Plaintiff is a smoker who claims that the defendants, which had adopted a policy of not hiring smokers, wrongfully terminated his employment after a required urine test showed the presence of nicotine in his body.  Plaintiff claims that the enforcement of that policy was wrongful under Massachusetts law and constituted unlawful discrimination under the federal Employee Retirement Income Security Act (ERISA).  The defendants filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted. The U.S. District Court granted the motion in part (dismissing the claims alleging wrongful termination and a violation of the Massachusetts Civil Rights Act)  but denying it in part (not dismissing claims alleging an invasion of privacy and that the defendants violated ERISA).

However, after further information was provided to the court, summary judgment for the defendant was granted as to Rodrigues’ privacy and ERISA claims.   The court ruled in Rodrigues v. EG Systems, Inc. d/b/a/ Scotts Lawnservice, 639 F. Supp. 2d 131, 2009 U.S. Dist. LEXIS 64184, 29 I.E.R. Cas. (BNA) 970 (U.S.D.C. D.Mass. 2009), that “Rodrigues does not have a protected privacy interest in the fact that he is a smoker because he has never attempted to keep that fact private.”  As to the ERISA claim, “Rodrigues would be eligible for benefits if he were a ‘regular, full-time associate.’”  Under Scotts’ plan, benefits coverage begins “on the first day of the month on or following 60 days of continuous full-time employment.”  The court ruled that he “does not qualify as a participant in the plan under these provisions.  He worked for Scotts for only two weeks and his ‘regular’ employment was clearly made contingent on his successful passing of the background check and urinalysis screening.”  See Saltzman, J., “Smoker Who Lost Job Loses in Court,” Boston Globe, August 8, 2009, B1.   The case was later settled out of court.

2008 U.S. Dist. LEXIS 6682, 43 Employee Benefits Cas. (BNA) 1835 (U.S.D.C. D. Mass. 2008).