Wild v. Carriage Funeral Holdings, Inc., ___ N.J. Super. ___ (App. Div. 2019). Plaintiff in this case under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (“LAD”), used medical marijuana, as authorized by the Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -16 (“Compassionate Use Act’), as part of his cancer treatment. Plaintiff worked for the first named defendant, Carriage, as a licensed funeral director. While working a funeral, a vehicle that plaintiff was driving was struck by another vehicle that had run a stop sign. Taken to a hospital for his injuries in the accident, plaintiff told a doctor there that plaintiff had a license to possess medical marijuana. The doctor said that it was clear that plaintiff was not then under the influence of marijuana, and that no blood test would be required.
Plaintiff then had some interactions with Carriage personnel about the accident and his use of medical marijuana. The upshot of those interactions was that plaintiff was told his employment was being terminated. The reasons for that changed. First, plaintiff was told that “‘corporate was unable to ‘handle’ his marijuana use and that his employment was ‘being terminated because they found drugs in [plaintiff’s] system.'” Later, plaintiff was advised that “he had been terminated not because of his drug use, but because he failed to disclose his use of medication, which might adversely affect his ability to perform his job duties. According to a Carriage policy, ’employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.'”
Several months later, plaintiff’s mother was told by someone in the funeral home industry that she had heard that plaintiff was fired because he was a “drug addict.” That person said that she had called Carriage, and had been told that plaintiff had been fired for being a drug addict, and that a rumor to that effect had circulated at a Bergen County Funeral Directors’ Association meeting.
Those were the allegations in the operative complaint that plaintiff filed against Carriage and two of its employees. He alleged a violation of the LAD, tortious interference, and defamation. The LAD claim was based on the idea that since plaintiff had cancer and was lawfully treating it with medical marijuana, firing him violated the LAD.
Defendants moved to dismiss, and the Law Division granted that motion. That court relied on the fact that the Compassionate Use Act provides that “[n]othing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” Plaintiff appealed, and the Appellate Division reversed in an opinion by Judge Fisher. He applied the settled standard of review of grants of motions to dismiss, which gives plaintiff “every reasonable inference” and calls for a “generous and hospitable approach” to the complaint, searching it “in depth and with liberality” to determine if even “the fundament of a cause of action may be gleaned” from it.
Citing the plain language of the Compassionate Use Act, Judge Fisher stated that that statute neither imposed any burdens on defendants nor any rights or claims of plaintiff under the LAD, citing the interpretation of comparable statutes in other jurisdictions. The inquiry, then, was whether plaintiff had alleged a claim under the LAD.
The panel found that he had done so. The operative pleading alleged that defendants had discriminated against plaintiff based on his disability, that defendants were aware of that alleged disability, and that plaintiff had sought but had been denied a reasonable accommodation. That accommodation was the ability to use marijuana for treatment “‘off-site” or during “‘off-work hours.” Thus, the provision of the Compassionate Use Act that stated that nothing in it “shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace” had no effect here, since plaintiff was not seeking to use marijuana “in any workplace.”
“Because … the Compassionate Use Act does not immunize what the LAD prohibit sand because the second amended complaint … contains those allegations required by the LAD,” the panel reversed the dismissal of the LAD claim. Judge Fisher went on to discuss the dismissal of plaintiff’s defamation and tortious interference claims. The Law Division had dismissed those claims “without prejudice,” but when plaintiff inquired about filing an amended pleading as to those claims, the Law Division left ambiguous whether he could do that. Judge Fisher correctly stated that a dismissal without prejudice “bespeaks aright to further pursue those claims.” But for clarity going forward, he urged that trial courts, ” when dismissing a claim without prejudice, expressly provide that the pleader may amend.”
The fact that the Law Division’s dismissal of some claims was without prejudice presented the question of whether there was a final judgment that was even subject to an appeal as of right, as plaintiff believed to be so. Judge Fisher wrote one of the leading opinions on that issue, Grow Co. v. Chokshi, 403 N.J. Super. 443 (App. Div. 2008), so the panel here did not overlook the question of finality and appealability. Apparently, the Appellate Division did not perceive until the case had already been fully briefed and calendared for oral argument. Moreover, the appeal was not an “artifice for creating appellate jurisdiction,” as the parties had inquired of the Law Division as to whether that court ” intended to fully dispose of all issues despite the ‘without prejudice’ designation of the dismissal of the defamation and tortious interference claims. Since all that was so, the panel decided to address the merits despite the prematurity of doing so.