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Callaghan v. Darlington Fabrics Corp.

Superior Court of Rhode Island

May 23, 2017


         Providence County Superior Court

         "I get high with a little help from my friends "

         -The Beatles, 1967

          For Plaintiff: Carly Beauvais Iafrate, Esq.

          For Defendant: Timothy C. Cavazza, Esq.; Meghan E. Siket, Esq.


          LICHT, J.

         Over fifty years ago, pop culture addressed the use of marijuana in our society. Within the past decade, the General Assembly legalized the use of medical marijuana, and it became lawful to sell Rocky Mountain High cannabis in Colorado. Last fall, the voters of our neighbor, Massachusetts, authorized the legal possession and sale of marijuana. Today, the debate rages in Rhode Island political circles over legalizing the recreational use of "pot." Until recently, Rhode Island courts have dealt with the subject solely from the perspective of the criminal law. However, our civil jurisprudence will undoubtedly face an onslaught of litigation concerning the lawful use of marijuana. A colleague recently analyzed the zoning law of a town to determine if growing marijuana is agriculture. Carlson v. Zoning Bd. of Review of South Kingstown, No. WC-2014-0557, 2016 WL 7035233 (R.I. Super. Nov. 25, 2016). We read of towns enacting zoning ordinances outlawing the cultivation of medical marijuana, which ordinances will most certainly be challenged. See, e.g., Ter Beek v. City of Wyoming, 846 N.W.2d 531 (Mich. 2014).

         While the legal use of marijuana, whether medicinal or recreational, makes for interesting political and philosophical discourse from law review articles to the dinner table, a Superior Court justice cannot participate in that debate. Consequently, this Court's challenge is limited to discerning the intent of the General Assembly in enacting the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act (the Hawkins-Slater Act), G.L. 1956 §§ 21-28.6-1 et seq. To adequately perform its task, this Court must wade into the weeds of the law of private rights of action, federal preemption, and statutory interpretation. Hopefully, it will not write out of key or analyze out of tune.

         Plaintiff Christine Callaghan (Plaintiff) has brought this action against Defendants Darlington Fabrics Corporation (Darlington) and the Moore Company (together, Defendants), alleging employment discrimination with respect to hiring for an internship position because she held a medical marijuana card. Defendants have moved for summary judgment on all three counts under Superior Court Rules of Civil Procedure 56; Plaintiff has filed a cross-motion for summary judgment on Counts I and III, and otherwise opposes Defendants' motion on Count II. For the reasons stated below, the Court grants Plaintiff's cross-motion and denies the Defendants' motion.

         I Facts and Travel

         Most of the facts in this case are undisputed. In June 2014, Plaintiff, then a Master's student studying textiles at the University of Rhode Island, sought an internship as a requirement of her program. Compl. ¶¶ 7, 11-12. Her professor referred her to Darlington, a division of the Moore Company. Compl. ¶¶ 4, 13. Plaintiff met with Darlington Human Resources Coordinator Karen McGrath on June 30, 2014. Defs.' Mem. 3. At this meeting, Plaintiff signed Darlington's Fitness for Duty Statement, acknowledging she would have to take a drug test prior to being hired. Id. at 3-4. During this meeting, Plaintiff also disclosed that she held a medical marijuana card, authorized by the Hawkins-Slater Act. Id. at 4. The interview concluded shortly thereafter.

         On the morning of July 2, 2014, Ms. McGrath and a colleague, Ms. Linda Ann Morales, had a conference call with Plaintiff. Id. Ms. McGrath asked Plaintiff if she was currently using medical marijuana, to which Plaintiff responded affirmatively. Id. Plaintiff also indicated that as a result, she would test positive on her pre-employment drug screening. Id. Ms. McGrath responded by informing Plaintiff that a positive test would "prevent the Company from hiring her." Id. Plaintiff informed Ms. McGrath that she was allergic to many other painkillers and that she would neither use marijuana in or bring it to the workplace. Defs.' Answers to Interrog. 3.

         That afternoon, Ms. McGrath and Ms. Morales called Plaintiff to inform her that Darlington was "unable to hire her." Defs.' Mem. 5. According to Darlington,

"Because Ms. Callaghan put the Corporation on notice that she was currently using marijuana, would not stop using marijuana while employed by the Company, and could not pass the required pre-employment drug test, and thus could not comply with the Corporation's drug-free workplace policy, the Corporation did not hire her." Defs.' Answers to Interrog. 7.

         Plaintiff filed a three-count complaint on November 12, 2014. Count I seeks a declaration that the "failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user is a violation of the" Hawkins-Slater Act. Compl. ¶ 29. Counts II and III seek damages: Count II alleges Defendants' conduct violated the Rhode Island Civil Rights Act (RICRA), G.L. 1956 §§ 42-112-1 et seq.; Count III alleges violations of the Hawkins-Slater Act due to employment discrimination.


