Opinion
HHDCV186086419
03-04-2019
Adam SMITH v. JENSEN FABRICATING ENGINEERS, INC.
UNPUBLISHED OPINION
OPINION
Budzik, J.
The defendant, Jensen Fabricating Engineers, Inc. (Jensen), moves to strike the revised complaint of the plaintiff, Adam Smith, alleging that Jensen refused to hire Smith when it discovered that Smith used marijuana to treat the symptoms of Post-Traumatic Stress Disorder (PTSD) in compliance with Connecticut’s Palliative Use of Marijuana Act, General Statutes § 21a-408 et seq. (PUMA). Jensen argues that the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. (CSA), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), preempt PUMA’s provision barring employers from refusing to hire users of palliative marijuana. Jensen also moves to strike Smith’s revised complaint because PUMA authorizes no private right of action. Finally, Jensen moves to strike count two of the revised complaint, alleging common-law unlawful termination of employment, because it is duplicative of count one and moves to strike paragraph three of Smith’s prayer for relief seeking costs because such relief is not authorized by law or contract.
For the reasons set forth below, the court denies Jensen’s motion to strike in its entirety.
LEGAL STANDARD
The purpose of a motion to strike is to contest the legal sufficiency of the complaint to state a claim upon which relief can be granted. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). A motion to strike requires no factual findings by the trial court. Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). If the facts provable in the complaint support a cause of action, the motion to strike must be denied. Id. All well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted when deciding a motion to strike. Id. In ruling on a motion to strike, the court examines the allegations of the complaint in the light most favorable to the plaintiff. Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The practice book allows for a motion to strike directed toward a claim for relief if the relief sought cannot be legally awarded. Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
FACTS
For purposes of deciding this motion to strike, the court takes the following allegations as true.
Adam Smith suffers from PTSD, a debilitating medical condition as defined in § 21a-408(3)(a). Rev. Compl. ¶ 2. Smith is a qualifying patient under § 21a-408(16) and engages in the palliative use of marijuana to alleviate his symptoms of PTSD in accordance with § 21a-408(12). Rev. Compl. ¶ 3.
Smith’s references to PUMA’s various sections are as of January 1, 2017. The General Assembly subsequently amended PUMA, resulting in renumbering of various sections. See Public Acts 2016, No. 16-23.
On or about October 11, 2017, Jensen offered Smith a position as an assembler. Rev. Compl. ¶ 5. At all relevant times, Smith was qualified to be an assembler at Jensen. Rev. Compl. ¶ 13. On or about October 12, 2017, Jensen informed Smith that he would have to go for a drug test. Rev. Compl. 116. On October 12, 2017, Smith went for a drug test and failed due to marijuana in his system. Rev. Compl. ¶ 7. Smith told the doctor and the drug screen facility that he had a medical marijuana card. Rev. Compl. ¶ 8.
On October 19, 2017, Smith received a call from a foreman at Jensen, informing Smith that he had to call Jensen’s human resources department. Rev. Compl. ¶ 9. Smith then telephoned and left a message with Katie Hurster of Jensen’s Human Resources Department, asking to speak with her regarding Jensen’s decision to revoke its employment offer due to Smith’s status as a medical marijuana patient. Rev. Compl. ¶ 10. Hurster called Smith back on October 26, 2017, confirming that Jensen was rescinding its offer of employment to Smith. Rev. Compl. ¶ 12.
On the basis of these facts, Smith alleges Jensen violated General Statutes § 21a-408p(b)(3), prohibiting employers from refusing to hire or terminating individuals solely because they are qualifying patients under PUMA. Rev. Compl. ¶ 14. In the alternative, Smith alleges Jensen’s failure to hire or terminate Smith violated Connecticut’s public policy and is, therefore, improper under the doctrine of common-law wrongful discharge as set forth in Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980).
ANALYSIS
Although Jensen correctly points out that the issues presented here are issues of first impression in Connecticut state court, they are, in the final analysis, not difficult to resolve. Three courts, Noffsinger v. SSC Niantic Operating Co., 273 F.Supp.3d 326 (D.Conn. 2017); Chance v. Kraft Heinz Foods Co., No. K 18C-01-056 NEP, 2018 WL 6655670 (Del.Super. December 17, 2018); and Callaghan v. Darlington Fabrics Corp., Docket No. PC- 2014-5680, 2017 WL 2321181 (R.I.Super. May 23, 2017), have considered identical or nearly identical arguments to those asserted by Jensen and each court has rejected those arguments. This court finds the reasoning of the Noffsinger, Chance, and Callaghan courts persuasive and resolves Jensen’s motion to strike in much the same manner.
