Wild v. Carriage Funeral Holdings, Inc.

• Decision Date: 27 March 2019
• Docket Number: DOCKET NO. A-3072-17T3
• Citation: 458 N.J.Super. 416,205 A.3d 1144
• Parties: Justin WILD, Plaintiff-Appellant, v. CARRIAGE FUNERAL HOLDINGS, INC., d/b/a Feeney Funeral Home, LLC, David B. Feeney, and Ginny Sanzo, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

458 N.J.Super. 416

205 A.3d 1144

Justin WILD, Plaintiff-Appellant,

v.CARRIAGE FUNERAL HOLDINGS, INC., d/b/a Feeney Funeral Home, LLC, David B. Feeney, and Ginny Sanzo, Defendants-Respondents.

DOCKET NO. A-3072-17T3

Superior Court of New Jersey, Appellate Division.

Submitted February 26, 2019

Decided March 27, 2019

The Mark Law Firm, LLC, attorneys for appellant (Jamison M. Mark, Hackensack, on the brief).

Ogletree, Deakins, Nash, Smoak & Stewart, PC, attorneys for respondents (Steven J. Luckner and Michael J. Riccobono, Morristown, on the brief).

Zuckerman & Fisher, LLC, attorneys for amicus curiae National Employment Lawyers Association of New Jersey (Elizabeth Zuckerman, on the brief).

Before Judges Fisher, Hoffman and Suter.

The opinion of the court was delivered by

FISHER, P.J.A.D.

Plaintiff appeals the dismissal, pursuant to Rule 4:6-2, of his action against his former employer, defendant Carriage Funeral Holdings, Inc. (Carriage), and others, based on, among other things, the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff claims defendants' unlawful discrimination arose from his use of medical marijuana, permitted by the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -16, as part of his cancer

treatment. Critical to the issues presented, the Legislature's declaration that an authorized medical-marijuana user may not be criminally prosecuted included a declaration that "nothing" in the Compassionate Use Act "require[s]" an employer to accommodate a medical marijuana user, N.J.S.A. 24:6I-14. Based on that provision, defendants argued – and the motion judge held – that plaintiff's LAD action could not go forward. We disagree and hold that because the Compassionate Use Act declared it should not be construed to "require" an accommodation does not mean such a requirement might not be imposed by other legislation. N.J.S.A. 24:6I-14. In short, like the first law of thermodynamics, that provision – beyond its own limited criminal and regulatory context – neither creates nor destroys rights and obligations. So, we reject the essential holding that brings this matter here and conclude that the Compassionate Use Act's refusal to require an employment accommodation for a user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere. It would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer's termination of a cancer

patient's employment by discriminating without compassion. We reverse.

I

Before we discuss that central issue, we briefly outline the procedural events that brought us here. Plaintiff, a funeral director, originally sued only Carriage and unknown Carriage employees alleging various LAD violations and common-law defamation. Carriage removed the matter to federal court and moved to dismiss for failure to state a claim upon which relief might be granted. In response, plaintiff cross-moved to amend his complaint to allege other LAD violations, to add common-law claims of intentional interference with prospective economic gain (intentional interference), and to join three Carriage employees as defendants. The federal judge allowed plaintiff to expand his previously-pleaded defamation claim and to assert the intentional interference claim against two of the prospective defendants – David Feeney and Ginny Sanzo – but denied the cross-motion to assert an intentional interference claim and an aiding and abetting claim against Norma Van Zile. Plaintiff then filed, as permitted, an amended complaint that added Feeney and Sanzo. Recognizing that the joinder of these defendants destroyed diversity, the federal judge remanded the action.

Once back in the Law Division, plaintiff filed a second amended complaint containing the following claims:

• LAD disability discrimination against Carriage;

• LAD disability discrimination and failure to accommodate against Carriage;

• LAD perceived disability discrimination and failure to accommodate against Carriage;

• LAD perceived disability discrimination against Carriage;

• LAD aiding and abetting against Feeney and unidentified defendants;

• defamation against Feeney and Sanzo;

• intentional interference against Carriage, Feeney and Sanzo.

Defendants swiftly moved under Rule 4:6-2(e) to dismiss the second amended complaint.

For reasons expressed in a written opinion, the judge granted defendants' motion and dismissed the second amended complaint without prejudice. The parties then sought clarification, and the judge entered an order that dismissed the LAD claims with prejudice and the defamation and intentional interference claims without prejudice.

