1

Mark Frisbie
2 MHFrisbie Law, LLC
410 Central Ave. #301
3 Great Falls, MT 59401
406.924.6945
4
Attorney for Plaintiff
5

7 MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY

8 )
Mike Babbitt, )
) Cause No. ______________
9 Plaintiff, )
)
10 vs. ) COMPLAINT
)
11 Loaf-n-Jug a division of Kroger Co. )
)
12 Defendant. )
)
)
13

14 COMES NOW, Mike Babbit, the Plaintiff herein, for his complaint against the
15 above named Defendant, Loaf-n-Jug, a division of Kroger Company hereby states
16 and alleges as follows:

17 THE PARTIES
1. Plaintiff, Mike Babbitt, is an individual residing in Cascade County,
18
Montana.
19
2. Defendant, Loaf-n-Jug, is a division of Kroger Company, operating in
20
Great Falls, Montana.
21
Jurisdiction and Venue
22

23 3. Subject matter jurisdiction over this cause is conferred upon and vested

24 in this Court under Montana Code Annotated 3-5-302.

25
1
 1

2 4. Personal Jurisdiction over the Defendant is vested in this Court under

3 Montana Rule of Civil Procedure 4B.

5. All relevant conduct between the Plaintiff and the Defendant occurred in
4
Cascade County, venue is proper in this Court.
5

6
Factual Allegations
7 6. On or about August 7, 2009, Plaintiff entered into an employment
8 agreement (“Agreement”) with Defendant whereby the Defendant agreed to work as
9 a clerk for the Loaf-n-Jug. A copy of the Agreement is attached hereto as Exhibit A

10 and by this reference incorporated herein.

11 7. Plaintiff is HIV positive.

8. The Babbitt was on a 90-day probationary period.
12
9. On August 7, 2009, Plaintiff signed the “Employee Awareness Form.”
13
10. The Employee Awareness Form states that prohibits “consumption
14
and/or possession . . . of illegal substances by any employee while on
15 company premises, or . . . reporting to work under the effects of . . . illegal
16 substances.”
17 11. Defendant’s Policy No. 1-01-17 defines illegal drugs as “any drug that is

18 not legal obtainable or any legal drug that has been illegally obtained. The
term includes prescribed medications not being used as prescribed.”
19
12. Defendant’s Policy No. 1-01-17 defines legal medications as
20
“prescribed and over-the-counter medications which have been legally
21
obtained and are being used for the purpose for which they are prescribed or
22
manufactured.”
23 13. Babbitt passed the Defendant’s pre-employment drug test.
24

25
2
 1

2 14. Babbitt is a qualified patient under the Montana Medical Marijuana Act,

3 M.C.A. § 50-46-102.
15. In Montana, when a qualifying patient uses medical marijuana in
4
accordance with the Montana Medical Marijuana Act, he is receiving lawful
5
medical treatment. In this context, medical marijuana is most properly viewed
6
as a prescription drug.
7 16. Defendant never alleged that Babbitt either consumed or possessed
8 medical marijuana while on company premises.
9 17. Defendant never alleged that Babbitt reported to work under the

10 influence of medical marijuana.

11 18. Defendant’s agent, Tim Osterman, the store manager, was informed
about Babbitt’s status as a qualified patient under the Montana Medical
12
Marijuana Act.
13
19. Defendant’s agent, Tim Osterman, stated that he would be allowed to
14
hire Babbitt provided that Babbitt provided a “clean” pre-employment drug test.
15 20. Defendant’s agent, Tim Osteman, was informed when Babbitt received
16 his Montana Medical Marijuana card, and Defendant’s agent stated that: “it
17 was no problem.”

