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Dennis Morrissey v. Verizon Communications Inc

July 7, 2011

DENNIS MORRISSEY, PLAINTIFF,
v.
VERIZON COMMUNICATIONS INC., DEFENDANT.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:

ECF

MEMORANDUM OPINION & ORDER

The Complaint in this action alleges age discrimination in violation of the New York State and City Human Rights Laws. Plaintiff Dennis Morrissey worked as a technician for Defendant Verizon Communications, Inc. ("Verizon") between 2005 and 2009. In 2009, Verizon terminated Plaintiff's employment as part of a reduction in force. Morrissey alleges that Verizon terminated him because of his age, and claims that although Verizon was obligated -- under a collective bargaining agreement with his union -- to lay off technicians according to seniority, it ignored seniority in order to lay off older technicians.

Morrissey filed this action on July 16, 2010, in Supreme Court of the State of New York, New York County. On August 16, 2010, Verizon removed the action to federal court, asserting that Morrissey's claims are preempted by Section 301 of the Labor Management Relations Act ("LMRA"). (Docket No. 1, Notice of Removal ¶¶ 5-8) Morrissey now moves to remand this action to state court. For the reasons stated below, the motion to remand will be denied.

BACKGROUND

In September 2005, Verizon hired Plaintiff to work as a technician in its facility at 540 Washington Street in Manhattan. (Cmplt. ¶¶ 4, 5, 6) In September 2009, when Morrissey's employment was terminated, he was 59 years old. (Cmplt. ¶¶ 3, 4) Although Plaintiff was not hired by Verizon until 2005, the Complaint asserts that "[b]y virtue of plaintiff's past employment with other communications companies purchased by Verizon, plaintiff's credited seniority with Verizon was 14 years." (Cmplt. ¶ 4) Morrissey claims that he "had the most credited seniority" of the four technicians working at Verizon's Washington Street facility. (Cmplt. ¶ 7)

The Complaint further alleges that "Verizon was obligated to lay off technicians according to seniority." (Cmplt. ¶ 11) Although the Complaint does not cite to a collective bargaining agreement ("CBA"), it appears undisputed that the premise for this claim is a CBA between Verizon and the Communications Workers of America. See Pltf. Reply Br. 4-5.

In September 2009, Verizon conducted a reduction in force and terminated Morrissey's employment. (Cmplt. ¶¶ 10, 12) In doing so, Morrissey alleges that Verizon violated its obligation to lay off technicians according to seniority. The Complaint further alleges that Verizon's treatment of Morrissey was part of a larger pattern of Verizon "intentionally ignor[ing] its seniority list in order to lay off older technicians." The Complaint asserts that Plaintiff's employment was terminated because of his age in violation of the New York State and City Human Rights Laws. (Cmplt. ¶¶ 13-16)

DISCUSSION

I.THE MOTION TO REMAND WILL BE DENIED

Verizon removed this action to federal court on the ground that Plaintiff's state law claims are preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. (Docket No. 1, Notice of Removal ¶¶ 7-9) Morrissey moves to remand, arguing that "[t]his is a garden variety age discrimination lawsuit brought solely pursuant to state law." (Pltf. Br. 4)

A.Applicable Law

On a motion to remand, the party seeking removal bears the burden of establishing to a 'reasonable probability' that removal is proper." Anwar v. Fairfield Greenwich Ltd., 676 F. Supp. 2d 285, 292 (S.D.N.Y. 2009). "Any doubts regarding the propriety of removal are resolved in favor of remand, and 'federal courts construe the removal statute narrowly.'" Id. (quoting Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)).

Generally, removal is proper if an action originally filed in state court could have been filed in federal court. See 28 U.S.C. § 1441(a) (2000) ("[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."). Absent diversity of citizenship,*fn1 this occurs "when a federal question is presented on the face of the plaintiff's properly pleaded complaint." See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). "Where the removal is based upon federal question jurisdiction, the well-pleaded complaint rule governs." White House/Black Mkt., Inc. v. Cache Inc., No. 10 Civ. 5266(PGG), 2010 WL 2985232, at *3 (S.D.N.Y. July 27, 2010) (internal quotations marks omitted) That is, a federal question must appear on the face of the plaintiff's properly pled complaint. "This rule enables the plaintiff to be the 'master of the claim' and permits plaintiff ...


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