McCarty v. Verizon New England, Inc.

• Citation: 731 F.Supp.2d 123,77 Fed.R.Serv.3d 391
• Decision Date: 17 August 2010
• Docket Number: Civil Action No. 09-10991-RGS
• Parties: Anthony McCARTY v. VERIZON NEW ENGLAND, INC. and Jeffrey Romano.
• Court: U.S. District Court — District of Massachusetts

731 F.Supp.2d 123

77 Fed.R.Serv.3d 391

Anthony McCARTY

v.VERIZON NEW ENGLAND, INC. and Jeffrey Romano.

Civil Action No. 09-10991-RGS.

United States District Court, D. Massachusetts.

Aug. 17, 2010.

Edward A. Bopp, James N. Ellis, Sr., Ellis & Associates, Worcester, MA, for Anthony McCarty.

Michael D. Fleischer, Arthur G. Telegen, Seyfarth Shaw, LLP, Boston, MA, for Verizon New England, Inc.

Israel M. Sanchez, Milford, NH, Sarah N. Turner, Boston, MA, Rickie T. Weiner, Law Office of Rickie T. Weiner, Worcester, MA, for Jeffrey Romano.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

STEARNS, District Judge.

Plaintiff Anthony McCarty brought this lawsuit in Worcester Superior Court alleging common-law claims for intentional infliction of emotional distress (Count I), negligent infliction of emotional distress (Count II), trespass (Count III), and respondeat superior (Count IV)-all based on the allegedly abusive behavior of Jeffrey Romano, McCarty's supervisor at Verizon New England, Inc. On June 10, 2009, Verizon removed the action to federal court under auspices of the Labor Management Relations Act (LMRA), 29 U.S.C. § 141, et seq., and the collective bargaining agreement (CBA) then in effect. Defendants moved for summary judgment on March 23, 2010.¹ A hearing was held on July 22, 2010.

BACKGROUND

Although the parties differ in their characterization of events, the essential facts are not in dispute. McCarty began working at Verizon on April 15, 1996, as a service technician at the Brook Street office in Worcester, Massachusetts, where he was responsible for installing and repairing telephone lines. Verizon is a partyto a CBA with Local 2325 of the International Brotherhood of Electrical Workers, of which McCarty was a member. The CBA governed the terms and conditions of McCarty's employment, including hours, pay, performance evaluations, and employee conduct.

The CBA also contains a "Management Rights" clause which provides: "Subject only to the limitations in this Agreement the Company retains the exclusive right to manage its business including (but not limited to) the right to determine the methods and means by which its operations are to be carried on, to assign and direct the work force and to conduct its operations in a safe and effective manner." CBA § G11.01. Under this clause, Verizon established a safety management program called Verizon Practices. The program requires Verizon's local managers to conduct unannounced work site visits. This duty is also mandated in the local manager job description. Local managers are also responsible for assisting employees in completing a Verizon accident form following any workplace injury.

Beginning in 2004, Romano became McCarty's local manager and supervisor. Romano's practice was to make unannounced visits on a monthly basis to observe each of his technicians at work. In an effort to improve productivity, Romano visited underperforming employees more frequently. McCarty fell consistently into this category. McCarty's previous supervisors had also expressed concern over his lack of productivity and would themselves occasionally make inspection visits at his work sites.² In 2004, Romano gave McCarty a "Does Not Meet Requirements" (DN) grade for his "Quality of Performance" during an annual review. McCarty also ranked last in productivity among his sixteen-person work crew. In 2005, McCarty received another DN from Romano for "Quality of Performance" in his annual appraisal, as well as DNs in "Quantity/Productivity" and "Problem Solving/Decision Making." He again ranked last in productivity among his co-workers.

Perceiving no improvement in McCarty's performance, Romano redoubled his inspection visits "up to several times per week" for a duration of "up to an hour." Pl.'s Offer of Proof-Ex. 2 at 2. McCarty also alleges that Romano often would follow him while he drove between worksites and page him for status updates on work orders. Additionally, Romano scheduled extra meetings with underperforming employees like McCarty to "identify roadblocks and workable solutions that would help an employee achieve their goals." Defs.' Statement of Facts (SOF) ¶ 9. McCarty was called to "several" of these meetings. Defs.' SOF ¶ 9. McCarty considered the meetings to be a form of harassment by Romano, who was "hypercritical" and "unappreciative of [his] efforts and unique personality." Pl.'s Offer of Proof-Ex. 2 at 1-2.

