Verizon again argues for removal of class action

By John O'Brien | Aug 20, 2013

Gallagher


CLARKSBURG – Attorneys for Verizon say the answers given by plaintiffs in a class action prove their case should be heard in federal court.

On Aug. 14, Verizon and its co-defendants filed a notice of removal of a West Virginia Human Rights Act lawsuit filed in July 2011 in Harrison County Circuit Court. It was removed to U.S. District Court for the Northern District of West Virginia.

After it was filed, the defendants sought to have the firm Steptoe & Johnson disqualified from representing the plaintiffs, who are former employees who worked in call centers in Charleston and Clarksburg. They allege Verizon engaged in employment discrimination based on disabilities or perceived disabilities.

Verizon has been subsequently sold and renamed Frontier West Virginia, though the Verizon call center in Clarksburg was not part of that transaction.

“As employees of Verizon West Virginia, and then Verizon Services, Plaintiffs were members of a collective bargaining unit represented by the Communications Workers of America and the terms and conditions of employment of their employment were governed by a collective bargaining agreement between the CWA and Verizon, implement on May 12, 1997, and revised on October 9, 1998,” the removal notice says.

Because the workers were subject to the CBA, the case should be heard in federal court, the defendants argue.

It is the second time the company has sought to remove the lawsuit to federal court, with the first coming a month after it was filed.

An amended complaint sought to disavow any reliance upon Verizon’s Medically Restricted Employees (MRST) Policy that covered employees who were represented by the CWA.

On March 30, 2012, U.S. District Judge Irene Keeley granted a motion to remand the case to Harrison Circuit Court.

“Importantly, the right to be free from employment discrimination is a substantive right granted by the state of West Virginia, and is thus independent of any duty under an employment agreement,” she wrote.

In response to Verizon’s first set of interrogatories, the plaintiffs responded that they believed Verizon’s MRST Policy resulted in disparate treatment of themselves and other class members.

That admission, the defendants say, “demonstrates that Plaintiffs’ claims require the interpretation of, and that their claims are ‘inextricably intertwined with consideration of the terms’ of, an agreement governed by the LMRA,” the removal notice says.

“For the first time, through their Interrogatory Answers, Plaintiffs have expressly identified a collectively bargained agreement that predicates their alleged injury in this action.”

Richard W. Gallagher of Robinson & McElwee in Clarksburg is representing Verizon.

The case was before the state Supreme Court earlier this year. On March 7, the court ruled Steptoe & Johnson and attorney Larry Rector could continue with their representation of the class.

Verizon had argued that Rector’s previous representation of two plaintiffs and his intent to use evidence filed under seal during their lawsuits on subsequent lawsuits presented a conflict of interest.

In 2009, Steptoe filed a lawsuit on behalf of a former Verizon employee alleging wrongful termination and violation of the state Human Rights Act in Harrison County Circuit Court. During the course of the litigation, the two sides agreed on a protective order to secure the confidentiality of certain documents disclosed in discovery.

A subsequent lawsuit filed in 2010 also featured a similar order that allowed Steptoe to use the confidential documents obtained during the first lawsuit.

Both lawsuits eventually settled. Steptoe then filed lawsuits on behalf of nine other former Verizon employees and two class action lawsuits.

Rector indicated that he might use some of the confidential documents from the first case for his current cases in an attempt to avoid duplicative discovery costs.

On Sept. 28, 2011, Verizon moved to disqualify the firm from representing the plaintiffs based upon that intention and an indication that he might call his former clients as witnesses in the current cases.

Rector responded by saying he would only use information obtained in the first two cases unless it was produced in the current cases.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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