DAVIS v. THE ALBERT M. HIGLEY COMPANY, LLC

Filing 27

MEMORANDUM OPINION addressing Motion to Dismiss 15 . Signed by Judge Robert J. Colville on 3/7/2025. (tk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIAN DAVIS,

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Plaintiff,
v.
THE ALBERT M. HIGLEY COMPANY,
LLC,
Defendant.

No. 2:23-cv-1975
Judge Robert J. Colville

MEMORANDUM OPINION
Robert J. Colville, United States District Judge
Before the Court is a Motion to Dismiss (ECF No. 15) filed by Defendant the Albert M.
Higley Company, LLC. Defendant seeks dismissal with prejudice of the claims set forth in the
operative Amended Complaint (ECF No. 13) filed by Plaintiff Brian Davis. The Court has
jurisdiction in this matter pursuant to 28 U.S.C. § 1332(a). Defendant’s Motion has been fully
briefed and is ripe for disposition.
I.

Factual Background
Plaintiff asserts claims against Defendant for wrongful failure to hire in violation of

Pennsylvania’s Medical Marijuana Act, 35 P.S. § 10231.101 et seq., (“MMA”) (Count I) and for
disability discrimination – failure to accommodate – in violation of the Pennsylvania Human
Relations Act, 43 Pa. Stat. § 954, (“PHRA”) (Count II). In the Amended Complaint, Plaintiff sets
forth the following factual allegations relevant to the Court’s consideration of the Motion at issue:
In late January of 2023, Defendant offered Plaintiff employment as a “Project Engineer.”
Am. Compl. ¶ 7, ECF No. 13. This offer of employment was contingent on the successful
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completion of a pre-employment drug screen. Id. at ¶ 11. A Project Engineer does not handle or
touch energized electrical equipment, does not work with chemicals that require a permit by any
governmental agency, does not operate or physically control high voltage electricity or any other
public utility, and does not encounter any life-threatening activities or risks to public health or
safety. Id. at ¶ 8. When discussing the Project Engineer position with Defendant, Plaintiff
explained that his then-current role as an “Estimator” with his then-current employer involved
office work 80% of the time and field work 20% of the time. Id. at ¶ 9. Defendant informed
Plaintiff that the role of Project Engineer would require comparatively more office time than his
then-current role, that is, the new role would involve more than 80% office time and less than 20%
field work. Id. On February 2, 2023, i.e., after receiving an offer of employment from Defendant,
Plaintiff provided his then-current employer with a notice of resignation. Id. at ¶ 10.
Plaintiff has been diagnosed with anxiety, depression, and ADHD. Am. Compl. ¶¶ 12,
ECF No. 13. These conditions substantially limit one or more of Plaintiff’s major life activities,
including his ability to sleep, think, and concentrate. Id. at ¶ 13. Plaintiff has been certified to use
medical marijuana to treat these conditions, and he is also prescribed Prozac and Adderall. Id. at
¶ 15. On February 2, 2023, Plaintiff notified two of Defendant’s employees of his diagnoses and
prescribed medications, including medical marijuana, and further informed these individuals of
his status as a medical marijuana identification cardholder. Id. at ¶ 16.
On February 10, 2023, Defendant underwent his pre-employment drug screen. Am.
Compl. ¶ 17, ECF No. 13. On February 21, 2023, Plaintiff received an email from Defendant
informing Plaintiff that Defendant had received the results of Plaintiff’s drug screen. Id. at ¶ 18.
By way of this email, Defendant requested that Plaintiff submit a memorandum, on his medical
provider’s letterhead with an ink signature, listing or stating:

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a. [T]he estimated THC level that the prescription should result in for the patient[;]
b. [T]hat this prescribed amount will not impair a person so that they cannot drive
a car safely[; and]
c. [T]hat this prescribed amount will not impair a person so that they cannot conduct
safety sensitive career tasks in the construction industry such as climbing ladders,
walking on scaffolding, etc.
Id. On the same date, Plaintiff signed an offer of employment with Defendant, but Defendant
stated that the offer remained contingent on the results of Plaintiff’s drug screen. Id. at ¶ 19. At
some point, Plaintiff expressed an understanding to Defendant that the position of “Project
Engineer” did not involve “operating heavy machinery nor driving, climbing ladders, walking on
scaffolding, etc.,” and no employee of Defendant disabused him of that expressed understanding.
Id. at ¶ 22.
On February 23, 2023, Plaintiff sent an email to Defendant explaining that he spoke to his
healthcare provider and that:
[The healthcare provider] will not be able to provide a detailed description of the
THC levels since they do not prescribe specific amounts. She is, however, able to
state that we have discussed safe and appropriate use, including my understanding
of not operating heavy machinery nor driving, climbing ladders, walking on
scaffolding, etc., along with my expression of commitment to safe use.
Am. Compl. ¶ 20, ECF No. 13. Plaintiff asked Defendant if these representations constituted a
sufficient response to their request for a memorandum. Id. Plaintiff received a responsive email
the next day, which provided:
We are consulting with internal and external resources to make a decision that
balances our concerns. Until we do that, we cannot establish a start date or
guarantee you the position.
Id. at ¶ 21.
On March 1, 2023, Plaintiff emailed Defendant stating that he would be willing to sign an
agreement providing that he would:
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refrain from any/all cannabis usage during business (or scheduled work) hours and
at any/all times not within these hours in which [he] potentially could find [himself]
under the influence, following prior such usage.
Am. Compl. ¶ 23, ECF No. 23. Approximately ten minutes after Plaintiff sent his March 1, 2023
email, Defendant emailed Plaintiff to inform him that Defendant had decided to rescind its offer
of employment. Id. at ¶ 24. Defendant did not respond to Plaintiff’s offer to sign an agreement to
not use medical marijuana or be under the influence during working hours. Id. at ¶ 27. The job
offer was formally rescinded later that morning, with Defendant stating: “After careful
consideration, this decision was made due to your drug screen and reported levels considered
unsafe in our work environment per Pennsylvania law.” Id. at ¶ 25. Despite Plaintiff’s request for
the results of his drug test, Defendant did not provide him with the results and instead referred him
to Mobile Medical Corporation. Id. at ¶ 28.
Plaintiff avers that, but for his status as a medical marijuana cardholder, Defendant would
have hired him and would not have unlawfully rescinded its offer of employment. Am. Compl. ¶
26, ECF No. 13. Plaintiff further avers that Defendant failed to make reasonable accommodations
for Plaintiff’s disabilities, specifically, anxiety, depression, and ADHD, and that it failed to discuss
reasonable accommodations or engage in an interactive process with Plaintiff. Id. at ¶¶ 37-38.
Plaintiff did not seek to use medical marijuana on Defendant’s premises or any place of
employment, nor did he seek to be under the influence of marijuana while at work. Id. at ¶ 31.
Plaintiff has exhausted his administrative remedies under the PHRA. Id. at ¶ 6.
Defendant filed its Motion to Dismiss and a Brief in Support (ECF No. 16) on January 10,
2024. Plaintiff filed a Brief in Opposition (ECF No. 17) on January 31, 2024, and Defendant filed
its Reply (ECF No. 18) on February 7, 2024. After being granted leave, Plaintiff filed a Surreply
(ECF No. 21) on February 12, 2024. On April 24, 2024, Plaintiff filed a Notice of Supplemental

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Authority (ECF No. 22). Defendant filed a Response (ECF No. 26) to that Notice on May 15,
2024.
II.

Legal Standard
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In
deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail
on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled
factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S.
Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need
detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide
more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
“formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). The Supreme Court of the United States has explained:
The plausibility standard is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are “merely consistent with” a defendant’s liability, it
“stops short of the line between possibility and plausibility of ‘entitlement to
relief.’”
Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

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The United States Court of Appeals for the Third Circuit instructs that “a court reviewing
the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr. Corp., 809 F.3d
780, 787 (3d Cir. 2016). The Third Circuit explained:
First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.”
Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they
are no more than conclusions, are not entitled to the assumption of truth.” Id. at
679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)
(“Mere restatements of the elements of a claim are not entitled to the assumption of
truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are wellpleaded factual allegations, [the] court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
Connelly, 809 F.3d at 787. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted).
In addition to reviewing the facts contained in the complaint, a court may consider “matters
of public record, orders, exhibits attached to the complaint and items appearing in the record of
the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).
When a document integral to or relied upon in the complaint is included, the court may also
consider that document. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997).
“If a plaintiff requests leave to amend a complaint vulnerable to dismissal before a
responsive pleading is filed” in a civil rights case, a court must permit amendment unless
amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). This is also true where a plaintiff does not request leave to amend. See Grayson,
293 F.3d at 108 (“When a plaintiff does not seek leave to amend a deficient complaint after a

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defendant moves to dismiss it, the court must inform the plaintiff that he has leave to amend within
a set period of time, unless amendment would be inequitable or futile.”).
III.

