Clarke v. Kentucky Fried
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Clarke v. Kentucky Fried, (1st Cir. 1995).
Opinion
USCA1 Opinion
July 5, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
__________________
No. 94-1950
KARIN CLARKE,
Plaintiff, Appellant,
v.
KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC.,
Defendant, Appellee.
____________________
ERRATA SHEET
The opinion of this Court issued on June 14, 1995, is
amended as follows:
Cover sheet, under listing of counsel, add: Nan Myerson ____________
Evans, Bon Tempo & Evans and David A. Robinson on brief of amicus _____ _________________ _________________
curiae National Employment Lawyers Association.
[Appendix not attached. Please contact Clerk's Office
for
opinion with appendix.]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1950
KARIN CLARKE,
Plaintiff, Appellant,
v.
KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge] ___________________
____________________
Selya, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
____________________
Kevin G. Powers, with whom Robert S. Mantell and Law _______________ _________________ ___
Office of Kevin G. Powers were on brief for appellant. _________________________
Jeffrey G. Huvelle, with whom Melissa Cole, _____________________ _____________
Covington & Burling, Terry Philip Segal, Brenda R. _____________________ ____________________ __________
Sharton and Segal & Feinberg were on brief for appellee. _______ ________________
Nan Myerson Evans, Bon Tempo & Evans and David A. _________________ __________________ _________
Robinson on brief of amicus curiae National Employment ________
Lawyers Association.
____________________
June 14, 1995
____________________
CYR, Circuit Judge. Plaintiff Karin Clarke appeals CYR, Circuit Judge. _____________
from a district court judgment dismissing her sexual harassment
claim against her former employer, Kentucky Fried Chicken of
California, Inc. ("KFC"), for failure to exhaust administrative
remedies, and dismissing her related state-law tort claims on
preemption grounds. We affirm the judgment.
I I
BACKGROUND BACKGROUND __________
While employed by defendant KFC at a fast-food restau-
rant in Saugus, Massachusetts, Clarke was sexually harassed,
physically assaulted, and subjected to attempted rape by other
KFC employees. Clarke quit her job and initiated the present
lawsuit in Massachusetts Superior Court, alleging sexual harass-
ment, negligent and reckless infliction of emotional distress,
and negligent hiring, retention and supervision.
After removing the case to federal district court, see ___
28 U.S.C. 1441, 1446; see also id. 1332 (diversity jurisdic- ___ ____ ___
tion), KFC filed a motion to dismiss all claims, see Fed. R. Civ. ___
P. 12(b)(6), contending that the sexual harassment claim under
Mass. Gen. L. Ann. ch. 214, 1C, was barred for failure to
exhaust mandatory administrative remedies before the Massachu-
setts Commission Against Discrimination ("MCAD"), see Mass. Gen. ___
L. ch. 151B, 5 (prescribing six-month limitation period for
MCAD claims), 9 (making section 5 procedure "exclusive"), and
that Clarke's common law tort claims were preempted by the
Massachusetts Workers' Compensation Act, see Mass. Gen. L. ch. ___
2
152, 1 et seq. (Supp. 1994). The motion to dismiss was granted __ ___
in its entirety. Clarke v. Kentucky Fried Chicken of California, ______ _____________________________________
Inc., No. 94-11101-EFH (D. Mass. Aug. 17, 1994).1 ____
II II
DISCUSSION DISCUSSION __________
A. Sexual Harassment A. Sexual Harassment _________________
Clarke first contends that the district court should
not have dismissed her sexual harassment claim, because the
"jurisdictional" clause in Mass. Gen. L. Ann. ch. 214, 1C
Free access — add to your briefcase to read the full text and ask questions with AI
USCA1 Opinion
July 5, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
__________________
No. 94-1950
KARIN CLARKE,
Plaintiff, Appellant,
v.
KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC.,
Defendant, Appellee.
____________________
ERRATA SHEET
The opinion of this Court issued on June 14, 1995, is
amended as follows:
Cover sheet, under listing of counsel, add: Nan Myerson ____________
Evans, Bon Tempo & Evans and David A. Robinson on brief of amicus _____ _________________ _________________
curiae National Employment Lawyers Association.
[Appendix not attached. Please contact Clerk's Office
for
opinion with appendix.]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1950
KARIN CLARKE,
Plaintiff, Appellant,
v.
KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge] ___________________
____________________
Selya, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
____________________
Kevin G. Powers, with whom Robert S. Mantell and Law _______________ _________________ ___
Office of Kevin G. Powers were on brief for appellant. _________________________
Jeffrey G. Huvelle, with whom Melissa Cole, _____________________ _____________
Covington & Burling, Terry Philip Segal, Brenda R. _____________________ ____________________ __________
Sharton and Segal & Feinberg were on brief for appellee. _______ ________________
Nan Myerson Evans, Bon Tempo & Evans and David A. _________________ __________________ _________
Robinson on brief of amicus curiae National Employment ________
Lawyers Association.
____________________
June 14, 1995
____________________
CYR, Circuit Judge. Plaintiff Karin Clarke appeals CYR, Circuit Judge. _____________
from a district court judgment dismissing her sexual harassment
claim against her former employer, Kentucky Fried Chicken of
California, Inc. ("KFC"), for failure to exhaust administrative
remedies, and dismissing her related state-law tort claims on
preemption grounds. We affirm the judgment.