         Standard of Review

         "Summary judgment is 'a drastic remedy, ' and a motion for summary judgment should be dealt with cautiously." Estate of Giuliano v. Giuliano, 949 A.2d 386, 390 (R.I. 2008) (citation omitted). On a motion for summary judgment, the movant must "establish that there exists no genuine dispute with respect to the material facts of the case." Id. at 391. This Court can grant summary judgment only if it concludes, "after viewing the evidence in the light most favorable to the nonmoving party, that there is no genuine issue of material fact to be decided and that the moving party is entitled to judgment as a matter of law." Lacey v. Reitsma, 899 A.2d 455, 457 (R.I. 2006).



         Because Count I, the declaratory judgment request, and Count III, the Hawkins-Slater Act claim, both deal with the Hawkins-Slater Act, the Court will address those first. The Court deals with Count III initially as the reasoning therein informs the analysis of Count I. After those counts, the Court will move to Count II, the RICRA claim.


         Count III: Employment Discrimination under the Hawkins-Slater Act

         First, the Court must determine whether the Hawkins-Slater Act provides a private right of action through which Plaintiff can seek relief. Section 21-28.6-4(d)[1] of the Hawkins-Slater Act provides: "No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder." Plaintiff contends that she was not hired because she was a cardholder, and she contends that this prohibition against discriminatory hiring practices should apply to her. Despite this direct prohibition, the statute fails to provide an express private right of action. Thus the first of many questions this Court must tackle is whether the General Assembly intended § 21-28.6-4(d) to be enforceable or not. To do so, the Court must turn to statutory interpretation, as the intent of the Legislature is not obvious. "'In matters of statutory interpretation [the Court's] ultimate goal is to give effect to the purpose of the act as intended by the Legislature.'" Whittemore v. Thompson, 139 A.3d 530, 540 (R.I. 2016) (quoting GSM Indus., Inc. v, Grinnell Fire Prot. Sys. Co., Inc., 47 A.3d 264, 268 (R.I. 2012)). To discern that purpose, however, the Court must resolve several conflicting jurisprudential principles.

         1 Contradictory Canons

         On the one hand, "[i]t is well settled in this jurisdiction that when the language of a statute is unambiguous and expresses a clear and sensible meaning, this Court must interpret the statute literally and must give the words of the statute their plain and obvious meaning." Bandoni v. State, 715 A.2d 580, 584 (R.I. 1998). "When a statute 'does not plainly provide for a private cause of action [for damages], such a right cannot be inferred.'" Stebbins v. Wells, 818 A.2d 711, 716 (R.I. 2003); but see Bandoni, 715 A.2d at 585 (denying a private right of action "where our Legislature has neither by express terms nor by implication provided" for one). Our Supreme Court has routinely refused to imply a private right of action. E.g., Great Am. E & S Ins. Co. v. End Zone Pub & Grill of Narragansett, Inc., 45 A.3d 571, 575 (R.I. 2012) (no private right of action under § 27-9.1-4, the Unfair Claims Settlement Practices Act); Tarzia v. State, 44 A.3d 1245, 1258 (R.I. 2012) (no private right of action under G.L. 1956 § 12-1-12(a), a records sealing statute); Heritage Healthcare Servs., Inc. v. Marques, 14 A.3d 932, 939 (R.I. 2011) (no private right of action under P.L. 2003, ch. 410, § 3, involving a workers' compensation fund); Stebbins, 818 A.2d at 716 (no private right of action under G.L. 1956 § 5-20.8-5, requiring real estate agents to provide buyers with disclosure statements); Cummings v. Shorey, 761 A.2d 680, 685 (R.I. 2000) (no private right of action under G.L. 1956 §§ 44-5-11(b) and 44-5-22 for missed tax certification deadlines); Bandoni, 715 A.2d at 584 (no private right of action under §§ 12-28-3 to 12-28-5.1, the Victim's Bill of Rights); Pontbriand v. Sundlun, 699 A.2d 856, 868 (R.I. 1997) (no private right of action under G.L. 1956 § 19-14-2, regarding those allowed to inspect financial records); Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996) (no private right of action under G.L. 1956 § 37-13-14, requiring governmental entities to demand bonds from contractors they employ); In re John, 605 A.2d 486, 488 (R.I. 1992) (no private right of action under G.L. 1956 § 15-7-7(1), regarding termination of parental rights); Citizens for Pres. of Waterman Lake v. Davis, 420 A.2d 53, 57 (R.I. 1980) (no private right of action under § 2-1-22, the Freshwater Wetlands Act).

         Since the Hawkins-Slater Act does not contain an express private right of action, at first glance it appears that the aforementioned cases would militate against implying a private right of action under the Hawkins-Slater Act. However, there is another principle which cuts strongly the other way: that the Court "will not ascribe to the General Assembly an intent to enact legislation which is devoid of any purpose, inefficacious, or nugatory." Kingsley v. Miller, 120 R.I. 372, 376, 388 A.2d 357, 360 (1978). This canon of interpretation has long been recognized in Rhode Island. See Mowry v. Staples, 1 R.I. 10, 16 (1835); see also Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987); State v. Gonsalves, 476 A.2d 108, 111 (R.I. 1984); Carrillo v. Rohrer, 448 A.2d 1282, 1285 (R.I. 1982); Town of Scituate v. O'Rourke, 103 R.I. 499, 509, 239 A.2d 176, 182 (1968); Long v. Fugere, 56 R.I. 137, 142 (1936). In each of the private cause of action cases listed earlier, refusing to recognize a private right of action did not result in the statute being inefficacious.