Discussion
Defendant argues that Plaintiff fails to state a claim under either the MMA or the PHRA.

The Court will consider each claim in turn.
A. MMA Claim (Count 1)
With respect to Plaintiff’s claim under the MMA, Defendant asserts that Plaintiff has
essentially pled himself out of court. Defendant argues that the MMA protects employees from
adverse action only where such action is predicated solely upon the basis of the employee’s
cardholder status. Br. in Supp. 6-7, ECF No. 16. Defendant argues that the Amended Complaint
makes clear that bases other than Plaintiff’s status as a medical marijuana cardholder were also at
the core of Defendant’s decision to rescind its offer of employment. Id. at 7-8. More specifically,
Defendant argues that Plaintiff fails to plead facts that plausibly establish that his status as a
medical marijuana cardholder was the but-for cause of Defendant’s failure to hire Plaintiff because
he has set forth:
[A] number of other factors which constitute other grounds for recission of the offer
– namely, 1) the results of his drug test; 2) that he could not provide certification
from his physician attesting to the THC level prescribed for him; 3) that he could
not – or would not – provide certification from his physician attesting that the
prescribed amount would not impair a person so that they could not drive a car
safely; 4) that he could not – or would not – provide certification from his physician
that the prescribed amount Plaintiff has pled that would not impair him in
conducting safety sensitive career tasks in the construction industry.
Id.
Section 2103(b)(1) of the MMA provides that “[n]o employer may discharge, threaten,
refuse to hire[,] or otherwise discriminate or retaliate against an employee regarding an employee’s
compensation, terms, conditions, location or privileges solely on the basis of such employee’s
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status as an individual who is certified to use medical marijuana.” 35 P.S. § 10231.2103(b)(1).
Sections (b)(2) and (3) provide:
(2) Nothing in this act shall require an employer to make any accommodation of
the use of medical marijuana on the property or premises of any place of
employment. This act shall in no way limit an employer’s ability to discipline an
employee for being under the influence of medical marijuana in the workplace or
for working while under the influence of medical marijuana when the employee’s
conduct falls below the standard of care normally accepted for that position.
(3) Nothing in this act shall require an employer to commit any act that would put
the employer or any person acting on its behalf in violation of Federal law.
35 P.S. § 10231.2103(b)(2)-(3). 1 The United States District Court for the Eastern District of
Pennsylvania has predicted that the Supreme Court of Pennsylvania would likely find an implied
private right of action under Section 2103(b)(1) of the MMA. See Hudnell v. Thomas Jefferson
Univ. Hosps., Inc., 537 F. Supp. 3d 852, 861 (E.D. Pa. 2020); see also Kopinetz v. Waste Mgmt.
& Processors, Inc., 315 A.3d 138, 141 (Pa. Super. 2024) (Superior Court of Pennsylvania stating
that it has “recognized the existence of an implied private right of action under Section
10231.2103(b)(1) of the MMA.”).
The MMA is a Pennsylvania statute.

Accordingly, decisions of Pennsylvania state

appellate courts are integral to this Court’s analysis. See Buczek v. Cont’l Cas. Ins. Co., 378 F.3d
284, 289 (3d Cir. 2004) (“In adjudicating a case under state law, we are not free to impose our own
view of what state law should be; rather, we are to apply existing state law as interpreted by the
state’s highest court in an effort to predict how that court would decide the precise legal issues
before us. In the absence of such guidance, we must look to decisions of state intermediate
appellate courts, of federal courts interpreting that state’s law, and of other state supreme courts

Section 510 also sets forth employment tasks or duties that an employer may prohibit cardholder employees from
performing while under the influence of marijuana. 35 P.S. § 10231.510.