I I
BACKGROUND BACKGROUND __________
While employed by defendant KFC at a fast-food restau-
rant in Saugus, Massachusetts, Clarke was sexually harassed,
physically assaulted, and subjected to attempted rape by other
KFC employees. Clarke quit her job and initiated the present
lawsuit in Massachusetts Superior Court, alleging sexual harass-
ment, negligent and reckless infliction of emotional distress,
and negligent hiring, retention and supervision.
After removing the case to federal district court, see ___
28 U.S.C. 1441, 1446; see also id. 1332 (diversity jurisdic- ___ ____ ___
tion), KFC filed a motion to dismiss all claims, see Fed. R. Civ. ___
P. 12(b)(6), contending that the sexual harassment claim under
Mass. Gen. L. Ann. ch. 214, 1C, was barred for failure to
exhaust mandatory administrative remedies before the Massachu-
setts Commission Against Discrimination ("MCAD"), see Mass. Gen. ___
L. ch. 151B, 5 (prescribing six-month limitation period for
MCAD claims), 9 (making section 5 procedure "exclusive"), and
that Clarke's common law tort claims were preempted by the
Massachusetts Workers' Compensation Act, see Mass. Gen. L. ch. ___
2
152, 1 et seq. (Supp. 1994). The motion to dismiss was granted __ ___
in its entirety. Clarke v. Kentucky Fried Chicken of California, ______ _____________________________________
Inc., No. 94-11101-EFH (D. Mass. Aug. 17, 1994).1 ____
II II
DISCUSSION DISCUSSION __________
A. Sexual Harassment A. Sexual Harassment _________________
Clarke first contends that the district court should
not have dismissed her sexual harassment claim, because the
"jurisdictional" clause in Mass. Gen. L. Ann. ch. 214, 1C
(1986) ("The superior court shall have jurisdiction in equity to _____ ____ ____________
enforce this right and to award damages.") evinces a clear
legislative intent to except such claims from compliance with the
otherwise mandatory MCAD exhaustion requirement imposed on other
employment-based discrimination claims under Massachusetts law.
In order to place her contention in context, we examine pertinent
case law and statutes, see infra APPENDIX at pp. (i)-(iii). ___ _____
1. Fair Employment Practices Act, Mass. Gen. L. Ann. ch. 1. Fair Employment Practices Act, Mass. Gen. L. Ann. ch. _______________________________________________________
151B 151B ____
In 1946 the Massachusetts Legislature enacted the Fair
Employment Practices Act ("FEPA"), Mass. Gen. L. Ann. ch. 151B,
1 et seq., which contained a comprehensive list of unlawful __ ___
discriminatory acts by covered Massachusetts employers against
____________________
1We review Rule 12(b)(6) dismissals de novo, accepting all __ ____
well-pleaded allegations. Vartanian v. Monsanto Co., 14 F.3d _________ ____________
697, 700 (1st Cir. 1994).
3
their employees.2 See id. 4; Katz v. MCAD, 312 N.E.2d 182, ___ ___ ____ ____
187 (Mass. 1974) (noting that FEPA was enacted "to implement the
right to equal treatment guaranteed to all citizens by the
constitutions of the United States and the Commonwealth").3
Gender-based discrimination was included in the section four
listing as an unlawful employment practice. See Mass. Gen. L. ___
Ann. ch. 151B, 4(1); see also College-Town v. MCAD, 508 N.E.2d ___ ____ ____________ ____
587 (Mass. 1987) (interpreting FEPA 4(1) as encompassing sexual
harassment by employers and supervisory employees).
FEPA claimants must file their MCAD claims within six
months after the alleged discriminatory act, or forfeit any
entitlement to judicial review. See Mass. Gen. L. Ann. ch. 151B, ___
5, 9 ("As to acts declared unlawful in section four, the __ __ ____ ________ ________ __ _______ ____
procedure provided in [chapter 151B, 5] shall, while pending,
be exclusive; and the final determination therein shall exclude _________
any other action, civil or criminal, based on the same grievance
of the individual concerned.") (emphasis added); see also Acker- ___ ____ ______
son v. Dennison Mfg. Co., 624 F. Supp. 1148, 1158 (D. Mass. 1986) ___ _________________
(holding that compliance with six-month limitation period becomes
unwaivable "jurisdictional" prerequisite to civil suit).
As to section four administrative claims which are
adjudicated by the MCAD within ninety days from filing, either ___________
____________________
2A covered FEPA "employer" is one who has more than five ____
employees. Id. 1(5). ___
3While FEPA primarily targets employment-based discrimina- __________
tion, it also proscribes a variety of other discriminatory
conduct in housing, real estate, credit extension, insurance
and banking not directly relevant to the appeal.
4
the claimant or the respondent may obtain limited review on _______
petition to the superior court, Mass. Gen. L. Ann. ch. 151B, 6,
followed by an appeal of right to the Supreme Judicial Court
("SJC").4 Unless the MCAD fails to act within ninety days or
grants an express dispensation, the claimant may not bypass the
administrative claims process by filing a civil action for
damages or injunctive relief directly with either the superior ________
court or the probate court. Id. 9. ___
In 1986, the Massachusetts Legislature presaging the
SJC's College-Town decision, supra amended FEPA by explicitly ____________ _____
including "sexual harassment" within the comprehensive list of
employer acts proscribed under section 4. See 1986 Mass. Acts ___
588 (codified at Mass. Gen. L. Ann. ch. 151B, 1(18) (definition
of "sexual harassment"), 4(16A)). At the same time, the
Legislature amended Chapter 214, a separate statutory provision
vesting the superior court with original equity jurisdiction as
follows: "A person shall have the right to be free from sexual
harassment, as defined in [FEPA 1(18)]. The superior court
shall have jurisdiction in equity to enforce this right and to _____ ____ ____________
award damages." 1986 Mass. Acts 588 (codified at Mass. Gen. L.
