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Morgan v. Communication Workers of America

March 17, 2009


The opinion of the court was delivered by: Wolfson, United States District Judge


Presently before the Court are separate Motions for Summary Judgment brought by Defendants Communication Workers of America, AFL-CIO, District 1 ("CWA") and Verizon New Jersey Inc. ("Verizon") to dismiss Plaintiff Rita Morgan's ("Plaintiff") Complaint. In turn, Plaintiff also moves for Summary Judgment. In her Complaint, Plaintiff alleges: (1) the CWA failed to adequately represent her during an arbitration hearing, held to determine whether Plaintiff's termination of employment was proper under her employment agreement and the Collective Bargaining Agreement ("CBA"), in violation of § 301 the Labor Management Relations Act ("LMRA"); (2) Verizon wrongfully terminated her employment; and (3) Verizon failed to produce critical witness statements to the CWA . For the reasons that follow, the Court grants Verizon's and the CWA's Motions for Summary Judgment, and denies Plaintiff's Motion.


Plaintiff is a former Verizon employee. For over twenty-four years, between 1981 and November 1, 2005, Plaintiff served as a consultant for Verizon, answering customer phone calls, selling products and services, and placing orders at a Verizon call center located in Hamilton, New Jersey. Def. Verizon's Statement of Material Facts Not in Dispute Pursuant to L. Civ. R. 56(1)("Verizon's SOF") ¶1. As a Verizon employee, Plaintiff was a member of the CWA and was subject to the terms and conditions of the CBA between Verizon and the CWA. Id. ¶2.

Plaintiff alleges that on July 22, 2005, she overheard one of her co-workers, Carlton Evans, an African-American male, use the word "nigger" loudly in a conversation with another co-worker, forcing Plaintiff to cover her phone so the customer with whom she was speaking could not hear Evan's comments. Pl.'s Compl. ¶6. Shortly thereafter, Plaintiff reported the incident to Erica Kelly, Call Center Manager. Id. ¶7. As a result, Evans was forced to participate in a coaching discussion for inappropriate language in the workplace. Id. ¶9. However, Evans was never referred to EEO for the incident; at which point, Plaintiff filed a report with the EEO documenting the incident. Id. ¶10. In a separate incident, on August 12, 2005, Plaintiff's supervisor, Ferne Walker, an African-American female, suspended Kathleen LoPresti, a white female, and Plaintiff's co-worker and friend, for ten days, due to customer mistreatment. Verizon's SOF ¶4.

In light of what Plaintiff perceived to be disparate treatment, Plaintiff told another co-worker, Tammy Jones, that she did not believe Lopresti's suspension was fair. Pl.'s Compl. ¶12. Specifically, Plaintiff took issue with Evan's use of the word "nigger" and how Evans received a rather lenient disciplinary measure in light of the severity of the conduct. Id. At this point, some of Plaintiff's co-workers overheard Plaintiff's use of the word "nigger." Verizon's SOF ¶6; Certification of Mary Rogers ("Rogers Certif."), Exh. 7, p. 112:5-14; 239:20-25. Plaintiff contends that she merely repeated what Evans said to Jones. Pl.'s Compl. ¶12. However, Keshon Bennet and Chuck Basich, two Verizon employees, reported hearing Plaintiff refer to Walker as "a real nigger." Verizon's SOF ¶7; Rogers Certif., Exh. 7, p. 98:25; 99:2-4; 100:4-25; 101:3-4; 111:18-25; 112:1-15. In fact, Basich sent an instant message to his team leader Tamara Congleton which stated: "RITA WAS JUST OVER HERE MAKING RACIAL SLURS BECAUSE HER BUDDY GOT SUP FOR 10 DAYS AND J ONLY GOT A WEEK. . . .SAID THAT FERNE IS 'THE N WORD'. . .BECAUSE CATHLEEN AND HER R WHITE THEY GET HARASSED." Verizon's SOF ¶8; Rogers Certif., Exh. 16 (emphasis in original). Eventually, Plaintiff's conduct was reported to Kelly who in turn contacted Verizon's EEO Compliance office. Verizon's SOF ¶¶9-10. Bennett also overheard Plaintiff refer to Walker as a "real nigger" and reported the conduct o his team leader, Chris O'Brien, on August 13, 2005. Id. ¶13.