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that have addressed the issue.” (citations omitted)). In discussing the MMA, the Superior Court
of Pennsylvania has notably explained:
The enactment of the MMA in 2016 reflects a public policy designed to protect
certified users of medical marijuana from employment discrimination and
termination. As the Supreme Court of Pennsylvania recognized in [Gass v. 52nd
Jud. Dist., Lebanon Cnty., 659 Pa. 590, 599 (Pa. 2020)] (quoting State v. Nelson,
346 Mont. 366, 195 P.3d 826, 833 (2008)), “[w]hen a qualifying patient uses
medical marijuana in accordance with the MMA, he is receiving lawful medical
treatment. In this context, medical marijuana is most properly viewed as a
prescription drug.”
Palmiter v. Commonwealth Health Sys., Inc., 260 A.3d 967, 977 (Pa. Super. 2021) (emphasis
added).
More recently, the Superior Court of Pennsylvania issued a decision in Kopinetz v. Waste
Mgmt. & Processors, Inc., 315 A.3d 138 (Pa. Super. 2024), a case that, despite Defendant’s
assertions to the contrary, is directly on point with the instant matter. In Kopinetz, the Superior
Court reversed the trial court’s decision sustaining preliminary objections filed by a defendant
employer, concluding that “the trial court did not accept the complaint’s factual allegations as true,
but rather substituted its own judgment and decided a disputed factual issue against [the plaintiff].”
Id. at 144. In that case, the plaintiff employee alleged that his employer informed him that he had
been terminated “because he lawfully used marijuana to treat his medical conditions.” Id. at 140
(emphasis added). The employer in Kopinetz made an identical argument to Defendant herein,
that is, that the employer terminated the employee for a legitimate, non-discriminatory reason (a
positive drug test and the use of marijuana), not solely on the basis the employee’s cardholder
status. Id. at 141. In rejecting that argument, the Superior Court concluded that the timing of the
employer’s decision to terminate the employee, and on what theories it relied in terminating the
employee, were ultimately issues of fact for the fact-finder’s determination. Id. at 143.

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Defendant seemingly advances an overly restrictive reading of the MMA, that, if adopted
by the Court, may, potentially, permit adverse action based only upon a positive test for legal
marijuana use. The Court notes, however, that the express language of Section 2103(b)(1)
discusses not only cardholder status, but also the use of marijuana, providing that no adverse action
can be taken “solely on the basis of such employee’s status as an individual who is certified to use
medical marijuana.” 35 P.S. § 10231.2103(b)(1) (emphasis added). Perhaps more telling is
Subsection (b)(2), which seemingly very deliberately lays out what the MMA permits with respect
to an employee’s use of marijuana:
Nothing in this act shall require an employer to make any accommodation of the
use of medical marijuana on the property or premises of any place of employment.
This act shall in no way limit an employer’s ability to discipline an employee for
being under the influence of medical marijuana in the workplace or for working
while under the influence of medical marijuana when the employee’s conduct falls
below the standard of care normally accepted for that position.
35 P.S. § 10231.2103(b)(2) (emphasis added); see also 35 P.S. § 10231.510. If the MMA per se
permitted adverse employment action as to any employee who legally used or was under the
influence of marijuana outside of the workplace, such a provision would be entirely superfluous.
See Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181, at *7 (R.I.
Super. May 23, 2017) (“This Court finds it crucial that the statute does not say that nothing within
the chapter would require an employer to accommodate the medical use of marijuana entirely.
Instead, it cabins that proscription to use ‘in any workplace.’ The natural conclusion is that the
General Assembly contemplated that the statute would, in some way, require employers to
accommodate the medical use of marijuana outside the workplace. This provision undermines
Defendants’ contention that its actions did not violate the Hawkins-Slater Act because its refusal
to hire Plaintiff was based not on her cardholder status, but her use of marijuana outside the
workplace that prevented her from passing a drug test.” (emphasis added) (citation omitted)).
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As a practical matter, it seems to this Court that the MMA would be quite toothless if it
only protected an employee’s ability to possess a medical marijuana card, rather than the
employee’s ability to take the prescription medication that the card authorizes the individual to
use. 2 Despite asserting to the contrary in its Reply, it is clear that Defendant intends, at this
juncture, to argue that Plaintiff’s use of marijuana alone, and not his status as a cardholder, justified
Defendant’s failure to hire Plaintiff. See Reply 3, ECF No. 18 (“Second, Plaintiff’s focus on the
employer’s notice of the cardholder status (or lack thereof, in [Reynolds v. Willert Mfg. Co., LLC,
567 F. Supp. 3d 553 (E.D. Pa. 2021)] illustrates a fundamental misunderstanding of the Act’s plain
language, namely, that ‘status’ must be the sole basis for the employer’s adverse employment
action for liability to attach.”). In this Court’s estimation, if Plaintiff’s legal use of marijuana to
treat his disabilities constitutes the basis for an adverse employment decision, the only logical
conclusion that follows is that he has been subjected to adverse employment actions based upon
his status as a Pennsylvania medical marijuana cardholder. See Hudnell, 537 F. Supp. 3d at 861
(“Accepted as true, Hudnell states facts that ‘plausibly give rise to an entitlement to relief’ under
Section 2103(b)(1) of the MMA. She alleges she legally purchased and used medical marijuana,
disclosed her status as a cardholder, failed a drug test at work[,] and then was fired the same day
she recertified her medical marijuana card.” (citation omitted)).
Defendant attempts to distinguish cases cited by Plaintiff by arguing that Defendant’s
reasons for termination other than cardholder status, i.e., a positive drug test and the failure to
provide information as to his prescription, establish a basis other than cardholder status that support

