United States Court of Appeals
For the First Circuit
No. 11-1430
ANTHONY McCARTY,
Plaintiff,
v.
VERIZON NEW ENGLAND, INC.; JEFFREY ROMANO,
Defendants, Appellees.
__________
JAMES N. ELLIS,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Boudin, Circuit Judge.
Israel M. Sanchez for appellant James N. Ellis.
Arthur G. Telegen with whom Michael D. Fleischer and Seyfarth
Shaw LLP were on brief for appellees.
March 23, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
BOUDIN, Circuit Judge. Attorney James N. Ellis appeals
from a sanction order against him that was entered by the district
court in the underlying civil suit in which Ellis was the
plaintiff's counsel. McCarty v. Verizon New England, Inc., 772 F.
Supp. 2d 362, 365-66 (D. Mass. 2011). The sanction was an award of
attorneys' fees to the defendants--Verizon New England, Inc. and
Jeffrey Romano--in the amount of $34,908.12. Id. at 367. The
events and course of proceedings are as follows.
On May 23, 2006, Verizon employee Anthony McCarty
crashed a Verizon truck into a highway abutment while driving to
his first job of the day for Verizon. McCarty was injured and
taken to the emergency room at St. Vincent's Hospital in Worcester,
Massachusetts. McCarty eventually admitted to snorting heroin
earlier in the morning; a urine sample taken at the hospital tested
positive for opiate use.
McCarty and his supervisor, Jeffrey Romano, both agree
that McCarty called Romano on May 24, 2006, to say that he would
not be coming into work because of the accident; and McCarty
remained absent from work for the following week. Romano says that
he made numerous but unsuccessful attempts to reach McCarty during
the week. On June 1, Romano drove to McCarty's parents' house,
where McCarty was then living, seeking to have McCarty fill out
Verizon paperwork related to the accident.
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Romano claims this was an arranged meeting; McCarty, that
Romano was uninvited and unwelcome. Either way, the encounter
became hostile: assuming McCarty's version of events, Romano was
asked to leave by McCarty's father and became argumentative.
McCarty claims that Romano attempted to block the door with his
boot when McCarty's father sought to close it. Romano allegedly
remained on the property, circling the house and yelling, until the
police called by McCarty's father ordered him to leave.
Verizon terminated McCarty's employment on August 30,
2006, citing McCarty's operation of a Verizon truck while under the
influence of drugs. McCarty filed a Massachusetts workers'
compensation claim under the Massachusetts Workers' Compensation
Act ("Compensation Act"), Mass. Gen. L. ch. 152; he sought
compensation for the injuries he suffered in the May 23 accident
itself and also for alleged psychological harm based on two
different causes: (1) alleged on-the-job harassment by Romano
before the accident and (2) the June 1 visit by Romano to the
house.
The administrative law judge ("ALJ") denied the claim for
harm suffered in the accident, finding that the accident was caused
by McCarty's drug use, an example of serious, willful misconduct.
The ALJ also found that the alleged pre-accident harassment claim
failed because Romano was not engaged in harassment but was acting
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as a diligent supervisor by following up on McCarty as a
consistently poor worker.
As for the June 1 visit, the ALJ accepted McCarty's
version of what had occurred and deemed Romano's conduct a
"potentially compensable incident." But the ALJ found that McCarty
had failed to prove injury to himself or the causation of any
resulting disability, so no compensation was awarded. McCarty then
appealed from this determination, arguing that the June 1 incident
should not have been considered at all and that the finding should
be deleted.
McCarty's administrative appeal was rejected by the
review board in November 2008, and then in October 2009 by the
Massachusetts Appeals Court, which held that "the June 1, 2006,
incident . . . was part and parcel with the overall tenor of the
employee's psychiatric claim based on supervisor harassment."
McCarty's Case, 2009 WL 3245454 at *1 (Mass. App. Ct. Oct. 13,
2009). It noted too that "there was no abuse of discretion in the
joinder of this [June 1] incident as part of the psychiatric
claim." Id.
On May 5, 2009, while his appeal of the first ALJ
determination and review board affirmance was pending at the
Massachusetts Appeals Court, McCarty filed a second workers'
compensation claim pertaining solely to the June 1 incident at his
parents' home. This claim was rejected by the ALJ as res judicata
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on March 5, 2010. The ALJ's decision was affirmed by the review
board which in turn was recently upheld by the Massachusetts
Appeals Court, McCarty's Case, 2012 WL 468172 (Mass. App. Ct. Feb.
15, 2012), with a state court award of double costs against McCarty
"as the appeal [was] frivolous." Id. at *2.