The Court is compelled to register its disappointment that the Noffsinger case is nowhere cited in Jensen’s initial memorandum of law. Jensen is correct that Noffsinger is not binding on this court and, of course, there is nothing wrong with counsel reviewing relevant case law in a way that may be advantageous to his client, or in arguing that a case was wrongly decided. Nevertheless, to completely ignore (until cited by the plaintiff in his brief) a recently decided case, from a Connecticut-based federal judge, deciding the exact same issue as presented here, and where, at the time, that case was very nearly the only case directly on point; that only serves to undermine the credibility of counsel.
A. Preemption
Jensen first asserts that PUMA’s prohibition on employers refusing to hire or terminate individuals solely because they are qualifying patients under PUMA is preempted by the CSA and the ADA.
Because of the supremacy clause of the United States constitution, article 6, clause 2, state law must yield to federal law in certain circumstances. This doctrine of "preemption" comes in three varieties: (1) express preemption where Congress expressly states in a statute that it is preempting state law; (2) field preemption where Congress so pervasively regulates a certain area as to, effectively, leave no room for state law; (3) and conflict preemption. Island Park LLC v. CSX Transportation, 559 F.3d 96, 101 (2d Cir. 2009); Sararazin v. Coastal, Inc., 311 Conn. 581, 592-93, 89 A.3d 841 (2014). Conflict preemption itself comes in two varieties. Congress may 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., 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), cert. denied, 136 S.Ct. 2505, 195 L.Ed.2d 839 (2016); SPGGC, LLC v. Blumenthal, 505 F.3d 183, 188 (2d Cir. 2007). Generally, preemption of state law by federal law is disfavored and a federal statute will not be found to preempt claims arising under state law unless Congress’ 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).
In this matter, Jensen argues PUMA should be preempted under obstacle preemption. As set forth by Judge Meyer in Noffsinger, "[a] defendant making an argument under obstacle preemption faces a heavy burden." Noffsinger v. SSC Niantic Operating Co., supra, 273 F.Supp.3d 333. "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 Housing Foundation, 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. Mary Jo C. v. N.Y. State & Local Retirement System, 707 F.3d 144, 162 (2d Cir.), cert. denied, 569 U.S. 1040, 133 S.Ct. 2823, 186 L.Ed.2d 881 (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." (Internal quotation marks omitted). Id. Nevertheless, "the conflict between state law and federal policy must be a sharp one." (Internal quotation marks omitted.) Marsh v. Rosenbloom, 499 F.3d 165, 178 (2d Cir. 2007). 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." (Internal quotation marks omitted.) In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 725 F.3d 65, 102 (2d Cir. 2013), cert. denied, 572 U.S. 1080, 134 S.Ct. 1877, 188 L.Ed. 948 (2014).
1. Controlled Substances Act
The CSA makes it a federal crime to use, possess or distribute marijuana. The main objective of the CSA is to "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., 13. Nevertheless, the CSA also states that it does not 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; see also Callaghan v. Darlington Fabrics Corp., supra, 2017 WL 2321181, at *15 ("[t]he case for federal preemption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them" [internal quotation marks omitted]); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989).
Moreover, in deciding whether federal law preempts state law, the court looks to the specific statutory provision at issue because "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." (Internal quotation marks omitted.) Dalton v. Little Rock Family Planning Services, 516 U.S. 474, 476, 116 S.Ct. 1063, 134 L.Ed.2d 115 (1996). This principle is especially applicable in this case because Connecticut is regulating the employment relationship, an area in which states possess broad authority under their policy powers to regulate. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); Arizona v. United States, 567 U.S. 387, 404, 132 S.Ct. 2492, 183 L.Ed. 351 (2012); De Canas v. Bica, 424 U.S. 351, 356, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976); see also Callaghan v. Darlington Fabrics Corp., supra, 2017 WL 2321181, at *14.