2
In interpreting materially similar language to the MMA, the Superior Court of Rhode Island provided: “If the Court
were to interpret [the relevant statutory provisions] as narrowly as Defendants propose, Plaintiff and other medical
marijuana users would be lumped together with nonmedical users of marijuana. The protections that [the relevant
statutory provision] affords would be illusory—every medical marijuana patient could be screened out by a faciallyneutral drug test.” Callaghan, 2017 WL 2321181, at *9 (emphasis added).

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the adverse action taken in this case. The Court finds that these arguments involve a strained
reading of Palmiter and Kopinetz, discussed above, as Defendant’s proffered bases, a positive drug
test and failure to provide information on Plaintiff’s medical marijuana prescription, are
inextricably connected to Plaintiff’s cardholder status. Defendant’s reliance on Reynolds is also
seemingly misplaced, as another district judge in the Eastern District of Pennsylvania interpreted
Reynolds to provide that, where a plaintiff pleads that adverse action was taken on the basis of
legal medical marijuana use, the plaintiff had sufficiently pled discrimination under the MMA on
the basis of cardholder status. 3 See DellaVecchio v. Cleveland-Cliffs, Inc., No. CV 22-4932, 2023
WL 3727001, at *4 (E.D. Pa. May 30, 2023) (citing Reynolds and denying a motion to dismiss
because plaintiff pled facts that could plausibly give rise to entitlement to relief under the MMA
where facts alleged, taken in a light most favorable to the plaintiff, suggested that “Defendant, on
notice that Plaintiff had a prescription for medical marijuana and had renewed that prescription
and obtained a newly-valid card, denied Plaintiff employment due to a positive drug test citing a
hazy ‘policy’ that does not appear to accommodate the lawful use of marijuana as permitted by
the [MMA], thereby discriminating against anyone who was protected under the [MMA].”
(emphasis added)).
Defendant also asserts that Plaintiff’s failure to provide the requested physician
certifications respecting Plaintiff’s medical marijuana prescription and how his prescription might
impact his ability to perform certain potential employment tasks justifies Defendant’s rescission
of Plaintiff’s offer of employment, and that Plaintiff thus cannot state a claim under the MMA.