Ann. ch. 214, 1C) (emphasis added) [hereinafter: "Section 1C"].
____________________
4The superior court may set aside or modify an MCAD order
only if it finds, according "due weight to the [MCAD's] experi-
ence, technical competence, and specialized knowledge," that the
order was (1) unconstitutional, (2) beyond the MCAD's jurisdic-
tion or statutory authority; (3) based upon an error of law; (4)
issued pursuant to an unlawful procedure; (5) unsupported by
substantial evidence; or (6) arbitrary and capricious. See Mass. ___
Gen. L. Ann. ch. 30A, 14 (1995).
5
2. The ERA and Charland 2. The ERA and Charland ____________________
Enacted in 1989, the Equal Rights Act ("ERA"), Mass.
Gen. L. Ann. ch. 93, 102, 103, proscribes, inter alia, gender- _____ ____
based discrimination in connection with the execution and en- ___
forcement of contracts and provides that "[a] person whose rights _________ __ _________
. . . have been violated may commence a civil action for injunc-
tive and other appropriate equitable relief, including the award
of compensatory and exemplary damages. Said civil action shall
be instituted . . . in the superior court . . . ." Id. 102(b). ___
Later, in Charland v. Muzi Motors, Inc., 631 N.E.2d 555 ________ _________________
(Mass. 1994), the SJC held that ERA section 102(b) does not ___
excuse claimants from compliance with the comprehensive adminis- ______
trative claims procedure established in FEPA section 9, supra. _____
Rather, in enacting the ERA, the Legislature presumably was aware
that FEPA section 9 had long mandated MCAD exhaustion for all ___
employment-based discrimination claims alleging "unlawful prac- ________ _____
tice[s]" listed in FEPA section 4. Charland, 631 N.E.2d at 558 _______ ________
(noting "legislative intent to subject all discrimination claims ___ ______________ ______
to administrative scrutiny") (emphasis added). And since Char-
land had alleged a breach of his employment contract, arising out __________ ________
of his wrongful discharge based on age and national origin an
employment-based claim actionable under FEPA, see Mass. Gen. L. __________ _____ ____ ___
Ann. ch. 151B, 4(1) (barring discharge from employment because
of "national origin" or "age") the SJC held that Charland's
superior court action must be dismissed for failure to file a
timely administrative claim with the MCAD. Charland, 631 N.E.2d ________
6
at 559; see also Agin v. Federal White Cement, Inc., 632 N.E.2d ___ ____ ____ ___________________________
1197, 1199 (Mass. 1994) (same).
3. Standard of Review 3. Standard of Review __________________
Where, as here, a district court dismissal turns upon
an interpretation of state law, we conduct plenary review. See ___
Salve Regina College v. Russell, 499 U.S. 225, 239-40 (1991).5 _____________________ _______
The issue before us on appeal is whether Section 1C, unlike ERA
sections 102 and 103, excepts the instant employment-based sexual
harassment claim from compliance with the administrative exhaus-
tion requirement in FEPA section 9. Clarke argues that Charland ________
is not controlling, because it resolved only the legislative ____
correlation between FEPA and the ERA, which would mean that ___ ___ ___
Charland's reference to "the legislative intent to subject all ________ ___
discrimination claims to administrative scrutiny" was mere ______________ ______
dictum. KFC responds that the Charland rationale likewise bars ________ _________
Clarke's unexhausted Section 1C claim -- a gender-based employ-
ment discrimination claim explicitly listed in FEPA section
4(16A) as an unlawful act.
4. Section 1C 4. Section 1C __________
Clarke would distinguish Section 1C from ERA sections
____________________
5Although Clarke belatedly urges certification to the SJC,
"[w]e are rarely receptive to . . . requests for certification
newly asserted on appeal." See Nieves v. University of Puerto ___ ______ ____________________
Rico, 7 F.3d 270, 278 (1st Cir. 1993); see also Fischer v. Bar ____ ___ ____ _______ ___
Harbor Banking & Trust Co., 857 F.2d 4, 8 (1st Cir. 1988), cert. _________________________ ____
denied, 489 U.S. 1018 (1989). Nor will we resort to certifica- ______
tion unless the issue presented is sufficiently unsettled under _________
state law that we could not essay a "reasonably clear" prediction
with adequate confidence. See Porter v. Nutter, 913 F.2d 37, 41 ___ ______ ______
n.4 (1st Cir. 1990).
7
102 and 103 on the ground that it evinces a clear legislative
intent to create two parallel remedial paths for redressing ________
sexual harassment claims one administrative, one judicial.
Unlike the ERA, which became law some fifty years after FEPA,
Section 1C was enacted at the same time the Legislature amended __ ___ ____ ____
FEPA section 4 to cover sexual harassment claims. Consequently,
Clarke argues, unless Section 1C is interpreted as establishing a
parallel judicial path that bypasses the MCAD administrative
remedy, Section 1C becomes surplusage. See Casa Loma, Inc. v. ___ ________________
Alcoholic Beverages Control Comm'n, 385 N.E.2d 976, 978 (Mass. ___________________________________
1979) ("It is a common tenet of statutory construction that,
wherever possible, no provision of a legislative enactment should
be treated as superfluous."). We agree with Clarke that Charland ________
is not directly controlling, since it did not consider the unique
language and legislative history of Section 1C.