In this case, the fundamental issue is that the CSA does not make it illegal to employ a marijuana user. Indeed, the CSA does not purport to regulate employment practices in any manner. See Chance v. Kraft Heinz Foods Co., supra, 2018 WL 6655670, at *3. PUMA also does not require employers to participate in any activity made illegal by the CSA. In fact, PUMA includes important protections for employers. Section 21a-408p(b)(3) of PUMA provides that "[n]othing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours." Moreover, an employer may refuse to hire or terminate an employee who is a qualifying patient under PUMA if required by federal law or as required to obtain federal funding. § 21a-408p(b).
PUMA also provides that "[n]othing in this section [21a-408p] shall be construed to permit the palliative use of marijuana in violation of [§ 21a-408a(b) ]." § 21a-408p(c). Finally, PUMA prohibits the medical use of marijuana that endangers the health or well-being of a person other than the qualifying patient, and prohibits the ingestion of marijuana in numerous other situations. § 21a-408a(b).
Jensen nevertheless argues that PUMA stands as an obstacle to CSA’s general purpose of prohibiting illegal drug use because it affirmatively authorizes the use of marijuana, which the CSA prohibits. This argument overlooks a fundamental principle of preemption analysis. A court looks to the specific statutory provision being challenged, not to the broader statute of which a challenged provision may be part. Noffsinger v. SSC Niantic Operating Co., supra, 273 F.Supp.3d 334. Here, the specific statutory provision that the plaintiff seeks to enforce and that Jensen claims is preempted— § 21a-408p(b)(3)— merely prohibits a particular form of employment discrimination that the General Assembly has decided to ban. In other words, Smith is not seeking to vindicate his right to use marijuana, he is seeking to vindicate his right not to be fired (or not hired). In and of itself, § 21a-408p(b)(3) does not authorize the use of marijuana. Section 21a-408p(b)(3) simply says that an employer may not fire or refuse to hire an employee solely because that individual uses marijuana in compliance with PUMA’s requirements and in a manner that has no effect on that employee’s workplace performance or the employer’s ability to obtain business. The CSA says nothing about these issues.
Finally, the court also finds the following analysis of the Callaghan Court persuasive. "Congress is definitely aware of the existence of various states’ medical marijuana schemes. Indeed, over the past several years, Congress has passed an amendment to various omnibus spending bills preventing the funds appropriated therein to the Department of Justice to be used to prevent any of a number of listed states, including Rhode Island, from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana ... It would be easy to overstate the importance of this enactment. It has not repealed or modified the CSA itself. It was not contemporaneous with the passage of the CSA. However, it is a direct and unambiguous indication that Congress has decided to tolerate the tension, at least for now, between the federal and state regimes ... Congress seems to want ... as Justice Brandeis said, the States to be the laboratories of democracy with respect to medical marijuana." (Citations omitted; internal quotation marks omitted.) Callaghan v. Darlington Fabrics Corp., supra, 2017 WL 2321181, at *15. Judge Licht’s analysis in Callaghan is equally applicable to PUMA and the court adopts it herein.
The court also notes that, although the Trump Administration withdrew guidance from the Obama Administration that, in general, deprioritized marijuana enforcement, the United States Attorney General merely reestablished prior Department of Justice guidance that United States Attorneys should "weigh all relevant considerations," as they would with any other prosecution decision, in deciding whether to prosecute marijuana cases. See United States Dept. of Justice, Memorandum for all United States Attorneys (January 4, 2018).
Thus, the court holds that because the CSA does not prohibit employers from hiring marijuana users and because Jensen is not required to engage in any activity that would be prohibited by the CSA, Jensen has not established the sort of direct and positive conflict between § 21a-408p(b)(3) and the CSA that is required to sustain a claim under obstacle preemption and the terms of the CSA itself. Such is particularly the case where, as here, Connecticut is exercising its traditional powers to regulate employment relationships and combat discrimination.