         To see whether these two tenets can comfortably coexist here, it is instructive to examine these prior cases that have declined to recognize a private right of action by implication. The cases can generally be placed in one of four categories: those (1) imposing civil penalties, (2) authorizing government enforcement, (3) directing government action, or (4) stating policy considerations. The Court examines each in turn.

         In Tarzia, the plaintiff sued the state for, inter alia, violations of § 12-1-12(a), "which governs the destruction or sealing of records of people who have been acquitted or otherwise exonerated." Tarzia, 44 A.3d at 1254. The plaintiff "argue[d] that although the only remedy explicitly included in the sealing statute [was] a monetary fine, there exist[ed] other causes of action available to him." Id. at 1257. The Court held that "the Legislature specifically limited the remedy for the violation of the statute to a monetary fine demonstrat[ing] 'that the [L]egislature provided precisely the redress it considered appropriate.'" Id. (quoting Sterling Suffolk Racecourse Ltd. P'ship v. Burrillville Racing Ass'n, Inc., 989 F.2d 1266, 1270 (1st Cir. 1993)). Thus, in Tarzia, there was clearly nothing nugatory about § 12-1-12(a)-the statute made a particular action subject to a civil penalty, enforceable by the designated government agency.

         Several of the other listed cases stem from similar circumstances. In Stebbins, a "buyer attempted to allege a private cause of action for damages against defendants for their asserted violations of [Chapter 20.8 of Title 5's] disclosure provisions." Stebbins, 818 A.2d at 715. However, the court held that the $100 civil penalty was the "particular enforcement provision" the Legislature had contemplated. Id. at 716. In Pontbriand, the statute in question had "three express remedies for its enforcement, " including a $1000 civil fine and, potentially, dismissal from state employment. Pontbriand, 699 A.2d at 868. Finally, in Great American, a violation of the unfair insurance claim practice the statute prohibited was punishable by a substantial fine, see G.L. 1956 § 27-9.1-6, determined by the director of business regulation. Great Am. E & S Ins. Co., 45 A.3d at 575.[2] Thus, these statutes were not superfluous by virtue of their express enforcement mechanisms-just not the private one the plaintiffs in each case desired.

         Similar to instances where the statute provided for a civil fine are cases where the statute enables or empowers a government agency to take some action. In In re John, for instance, at issue was § 15-7-7, which provided that, if certain facts were found, a "court shall, upon a petition duly filed after notice to the parent and hearing thereon, terminate any and all legal rights of the parent to the child." A woman sought to use this statute to terminate her former husband's parental rights. In re John, 605 A.2d at 487. However, the Court held that "[t]he state needs a method to terminate the parental rights of unfit or unable parents, " and that "[t]ermination of parental rights in these instances achieves the purpose of § 15-7-7, which is to allow the state to make the children available for adoption." Id. Likewise, in Waterman Lake, a citizens' group attempted to privately enforce the Fresh Water Wetlands Act. Waterman Lake, 420 A.2d at 55. However, the Court "conclude[d] that all enforcement powers [were] vested in the director, " who had "broad powers to remedy any violation of the wetlands act." Id. at 57. Therefore, the statutes at issue had purpose and effect. Like those cases where the statute at issue provided for a civil fine, these statutes enable the government to take action. Thus, in all of these cases, there was no concern that the statutory language would be meaningless were no private right of action implied-the statute allowed the government to take action instead.

         Other cases are linked by a different thread. In these instances, the statute at issue is directed at the government, not a private actor, and instructs it to take or not take some action. For instance, in Cummings, the statute in question provided that town tax assessors must certify revaluations, and must do so by a particular date. Cummings, 761 A.2d at 685. The plaintiff there availed herself of the two-step appeals process provided for by § 44-5-26, claiming that because the certification was not done pursuant to the statute, she was entitled to a full refund of her property tax payment. Id. at 682. However, the Court held that "the Legislature did not provide a remedy to taxpayers in plaintiff's position." Id. at 685. While it was clear that there was a "remedy available for relief from an alleged illegal assessment of taxes, " it was of no benefit to plaintiff. Id. The Court found the certifications there "directory, not mandatory." Id. at 686; see also id. at 687 (Flanders, J., concurring) ("[F]or the reasons given by the Court, I do not believe that the challenged revaluation and tax assessment certifications were illegal . . . ."). Unlike a mandatory statute, "[t]he violation of a directory statute is attended with no consequences, since there is a permissive element." 1A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction ยง 25:3, at 583 (7th ed. ...

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