18 21. In October 2009, all the employees at Defendant’s store #765 were
required to take a drug test as a result of an audit.
19
22. Defendant’s Policy No. 1-01-17 states that: “Any positive test results will
20
be confirmed as positive by another method and then reviewed by a Medical
21
Review Officer (MRO). The MRO will contact the person tested to determine
22
whether there is a legitimate reason for the positive test, such as legally
23 prescribed medication or recent surgery.”
24 23. Babbitt’s drug test showed the presence of marijuana.
25
3
 1

2 24. Babbitt was not given a copy of the drug test report as required under

3 M.C.A.§ 39-2-209(2009).
25. Defendant failed to allow Babbitt to present a reasonable explanation
4
that the test results were not caused by illegal use of a controlled substance
5
as required under M.C.A. § 39-2-210.
6
26. Defendant failed to destroy Babbitt’s drug test results as required under
7 M.C.A. § 39-2-210(2).
8 27. Defendant failed to pay the Babbitt at his regular rate of pay for the time
9 to conduct the drug test as required under M.C.A. § 39-2-210(3)(2009).

10 28. The Defendant terminated the Babbitt’s employment on Nov. 11, 2009.

11
First Claim For Relief
12

13
29. The Forgoing allegations of paragraphs 1 through 28 are hereby
14
incorporated by reference.
15 30. As alleged above, Babbitt was lawfully using medical marijuana off of
16 the employer’s premises and not during working hours.
17 31. The use of the medical marijuana did not affect the plaintiff’s ability to

18 perform his employment responsibilities nor did it affect the safety of other
employees.
19
32. Restricting the use of medical marijuana is not a bona fide qualification
20
reasonably related to the plaintiff’s employment.
21
33. It is illegal to discriminate against an individual using a lawful product
22
that is legally consumed, or used, pursuant to M.C.A. 39-2-313.
23 34. The Defendant has lost wages in the amount of (enter 4 years worth)
24 and has suffered other monetary damages in an amount equal to .
25
4
 1

2 Second Claim For Relief

3 35. The Forgoing allegations of paragraphs 1 through 28 are hereby

incorporated by reference.
4
36. Pursuant to M.C.A 49-1-102, Babbitt has a right to be free from
5
discrimination.
6
37. Being H.I.V. positive qualifies as a disability under M.C.A. 49-2-101 his
7 condition places him also under the auspices of the American’s with Disabilities Act.
8 42 U.S.C.A. §§ 12101 ET SEQ.
9 38. Babbitt demonstrated that he is capable of performing his job without

10 accommodation.

11 39. The defendant terminated his employment because of the disability.

40. Babbitt has suffered damages because of this discrimination, and is
12
entitled to recover compensatory damages in such amount to be shown at trial of this
13
matter, as well as punitive damages as allowed by law.
14

15 WHEREFORE, Plaintiff prays that judgment be granted against Defendant as

16 follows:
17 1. For judgment in Plaintiff’s favor and against Defendant on all counts;

18 2. For the sum of $___________, together with accruing interest on at the

rate of 10% per annum from and after _____________, until paid in full;
19

20
Or
21
judgment in favor of Plaintiff on all counts and an award of actual and
22
consequential damages against Defendant in an amount to be proven at trial;
23 3. For an award of Plaintiff’s reasonable attorney fees and allowable court
24 costs; and
25
5
 1

2 4. For such other and further relief as the Court deems just and equitable

3 in the premises.
Jury Demand
4

5
Plaintiff hereby demands a trial by jury for all issues so triable.
6
Dated this _________day of ___________, 2010.
7

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
6
 1

2 Verification

3 State of Montana )
:ss.
4
County of Cascade )
5

6
Mike Babbit, being first duly sworn upon her oath, deposes and says:
7 That he has read the foregoing complaint with Jury Demand, knows the
8 contents thereof, and that the matters and things stated are to true to the best of his
9 knowledge, information, and belief.

10

11 Mike Babbitt

12 Signed and sworn to before me on this day of February.

13
Signature
14

15 Print name
NOTARY PUBLIC FOR
16 THE STATE OF MONTANA
Residing in Great Falls, Montana
17 My commission expires:

18

19

20

21

22

23

24

25
7