Nevertheless, absent a definitive SJC ruling, we may
look to "analogous decisions, considered dicta, scholarly works, __________ _____
and any other reliable data tending convincingly to show how the
[SJC] would decide the issue at hand, taking into account the
broad policies and trends so evinced." Michelin Tires (Canada) _______________________
Ltd. v. First Nat'l Bank, 666 F.2d 673, 682 (1st Cir. 1981) ___ _________________
(emphasis added); see also Gibson v. City of Cranston, 37 F.3d ___ ____ ______ _________________
731, 736 (1st Cir. 1994).6 Charland categorically states that a ________
____________________
6Clarke points to an unpublished superior court opinion
entered after oral argument in this case, see Burman v. Boch ___ ______ ____
Oldsmobile, Inc., No. 92-02690 (Mass. Sup. Ct. Apr. 11, 1995), ________________
which held Charland inapposite to sexual harassment claims. Even ________
assuming it were proper to consider the unreported decision, see ___
8
claimant alleging an unlawful discriminatory act listed in FEPA ______
section 4 must comply with the MCAD administrative process, ____
absent clear evidence that the Legislature carved out an excep-
tion. Moreover, the listing of unlawful acts in section 4 is so
comprehensive that the SJC has yet to identify an exception. See ___
Charland, 631 N.E.2d at 558 (citing with approval Mouradian v. ________ _________
General Elec. Co., 503 N.E.2d 1318 (Mass. App. Ct. 1987) (Massa- __________________
chusetts Civil Rights Act claimants must first comply with FEPA's
MCAD procedure)).
The language of 1986 Mass. Acts 588 amending the
FEPA section 4 listing and adding new Section 1C, see supra p. 5 ___ _____
does not dictate the interpretation urged by Clarke, since it
does not specify at what point in the sexual-harassment-claim
process original superior court jurisdiction vests. Under the
Charland rationale, once employment-based sexual harassment ________
claims were added to the FEPA section 4 listing by the Legisla- _____
ture, the MCAD claim-filing procedure mandated by FEPA section 9 ______
presumptively became the exclusive procedural path for initiating _________ __________
all such claims against "employers." After the MCAD renders a
final decision, of course, jurisdiction to review its decision ______
would lie in the appropriate superior court. See supra pp. 4-5. ___ _____
In some instances, however, administrative claims may not be
acted upon within ninety days by the MCAD; alternatively, the
____________________
U.S. Ct. of App. 1st Cir. Rule 14, Burman contains no developed ______
analysis and no discussion of the relevant statutory provisions
or legislative history. See id. slip op. at 8 n.5 ("[T]his Court ___ ___
views the Charland holding as specific, not extending to G.L. c. ________
214, 1C.").
9
MCAD may permit the claimant to proceed directly with a civil
action in a judicial forum.
Thus, like its counterpart provision, FEPA section 9,
Mass. Gen. L. Ann. ch. 151B, 9 (vesting superior, probate, and
housing courts with original jurisdiction of FEPA claims),
Section 1C serves an essential function by vesting in the
superior court (as distinguished from the SJC, for example)
exclusive original jurisdiction to entertain such administrative-
ly exhausted but unadjudicated sexual harassment claims.7 _________ _____________
Therefore, much like ERA sections 102(b) and 103(b), which
provide that claimants "may commence a civil action for injunc-
tive and other appropriate equitable relief . . . in the superior
court" without indicating when such a civil action may be com- ____
menced, the mere fact that Section 1C designates which court _____ _____
shall have original jurisdiction over exhausted but unadjudi- _________ _________
cated MCAD claims does not mean that the designated judicial _____
forum may assert jurisdiction ab initio, i.e., before (or in the __ ______ ____ ______
____________________
7Chapter 214, 1, recognizes that the superior courts and
the SJC are endowed, concurrently, with the requisite general
power possessed by courts in equity to fashion appropriate
remedies in the exercise of their traditional equity jurisdic-
tion. Chapter 214, 2, on the other hand, vests the SJC with
"exclusive [original] jurisdiction of all civil actions in which
equitable relief [authorized by statute] is sought," unless the __ _______ ______ ___
statute expressly provides that another court shall have exclu- _______ _________ ________ ____ _______ _____ _____ ____ ______
sive or concurrent original jurisdiction over the statutory ____ __ __________ ________ ____________ ____ ___ _________
claims. Thus, contrary to Clarke's contention, the bare refer- ______
ence to superior court "jurisdiction" in Section 1C may have been
intended merely to overcome the automatic "default" mechanism in
Section 2 which would otherwise vest the SJC with exclusive _________
original jurisdiction over all Section 1C claims for equitable
relief and to designate which other court (i.e., superior _____ _____ _____ ____
court) possesses jurisdiction once the Section 1C claimant has
met the MCAD-exhaustion requirements imposed by FEPA section 9.