In its brief, Jensen cites several cases where various courts held that federal law preempted state medical marijuana laws. See e.g., Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, 348 Or. 159, 230 P.3d 518 (2010); Coates v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (2015). Since Jensen filed its brief, other courts have continued to consider whether federal law preempts state medical marijuana laws in certain circumstances. See e.g., Bourgoin v. Twin Rivers Paper Company, LLC, 2018 ME 77, 187 A.3d 10 (2018); Crimson Galeria Limited Partnership v. Healthy Pharms, Inc., 337 F.Supp.3d 20 (D.Mass. 2018). The court finds these and similar cases distinguishable because none of them (with one exception) deal with a state statute specifically prohibiting employment discrimination based on medical marijuana use. See Noffsinger v. SSC Niantic Operating Co., supra, 273 F.Supp.3d 334-35 (discussing cases). The one case dealing with a state law containing an antidiscrimination provision did not deal with preemption. Whitmire v. Wal-Mart Stores, Inc., United States District Court, Docket No. CV-17-08018 (JAT), 2019 WL 479842 (D.Ariz. February 7, 2019).
2. Americans With Disabilities Act
Jensen next argues that the ADA preempts § 21a-408p(b)(3) because § 21a-408p(b)(3) is "a direct obstacle to the achievement of the full purpose of the ADA." In support of this argument, Jensen correctly points out that the ADA excludes illegal drug users from its definition of an "individual with a disability" for whom an employer must make a "reasonable accommodation." See 42 U.S.C. § § 12210(a), 12114(c)(4). Thus, Jensen argues, because § 21a-408p(b)(3) prohibits employment discrimination against persons who, under federal law, would be considered illegal drug users (and, therefore, are not covered by the ADA), § 21a-408p(b)(3) "conflicts with the ADA’s authorization of employers to hold illegal drug users to the same standards it would apply to other employees." The court is unpersuaded.
"Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem ... Congress noted that the many forms such discrimination takes include outright intentional exclusion as well as the failure to make modifications to existing facilities and practices ... After thoroughly investigating the problem, Congress concluded that there was a compelling need for a clear and comprehensive national mandate to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life ... To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment ..." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 571, 830 A.2d 139 (2003); PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001).
The purpose of the ADA is to protect individuals with disabilities from discrimination in employment and other aspects of their lives. Nowhere in the statute’s language or in the cases interpreting the ADA is there any indication that the "overriding federal purpose and objective"; Noffsinger v. SSC Niantic Operating Co., supra, 273 F.Supp.3d 333; of the ADA is to regulate the relationship between employers and illegal drug users. Jensen is correct that Congress chose to make it clear that illegal drug use is not a disability under the ADA and that to the extent illegal drug use resulted in "unsatisfactory performance or behavior" at the workplace; see 42 U.S.C. § 12114(c)(1); employers may take appropriate action without fear of violating the ADA.
Nevertheless, these isolated provisions do not change the ADA’s overriding purpose and objective or somehow create such a compelling federal "authorization" for employers to ban all illegal drug users from the workplace that contrary state law must yield. The court agrees with Judge Meyer’s analysis in Noffsinger that the language of 42 U.S.C. § 12114(c)(4)— that employers may hold illegal drug users to the "same qualification standards for employment" as other employees— means qualification standards related to an employee’s "job performance or behavior" in the workplace. Noffsinger v. SSC Niantic Operating Co., supra, 273 F.Supp.3d 337-38. Section 12114(c)(4) does not establish a blanket federal mandate that employers have a right to require all employees to pass a drug test regardless of any contrary state law. In fact, the ADA specifically states that it does not encourage or authorize any drug testing of employees by employers. 42 U.S.C. § 12114(d)(2).
Indeed, the ADA contains a preemption savings clause that specifically provides that states may "[provide] greater or equal protection for the rights of individuals with disabilities than are afforded by this Act." 42 U.S.C. § 12201(b). Smith alleges that he suffers from PTSD, a debilitating medical condition. Rev. Compl. ¶ 2.
Moreover, § 21a-408p(b)(3) does not force employers to "accommodate" medical marijuana users. As set forth above, PUMA allows employers to prohibit the use of marijuana at work, to terminate an employee for showing up for work under the influence, and to terminate or refuse to hire an employee using medical marijuana if required to do so by federal law or to obtain federal funding. See § 21a-408p(b). In substance, PUMA requires that employers "butt out," as it were, of their employee’s medical marijuana use so long as that use has no effect on an employee’s job performance or the workplace. Requiring an employer to leave its employees alone when they leave the workplace is not the same as requiring an accommodation at the workplace.