On May 13, 2009, roughly a week after the second workers'
compensation claim was filed, McCarty filed suit against Verizon
and Romano in state court, charging Romano with intentional
infliction of emotional distress, negligent infliction of emotional
distress, and trespass; the complaint also alleged respondeat
superior liability for Verizon. Verizon and Romano removed the
suit to federal court and asserted that the claims were preempted
by Section 301 of the Labor Management Relations Act ("LMRA"), 29
U.S.C. § 185(a) (2006), and barred by the exclusivity provision of
the Compensation Act, Mass. Gen. L. ch. 152, § 24.
The removal and the assertion of federal preemption
rested upon the connection between McCarty's claims and the
collective bargaining agreement governing the employment
relationship between Verizon and McCarty. Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202 (1985); O'Donnell v. Boggs, 611 F.3d 50, 53
(1st Cir. 2010). As O'Donnell illustrates, state tort claims
against an employer for work-related harm, including emotional
distress, are frequently preempted because of the applicable CBA's
grievance provisions and the need to interpret CBA provisions, such
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as a management's rights clause, in resolving the dispute. Id. at
55-56.
The alternative defense of exclusivity was based upon a
provision in the Compensation Act. The statute covers "personal
injury arising out of and in the course of . . . employment."
Mass. Gen. L. ch. 152 § 26. The exclusivity provision provides
that
[a]n employee shall be held to have waived his
right of action at common law . . . in respect
to an injury that is compensable under this
chapter, to recover damages for personal
injuries if he shall not have given his
employer, at the time of his contract of hire,
written notice that he claimed such right.
Id. § 24.
The exclusivity provision bars claims outside of the
Compensation Act against employers "where (1) the plaintiff is
shown to be an employee; (2) [plaintiff's] condition is shown to be
a personal injury within the meaning of the [Compensation Act]; and
(3) the injury is shown to have arisen out of and in the course of
[plaintiff's] employment." Brown v. Nutter, McClennen & Fish, 696
N.E.2d 953, 955 (Mass. App. Ct. 1998). The exclusivity bar
includes negligence and emotional distress claims, Doe v. Purity
Supreme, Inc., 664 N.E.2d 815, 818-19 (Mass. 1996); Green v. Wyman-
Gordon Co., 664 N.E.2d 808, 813-15 (Mass. 1996), and claims against
co-workers, Gibney v. Dykes, 2008 WL 2677143 at *1 (Mass. App. Ct.
July 10, 2008).
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After removal, the district judge at an early scheduling
conference on December 21, 2009, expressed "serious reservations
about whether this case should have been brought at all." McCarty
v. Verizon New England, Inc., 731 F. Supp. 2d 123, 134 (D. Mass.
2010). McCarty did not withdraw his suit but, in August 2010, it
was ultimately dismissed by the district court on summary judgment
based on both federal LMRA preemption and the state exclusivity
provision. Id. at 130-33.
In dismissing, the district court ruled that sanctions
might be warranted, and it ordered McCarty's several lawyers to
show cause why they should not be sanctioned for filing a frivolous
case. McCarty, 731 F. Supp. 2d at 134-35. In response, Ellis
claimed sole responsibility for managing the case; he argued that
since the second workers' compensation claim was still on appeal,
the state court might find that the June 1 incident fell outside
the scope of the Compensation Act, and that Ellis' filing of the
tort suit was therefore necessary to protect his client's rights.
In its sanctions decision issued on March 25, 2011,
McCarty, 772 F. Supp. 2d 362, the district court accepted Ellis'
claim of sole responsibility but concluded that "no reasonable
attorney--particularly one with Ellis's experience with Workers'
Compensation Act claims--would have failed to recognize the
exclusivity provision as an absolute bar." Id. at 366. The
district court then reduced Verizon's requested award of attorneys'
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fees to $34,908.12 to reflect only the fees incurred after the
district court's December 2009 warning about the lawsuit's
viability; the sum was awarded against Ellis personally. Id. at
367.
Ellis now appeals the award of sanctions against him.
McCarty, represented by new counsel, has voluntarily withdrawn his
appeal of the summary judgment decision. We review sanctions
ordered under Federal Rule of Civil Procedure 11 for "abuse of
discretion." Obert v. Republic W. Ins. Co., 398 F.3d 138, 143 (1st
Cir. 2005). Indisputably, a frivolous lawsuit may be subject to
sanctions, including an award to the other side of attorneys' fees,
Fed. R. Civ. P. 11(c). Pertinently, Rule 11(b) provides:
By presenting to the court a pleading, written
motion, or other paper . . . an attorney . . .
certifies that to the best of [her] knowledge,
information, and belief, formed after an
inquiry reasonable under the
circumstances . . . [that] the claims,
defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous
argument for extending, modifying, or
reversing existing law or for establishing new
law . . . .
