The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISMISS
Defendant General Nutrition Company ("Defendant" or "GNC") has filed a motion to dismiss Plaintiff's First Amended Complaint. For the reasons discussed below, Defendant's motion is DENIED.
The following facts are taken from the allegations of the First Amended Complaint ("FAC"). The Court makes no findings as to the truthfulness of these allegations.
On or about May 1, 2007, Plaintiff began employment with GNC as its Assistant Manager in the GNC store located in the Plaza Bonita Mall in National City, California. (FAC ¶ 14.) Plaintiff has cerebral palsy. (FAC ¶ 16.) Plaintiff's disability did not interfere with his ability to perform his job duties, and Plaintiff was an exemplary employee. (FAC ¶¶ 15, 17.)
Throughout his employment, Plaintiff had a prescription for the use of cannabis for medical purposes and was in possession of a Physician's Statement and Recommendation card (commonly known as a "Medi-Mar card"). (FAC ¶ 18.)
In late December 2007, Plaintiff was involved in a traffic stop in the Plaza Bonita Mall parking lot, during which Plaintiff was wrongfully cited by law enforcement officers for the illegal possession of cannabis. (FAC ¶ 19.) After this incident, GNC learned of Plaintiff's disability. (FAC ¶ 20.) On or about December 27, 2007, GNC terminated Plaintiff for an unspecified "violation of company policy." (FAC ¶ 21.) Plaintiff was not advised by GNC at the time of his termination that he was being terminated for possessing and/or using illegal drugs. (FAC ¶ 25.)
On or about February 26, 2008, the San Diego Superior Court determined that the December citation had been issued in error and dismissed all charges brought against Plaintiff as a result of the traffic stop. (FAC ¶ 26.)
Plaintiff alleges that he was terminated "because of his disability, and GNC's desire not to accommodate Plaintiff's Disability," in violation of the Americans with Disabilities Act of 1990 ("ADA"). (FAC ¶ 27.) Plaintiff further alleges that GNC's stated reason of "violation of company policy" for the termination of his employment is pretext. (Id.)
GNC argues that the FAC should be dismissed because Plaintiff's ADA claim fails to state a claim upon which relief can be granted. The Court disagrees.
GNC argues that Plaintiff's claim fails as a matter of law because GNC was not required to accommodate Plaintiff's use of marijuana even if it was pursuant to the Compassionate Use Act of 1996, Cal. Health & Safety Code Section 11362.5. See Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008) (holding that California's Fair Employment Housing Act did not require employer to accommodate employee who used medicinal marijuana at home and who failed preemployment drug test). However, it appears that GNC has misinterpreted Plaintiff's ADA claim.
Plaintiff claims that he was terminated because GNC discovered that he had cerebral palsy. According to Plaintiff, GNC's proffered reason for Plaintiff's termination - "violation of company policy" - was pretextual.
Under the ADA, it is unlawful for an employer to "discriminate against a qualified individual with a disability because of the disability of such ...