For the reasons set forth above, the court holds that § 21a-408p(b)(3) is not an obstacle to the purpose and objective of any provision of the ADA and, therefore, is not preempted by the ADA.
B. No Private Right of Action
Jensen’s next argues that PUMA does not provide an explicit private right of action and, therefore, the court should presume that the General Assembly intended to provide no private right of action at all. Smith argues the court should find an implied private right of action. The court agrees with Smith.
"We begin our analysis with the well settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the plaintiff bears the burden of demonstrating that such an action is created implicitly in the statute." Provencher v. Enfield, 284 Conn. 772, 777-78, 936 A.2d 625 (2007). "In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose ... benefit the statute was enacted ...? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).
"Consistent with the dictates of [General Statutes] § 1-2z, however, we do not go beyond the text of the statute and its relationship to other statutes unless there is some textual evidence that the legislature intended, but failed to provide expressly, a private right of action. Textual evidence that would give rise to such a question could include, for example, language granting rights to a discrete class without providing an express remedy or language providing a specific remedy to a class without expressly delineating the contours of the right." (Internal quotation marks omitted.) Geradi v. Bridgeport, 294 Conn. 461, 469, 985 A.2d 328 (2010).
In this case, the court does not believe a resort to legislative history is necessary because the application of the Napoletano factors leads to a clear result. Nevertheless, the court notes that PUMA’s legislative history supports the court’s holding that PUMA includes an implied private right of action because the legislators discussing PUMA assumed it would create a private right of action. "[W]e have language here that a qualifying patient shall not be denied any right or privilege, including but not limited to. So these individuals are going to be essentially, a protected class. I’m not sure what rights and privileges they’re going to assert and that’s denied from their use of medical marijuana ... And we see broad sweeping language in here, not just affording these individuals the right to use medical marijuana, but we’re affording them the right to assert all sorts of claims that we don’t even contemplate. And I’m not sure that was the original intent when this bill set out. When I first heard about it, it was about allowing individuals to be able to use medical marijuana in the treatment of some debilitating illness. But what we’re doing here today is creating a whole other class that can assert lawsuits against landlords, against employers, against neighbors, against classmates, under the guise of using medical marijuana. Does it become a sword? I don’t think so but it certainly is going to become a shield, and yet, again, it’s going to be problematic in the workforce, in the residential facilities." 55 H.R. Proc., Pt. 9, 2012 Sess., pp. 2976-97, remarks of Representative Vincent Candelora. "We have a situation is this bill [that] has been pointed out many times that says no employer can discriminate in any way ... against any employee who happens to be participating in this program. And yet when a very practical issue came up by Representative Noujaim, a manufacturer, who says if the qualifying patient is home before coming to work administers to him or herself the medical marijuana and by its very nature comes to work impaired. If he were to say, I got to send you home, you can’t work on this. He is liable for lawsuit because he’s not supposed to discriminate." Id., p. 3081, remarks of Representative Lawrence Cafero. "The other costs that we have to consider are ... [t]he cost to businesses; we have in this bill language that says businesses are prohibited from discriminating. We hopefully will talk about some protections for businesses should this program come in place, because they’re really at risk." 55 S.Proc, Pt. 10, 2012 Sess., p. 3165, remarks of Senator Toni Boucher.
"Finally, we note that [i]n examining [the three Napoletano ] factors, each is not necessarily entitled to equal weight. Clearly, these factors overlap to some extent with each other, in that the ultimate question is whether there is sufficient evidence that the legislature intended to authorize [the plaintiff] to bring a private cause of action despite having failed expressly to provide for one ... Therefore, although the [plaintiff] must meet a threshold showing that none of the three factors weighs against recognizing a private right of action, stronger evidence in favor of one factor may form the lens through which we determine whether the [plaintiff satisfies] the other factors. Thus, the amount and persuasiveness of evidence supporting each factor may vary, and the court must consider all evidence that could bear on each factor. It bears repeating, however, that the [plaintiff] must meet the threshold showing that none of the three factors weighs against recognizing a private right of action." Geradi v. Bridgeport, supra, 294 Conn. 469.