10
absence of) a timely MCAD claim. Neither party cites to
the legislative history relating to Section 1C, though it appears
fairly illuminating. The legislative bill approved by the House
Committee on Commerce and Labor (H.5732) represented a compromise
melded from eight competing Senate and House versions relating to _____
sexual harassment in employment and education. Two of these
predecessor versions provided as follows: "A person shall have
the right to be free from sexual harassment. . . . The superior
court shall have jurisdiction in equity to enforce this right and
to award damages. The filing of a complaint under chapter 151B ___ ______ __ _ _________ _____ _______ ____
shall not be a prerequisite to filing a complaint under this _____ ___ __ _ ____________ __ ______ _ _________ _____ ____
section in superior court." H.3136 (sponsor, B. Gray, Framing- _______ __ ________ _____
ham); see also H.488 (Saggese, Winthrop) (emphasis added). It is ___ ____
noteworthy that the only pertinent deletion before Section 1C ____
became law was the italicized language from H.3136 and H.488
quoted supra. See Russello v. United States, 464 U.S. 16, 23-24 _____ ___ ________ _____________
(1983) (noting that deletions of limiting language from predeces-
sor bills normally presumed intentional); State of Rhode Island ______________________
v. Narragansett Indian Tribe, 19 F.3d 685, 700 (1st Cir.) (same), _________________________
cert. denied, 115 S. Ct. 298 (1994). ____ ______
Clarke argues that Section 1C is unlike ERA sections
102 and 103, which encompass claims for employment-based discrim- __________
ination listed in FEPA section 4 as well as sundry non-employ- ___________
ment-based discrimination claims which might not be listed in ____ ___
FEPA. Thus, the ERA enactment may be seen as serving an indepen-
dent function even after Charland. That is, though all ERA ________
11
employment-based claims of a type listed in FEPA section 4 would __________
be subject to FEPA's administrative exhaustion requirement, see ___
Charland, 631 N.E.2d at 558-59, non-employment-based ERA claims ________ ______________ ___
not listed in FEPA section 4 (if any) might be initiated directly
in the superior court without administrative exhaustion. By
contrast, Section 1C encompasses only sexual harassment claims ____
which are employment-based, compare Mass. Gen. L. Ann. ch. 151B, __________ _______
1(18) (defining "sexual harassment" in terms of "employment
decisions," "work performance," and "work environment") with ____
Mass. Gen. L. Ann. ch. 214, 1C (prohibiting harassment "as
defined in chapter [151B]"), and all employment-based gender __________
discrimination claims already fall within FEPA section 4, and,
consequently, come within the mandatory administrative exhaustion
provision. Clarke reasons, therefore, that unless Section 1C is
interpreted as providing employment-based sexual harassment
claimants an MCAD bypass into superior court, its enactment was
redundant and superfluous. See Casa Loma, Inc., 385 N.E.2d at ___ _______________
978 (noting that, where possible, statutes ought not be inter-
preted so as to render any provision superfluous). But see supra ___ ___ _____
note 7 (investing superior court with jurisdiction over all
exhausted Section 1C claims, as opposed to superior, probate, and
housing courts designated in FEPA section 9).
On the other hand, KFC points out correctly in our
view that the Legislature may well have intended that Section
1C make all employment-based sexual harassment unlawful in ___ __________
Massachusetts, without regard to the number of employees working
12
for the particular employer, whereas other forms of employment- _____ _____ __ ___________
based discrimination would be covered by FEPA only if practiced _____ ______________
by employers who hire more than five persons. See supra note 2. ___ _____
This interpretation is substantiated by the fact that Section 1C
is not tied into FEPA's definition of "employer," but only to ___ ____
FEPA's definition of "sexual harassment." Although Clarke
counters that the Legislature could have achieved the same result
simply by amending the FEPA definition of "employer" to accommo-
date this exception, we are not persuaded-- nor aware of any
authority-- that the amendatory technique she suggests was the
only one open to the Legislature.
Clarke further contends that it would be incongruous to
require only the employees of large-scale employers to comply
with the MCAD administrative claims process, and not employees of
small-scale employers, since such an interpretation would contra-
vene the Charland holding that all discrimination claims are ________ ___
subject to the exhaustion requirement. This contention is
demonstrably flawed as well. Charland simply held that MCAD ________
exhaustion is required if the claim alleges an unlawful act
listed in FEPA section 4. And discriminatory conduct by small- ______
scale employers is not listed in section 4. See Mass. Gen. L. _____ ___ ___
Ann. ch. 151B, 4(16A) (unlawful "[f]or an employer, personally __ ________
or through its agents, to sexually harass any employee"); see ___
also supra note 2. Absent ambiguity in the statutory language, ____ _____
we think it inappropriate to second-guess the Legislature's clear
language establishing broadened protection for victims of sexual
13
harassment.
Finally, Clarke argues that the Legislature singled
out all sexual harassment claims from other types of employ- _____
ment-based discrimination claims under FEPA because sexual ______________
harassment normally warrants more urgent remedial action and, by
affording sexual harassment victims direct access to the superior
court, Section 1C would enable more immediate equitable relief.
Her contention is unavailing for two reasons.
First, Clarke reserved this argument for her reply
brief on appeal, thereby denying KFC an opportunity to respond.
See VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 7 ___ _________ _______________________________
n.6 (1st Cir. 1993). Second, even if it were not waived, the
claim is meritless since FEPA already provides the very remedial
mechanisms Clarke would have us read into Section 1C. See Mass. ___
Gen. L. Ann. ch. 151B, 5 (MCAD commissioner "may also file a ____ ____________
petition in equity in the superior court . . . seeking appropri-
ate injunctive relief against such respondent . . . ."); 9 ("An __
aggrieved person may also seek temporary injunctive relief in the _________ ______
superior . . . court . . . at any time to prevent irreparable
injury during the pendency of or prior to the filing of a com-
plaint with the [MCAD].") (emphasis added).
For the foregoing reasons, therefore, we conclude that
it is reasonably likely that the SJC would extend its Charland ________
rationale to Section 1C, thereby preserving the comprehensive
procedural framework established by the Legislature in FEPA
section 9. Consequently, the district court judgment dismissing
14
the sexual harassment claim for failure to exhaust administrative
remedies under the MCAD must be affirmed.