On this appeal, Ellis concedes that he was McCarty's lead
attorney both in the workers' compensation proceedings and in the
district court. His central position appears to be this:
-that Romano's alleged harassment of McCarty
during the June 1 visit was a distinct harm
independent of the physical and other medical
claims due to the accident itself and the
alleged harassment prior to the accident;
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-that the June 1 harassment could be viewed as
independent or arising outside of the scope of
employment and therefore non-compensable under
the Compensation Act; and
-that even though the first ALJ had found
against McCarty as to such harassment, the
appeals from that decision and the pursuit of
a second workers' compensation claim required
a protective tort law suit because of the
impending statute of limitations.
The main difficulty for Ellis is that the original
workers' compensation claim litigated for McCarty encompassed
psychological harm stemming from the June 1 incident;1 a necessary
premise of including it was that Romano's visit had been job-
related (Romano had confirmed that he was seeking to complete the
accident report for Verizon); and the claim had failed not for any
doubt of Verizon's responsibility for Romano's visit but because
the ALJ (having held two hearings) found insufficient proof of harm
to McCarty caused by the visit.
Nothing suggests that the premise--that the visit was
work related--was either mistaken or had any chance of being
overturned on state court review of the ALJ's initial decision, let
alone by a collateral attack by a second independent workers'
1
Regardless of whether the initial claim as filed included the
specific trespass incident, the ALJ included it in the original
decision, and as noted above, the state appeals court concluded
that liability for the incident was tried with McCarty's consent.
McCarty's Case, 2009 WL 3245454 at *1.
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compensation claim or by a third effort through a tort suit.2
McCarty in his tort suit expressly alleged that Romano was acting
in the course of his employment during the visit--this being a
condition for respondeat superior liability against Verizon. Lev
v. Beverly Enters.-Mass., Inc., 929 N.E.2d 303, 308 (Mass. 2010).
Given that premise, Ellis has never coherently explained
how he had any chance of overcoming the exclusivity provision of
the Compensation Act. As Ellis concedes on appeal, the ALJ's
"decision in the first claim can be easily interpreted that [sic]
the psychiatric claim resulting from Romano's trespass conduct was
compensable [under the Compensation Act]" and that McCarty merely
failed to provide "sufficient evidence to support causality."
Indeed, on summary judgment, McCarty argued again that "Romano's
actions were clearly motivated at least in part to serve Verizon."
There is a hint in Ellis' brief, never seriously
developed, that Romano's aggressive conduct somehow prevented the
visit from being work related and precluded compensation, thus
avoiding the exclusivity provision. But the ALJ's ruling was to
the contrary and anyway the law is well settled that improper as
well as decorous conduct by a fellow employee or supervisor can
2
Further, while the state court appeal of the original ALJ
decision was not decided until October 2009, after the tort suit
was initiated in May 2009, Ellis continued the tort suit after the
appeals court decision and after the district judge expressed
skepticism in December 2009.
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give rise to workers' compensation claims.3 The primary case that
Ellis offers in support of his argument relates to the treatment of
conduct occurring after an employment relationship has ended.
Larocque's Case, 582 N.E.2d 959, 960 (Mass. App. Ct. 1991).
McCarty's tort suit was not only hopeless but aggravated
by two further factors. One was that two workers' compensation
claims had already been filed by Ellis--the second being itself
virtually hopeless--making the tort suit what the district judge
called "an indigestible third bite at the apple," McCarty, 731 F.
Supp. 2d at 134; the other was the district court's explicit
warning to counsel which was then ignored even after the state
appeal had failed. See note 2, above.
Ellis says that McCarty responded to the district court's
warning by making an offer of proof and then heard nothing more
about the district court's doubts. But the district court, having
made clear its misgivings, had no duty to provide a second warning.
And the offer of proof was concerned with facts; it did not address
the obvious legal problems with the suit. Persistence on the part
3
Purity Supreme, 664 N.E.2d at 818 ("[I]ntentional torts are
covered by the [Compensation Act], even when they are committed by
coemployees."); Anzalone v. Mass. Bay Transp. Auth., 526 N.E.2d
246, 249 (Mass. 1988)(same); Gibney, 2008 WL 2677143 at *1 ("A
claim against a fellow worker for the commission of an intentional
tort will be barred by the exclusivity clause . . . if committed
within the course of the worker's employment and in furtherance of
the employer's interest.").
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of counsel is often an admirable virtue; but in this instance it
was overdone.
Affirmed.
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