Considering each of the Napoletano factors, the court holds that PUMA includes an implied private right of action to enforce the terms of § 21a-408p(b)(3). Smith plainly meets the first Napoletano factor as he alleges he is a qualifying medical marijuana user under PUMA, and § 21a-408p(b)(3)’s provisions are plainly intended to protect such individuals. With respect to the second and third Napoletano factors, the court also concludes the circumstances of this case weigh in favor of Smith. There is no explicit language in the statute itself regarding whether the General Assembly intended to create a private right of action, but the court cannot ignore the plain intent of § 21a-408p(b)(3) that employers be prohibited from terminating or refusing to hire individuals solely on the basis of their use of medical marijuana. Without the ability of private individuals to sue to enforce that clear statutory mandate, § 21a-408p(b)(3) would be very close to a dead letter. "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 General Statutes § 17a-688(c) for lack of any alternative enforcement mechanism).
Jensen argues that the Commissioner of Consumer of Protection is given certain enforcement authority under PUMA and that the commissioner would be an appropriate person to enforce § 21a-408p(b)(3)’s provisions. The court is unpersuaded by this argument for two reasons. First, although the commissioner is given wide ranging administrative and enforcement authority under many provisions of PUMA, that authority is conspicuously absent under § 21a-408p(b). Second, to expect the commissioner to bring an action every time a Connecticut citizen believes they have been discriminated against under § 21a-408p(b)(3), with all the costs in attorney time, investigation, and litigation, is to ignore the reality of limited government resources. Without an implied private right of action, the General Assembly’s clearly expressed intent that employers not be able to terminate or refuse to hire employees solely for their medical marijuana use would have little practical effect. "The ultimate question is whether there is sufficient evidence that the legislature intended to authorize [this plaintiff] to bring a private cause of action despite having failed expressly to provide for one." Provencher v. Enfield, supra, 284 Conn. 780. The court holds that the General Assembly so intended.
Finally, the court notes that each of the courts that have considered provisions similar to § 21a-408p(b)(3) have also concluded that the statute under consideration included an implied private right of action and for reasons similar to those stated here. See Whitmire v. Wal-Mart Stores, Inc., United States District Court, Docket No. CV- 17-08018 (JAT), 2019 WL 479842, at *11 (D.Ariz. February 7, 2019); Noffsinger v. SSC Niantic Operating Co., supra, 273 F.Supp.3d 338-40; Chance v. Kraft Heinz Foods Co., supra, 2018 WL 6655670, at *7; Callaghan v. Darlington Fabrics Corp., supra, 2017 WL 2321181, at *7.
Jensen’s reply brief notes that the Connecticut Attorney General recently took the position in the case of Rivera v. University of Connecticut, Superior Court, judicial district of Hartford, Docket No. CV-17-6076224-S, 2018 WL 3507683 (June 29, 2018, Peck, J.T.R.) (66 Conn.L.Rptr. 646), that PUMA did not create an implied private right of action. Although the official opinions of the Office of the Attorney General are entitled to deference by the court, see Wiseman v. Armstrong, 269 Conn. 802, 827, 850 A.2d 114 (2004), the positions the Attorney General may take in representing a client in any particular case are not entitled to any special deference.
C. Duplicative Claim
Jensen moves to strike count two of the revised complaint, alleging common-law unlawful termination of employment, because it is duplicative of count one. In Connecticut, plaintiffs may plead in the alternative, Practice Book § 10-25, and Connecticut recognizes claims for common-law unlawful termination of employment in violation of public policy, Sheets v. Teddy’s Frozen Foods, Inc., supra, 179 Conn. 480. Smith alleges that his termination was in violation of Connecticut public policy as expressed in § 21a-408p(b)(3). Jensen’s motion to strike count two is denied.
D. Costs
"Generally, attorneys fees may not be recovered, either as costs or damages, absent contractual or statutory authorization ... Attorneys fees may be awarded, however, as a component of punitive damages ... To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." (Citation omitted; internal quotation marks omitted.) Stohlts v. Gilkinson, 87 Conn.App. 634, 646, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005).
In this case, Jensen is clearly on notice that Smith seeks recovery of attorneys fees under the wanton and wilful misconduct standard because Smith states so explicitly in his brief. The revised complaint also seeks recovery of the "costs of this action." Construing the pleadings in favor of Smith, as the court is required to do, the court holds that Smith has sufficiently pled a claim for attorneys fees.
CONCLUSION
For all the reasons set forth above, the defendant’s motion to strike is denied.