It bears noting that Reynolds largely turned on the employer’s lack of knowledge that the employee was a registered
medical marijuana patient at the time the employer made the decision to terminate the employee. Reynolds, 567 F.
Supp. 3d at 560. In this case, Plaintiff has alleged that he informed Defendant of his status as a certified medical
marijuana cardholder before his offer of employment was rescinded. For this reason, the Court agrees with Plaintiff
that Reynolds is distinguishable.
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Reply 8-9, ECF No. 18. Quite simply, such an assertion fails to accept the facts alleged in the
Amended Complaint as true. Plaintiff has pled that his position with Defendant would not have
involved “operating heavy machinery nor driving, climbing ladders, walking on scaffolding, etc.”
Am. Compl. ¶ 22, ECF No. 13. Taking that assertion as true, and drawing all reasonable inferences
in Plaintiff’s favor, Plaintiff states a plausible claim that it was his cardholder status, and not his
failure to provide certifications that Plaintiff’s use of marijuana outside of the workplace would
not impair him in the driving of a vehicle or in conducting safety sensitive career tasks in the
construction industry during work hours, was the reason for the rescission of his offer of
employment. 4 Without discovery into the nature of the position at issue, and the impact THC
levels from off-site, after-hours marijuana use might have on Plaintiff in performing his job
functions, the Court cannot hold that Plaintiff fails to state an MMA claim in this matter.
The Court does not suggest that an employer per se violates the MMA for taking adverse
employment action in response to a failed drug test for marijuana. An employee must be able to
perform the essential functions of the job he has been hired to perform, subject to the requirements
and prohibitions set forth in the MMA. Of course, and as noted above, the MMA does not require
accommodation of an employee who uses or is under the influence of marijuana on work premises
or during work hours when that employee’s conduct falls below the standard of care normally
accepted for their position. That said, in this case, Plaintiff asserts that he was qualified to perform
the essential functions of his job, that he offered not to use marijuana in any way during work
hours or on work premises, and that his offer of employment was rescinded simply for his use of
prescription medical marijuana outside work hours and off work premises, and, thus, based upon
his status as a medical marijuana cardholder. These assertions, in this Court’s estimation, involve
The Court notes that the language: “safety sensitive career tasks in the construction industry” is unquestionably
vague and is apparently quoted from an email sent by Defendant.

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questions of fact that are simply unresolvable at this stage of the proceedings and without the
benefit of discovery into the employment position at issue and the impact marijuana use outside
of work hours and off work premises might pose to Plaintiff’s ability to do his job. Construing the
facts in a light most favorable to Plaintiff, Plaintiff has sufficiently pled that his status as a medical
marijuana cardholder was the basis for Defendant’s decision to rescind Plaintiff’s offer of
employment. See Kopinetz, 315 A.3d at 144. Accordingly, Defendant’s Motion to Dismiss will
be denied as to Count I.
B. PHRA Claim (Count II)
With respect to Plaintiff’s failure to accommodate claim under the PHRA, Defendant again
argues that Plaintiff has essentially pled himself out of court. Plaintiff’s PHRA claim relies on an
assertion that Defendant did not engage in an interactive process with Plaintiff to discuss
reasonable accommodations before taking adverse employment action against him. Am. Compl.
¶¶ 37-38, ECF No. 13. Defendant contends that, notwithstanding the fact that Plaintiff has pled a
viable basis for Defendant’s rescission of Plaintiff’s employment offer, i.e., the failed drug test,
Plaintiff has pled facts that, even when construed in a light most favorable to Plaintiff, establish
that he cannot plausibly allege that Defendant failed to engage in an interactive process to discuss
reasonable accommodations before rescinding Plaintiff’s offer of employment. Br. in Supp. 9-10,
ECF No. 13. More specifically, Defendant argues:
In the instant case, upon notifying Defendant of his alleged disabilities and his use
of marijuana to treat those disabilities, the Company engaged in the interactive
process to determine whether – despite the failed drug screen – Plaintiff might
nonetheless provide doctor’s certification that his prescribed marijuana use would
not render him unable to perform essential functions of his position. . . . Plaintiff[’s]
health care provider could not – or would not – make such a certification. Instead,
Plaintiff asked his prospective employer to take him at his word that he had
expressed a “commitment to safe use” (a vague, undefined term). Thereafter,
Plaintiff allegedly offered to sign an agreement to “refrain from any/all cannabis
usage during business (or scheduled work) hours and any/all times not within these
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hours in which [he] potentially could find [himself] under the influence following
prior such usage.” At no time during this process, however, did Plaintiff propose
any accommodation which did not involve his continued use of marijuana to
allegedly treat his disabilities during his employment term with Defendant.
Id. at 10-11 (citations omitted) (emphasis omitted).
Defendant argues that Plaintiff, essentially, asserts that his PHRA disability is marijuana
use, and that Plaintiff is not entitled to an accommodation for that use because the PHRA explicitly
defines a disability to exclude the current, illegal use of a controlled substance, as defined by the
federal Controlled Substance Act (“CSA”). 5 Br. in Supp. 11, ECF No. 16. In concluding,
Defendant maintains that “[t]he statutory language clearly provides that the use of medical
marijuana – whether or not legally permissible in Pennsylvania – does not entitle Plaintiff to
accommodation or protection under the [PHRA] based on that use,” and argues in the alternative
that:
To the extent that Plaintiff’s claims for failure to accommodate arise not from the
marijuana use but from the asserted diagnoses themselves, the Amended Complaint
woefully fails to assert any facts plausibly establishing that he sought and was
denied reasonable accommodation for any disability, independent of his request
that he be granted an exception to use of medical marijuana.
Id. at 14 (emphasis omitted).
The PHRA provides: “[i]t shall be an unlawful discriminatory practice, unless based upon
a bona fide occupational qualification, . . . [f]or any employer because of the . . . non-job related
handicap or disability . . . of any individual . . . to refuse to hire or employ . . . or to bar or to
discharge from employment such individual . . . or to otherwise discriminate against such
individual . . . with respect to compensation, hire, tenure, terms, conditions or privileges of

