Today’s Cannabis Case Summary looks at a novel example of the intersection between state-legal cannabis and employment law. The plaintiff, Bobbie Henry, worked at an Outback Steakhouse in Flint, Michigan, from 1997 to 2014 when she was fired along with four other employees because of drug-related activities. Henry, a registered medical marijuana caregiver under Michigan law, sued Outback, alleging her medical marijuana activities were used as a pretext for age discrimination and her termination on that basis was defamatory. Unfortunately for Henry, a federal judge disagreed and the U.S. District Court for the Eastern District of Michigan granted Outback’s motion for summary judgment.
The meat (pun intended) of this case is in its facts, which involve two different groups of Outback employees involved in two very different kinds of “drug activity.”
One was made up of Henry and a second Outback employee who was a registered medical marijuana cardholder and a patient of Henry’s. Henry transferred cannabis to the co-worker patient in her role as a registered medical marijuana caregiver permitted by state law.
The second was a group of four employees the kitchen manager had observed exchanging a “small black object” he suspected was an illegal substance for cash. The employees claimed it was a “bridge card,” but after an investigation and a conference call with management the four employees were terminated for cause. The four employees did not go quietly, however, and in exit interviews alleged Henry was “selling drugs” and “dealing dope” at the restaurant. When confronted, Henry claimed that though she did sell medical marijuana to her co-worker patient she did not sell medical marijuana to her co-worker patient on company property. She was terminated the same day for behavior “unbecoming” of the company.
Henry sued Outback, first alleging that her medical marijuana-related activities were used as a pretext for age based discrimination. Henry’s claim was based on the fact that she was the longest-tenured member of the team and had been there for fourteen years before being terminated, despite winning service awards for “Top Performing Bar Team.” She also pointed to an unlitigated situation where a second employee had been terminated for what he felt was age-based discrimination.
The court looked at the pretext issue and was unsympathetic towards Henry, pointing out that she admitted to having a medical marijuana card and to selling drugs to a co-worker. Based on these two things, the court concluded there was a legitimate, non-pretextual reason for Outback to terminate Henry. The court secondarily found that Outback, as Henry’s employer, had a qualified privilege to discuss allegations that she sold medical marijuana to co-workers, which she did not dispute.
This case is just another example of how a state’s permissiveness of medical marijuana or adult-use cannabis will usually not impose a duty on an employer to tolerate marijuana use or override other legal doctrines that give power to employers. Even though Henry was apparently correct that she was in compliance with Michigan law, a little discretion could still have gone a long way. We cannot resist noting the foolishness of an employer terminating a good employee for helping a co-worker.
NOTE: The above is part of our plan to summarize all cannabis civil cases with a published court decision. By civil case, we mean any case that involves cannabis or the cannabis industry that is not a strictly criminal law matter. These cannabis case summaries are intended both to keep you up to date on cannabis laws as interpreted by the courts and also to serve as a resource for anyone conducting cannabis law research. We also will seek to provide key unpublished cannabis law decisions as well, when available.