On August 30, 2005, Wanda Jenkins, EEO Compliance Senior Staff Consultant, began to investigate the situation and interviewed Congleton, O'Brien, Bennett, Basich, and Jones. Rogers Certif., Exh. 6, p. 60:2-12. In addition, Jenkins informed the CWA representative for Verizon to "be on standby in the event that witnesses want union representation with them as well." Verizon's SOF ¶15. On August 31, 2005, Plaintiff was informed by Congleton to see her union representative. Pl.'s Compl ¶16. Plaintiff spoke with a CWA representative, Amy Lafferty. At that point, Lafferty accompanied Plaintiff to a conference room where Plaintiff was to meet with management. Id. What transpired during the meeting is in dispute. Plaintiff alleges that Jenkins conducted the meeting as an interrogation, informing Plaintiff that Lafferty was not to speak or interrupt the interview in any way. Id. ¶¶17-18. In addition, Plaintiff alleges that Jenkins screamed at her on several occasions, calling her a liar. Id. Verizon contends that Jenkins presented the accounts of Plaintiff's co-workers who overheard Plaintiff's conversation and that Plaintiff stated that if she did use the word "nigger," it was in order to repeat what Evans had said and was not in reference to her supervisor. Verizon's SOF ¶20. Lafferty was present throughout the entire interview except at one point when Lafferty was asked by Plaintiff to leave the room. Id. Plaintiff alleges that after she asked Lafferty to leave the room, Plaintiff informed Jenkins that she knew that Jenkins and Basich were having a sexual relationship, and that she knew the couple were having sex on company property during operating hours. Pl.'s Compl. ¶20. Plaintiff offered this information as a reason why Basich may have exaggerated or even fabricated what he overheard. Id.

Verizon contends that Plaintiff called out sick the next day, September 1, 2005. Verizon's SOF ¶21. However, Plaintiff alleges that Lafferty advised her to not to return to work on September 1 given Plaintiff's mental state. Pl.'s Compl. ¶26. Subsequently, Plaintiff was placed on leave for the next month. Verizon's SOF ¶ 21. When Plaintiff returned on November 1, 2005, Verizon terminated her employment, citing the Company's Code of Business Conduct which provides that "employees who violate company standards may be disciplined up to and including dismissal." Id. ¶22. Specifically, Verzion cited Plaintiff's use of a racial slur in the workplace and Plaintiff's failure to tell the truth during her investigative interview. Immediately thereafter, the CWA filed a grievance on Plaintiff's behalf over her discharge. The grievance was filed in accordance with the three-step Grievance Procedure contained in the CBA. CWA's Statement of Undisputed Material Facts Pursuant to L. R. Civ. P. 56.1 ("CWA's SOF") ¶5. Verizon maintained that Plaintiff's discharge was appropriate.

On November 2, 2005, Lafferty signed a Request for Records pertaining to the grievance filed on behalf of Plaintiff. Rogers Certif., Exh. 23, Request for Records. The request also asked Verizon to produce certain documents, including Plaintiff's individual attendance report, Plaintiff's absence and tardiness calender, records of discussions in reference to Plaintiff's dismissal, any documentation pertinent to Plaintiff's dismissal, and all documents with respect to the investigation of Plaintiff. Id. Verizon complied with the CWA's request, providing the CWA with the date of the original complaint made against Plaintiff, all documents in the personnel files of employees that relate to the investigation, the Performance Documentation Form for Plaintiff's dismissal, the Employee Contact Memorandum that informed Plaintiff of her termination, an Exit Interview Form for Plaintiff, Plaintiff's Individual Attendance Report, Plaintiff's 2005 Absence and Tardiness Record and 2004 Associate Performance Appraisal Plan. Id.

On December 28, 2005, Plaintiff requested that Verizon reinstate her employment, contending that her termination was premised on inaccurate accounts of what she actually said during her conversation with Jones. Pl.'s Compl. ¶28. However, Verizon refused to do so. On April 26, 2006, the CWA notified Verizon that it intended to arbitrate Plaintiff's discharge. Rogers Certif., Exh. 22. Plaintiff alleges that the CWA did not inform her that it would proceed with a grievance until June 2006. According to Plaintiff, the CWA delayed in proceeding with a grievance because Verizon did not timely produce copies of witness statements. Pl.'s Compl. ¶30.

Once the CWA decided to pursue an arbitration hearing, the CWA appointed Elaine Waller, a CWA Staff Representative, to represent Plaintiff. Certification of Elaine Waller ("Waller Certif.") ¶5. Plaintiff has produced numerous emails and other letters that she sent Waller, including a letter dated November 14, 2006, in which Plaintiff objected to the continued participation of Lafferty in the matter. Certification of Rita Morgan ("Morgan Certif."), Exh. I. Additionally, Plaintiff told Waller that Jones would be willing to cooperate and speak with CWA officials about the incident, but was unwilling to speak with Lafferty or any other CWA officials located in Hamilton. Id. Plaintiff has also produced other correspondences with Waller in which Plaintiff provided the names of numerous witnesses and issues to explore in preparation for the arbitration. Morgan Certif., Exh. J. Plaintiff claims Waller did not follow up on any of these potential leads.

