LaRosa v. United Parcel Service, Inc.

• Decision Date: 01 October 1998
• Docket Number: No. CIV. A. 10428-WGY.,CIV. A. 10428-WGY.
• Citation: 23 F.Supp.2d 136
• Parties: Vincent LAROSA, Plaintiff, v. UNITED PARCEL SERVICE, INC. Defendant.
• Court: U.S. District Court — District of Massachusetts

23 F.Supp.2d 136

Vincent LAROSA, Plaintiff, v. UNITED PARCEL SERVICE, INC. Defendant.

No. CIV. A. 10428-WGY.

United States District Court, D. Massachusetts.

October 1, 1998.

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William F. Coyne, Jr., Lawson & Wayne, Boston, MA, for Vincent Larosa, Plaintiff.

Sharon R. Burger, Diane Rosse, Daniel J. Mahoney, Nutter, McClennen & Fish, Boston, MA, for United Parcel Service, Inc., Defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

INTRODUCTION

This is an employment discrimination case alleging age and handicap discrimination in the discharge of the plaintiff, Vincent LaRosa ("LaRosa"), a former employee of United Parcel Service, Inc. ("UPS"), in violation of Mass. Gen. Laws ch. 151B ("Chapter 151B"). UPS has filed a motion to dismiss, or, in the alternative, a motion for summary judgment. UPS asserts that this Court should dismiss LaRosa's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) because 1) his claims are preempted by the Federal Aviation Administration Authorization Act of 1994; 2) his claims are preempted by section 301 of the Labor Management Relations Act; 3) his claims are subject to dismissal because of the preclusive effect of a prior arbitration decision; and 4) his claims of retaliation and failure to provide reasonable accommodation are barred because they were not within the scope of the administrative charge filed with the Massachusetts Commission Against Discrimination.

STANDARD OF DECISION

In support of its position that LaRosa's claims are preempted and that he has failed to state a claim upon which relief can be granted due to the preclusive effect of a prior arbitration decision, UPS has submitted the collective bargaining agreement and supplements, documents related to LaRosa's grievance procedure, and the arbitrator's decision. As consideration of these documents is necessary to rule on the UPS motion, it must be treated as a motion for summary judgment pursuant to Fed.R.Civ.P. 56. See Fed. R.Civ.P. 12(b).

BACKGROUND

For the purpose of this motion, the following facts may be taken as undisputed. LaRosa was a union employee at UPS from 1973 until his discharge in November, 1996. In 1978, he suffered a work-related back injury and alleges that he has been periodically disabled due to back pain since then. On November 15, 1996, LaRosa left work early because trailers at the preload stations were blocking his access to vehicles he needed to move to service. He believed it was permissible to leave because he alleges that in October, 1995 "[he] was given permission by his supervisor to work though lunch and leave work early on Friday nights, so long as all his assigned work was done." Complaint ¶ 4. Since he had not taken lunch or any breaks on that Friday and could not perform his work responsibilities because of the positioning of the trailers, he left. See Nadeau Aff., Ex. C. As a result of this action, he was discharged by UPS for "stealing time."

Following his discharge, in compliance with the grievance procedures of the collective bargaining agreement, LaRosa filed a grievance report with the union seeking reinstatement and back pay. See id. In the report LaRosa alleges that his supervisor had told him that "if ever I finished all my work on Friday night I could leave." Id. Because the positioning of various trailers in the preload station made it impossible for LaRosa to perform his duties that particular Friday, and as he had not taken any lunch or breaks, he went home early. The union, on LaRosa's behalf, claimed that UPS violated the discharge provisions of the collective bargaining agreement. See United Parcel Service New England Supplemental Agreement, Art. 59. The arbitrator concluded that LaRosa's discharge was proper, reasoning that as there was no evidence to support a finding that his supervisor gave him permission to leave early and still get paid, LaRosa was guilty of stealing time and such conduct was a permissible basis for his termination. See Nadau Aff., Ex. D. At the time of his discharge, LaRosa was fifty-five years old. He alleges that he was also "within 14 months of being able to retire with benefits based upon 25 years of service." Complaint ¶ 10.