While the Court acknowledges medical marijuana’s legality under Pennsylvania state law, as well as recent
developments respecting possible rescheduling of marijuana under federal law, it notes that, “currently, use of
marijuana is always illegal under federal law given its status as a Schedule I controlled substance.” Bloch v. U.S.
Dep’t of Hous. & Urb. Dev., No. 2:23-CV-1660-NR, 2024 WL 3029135, at *7 (W.D. Pa. June 17, 2024).

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employment . . . if the individual . . . is the best able and most competent to perform the services
required.” 43 Pa. Stat. Ann. § 955(a). “[T]he same legal standard that applies to the [Americans
with Disabilities Act (“ADA”)] applies equally to disability discrimination claims under the
PHRA.” Colwell v. Rite Aid Corp., 602 F.3d 495, 500 (3d Cir. 2010). “Under the ADA, ‘[n]o
covered entity shall discriminate against a qualified individual on the basis of disability in regard
to job application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.’” Andrews
v. Highmark Health, No. 2:22-CV-917, 2022 WL 14672734, at *5 (W.D. Pa. Oct. 25, 2022)
(quoting 41 U.S.C. § 12112(a)).
“To plead a prima facie claim of failure to accommodate, a plaintiff must allege that ‘(1)
he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3)
his employer did not make a good faith effort to assist; and (4) he could have been reasonably
accommodated.’” Dreibelbis v. Cnty. of Berks, 438 F. Supp. 3d 304, 316 (E.D. Pa. 2020) (quoting
Capps v. Mondelez Glob., LLC, 847 F.3d 144, 157 (3d Cir. 2017)). At the motion to dismiss stage,
“a plaintiff is not required to establish the elements of a prima facie case but instead, need only put
forth allegations that ‘raise a reasonable expectation that discovery will reveal evidence of the
necessary element.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quoting
Graff v. Subbiah Cardiology Associates, Ltd., No. 08–207, 2008 WL 2312671 (W.D.Pa. June 4,
2008)). With respect to reasonable accommodations, the United States Court of Appeals for the
Third Circuit has explained:
The ADA’s regulations state that: “To determine the appropriate reasonable
accommodation it may be necessary for the [employer] to initiate an informal,
interactive process with the [employee] in need of accommodation. This process
should identify the precise limitations resulting from the disability and the potential
reasonable accommodations that could overcome those limitations.” 29 C.F.R. §
1630.2(o)(3). Similarly, the EEOC’s interpretive guidelines provide that: “Once a
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qualified individual with a disability has requested provision of a reasonable
accommodation, the employer must make a reasonable effort to determine the
appropriate accommodation. The appropriate reasonable accommodation is best
determined through a flexible, interactive process that involves both the employer
and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359.
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir. 1999).
Having reviewed the authorities cited by the parties, the Court is constrained to conclude
that the Commonwealth Court of Pennsylvania’s holding in Harrisburg Area Cmty. Coll. v.
Pennsylvania Hum. Rels. Comm’n, 245 A.3d 283, 285 (Pa. Commw. Ct. 2020) (“HACC”)
forecloses a claim for failure to accommodate under the PHRA for the use of medical marijuana.
In HACC, a nursing student who suffered from Post-Traumatic Stress Disorder and Irritable Bowel
Syndrome asserted that she would be able to complete the essential components of the defendant
college’s nursing program, which included class work and clinical training, so long as she was
granted the reasonable accommodation of being permitted to take her legally prescribed medical
marijuana medication. HACC, 245 A.3d at 185. The Commonwealth Court explained that “the
sole issue on appeal is whether the anti-discrimination provisions of [the] PHRA . . . require
accommodation of [plaintiff’s] lawful use of medical marijuana under the MMA.” Id. at 286.
In reversing the Pennsylvania Human Relations Commission’s decision denying a motion
to dismiss filed by the defendant college, the Commonwealth Court explained that the CSA, which
categorizes marijuana as a schedule I controlled substance that has no currently accepted medical
use, is expressly referenced in the PHRA.