B. Common Law Tort Claims8 B. Common Law Tort Claims ______________________
Clarke contends that the district court erred in ruling
that the three remaining common law claims alleging negligence
in hiring, supervising and retaining the offending KFC employees
were preempted by the Massachusetts Workers' Compensation
Act, Mass. Gen. L. Ann. ch. 152, 24. We briefly reprise the
legislative history relating to recent amendments to the workers'
compensation statute.
From the start, section 24 of the Massachusetts wor-
kers' compensation statute included a comprehensive preemption
provision precluding injured workers from instituting tort
actions "in respect to an [employment-related] injury that is ______
compensable [through the payment of disability benefits] under ___________
this chapter." Mass. Gen. L. Ann. ch. 152, 24 (emphasis
added).9 Until 1985, employment-induced emotional disabilities _________
____________________
8The failure to file a claim with the MCAD did not bar the
common law claims. See Felinske v. New Eng. Teamsters & Trucking ___ ________ _____________________________
Indus. Pension Fund, 855 F. Supp. 474 (D. Mass. 1994) (citing ___________________
Melley v. Gillette Corp., 475 N.E.2d 252 (Mass. 1985)). However, ______ ______________
Clarke has not appealed the dismissal of the common law claims
alleging intentional tortfeasance.
9Massachusetts workers may avoid section 24 preemption by
expressly reserving their common law rights at the time they are
hired. Id. Clarke made no such reservation. ___
15
were considered fully "compensable" injuries under the workers'
compensation statute, without regard to whether the disability
resulted from employer negligence. See Foley v. Polaroid Corp., ___ _____ ______________
413 N.E.2d 711, 714-15 (Mass. 1980).
Clarke concedes that her negligence-based claims
against KFC allege employment-induced emotional injury and, thus, _________
would have been preempted under the pre-1985 workers' compensa- ___
tion statute. In 1985, however, the SJC held that employment-
related emotional injuries likewise were "compensable" under the
workers' compensation statute, even though the emotional injury ____ ______
resulted from such bona fide employer decisions as layoffs and
interdepartmental transfers. Kelly's Case, 477 N.E.2d 582, 584- _____________
85 (Mass. 1985) (noting that disallowance of workers' compensa-
tion for such emotional injuries is a policy decision for the
Legislature, not the courts).
The ensuing uproar from the Massachusetts business
community over the implications of Kelly's Case prompted the _____________
Legislature to amend the "personal injury" definition in chapter
152 to read:
Personal injuries shall include mental or
emotional disabilities only where the predom-
inant contributing cause of such disability
is an event or series of events occurring
within any employment. . . . No mental or __ ______ __
emotional disability arising principally out _________ __________ ___________
of a bona fide, personnel action including a ____ _____ _________ ______ _________
transfer, promotion, demotion, or termination
except such action which is the intentional
infliction of emotional harm shall be deemed ______
to be a personal injury within the meaning of _ ________ ______
this chapter.
See 1985 Mass. Acts 572 ("Workers' Compensation Reform Act"); ___
16
1986 Mass. Acts 662 (codified at Mass. Gen. L. Ann. ch. 152,
1(7A)). Although ostensibly a pro-employer enactment, serendi- ____________
pitously the 1985 amendment also presented claimants like Clarke
with a basis for attempting to circumvent the broad preemption
provision in section 24 of the workers' compensation statute.
From the beginning, section 24 had preempted tort actions at
common law, but only in respect to injuries compensable by ___________
disability benefits under the workers' compensation statute. See ___
Mass. Gen. Laws Ann. ch. 152, 24. After the 1985 amendment,
however, emotional injuries caused by an employer's "bona fide []
personnel action[s]" [hereinafter otherwise: "BFPA"]
literally became "noncompensable" under the workers' compensation
statute. Consequently, Clarke argues, if it can be established
that her emotional injuries were caused by a good faith, albeit ____ _____
negligent, personnel decision on the part of KFC for which she _________
would not be entitled to workers' compensation benefits under
chapter 152, amended section 1(7A), see supra p. 16 she would ___ _____
be entitled to redress her negligence-based tort claims in the
courts by virtue of the "noncompensability" exception to section
24 preemption.
Clarke's argument cannot succeed, however, unless she
can demonstrate both that (1) the decision not to screen KFC ____
hirees, nor alter their working conditions to minimize the risk
that Clarke be emotionally harmed by sexual harassment, consti-
tuted a "bona fide personnel action" within the meaning of
amended section 1(7A); and (2) the 1985 Legislature, in rendering ___
17
all BFPA-induced emotional injuries noncompensable under the
workers' compensation statute, intended to deny BFPA claimants
like Clarke the right to collect workers' compensation benefits,
and, as an offsetting form of relief, to save their common law
tort remedies from preemption under section 24. Since Clarke's
argument plainly founders on the second prong, we simply assume,
arguendo, that the personnel actions at issue qualify as BFPAs ________
under amended section 1(7A).
Although there is no SJC decision directly in point,
the interpretation Clarke urges was rejected recently by the Mas-
sachusetts Appeals Court, in Catalano v. First Essex Sav. Bank, ________ ______________________
639 N.E.2d 1113 (Mass. App. Ct.), review denied, 644 N.E.2d 225 ______ ______
(1994). The Catalano court noted that the 1985 amendments to the ________
workers' compensation statute were in direct response to an
invitation the SJC extended to the Legislature in Kelly's Case: _____________
to "determine, as a matter of public policy, whether one of the
costs of doing business in this Commonwealth shall be the compen-
sation of those few employees who do suffer emotional disability
as a result of being laid off or transferred." Id. at 1115 ___
(quoting Kelly's Case, 477 N.E.2d at 584-85): ____________
It is obvious that the Legislature wished to
protect the employer from liability under the
[Workers' Compensation] Act for claims aris-
ing out of bona fide personnel actions unless
motivated by an intent to inflict emotional
distress. In those circumstances, it seems
unlikely that the Legislature intended to
preserve a civil action for claims based on
negligent infliction of emotional distress
that arise from a bona fide personnel action.