Following his discharge, LaRosa filed a timely complaint with the Massachusetts Commission Against Discrimination ("MCAD") alleging age and handicap discrimination. Pursuant to Mass. Gen. Laws, ch. 151B, § 9, he initially filed the complaint in this case in the Massachusetts Superior Court sitting in and for the County of Suffolk. UPS properly removed the case to federal court pursuant to 28 U.S.C. § 1441(b) as there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000. In his complaint, LaRosa avers that 1) other employees of UPS, who were younger than LaRosa and were not handicapped persons, were permitted to leave early after all work was completed and 2) that other employees, who were younger than LaRosa and were not handicapped persons, and who were charged with "stealing" or "stealing time" were not terminated or were reinstated after termination. See Complaint ¶¶ 6 & 7. LaRosa alleges that this disparate treatment is proof that his termination was pretext for age and handicap discrimination. Also, he alleges that UPS failed to provide him reasonable accommodations for his back condition and terminated him in retaliation for his refusal to perform heavy duty work which was against his doctor's orders. See id. ¶¶ 12 & 13.

PREEMPTION UNDER FEDERAL AVIATION ADMINISTRATION AUTHORIZATION ACT

UPS argues that section § 601(b)(1) of the Federal Aviation Administration Authorization Act ("FAAAA"), codified at 49 U.S.C. § 41713(b)(4)(A), requires the preemption of LaRosa's state law claims.¹ Section 601(b)(1) states, in pertinent part:

(A) General rule.—Except as provided in subparagraph (B), a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle (whether or not such property has had or will have a prior or subsequent air movement).

(emphasis added).

Its language is similar to the general preemption provision of the Airline Deregulation Act ("ADA") codified at 49 U.S.C. § 41713(b)(1) (formerly codified at 49 U.S.C.App. § 1305[a][1]),² but applies to all-cargo air transportation carriers. Because the key language is the same and the purpose of the FAAAA regarding all-cargo air transportation carriers is essentially the same as the purpose of the ADA, i.e., deregulation of the air transportation industry and promotion of competitive market forces,³ the case law interpreting 49 U.S.C. § 41713(b)(1) should apply with equal force to 49 U.S.C. § 41713(b)(4)(A).

The presumption, of course, is against preemption. As noted by this Court, "preemption analysis relies on the assumption that `the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.'" Doricent v. American Airlines, Inc., Civ. A. No. 91-12084Y, 1993 WL 437670 *2 (D.Mass. Oct.19, 1993) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 [1947]). The burden is on the party seeking preemption to establish that enforcement of the state laws would frustrate and interfere with the purpose of the Federal Act. See Abdu-Brisson v. Delta Air Lines, Inc., 128 F.3d 77, 83 (2nd Cir.1997) (citing New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 [1995]; Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 98 [1992]).

In Morales, the Supreme Court delineated the preemption standard for the ADA, stating that "state enforcement actions having a connection with or reference to airline `rates, routes, or services' are pre-empted under 49 U.S.C.App. § 1305(a)(1) [now codified at 49 U.S.C. § 41713(b)(1)]." 504 U.S. at 384, 112 S.Ct. 2031. This preemption clause, however, is not a broad-brush stroke. "[S]ome state actions may affect [a price, route, or service of an air carrier] in too tenuous, remote, or peripheral a manner to have preemptive effect." Morales, 504 U.S. at 390, 112 S.Ct. 2031. This Court has characterized this limitation on the scope of ADA preemption as the "significant impact" test. See Doricent, 1993 WL 437670 at *4-5.

Since this Court's decision in Doricent, the Supreme Court has returned to the preemption provision of the ADA in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). Wolens reaffirmed the scope of the ADA's preemption provision as articulated in Morales. Wolens involved a suit brought by participants in the airline's frequent flyer program challenging the airline's retroactive changes in the terms and conditions of the frequent flyer program. The plaintiffs alleged breach of contract and violations of the state consumer fraud statute. The Court held that the ADA preempts state laws that attempt to regulate the marketing mechanisms used by airlines in providing air transportation services, but it does not preempt "suits alleging no violation of state imposed obligations, but seeking recovery solely for the airline's alleged breach of its own, self-imposed undertakings." Wolens, 513 U.S. at 228, 115 S.Ct. 817. The Supreme Court's decision in Wolens did not alter the holding of Morales. Whereas Morales focused its analysis on the "related to" language in the preemption provision, Wolens focused its analysis on the "enact or enforce any law" language in the preemption provision.

At oral argument in this matter, UPS argued that Wolens, by giving "short-shrift" to the significant impact analysis of Morales, indicates that this analysis is no longer part of the...