United States District Court, D. Rhode Island
JAMES J. MCMAHON, Plaintiff,
VERIZON NEW ENGLAND, INC., alias, Defendant.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE
the Court are multiple motions: (1) Defendant Verizon New
England, Inc., alias's (“Verizon”) Motion for
Summary Judgment (“Defendant's Motion”) (ECF
No. 12); (2) Plaintiff's Cross Motion for Partial Summary
Judgment (“Plaintiff's Cross Motion”) (ECF
No. 17); (3) Plaintiff's Motion To Strike Certain of
Defendant's Statement of Disputed Facts and the
Declaration of James R. Fennell (“Plaintiff's
Motion To Strike”) (ECF No. 22); and (4)
Defendant's Motion To Strike Portions of Plaintiff's
Reply in Support of his Cross-Motion for Partial Summary
Judgment (“Defendant's Motion To Strike”)
(ECF No. 25).
worked for Verizon as a splice service
technician.(Pl.'s Statement of Undisputed Facts
(“PSUF”) ¶ 5.) The duties associated with
this position generally include operating a hydraulic aerial
lift or bucket truck, but McMahon, during his employ, only
operated an ordinary work van. (Id. ¶ 6.)
September 6, 2011, McMahon arrived at work for his shift at
7:30 a.m. (Id. ¶¶ 13-14.) By 7:45 a.m., he
approached his supervisor for his work assignment.
(Id. ¶ 15.) Based on their interaction,
including the supervisor's perception of McMahon's
speech, breath, and body language, the supervisor accused
McMahon of being intoxicated and therefore unfit for duty.
(Id. ¶¶ 16-17.) Another of McMahon's
supervisors did not observe anything out of the ordinary
about his behavior that day because, he noted, McMahon
“always presented with a slight odor of alcohol.”
(Id. ¶ 19.) In any event, Verizon requested
that McMahon submit to a blood alcohol test to set the record
straight that he had not been drinking. (Id. ¶
20.) McMahon refused, and as a result, Verizon presumed
McMahon intoxicated, and promptly suspended him.
(Id. ¶¶ 23-24, 26.) Thereafter, McMahon
was terminated on September 15, 2011, on the basis that he
was intoxicated at work. (Id. ¶ 27.)
entire time he worked for Verizon, McMahon was a member of
and represented by the International Brotherhood of
Electrical Workers Local 2323 (“Union”), and was
subject to a Collective Bargaining Agreement
(“CBA”) between the Union and Verizon.
(Def.'s Statement of Undisputed Facts
(“DSUF”) ¶ 2, ECF No. 14.)The CBA's
terms empowered the Union with the “right to grieve and
arbitrate complaints over the interpretation and application
of any provision of the CBA, including whether the discharge
or discipline issued to a bargaining unit employee was for
just cause.” (Id. ¶ 15.)
Union grieved McMahon's firing. (PSUF ¶ 31.) While that
grievance was pending, on July 9, 2012, McMahon, the Union,
and Verizon, came to an agreement (“Settlement”)
that reinstated McMahon's employment. (Id.
¶ 32.) McMahon signed the agreement on his first day
back to work, and the Union withdrew its grievance.
(Id. ¶¶ 33-34.) The Settlement included a
provision that subjected McMahon to three years of mandatory,
random alcohol and drug tests as a continued-employment
condition. (Id. ¶ 36.) Verizon put McMahon
through four random drug and alcohol tests between July 16,
2012 (when he returned to work) and October 1, 2014 (his
final drug test). (Id. ¶¶ 35, 37, 38.)
October 1, 2014, Verizon requested that McMahon submit to a
random drug and alcohol test. (Id. ¶ 38.)
McMahon allegedly tested positive for marijuana and thus
failed the test. (Id. ¶ 39.) Again, McMahon
was immediately suspended and thereafter terminated by letter
on October 20, 2014. (Id. ¶¶ 40, 42.)
November 9, 2015, McMahon filed his Complaint (ECF No. 1-1)
in state court. Verizon timely removed the case to this
Court, based on diversity jurisdiction, on December 4, 2015.
The motions before the Court followed.
“Summary judgment is warranted where ‘there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.'”
Matusevich v. Middlesex Mut. Assur. Co., 782 F.3d
56, 59 (1st Cir. 2015) (quoting McGair v. Am. Bankers
Ins. Co. of Fla., 693 F.3d 94, 99 (1st Cir. 2012)).
“Where, as here, there are cross motions for summary
judgment, [the Court] evaluate[s] each motion independently
and determine[s] ‘whether either of the parties
deserves judgment as a matter of law on facts that are not
disputed.'” Id. (quoting Barnes v.
Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir.
2004)). Further, in viewing each motion separately, the Court
“draw[s] all inferences in favor of the nonmoving
party.” Cooper v. D'Amore, 881 F.3d 247,
249-50 (1st Cir. 2018) (quoting Fadili v. Deutsche Bank
Nat'l Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014)).
asserts this one-count, state-law action against Verizon for
an alleged violation of the Urine and Blood Tests as a
Condition of Employment Act, R.I. Gen. Laws § 28-6.5-1
et seq. (“UBTCEA”). (Compl. ¶ 1.)
the gate, McMahon encounters a statute-of-limitations
problem. The Rhode Island Supreme Court has held that UBTCEA
is subject to a three-year statute of limitations.
Goddard v. APG Security-RI, LLC, 134 A.3d 173, 177
(R.I. 2016). Therefore, at first glance, it appears that
McMahon's claim is barred because the termination
occurred on October 5, 2011, but McMahon did not file his
Complaint in state court until November 9,
2015. McMahon, however, avers that his claims
fall under an exception to the three-year