illegitimate.