Eplee v. City of Lansing

327 Mich.App. 635

935 N.W.2d 104

Angela EPLEE, Plaintiff-Appellant,

v.CITY OF LANSING, and Lansing Board of Water and Light, Defendants-Appellees.

No. 342404

Court of Appeals of Michigan.

Submitted February 7, 2019, at Detroit.

Decided February 19, 2019.

Approved for Publication April 23, 2019, 9:05 a.m.

Grand Rapids Cannabis Attorneys (by Brandon Gardner, Grand Rapids) for Angela Eplee.

Miller, Canfield, Paddock and Stone, PLC, Lansing (by Scott R. Eldridge and Kamil Robakiewicz ) for the city of Lansing and the Lansing Board of Water and Light.

F. Joseph Abood, East Lansing, for the city of Lansing.

Marie Mireles for the Lansing Board of Water and Light.

Before: Cavanagh, P.J., and Borrello and Redford, JJ.

Per Curiam.

This case involves allegations that defendants violated § 4¹ of the Michigan Medical Marihuana Act (the MMMA), MCL 333.26421 et seq. , by rescinding a conditional offer of employment extended to plaintiff. Plaintiff appeals as of right the trial court's order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

This action arises out of a conditional offer of employment that defendant Lansing Board of Water and Light (the BWL) extended to plaintiff and the BWL's subsequent decision to rescind that offer after plaintiff tested positive for tetrahydrocannabinol (THC) during a drug screen that was part of the hiring process. Plaintiff's claims against the BWL and defendant city of Lansing revolve around the following statutory language contained in § 4(a) of the MMMA, MCL 333.26424(a) :

A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act ....

According to plaintiff's complaint, she was a qualifying patient under the MMMA with a valid registry identification card when she was interviewed on April 28, 2017, by the BWL for a full-time position. On May 1, 2017, the BWL made plaintiff a conditional offer of employment, which included as a condition that plaintiff comply with the BWL's drug-testing policies. On May 2, 2017, plaintiff submitted to a drug screen in accordance with these policies. She also immediately informed David Douglas, a BWL supervisor and her contact person during the hiring process, that she was a registered qualifying patient under the MMMA. Plaintiff was informed on May 7, 2017, that the results of her drug screen were positive for THC and negative for any other controlled substances. According to the complaint, Douglas received plaintiff's drug-screen results on May 8, 2017, and "began discussion with the ‘BWL team’ on potentially adjusting their drug testing policy to hire [plaintiff]." On May 10, 2017, plaintiff e-mailed documentation of her status as a registered qualifying patient to Douglas. Two days later, Douglas informed plaintiff that she would not be hired by the BWL. Finally, on May 19, 2017, the BWL sent plaintiff a letter "rescinding her offer of employment without explanation."

Subsequently, after plaintiff's counsel sent Douglas a letter stating that plaintiff's employment offer could not be rescinded solely on the basis of her status as a registered qualifying patient, counsel for the BWL sent a letter to plaintiff's counsel, indicating that plaintiff's employment offer was withdrawn because of "the needs of the department" and denying that plaintiff's offer was rescinded on the basis of her status as a registered qualifying patient. Nonetheless, plaintiff alleged in her complaint that "[d]efendants rescinded [plaintiff's] offer because she tested positive for THC in violation of the [MMMA]."

On November 13, 2017, plaintiff filed a two-count complaint against defendants for violation of the MMMA and breach of contract.

In her complaint, plaintiff asserted that at all relevant times she was a registered qualifying patient in full compliance with the MMMA and that defendants constituted a "business or occupational or professional licensing board or bureau" that was prohibited from denying plaintiff any right or privilege, including civil penalty or disciplinary action, on the basis of her medical use of marijuana.² Plaintiff further alleged that defendants had "no legitimate business reason" to rescind her conditional offer of employment and that the conditional offer was rescinded solely because of her status as a registered qualifying patient, thereby, according to plaintiff, in violation of § 4(a) of the MMMA.