Plaintiff filed a notice of appeal,¹ and now argues, among other things, that the judge erred: in dismissing the LAD claims by holding the Compassionate Use Act does not foreclose an employer's right to terminate an employee for medical marijuana use; in dismissing the aiding and abetting claims because he found there was no LAD actionable claim that could be asserted against Carriage; and in determining that plaintiff failed to sufficiently plead his defamation and intentional interference claims.

We next consider the collection of plaintiff's LAD claims and their relationship to the Compassionate Use Act, and thereafter, address the dismissal of the defamation and intentional interference claims.

II

A

In reviewing a dismissal for failing to state a claim upon which relief may be granted, we apply the same standard that bound the trial judge and, therefore, "search[ ] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, [giving] opportunity ... to amend if necessary." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746, 563 A.2d 31 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252, 128 A.2d 281 (App. Div. 1957) ); see also Major v. Maguire, 224 N.J. 1, 26, 128 A.3d 675 (2016). At such a stage, courts are unconcerned with the plaintiff's ability to prove what is alleged, and instead consider only whether – after giving plaintiff the benefit of "every reasonable inference of fact," Printing Mart, 116 N.J. at 746, 563 A.2d 31 – a sustainable claim has been pleaded. This examination is "painstaking and undertaken with a generous and hospitable approach." Ibid.

We thus examine the judge's dismissal of the LAD claims by assuming the truth of the following factual allegations and by drawing reasonable inferences that suggest a cause of action.

B

Plaintiff filed a detailed second amended complaint, which contains numerous specific allegations and recounts statements made by some of the parties during the relevant events.

Plaintiff alleged that, in 2013, he began working for Carriage as a licensed funeral director. The job required, among other things, that plaintiff direct funerals, engage in visitations, perform embalming, "cosmetize" the deceased, prepare death certifications, conduct religious services at gravesites, and drive the funeral home's hearse and other vehicles.

In 2015, plaintiff was diagnosed with cancer

. As part of his treatment, his physician prescribed marijuana as permitted by the Compassionate Use Act.

In May 2016, while working a funeral, a vehicle plaintiff was driving was struck by a vehicle that ran a stop sign. Sustaining injuries, plaintiff was taken by ambulance to a hospital emergency room.

At the hospital, plaintiff advised a treating physician that he had a license to possess medical marijuana. The physician responded that "it was clear [plaintiff] was not under the influence of marijuana, and therefore no blood tests were required."²

After being examined, plaintiff was given pain medication and sent home. Once home, plaintiff took his prescribed pain medication and used medical marijuana.

While plaintiff rested, his father took plaintiff's medical prescription and licenses to Carriage and advised Feeney "that the emergency room doctor had refused to perform a blood test on [plaintiff] because ‘he would not be liable for forcing a blood test,’ and knowing that [plaintiff] had a legal prescription and was permitted to use marijuana, ‘of course it will be in his system.’ " Plaintiff's father also told Feeney that "the doctor stated he did not feel that [plaintiff] was under the influence of any alcohol or drugs when he was brought in to the hospital, and there was no need for a drug test."

Later that day, Feeney called and spoke to plaintiff's father to advise that a blood test was required before plaintiff could return to work. His father protested that "[plaintiff] was not under the influence at the time of [the] accident," that "the hospital determined he was not under the influence," and that "the [hospital] doctor ... would not participate in any type of blood

testing because [plaintiff's] drug test would test positive because the marijuana stays in one's system for 45 days." Feeney said plaintiff would still have to go for the test.

At about 6:15 p.m. that evening, plaintiff appeared for a blood test at an urgent care facility. There, the physician opined that "testing [plaintiff] was illegal, and he warned that the results would be positive due to the marijuana and the prescription pain killers taken after the accident." In lieu of blood testing, the physician had plaintiff take a urine and breathalyzer test. Plaintiff was never given the results of those tests, and the results are not in the record.

The next day, plaintiff returned to the funeral home, not as an employee, but because a close friend's family member died. While there, he and Feeney spoke briefly about his job status. Feeney stated that he had not heard anything from corporate and advised that he "d[id]n't know what Carriage was going to do or what they'll say," although he "th[ought] everything should be fine" because plaintiff had "a legal prescription." In short,...