Bishop v. Bell Atlantic Corp., Civil No. 99-CV-189-B.

• Decision Date: 19 November 1999
• Docket Number: Civil No. 99-CV-189-B.
• Citation: 81 F.Supp.2d 84
• Parties: David C. BISHOP, Plaintiff, v. BELL ATLANTIC CORPORATION, Defendant.
• Court: U.S. District Court — District of Maine

81 F.Supp.2d 84

David C. BISHOP, Plaintiff, v. BELL ATLANTIC CORPORATION, Defendant.

Civil No. 99-CV-189-B.

United States District Court, D. Maine.

November 19, 1999.

Martha Temple, Foote & Temple, Bangor, ME, for plaintiff.

Frank McGuire, Rudman & Winchell, Bangor, ME, Barry A. Guryan, Epstein, Becker & Green, Boston, MA, for defendant.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

David C. Bishop ("Bishop") originally filed this action against Bell Atlantic Corporation ("Bell Atlantic") in the Maine Superior Court of Hancock County, where he alleged retaliation and discrimination with regard to his compensation, terms, conditions, and privileges of employment, in violation of the Maine Whistleblowers' Protection Act ("MWPA" or "Whistleblowers' Act"), 26 M.R.S.A § 831 et seq., and the Maine Human Rights Act ("MHRA"), 5 M.R.S.A. § 4572. Asserting that this Court has both diversity and federal-question jurisdiction over this claim, Bell Atlantic removed Bishop's case to this Court pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446. Before the Court is Bell Atlantic's Motion to Dismiss pursuant to Fed. R.Civ.P. 12(b)(6), or, in the alternative, its Motion for Summary Judgment under Fed.R.Civ.P. 56(c). For the reasons stated below, Bell Atlantic's Motion is GRANTED in part and DENIED in part.

STANDARD OF REVIEW

Because the Court has considered the Statement of Material Facts and affidavits filed by each party, the Court treats Bell Atlantic's Motion as one for summary judgment. See Fed.R.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.")

Summary judgment is appropriate in the absence of a genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine for these purposes if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). Facts may be drawn from "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Fed.R.Civ.P. 56(c). "Fed.R.Civ.P. 56 does not ask which party's evidence is more plentiful, or better credentialled, or stronger." Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). Rather, for the purposes of summary judgment the Court views the record in the light most favorable to the nonmoving party. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995).

STATEMENT OF FACTS¹

Since 1988, Bishop has worked as a Splice Service Technician at Bell Atlantic's Ellsworth, Maine, facility. At all relevant times, he has been a member of Local 2327 of the International Brotherhood of Electrical Workers, AFL — CIO ("Union"). From September 12, 1991, to August 8, 1998, Bell Atlantic and the Union were parties to a collective bargaining agreement ("Agreement" or "CBA"). They are now parties to a successor agreement that expires on August 5, 2000.

Bishop alleges that, on or about May 5, 1997, his immediate supervisor, Frank Szylvian, grabbed him by the shirt and chest, and pushed him up against a wall. In response, Bishop immediately called 911, and an Ellsworth police officer responded. On that same day, Bishop also called Michael Dunphy, Mr. Szylvian's supervisor, to report this assault. Bishop claims that almost immediately after calling the police, Defendant, through its agents and employees, interfered with, or attempted to interfere with, Bishop's overtime opportunities, which Bishop had consistently availed himself of prior to this incident. Defendant took these opportunities away from Bishop by telling dispatch operators to "lock him out" of overtime, by calling him back from jobs before he had completed them, and by no longer posting overtime opportunities on his computer. As a consequence, Bishop lost overtime income. Bishop also claims that his supervisors and their agents started to follow him, and wrote him up for alleged work infractions.

