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Smoker who lost job loses in court

Judge sides with lawn care firm Workers cannot smoke on or off job

Scott Rodrigues, shown on the porch of his Buzzards Bay apartment in 2006. His lawyer says he will appeal the decision. Scott Rodrigues, shown on the porch of his Buzzards Bay apartment in 2006. His lawyer says he will appeal the decision. (Julia Cumes/File 2006)
By Jonathan Saltzman
Globe Staff / August 8, 2009

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Scott Rodrigues had been working as a lawn-care employee for The Scotts Co. for only about two weeks when he was fired in 2006 after a drug test found nicotine in his urine, a violation of a company policy forbidding employees to smoke on or off the job. He promptly filed a lawsuit that argued, among other things, that the company violated his right to privacy.

Now a federal judge has dismissed the Bourne man’s suit, ruling that Rodrigues’s smoking was not a protected privacy interest because he never kept his puffing a secret.

In granting Scotts’s motion for summary judgment, US District Court Judge George A. O’Toole Jr. said that Rodrigues admitted in a deposition that he smoked while walking down the street and in a restaurant parking lot and was caught by a Scotts supervisor with a pack of cigarettes on his dashboard.

“It is clear from those admissions that Rodrigues has not attempted to keep the fact of his smoking private,’’ O’Toole wrote.

The judge also rejected Rodrigues’s contention that his firing violated the 1974 federal law that protects employees’ rights to their benefits. O’Toole said that law did not protect Rodrigues because he was not yet a bona fide employee and was only working on the condition that he passed the urinalysis.

Rodrigues, 32, said the ruling was stunning and accused O’Toole of bias in favor of corporations.

“I feel in my heart that this judge has other interests, his own personal interests, in this case,’’ said Rodrigues, who added that he was unaware of the July 23 decision until a Globe reporter called him yesterday. “This judge has just empowered business more than he did the people.’’

Rodrigues’s lawyer, Harvey A. Schwartz of Boston, said he is appealing the ruling to the US Court of Appeals for the First Circuit. He characterized the firing as an extraordinary example of a company meddling in an employee’s private life in an attempt to promote healthy habits and drive down an employer’s healthcare costs.

“It’s your basic slippery slope,’’ he said. “If they can fire an employee who smokes, and that’s unhealthy, what if his wife smokes and she’s on the insurance plan?’’

Jim King, a spokesman for Scotts, which is based in Marysville, Ohio, said the smoking ban has never been used to fire “an existing employee,’’ only to screen out applicants. Since the ban went into effect, he said, the percentage of smokers among the company’s roughly 7,000 employees has fallen from 28 percent to 7 percent.

“We’re obviously pleased with how [O’Toole] ruled,’’ he said. “We think the ruling speaks for itself.’’

Scotts’s smoking ban was announced in 2005 by chief executive Jim Hagedorn, a former two-pack-a-day smoker, and went into effect Oct. 1, 2006, giving the company’s employees nearly a year to prepare. Scotts has paid for employees and their families to take part in smoking cessation programs.

King told the Globe after Rodrigues filed his suit that the tobacco policy was intended to reduce medical costs for the self-insured company, which he described as deeply committed to promoting good health among employees. He pointed out that Scotts built a $5 million wellness center in Marysville and reimburses some workers for fitness club memberships.

According to O’Toole’s ruling, Rodrigues was hired by Scotts in August 2006 contingent on his passing the urinalysis. For about two weeks, said the ruling, Rodrigues wore a Scotts uniform, drove a Scotts truck, and applied Scotts products to customers’ lawns.

At some point, said the ruling, a supervisor noticed that Rodrigues had a pack of cigarettes on his dashboard and gave him a written warning. But it was not until the urinalysis showed nicotine in his blood that he was fired.

Rodrigues said the judge’s ruling contains several factual errors, including how long he worked for Scotts and when he was first hired. Rodrigues, who says he has smoked since he was a 9-year-old living in Brockton, said he went to work for another lawn service company after he was fired but is now unemployed.

Rodrigues’s appeal, Schwartz said, will address “an important fundamental legal question, which is whether an employer can fire an employee who smokes on his own time away from work because the employer wants to save on medical insurance costs.’’

Edward L. Sweda Jr., a senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law, said he was not surprised by O’Toole’s ruling because “there is no inherent right to both smoke and have a particular job.’’

At least 20 states have laws prohibiting employers from discriminating against employees for smoking off the job, he added, but Massachusetts is not among them.

Saltzman can be reached at jsaltzman@globe.com.