Regarding plaintiff's breach-of-contract claim, plaintiff alleged that she accepted defendants' conditional offer of employment and that defendants agreed to employ her in exchange for her "satisfaction of the conditional offer of employment." Plaintiff further alleged that she satisfied all conditions of the offer and that defendants breached the contract by illegally rescinding the conditional offer, referring, we suspect, to defendants' alleged violation of the MMMA in rescinding her conditional offer of employment.

In lieu of an answer, defendants moved for summary disposition under MCR 2.116(C)(7) and (8), arguing that plaintiff had failed to state a claim on which relief could be granted. Defendants first argued that summary disposition should be granted in their favor on plaintiff's MMMA claim for three reasons: (1) the claim was barred by governmental immunity because both defendants are political subdivisions of the state that are immune from tort liability and none of the exceptions to immunity applied, (2) the MMMA does not create a private cause of action authorizing suit for alleged violations of the act, and (3) the MMMA does not prohibit employers from maintaining zero-tolerance drug policies for their applicants and employees. Additionally, defendants argued that they were entitled to summary disposition of plaintiff's breach-of-contract claim because such a claim cannot be premised on the loss of at-will employment. Defendants also maintained that in the alternative, plaintiff's complaint demonstrated that defendants never breached the conditional offer because plaintiff had failed to satisfy the conditions of the offer: the offer was conditioned on the acceptable results of plaintiff's drug screen, and her positive test for THC constituted a drug-screen result that was not acceptable. Finally, defendants contended that the city was not a proper party to the lawsuit because it was not the prospective employer or the entity that had decided to withdraw the conditional offer of employment.

Plaintiff filed a response to the motion. First, plaintiff argued that her claim was not barred by governmental immunity because defendants were performing a proprietary function rather than a governmental function. Among other arguments, plaintiff maintained that defendants provided utilities to residents for the purpose of pecuniary profit. However, plaintiff contended that there was "simply not enough information at this time in the case" for the court to rule whether the BWL was engaged in a governmental or proprietary function because it was unclear without discovery whether the BWL was actually supported by taxes and fees.

Plaintiff also argued that governmental immunity did not apply because violating the MMMA is not a governmental function. Plaintiff further argued that even if the MMMA did not prevent private employers from disciplining employees for marijuana use, this rule did not apply to defendants as public -entity employers. Plaintiff argued that defendants were "business bureaus" under § 4(a) and that defendants penalized plaintiff by denying her the privilege of employment, which had been granted through the conditional offer. According to plaintiff, the MMMA was intended to prohibit any penalty associated with the medical use or cultivation of marijuana in the context of public employment.³ Plaintiff additionally argued that if the governmental tort liability act (the GTLA), MCL 691.1401 et seq. , prohibited suit against defendants, then it was in conflict with and superseded by the MMMA because the MMMA does not allow zero-tolerance marijuana policies in public-employment settings.

Plaintiff finally made two additional cursory and conclusory arguments. First, plaintiff argued that she sufficiently pleaded her breach-of-contract claim because she had satisfied all conditions of the offer and defendants had "illegally" rescinded it. Next, plaintiff argued that the city was a proper party because members of the BWL are officers of the city under the Lansing City Charter.

A hearing was held on the motion. After hearing oral arguments consistent with the parties' respective written filings, the trial court granted summary disposition in favor of defendants. The trial court reasoned that both defendants were "immune from any type of lawsuit like this," that the conditional offer of employment did not constitute a contract of employment because it could be withdrawn at any time, and that it was an offer for a "job that has no job security whatsoever."

This appeal followed.

II. STANDARDS OF REVIEW

A trial court's decision granting summary disposition is reviewed de novo. Maiden v. Rozwood , 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Whether governmental immunity applies is a question of law that this Court reviews de novo on appeal. Herman v. Detroit , 261 Mich. App. 141, 143, 680 N.W.2d 71 (2004). Issues of statutory interpretation are also reviewed de novo. In re Bradley Estate , 494 Mich. 367, 377, 835 N.W.2d 545 (2013).

"Under MCR 2.116(C)(7), summary disposition is appropriate when a claim is barred by governmental immunity." Id. at 376-377, 835 N.W.2d 545. A motion under MCR 2.116(C)(7) may be supported by documentary...