HACC, 245 A.3d at 289; 293-94; 298.

The

Commonwealth Court further noted that the PHRA also incorporates the CSA’s provisions and
prohibitions, which prohibit the use of schedule I controlled substances, including medical
marijuana. Id. The Commonwealth Court also noted that the MMA made no reference to the
PHRA, and it further rejected plaintiff’s argument that the MMA amended the PHRA. It explained

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that the legislature did not, following the passage of the MMA, amend the language of the PHRA
to require accommodation of medical marijuana use. Id. at 292. In light of the same, the
Commonwealth Court ultimately concluded that plaintiff was not a qualified individual with a
disability under the PHRA, and that the PHRA did not require accommodation of the plaintiff’s
lawful use of medical marijuana. Id. at 298; see also Palmiter v. Commonwealth Health Sys., Inc.,
276 A.3d 221 at *7 (Pa. Super. 2022) 6 (unpublished, non-precedential Superior Court of
Pennsylvania decision affirming dismissal of PHRA failure to accommodate claim, relying on
HACC and holding that the plaintiff “had not shown she was a qualified individual with a disability
under the PHRA.”); Zimmerman v. Health Network Labratories, L.P., No. 5:24-CV-01142, 2025
WL 457100, at *5 (E.D. Pa. Feb. 10, 2025) (“Accordingly, this Court concludes that employees
properly prescribed marijuana in compliance with Pennsylvania law, who then experience adverse
employment determinations based on that use, are not ‘qualified individuals’ contemplated [in the
ADA].”).
The Court recognizes that it is not bound by the Commonwealth Court’s decision in HACC.
That said, HACC, a decision of a Pennsylvania court of appeals interpreting Pennsylvania law,
does provide guidance as to the issues presented herein, and it is the only case cited by either party
to address these issues in depth. Further, this Court is not free to impose its own view of what
state law should be in considering Plaintiff’s PHRA claim. HACC is sufficiently factually
analogous, and it involves interpretation of the relevant provisions of the PHRA at issue herein.
While Plaintiff may disagree with HACC, this Court finds that HACC forecloses Plaintiff’s claim

6
This Palmiter is a different case than the one cited above, though it involves the same parties and the same operative
facts. Ms. Palmiter pursued her MMA claim in one state court action and her PHRA claim in a separate state court
action. Importantly, Ms. Palmiter’s MMA claim survived preliminary objections and a subsequent appellate
interlocutory review of the order overruling those preliminary objections, while her PHRA claim was dismissed by an
order that was eventually affirmed by the Superior Court.

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under the PHRA for failure to accommodate related to his legal use of medical marijuana. The
sole issue on appeal in HACC was whether the anti-discrimination provisions of the PHRA require
accommodation of an individual’s lawful use of medical marijuana. In ruling against the PHRC
and the student in HACC, the Commonwealth Court of Pennsylvania answered that question in the
negative. Accordingly, Plaintiff cannot state a claim for failure to accommodate under the PHRA
for Defendant’s failure to accommodate his medical marijuana use.

The Court finds that

amendment as to Plaintiff’s PHRA claim would be futile, and, accordingly, Count II will be
dismissed with prejudice.
IV.

Conclusion
For the reasons discussed above, Defendant’s Motion to Dismiss will be granted in part

and denied in part. An appropriate Order of Court follows.

BY THE COURT:
/s/Robert J. Colville_______
Robert J. Colville
United States District Judge

DATED: March 7, 2025
cc: All counsel of record

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