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McMahon v. Verizon New England Inc.

United States District Court, D. Rhode Island

May 11, 2018

JAMES J. MCMAHON, Plaintiff,
VERIZON NEW ENGLAND, INC., alias, Defendant.



         Before 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).

         I. Background

         McMahon worked for Verizon as a splice service technician.[1](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.)

         On 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.)

         The 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.)[2]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.)

         The Union grieved McMahon's firing.[3] (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.)

         On 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.[4] (Id. ¶ 39.) Again, McMahon was immediately suspended and thereafter terminated by letter on October 20, 2014. (Id. ¶¶ 40, 42.)

         On 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.

         II. Legal Standard

          “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)).

         III. Discussion

         McMahon 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.)

         Out of 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.[5] McMahon, however, avers that his claims fall under an exception to the three-year ...

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