To do so would negate . . . the purpose of
relieving employers from the financial bur-
18
dens of such claims . . . .
Id. at 1116. ___
Clarke correctly points out that the Catalano analysis ________
constitutes dicta because the court dismissed the appeal on an
alternate ground. Id. Nevertheless, persuasive, reasoned dicta ___
may provide a valuable guide to statutory interpretation. See ___
Gibson, 37 F.3d at 736 (absent explicit ruling by state's highest ______
court, federal court sitting in diversity may consult "considered
dicta") (citing Michelin Tires, 666 F.2d at 682); see also Bank ______________ ___ ____ ____
of New England Old Colony, N.A. v. Clark, 986 F.2d 600, 603 (1st _______________________________ _____
Cir. 1993) (relying on "persuasive" dicta of United States
Supreme Court); cf. also Sainz Gonzalez v. Banco de Santander- ___ ____ _______________ ____________________
Puerto Rico, 932 F.2d 999, 1001 (1st Cir. 1991) (declining to ___________
credit dicta unsupported by reasoned analysis); United States v. _____________
Rivera, 872 F.2d 507, 509 (1st Cir.) (same), cert. denied, 493 ______ ____ ______
U.S. 818 (1989). Moreover, the Catalano analysis was prompted by ________
the appeals court's express desire to resolve "the alleged
uncertainty and confusion that purportedly exists among the
members of the [Massachusetts] bar and public concerning the
initiation of legal proceedings involving the claims raised in
this appeal," Catalano, 639 N.E.2d at 1115, and the SJC summarily ________
denied review.
The original workers' compensation statute effectively
preempted a broad range of civil actions based on employment-
related emotional injury, see supra p. 15, and one would expect ___ _____
any significant retreat from this longstanding legislative policy
19
to be heralded with considerably greater clarity than is discern-
ible in Mass. Gen. L. Ann. ch. 152, 1(7A). We agree with the
appeals court that it would strain credulity and common sense to
presume that the Legislature chose to limit employers' collective
liability under the workers' compensation scheme, only to expose
individual employers to greater liability in common law negli-
gence suits based on bona fide personnel actions.
III III
CONCLUSION CONCLUSION __________
The grievous sexual harassment claims alleged by appel-
lant were entitled to just adjudication in the first instance
under the administrative claims process established by Massachu-
setts law. As the courts are powerless to reinstate legal
remedies foreclosed by failure to comply with a mandatory admin-
istrative exhaustion requirement, the district court judgment
dismissing the sexual harassment claim must be affirmed. Final-
ly, the district court judgment dismissing the related common law
tort claims must be affirmed on preemption grounds.
The district court judgment is affirmed. The parties The district court judgment is affirmed. The parties ________________________________________ ___________
shall bear their own costs. shall bear their own costs. __________________________
20
APPENDIX APPENDIX
A. Equal Rights Act, Mass. Ann. Laws ch. 93, sec. 102 (1994): A. Equal Rights Act, Mass. Ann. Laws ch. 93, sec. 102 (1994): ________________
Section 102. Equal Rights for All Persons Within Com-
monwealth; Enforcement by Civil Action for Equitable
Relief; Jurisdiction of Superior Court; Degree of
Proof; Damages, Costs and Attorneys' Fees.
(a) All persons within the commonwealth, regard-
less of sex, race, color, creed or national ori-
gin, shall have, except as is otherwise provided
or permitted by law, the same rights enjoyed by
white male citizens, to make and enforce contracts
. . . and to the full and equal benefit of all
laws and proceedings for the security of persons
and property . . . .
(b) A person whose rights under the provisions of
subsection (a) have been violated may commence a
civil action for injunctive and other appropriate
equitable relief, including the award of compensa-
tory and exemplary damages[] . . . in the superior
court . . . .
B. Fair Employment Practices Act, Mass. Ann. Laws ch. 151B, B. Fair Employment Practices Act, Mass. Ann. Laws ch. 151B, _______________________________
sec. 1 (1995): sec. 1 (1995)
Section 1. Definitions.
As used in this chapter
. . . .
5. The term "employer" does not include . . .
any employer with fewer than six persons in his
employ . . . .
. . . .
18. The term "sexual harassment" shall mean
sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual na-
ture . . . (b) . . . [which] have the purpose or
effect of unreasonably interfering with an indivi-
dual's work performance by creating an intimidat-
ing, hostile, humiliating or sexually offensive
work environment. Discrimination on the basis of
sex shall include, but not be limited to, sexual
harassment.
i
Section 4. Unlawful Practices; Certain Records to be
Kept; Employer, etc., Not Required to Grant Preferen-
tial Treatment to Any Individual or Group.
It shall be an unlawful practice:
1. For an employer, by himself or his agent,
because of the race, color, religious creed, na-
tional origin, sex, sexual orientation, . . . or
ancestry of any individual to refuse to hire or
employ or to bar or to discharge from employment
such individual or to discriminate against such
individual in compensation or in terms, conditions
or privileges of employment, unless based upon a
bona fide occupational qualification. . . .
