A recent Massachusetts decision emphasizes that an employee’s abusive and mean boss does not always equate to legal liability to the employer. In the case of Anthony McCarty v. Verizon New England, Inc. and Jeffrey Romano, Anthony McCarty, a service technician for Verizon brought a Massachusetts state court lawsuit alleging claims of intentional and negligent infliction of emotional distress based upon the alleged abusive behavior of his direct supervisor, Jeffrey Romano. While the ultimate decision on March 25, 2011 dealt with an assessment of attorney’s fees against one of the attorneys representing McCarty, the history of this case provides the best lesson.
First, McCarty had claimed in his state court litigation that Verizon’s and Romano’s conduct were abusive, yet Verizon asserted their rights were clearly established under a collective bargaining agreement between McCarty’s union, being the International Brotherhood of Electrical Workers, and Verizon. That assertion permitted Verizon to remove the state court litigation to federal court citing the preemptive effect of the Labor Management Relations Act and the collective bargaining agreement. Particularly, the collective bargaining agreement contained a “Management Rights” clause which provided that, other than the limited by the agreement, Verizon had the exclusive right to manage its business, including right to determine the methods and means of operations. Under the authority of that clause, Verizon established a safety management program called Verizon Practices. Among its other provisions, Verizon Practices required local managers to conduct unannounced worksite visits, particularly targeting underperforming workers like McCarty.
On August 30, 2006 Verizon terminated McCarty for violating its Code of Business Conduct, specifically for operating a company motor vehicle while under the influence of a class A substance and crashing his Verizon truck into a Jersey barrier. Later that fall, McCarty filed a worker’s compensation claim for injuries he claimed to have sustained in that accident. That worker’s compensation claim was denied, and McCarty three years later filed another worker’s compensation claim for the same injury as well as this state court action that was removed to federal court. Ultimately one of McCarty’s attorneys was sanctioned for meritless conduct because under the worker’s compensation statute, an employee’s exclusive remedy for work-related injuries is generally the worker’s compensation scheme and if you lose under the worker’s compensation process you still can’t bring a claim for emotional distress caused by your boss. The same is true for both New Hampshire and Massachusetts employees. While McCarty’s claim of abusive conduct by his boss seemed to be stunningly frivolous, wherein he got fired for driving a company truck into a Jersey barrier while under the influence of a class A substance, it is a reminder that: a union member’s state law claims may be able to be removed to a federal court; and the exclusivity remedies under the worker’s compensation statute for work-related injuries may prevent such claims.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].