In response to this retaliation, Bishop filed a claim with the Maine Human Rights Commission on October 7, 1997, alleging that Defendant violated the Maine Whistleblowers' Protection Act. Rather than alleviate the retaliation, this filing allegedly exacerbated it. Bishop claims that in December of 1997 and in January of 1998, Defendant retaliated against him in various ways, including, but not limited to, refusing to provide outdoor safety gear to him in a timely manner, and refusing to team him up with another worker during the Ice Storm of 1998. In response, Bishop filed another charge with the Maine Human Rights Commission on February 12, 1998. The Commission held fact-finding hearings on his charges of discrimination on February 26, 1998, and on May 28, 1998. Despite these hearings, the retaliation allegedly continued in August of 1998, when Bell Atlantic forced Bishop to work while he was injured, against the advice of his health care providers. Bishop asserts in his Complaint that the retaliation by Defendant "continues to this day."

DISCUSSION

A. Preemption and Section 301 of the Labor Management Relations Act

Defendant asserts that Bishop's claims are preempted by Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). That section provides that:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

A complex preemption doctrine has grown out of these words, resulting in the preclusion of many state law actions brought by employees who work pursuant to collective bargaining agreements. See Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 10 (1st Cir.1999) (summarizing history of section 301 preemption).² Specifically, section 301 preemption precludes state-law claims "whenever resolution of a plaintiff's claim is substantially dependent on analysis of a CBA's terms." Lydon, 175 F.3d at 10 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)). Therefore, preemption does not apply to all labor disputes that are cast as state-law claims. See id. For example, "mere parallelism between a state law claim and a federal contract claim does not necessarily require state court interpretation of the CBA — that is, as long as the state claim can be resolved without construing the agreement itself, it is not preempted by Section 301." Id. (citing Lingle, 486 U.S. at 409-10, 108 S.Ct. 1877). Thus, preemption applies only when there is a "real interpretive dispute" of a CBA's terms. Id. (citing Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40, 42 (1st Cir. 1997)). The consultation of a CBA in the course of litigating a state-law claim is not sufficient to extinguish that claim. See Livadas, 512 U.S. at 124, 114 S.Ct. 2068. "Courts confronted with state law claims must therefore locate the line between the need for mere consultation of a CBA, which does not demand federal preemption, and more active interpretation of that agreement, which does preempt the state law claims." Lydon, 175 F.3d at 10.

1. The Maine Whistleblowers' Protection Act

This line is easy to locate where the state's employment statute at issue requires courts to interpret collective bargaining agreements. Although the Court has not found any cases in which a court has construed the Whistleblowers' Act in this preemption context, the First Circuit, on three separate occasions, decided that a similar provision in a separate statute mandates section 301 preemption. See Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 11 (1st Cir.1999) (construing Mass. Gen.L. ch. 152, § 75A & 75B); Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40 (1st Cir.1997) (construing Mass.Gen.L. ch. 152, § 75A & 75B); Magerer v. John Sexton Co., 912 F.2d 525, 529-30 (1st Cir.1990) (construing Mass.Gen.L. ch. 152, § 75B). In those cases all three of the plaintiff-employees worked under a CBA and all three alleged that their employers retaliated against them for exercising their rights under the Massachusetts Workers' Compensation Act ("MWCA"). In each case, the Court decided that the employee's claim was preempted because the MWCA contains the following proviso:

In the event that any right set forth in this section is inconsistent with an applicable collective bargaining agreement, such agreement will prevail.

See Mass.Gen.L. ch. 152, § 75B.³ This proviso, the Court reasoned, requires courts to interpret the collective bargaining agreements at issue to determine whether such an agreement is "inconsistent" with the MWCA. Lydon, 175 F.3d at 11; see also Martin, 105 F.3d at 44 (holding that state-law claims under the MWCA are preempted "not because the collective bargaining agreement is inconsistent with the state claims asserted, but because it may be so and requires interpretation") (emphasis in original).

The Maine Whistleblowers' Protection Act contains a provision similar to the one in the MWCA that required preemption in Lydon, Martin, and Magerer. The Whistleblowers' Act provides that it "shall not be construed to diminish or impair the rights of a person under any collective bargaining agreement." 26 M.R.S.A § 837. This provision would require the Court to interpret the CBA between Bell Atlantic and Bishop's Union in order to...