. . . .
16A. For an employer, personally or through
its agents, to sexually harass any employee.
Section 5. Complaints Alleging Unlawful Practice or
Violation of Certain Statutes; Proceedings Before
Commission; Injunctive Relief; Award of Damages.
Any person claiming to be aggrieved by an
alleged unlawful practice [listed in section 4] .
. . may . . . make, sign and file with the
commission a verified complaint in writing . . . .
. . . .
. . . Before or after a determination of
probable cause hereunder such commissioner may
also file a petition in equity in the superior
court . . . .
Section 6. Judicial Review of Order of Commission;
Injunctive Relief.
Any complainant, respondent or other person
aggrieved by such order of the commission may
obtain judicial review thereof . . . in the supe-
rior court . . . .
Section 9. Chapter Construed Liberally; Inconsistent
Laws; Procedure Exclusive; Damages or Injunctive Re-
lief.
. . . [A]s to acts declared unlawful by sec-
tion four, the procedure provided in this chapter
shall, while pending, be exclusive; and the final
ii
determination therein shall exclude any other
action, civil or criminal, based on the same grie-
vance of the individual concerned.
Any person claiming to be aggrieved by a
practice made unlawful under this chapter or under
chapter one hundred and fifty-one C, or by any
other unlawful practice within the jurisdiction of
the commission, may, at the expiration of ninety
days after the filing of a complaint with the
commission, or sooner if a commissioner assents in
writing, but not later than three years after the
alleged unlawful practice occurred, bring a civil
action for damages or injunctive relief or both in
the superior or probate court . . . or in the
housing court within whose district the alleged
unlawful practice occurred if the unlawful prac-
tice involves residential housing. . . . An ag-
grieved person may also seek temporary injunctive
relief in the superior, housing or probate court
within such county at any time to prevent irrepa-
rable injury during the pendency of or prior to
the filing of a complaint with the commission. . .
.
C. Equity Jurisdiction Statute, Mass. Ann. Laws ch. 214 (1995) C. Equity Jurisdiction Statute, Mass. Ann. Laws ch. 214 (1995) ___________________________
Section 1. General Equity Jurisdiction, Concurrent.
The supreme judicial and superior courts
shall have original and concurrent jurisdiction of
all cases and matters of equity cognizable under
the general principles of equity jurisprudence
and, with reference thereto, shall be courts of
general equity jurisdiction . . . .
Section 1C. Right to be Free From Sexual Harassment.
A person shall have the right to be free from
sexual harassment, as defined in chapter one hun-
dred and fifty-one B and one hundred and fifty-one
C. The superior court shall have the jurisdiction
in equity to enforce this right and to award dam-
ages.
Section 2. Statutory Equity Jurisdiction.
The supreme judicial court shall have origi-
nal and exclusive jurisdiction of all civil ac-
tions in which equitable relief is sought cogniza-
ble under any statute and not within the jurisdic-
iii
tion conferred by section one, unless a different
provision is made; and the superior court shall
have like original and exclusive, or like original
and concurrent, jurisdiction only if the statute
so provides.
iv
Related
Russello v. United States
464 U.S. 16 (Supreme Court, 1983)
Salve Regina College v. Russell
499 U.S. 225 (Supreme Court, 1991)
Nieves v. University of Puerto Rico
7 F.3d 270 (First Circuit, 1993)
Rhode Island v. Narragansett Indian Tribe
19 F.3d 685 (First Circuit, 1994)
Michelin Tires (Canada) Ltd. v. First National Bank of Boston
666 F.2d 673 (First Circuit, 1981)
Dr. E.G. Fischer v. Bar Harbor Banking and Trust Company
857 F.2d 4 (First Circuit, 1988)
United States v. Ramon Rivera
872 F.2d 507 (First Circuit, 1989)
John S. Porter v. Harold Nutter
913 F.2d 37 (First Circuit, 1990)
Dionisio Sainz Gonzalez v. Banco De Santander-Puerto Rico, Dionisio Sainz Gonzalez v. Banco De Santander-Puerto Rico
932 F.2d 999 (First Circuit, 1991)
Bank of New England Old Colony, N.A. v. R. Gary Clark, Tax Administrator, for the State of Rhode Island
986 F.2d 600 (First Circuit, 1993)
Dennis Vanhaaren v. State Farm Mutual Automobile Insurance Company
989 F.2d 1 (First Circuit, 1993)
Felinska v. New England Teamsters & Trucking Industry Pension Fund
855 F. Supp. 474 (D. Massachusetts, 1994)
Charland v. Muzi Motors, Inc.
631 N.E.2d 555 (Massachusetts Supreme Judicial Court, 1994)
Kelly's Case
477 N.E.2d 582 (Massachusetts Supreme Judicial Court, 1985)
Casa Loma, Inc. v. Alcoholic Beverages Control Commission
385 N.E.2d 976 (Massachusetts Supreme Judicial Court, 1979)
Mouradian v. General Electric Co.
503 N.E.2d 1318 (Massachusetts Appeals Court, 1987)
Katz v. Massachusetts Commission Against Discrimination
312 N.E.2d 182 (Massachusetts Supreme Judicial Court, 1974)
Foley v. Polaroid Corp.
413 N.E.2d 711 (Massachusetts Supreme Judicial Court, 1980)
Catalano v. First Essex Savings Bank
639 N.E.2d 1113 (Massachusetts Appeals Court, 1994)
Ackerson v. Dennison Manufacturing Co.
624 F. Supp. 1148 (D. Massachusetts, 1986)
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