On January 18, 2007, Waller sent out a number of letters to the following individuals inquiring as to whether they would be willing to speak with the CWA regarding Plaintiff's case: Evans, Monique Lomax, Basich, Bennett, Jones, Eileen Monihan, Mary Langfeld, and Lopresti. Waller Certif. ¶18. On March 12, 2007, Waller sent Lori Kirschner, a member of Verizon's Labor Relations Department, an email requesting information related to Plaintiff's discharge. Rogers Certif., Exh. 24. Of those contacted to testify, only Langfeld and Lopresti contacted Waller. Pinarski Certif., Exh. D, p. 98:14-15. Waller also contacted Richard Speiler, an IBEW Business Agent, to provide testimony in support of Plaintiff's case. Id. p. 98:16-20. In addition to these inquiries, Waller met with Plaintiff numerous times to discuss her case, including September 29, 2006, March 8, 2007, March 20, 2007, and April 23, 2007. Waller Certif. ¶¶ 16, 22, 25, 28. On April 3, 2007, CWA official Pat Niven contacted Joseph Gimilaro, Area Executive Director of Labor Relations for Verizon, asking for copies of the statements that Verizon used in its decision to terminate Plaintiff. Rogers Certif., Exh. 25. Waller also sought more documentation in preparation of Plaintiff's case. For instance, on April 4, 2007, Waller contacted Kirschner again seeking witness statements only to be informed by Kirschner that Verizon would not provide this documentation because Verizon claimed it was not legally required to produce it. Rogers Certif., Exh. 27. However, Waller was able to secure copies of Plaintiff's performance appraisals, her work schedule, and a copy of the coaching discussion between Walker and Evans. Rogers Certif., Exhs. 25, 26.

On April 26, 2007, Arbitrator Carol A. Wittenberg ("Arbitrator") heard the first day of testimony. On behalf of Verizon, Kelly, Congleton, and Jenkins testified. See Pinarski Certif., Exh. A, Transcript of Arbitration Hearing. Waller cross-examined each of these witnesses and took notes during their direct-examination. Id. Jenkins testified that she interviewed three employees, Jones, Benett, and Basich, who each heard Plaintiff use a racial slur to refer to Walker. Id. pp. 61-63; 66. The next day, Plaintiff sent an email to Waller thanking her for her work the day before at the hearing, and informing Waller that she was "busy working on getting a lot of info on paper" so that they could finish preparing her direct examination. Pinarski Certif., Exh. D., Deposition of Rita Morgan, p. 158. On May 4, 2007, Plaintiff sent Waller a letter with several attachments, one entitled "My Apology." Id. pp.129-131. Plaintiff admits she did indeed craft the letter, in which she admitted to referring to Walker as a "real nigger" but only upon the directive of Waller and others at the CWA who informed her that she could not win her arbitration case unless she admitted to wrongdoing. Id. pp. 136-138. The CWA contacted Plaintiff and arranged additional preparation meetings on May 22, June 14, and August 10, 2007. Waller Certif. ¶37. In addition to these meetings, Waller and Plaintiff exchanged numerous sets of questions and responses in preparation for Plaintiff's direct examination. Pinarski Certif., Exh. D., pp. 155-58. Despite these submissions, Plaintiff paints a very different picture of the quality of Waller's representation. Indeed, Plaintiff alleges that Waller was completely unfamiliar with the case, notably the who, what, where, and when of the alleged incident and the subsequent investigation. Pl.'s Compl. ¶39.

During the second day of testimony, August 14, 2007, Verizon presented four witnesses, Basich, Jones, Bennett, and Walker. Basich and Bennett both testified that they heard Plaintiff use the phrase "She is a real nigger." Jones, too, testified that she thought she heard Plaintiff use the word "nigger" and that it was Jones' assumption that Plaintiff used the word to refer to Walker. Again, Waller cross-examined all four witnesses. Pinarski Certif., Exh. A, pp. 104-142. In support of Plaintiff's case, Waller called five witnesses, Speiler, Kessell, Langfeld, LoPresti, and Morgan. Morgan testified that on August 12, 2005, she did refer to Walker as a "real nigger," apologized, and asked to be reinstated. Id. p. 239. After Plaintiff's testimony, Waller made an oral closing statement where she reiterated that Verizon did not have just cause to terminate Plaintiff and that Plaintiff's outburst was an isolated incident. Id. pp. 270-79. On September 24, 2007, the Arbitrator issued a written decision in Plaintiff's arbitration case, upholding Verizon's termination. Rogers Certif, Exh. 33, Arbitration Decision. On October 9, 2007, Plaintiff filed an Unfair Labor Practice Charge with the National Labor Relations Board ("NLRB"), alleging that CWA breached its duty of fair representation. Pinarski Certif., Exh. F, NLRB Complaint. The Board summarily dismissed Plaintiff's charge in its entirety as without merit.*fn1 Id.

On January 9, 2008, Plaintiff filed this Complaint in New Jersey Superior Court, Chancery Division, Mercer County Vicinage. Subsequently, Verizon filed a Notice of Removal pursuant to 28 U.S.C. §1441 on January 14, 2008. Verizon asserted that jurisdiction was proper pursuant to 28 U.S.C. §1332(a) because Plaintiff's Complaint alleged violations of § 301 of the LMRA, and thus raised a federal question. On February 4, 2008, Verizon filed its Answer to Plaintiff's Complaint. CWA filed its Answer on February 29, 2008. On August 8, 2008, all three parties to this case filed ...

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