Psychiatric Treatment

In 2005, Romano's close supervision made McCarty so anxious that he took leave from work and sought medical attention. On February 23, 2005, McCarty presented to Dr. Steven Hoffman, a psychiatrist. His reported symptoms included insomnia, anxiety, daytime fatigue, stress, a decreased ability to concentrate, psychomotor slowing, and an increase in migraine headaches. McCarty was diagnosed as having an acute stress disorder and generalized anxiety disorder. For approximately four months, he remained onmedical leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. Dr. Hoffman did not prescribe psychiatric medications at McCarty's insistence. McCarty's last visit with Dr. Hoffman during his FMLA leave was on May 28, 2005, at which time he reported improvement and was discharged from treatment. McCarty returned to work at Verizon in the fall of 2005.

History of Drug Use

During his treatment with Dr. Hoffman, McCarty disclosed a history of drug addiction. In 2002, while employed at Verizon, McCarty began using illicit narcotics, including morphine sulfate, OxyContin, and heroin. Six months later, McCarty sought treatment at a methadone clinic. McCarty has remained on methadone since, except for a three-month period when he was treated with a methadone substitute, Suboxone. McCarty acknowledged one relapse for approximately two months in early 2005, when he abused prescription narcotics, but denied that his drug addiction had ever affected him at work.

Workplace Driving Accident

On May 23, 2006, McCarty had an accident while driving his Verizon truck to his first job of the day. Believing that Romano might be following him, McCarty checked his rear and side view mirrors before entering a highway on-ramp. His attention diverted, McCarty drove into a Jersey barrier on the side of the on-ramp with sufficient force to be knocked unconscious. McCarty regained consciousness at the scene and was then transported by ambulance to the emergency room at St. Vincent's Hospital in Worcester. Hospital records indicate that McCarty disappeared for several hours after being admitted. He was later found hunched on his knees in a hospital bathroom. Doctors administered McCarty an anti-opiate medication. After recovering, McCarty admitted to the treating staff that he had snorted heroin earlier that day. After a six-hour observation period, McCarty was interviewed by a social worker to whom he admitted "actively using heroin daily for several years." ALJ Decision at 6. McCarty's urine tested positive for opiates during a drug toxicology screen. McCarty was released in the early morning hours of May 24, 2006. The discharge instructions from the hospital indicate that McCarty was treated for a narcotic overdose.³

Aftermath of Workplace Accident

On May 24, 2006, McCarty called Romano and told him that he had been in a vehicle accident and would not be coming into work. The parties have differing accounts of whether McCarty phoned in over the ensuing week. On June 1, 2006, Romano came to McCarty's parents' home in Gardner, Massachusetts, where McCarty lived as a paying tenant. Romano's purpose was to obtain a completed Verizon workplace accident form from McCarty. Although Romano claims that he had made an appointment, McCarty denies it. The parties also disagree over what happened next. Romano claims that he was initially greeted by McCarty's mother, who told him to wait at the front door while she summoned McCarty from his room. At some point, McCarty's father came to the door. While it is undisputed that a heated argument broke out between the two men over whether Romano would be allowed to see McCarty, the parties disagree over who initiated the exchange. According toMcCarty, after Romano became argumentative, his father told Romano that his son was not feeling well enough for a meeting. As the father moved to close the door, McCarty claims that Romano attempted to block the door with his boot, requiring his father to use force to bring the door shut. Romano remained on the property, circling the house, peering in windows, yelling and gesturing to McCarty's father to come outside. The father ordered Romano off the premises. When Romano refused to oblige, McCarty's father called the Gardner police. An officer responded and told Romano to leave. Romano retreated to his truck, which was parked in front of the McCarty home, but did not leave until told to do so a second time by the officer.⁴

On August 30, 2006, Verizon terminated McCarty for violating its Code of Business Conduct, "specifically operating a company motor vehicle under the influence of a class 'A' substance." Pl.'s Offer of Proof-Ex. 3. McCarty filed a workers' compensation claim in the fall of 2006, citing the injuries he had sustained in the May 23, 2006 accident and the psychological harms allegedly stemming from Romano's harassment. The Massachusetts Department of Industrial Accidents denied McCarty's claim on November 20, 2006. On appeal, Administrative Law Judge (ALJ) Steven D. Rose held two hearings, the first on July 25, 2007, and a second on December 10, 2007. On December 27, 2007, ALJ Rose issued a written decision rejecting McCarty's appeal. Pl.'s SOF-Ex. 6. The ALJ's decision was affirmed on appeal by the Massachusetts Appeals Court. McCarty's Case, 75 Mass.App.Ct. 1107, 2009 WL 3245454, at *1 (Mass.App.Ct. Oct. 13, 2009). A separate workers' compensation claim filed by McCarty on May 5, 2009, based on the same facts as the first claim, was dismissed as res...