Dolan v. Bay Construction Group Co.

3 Mass. L. Rptr. 21
CourtMassachusetts Superior Court
DecidedNovember 9, 1994
DocketNo. 92-4947
StatusPublished

This text of 3 Mass. L. Rptr. 21 (Dolan v. Bay Construction Group Co.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dolan v. Bay Construction Group Co., 3 Mass. L. Rptr. 21 (Mass. Ct. App. 1994).

Opinion

Garsh, J.

Plaintiff Patricia Dolan (“Dolan”) commenced this action in 1992 against, among others, the owner and manager of a building and the manufacturer of copiers located in that building. Dolan alleged that her presence in the copy center caused her to develop cancer and “multiple chemical sensitivity.” The complaint sets forth several claims, including negligent construction, construction design and property maintenance, as well as negligent copier design, failure to warn, and breach of warranty. In 1994 Dolan obtained permission to add her former employer, American Telephone & Telegraph Company (“AT&T’), as a defendant.

The third amended complaint alleges claims against AT&T for handicap discrimination under G.L.c. 151B (count 18), handicap discrimination under the Massachusetts Equal Rights Act, G.L.c. 93, §103 (count 19), violation of the United States and Massachusetts constitutions (count 20), breach of employment contract (count 21), “wrongful termination” (count 22), interference with an advantageous relationship (count 23), negligent infliction of emotional distress (count 24), intentional infliction of emotional distress (count 25), and violation of the Americans with Disabilities Act (count 26). AT&T now moves to dismiss counts 19 through 26, pursuant to Mass.R.Civ.P. 12(b)(6), and to sever the remaining count. Dolan did not oppose dismissal of counts 19, 23, and 26, and so much of count 20 as is based upon a violation of the federal constitution. For the reasons set forth below, AT&T’s motion to [22]*22dismiss is ALLOWED and its motion to sever is DENIED without prejudice.

BACKGROUND

Dolan’s claims against AT&T all relate to her employment. According to the allegations of the third amended complaint, Dolan worked for AT&T from January through August 1989 in a copy center in the basement floor level of an office building. In May 1989, Dolan began suffering from headaches, nausea, diarrhea, respiratory difficulty, and other problems. She believed fumes, dampness, and poor air circulation in the copy center caused these illnesses. When her symptoms persisted, Dolan requested a hardship transfer from the building or reasonable accommodations. Dolan alleges that AT&T denied these requests.

Following a short disability leave, Dolan continued to work at the same building, but at a different location, until November 14,1989. During this time, Dolan alleges that she unsuccessfully requested transfers, on the grounds that exposure to contaminants interfered with her ability to perform her job. Dolan then worked for AT&T at a different building until November 1991, at which time she again was placed on sickness disability leave. While at the second location, Dolan alleges that she again unsuccessfully requested reasonable accommodations.

DISCUSSION

A complaint should be dismissed for failure to state a claim upon which relief can be granted if “the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979). All allegations of the complaint must be taken as true and all inferences are to be drawn in the plaintiffs favor. Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). A complaint should not be dismissed simply because it asserts a new or extreme theory of liability or improbable facts. New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28 (1988); Bell v. Mazza, 394 Mass. 176, 183 (1985).

Article 114 of the Massachusetts Constitution

Article 114 states: “No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the Commonwealth.”

G.L.c. 15IB does not bar employment discrimination claims based on “preexisting common law principles or constitutional protections.” Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994). Because Article 114 was ratified in 1980 and the amendment to Chapter 15 IB §4, providing remedies for handicap discrimination, was not enacted until 1983, Dolan maintains that she may bring a direct cause of action for handicap discrimination under Article 114 of the Massachusetts Constitution. This “accident of chronology” does not make Dolan’s claim “preexisting” so as to disrupt the legislature’s intent to make c. 15 IB exclusive. Conway v. Boston Edison Co., 745 F.Supp. 773, 780 (D. Mass. 1990).

It does not necessarily follow from the fact that Article 114 predates the relevant amendment to c. 151B that a constitutional remedy predated c. 151B. No direct cause of action under Article 114 had been recognized before the enactment of the amendment to c. 151B and Charland itself creates no new constitutional protection. Indeed, as of 1989, six years after c. 15 IB had been amended, the Supreme Judicial Court observed that “[n]o appellate court opinion in the Commonwealth construed or applie[d] art. 114” in any context. Layne v. Superintendent, MCI Cedar Junction, 406 Mass. 156, 159 (1989). Furthermore, when the amendment to c. 15IB was enacted, it had not yet been decided, and it still is an open question, whether Article 114 applies to private conduct. Id. at 159 n. 3. Thus, Dolan’s claim is not based on “preexisting . . . constitutional protections” as Charland requires. Compare Melley v. Gillette Corp., 397 Mass. 1004 (1986) (rescript), affg 19 Mass.App.Ct. 511 (1985) (court declined to create new common law right of action for breach of implied covenant of good faith and fair dealing based upon conduct which violates the public policy against age discrimination where G.L.c. 15 IB provides a remedy) with Comey v. Hill, 387 Mass. 11 (1982) (c. 151B does not preclude a common law tort for interference with an advantageous relationship, a tort long established prior to passage of c. 151B).

Since c. 15IB was amended to apply to handicap discrimination, there appears little reason to recognize a private cause of action under Article 114 for employment related claims. The “clear purpose” for enacting Chapter 15IB was to “implement the right to equal treatment guaranteed to all citizens by the constitution! ] of the . . . Commonwealth.” Char-land, 417 Mass, at 582, quoting Katz v. Massachusetts Comm'n Against Discrimination, 365 Mass. 357, 368 (1974). “If a violation of art. 114 rights can be redressed within the ambit of an exiting statute . . . there is a well-worn procedural path to relief for such a violation.” Layne, 406 Mass, at 159. In accord with this principle, courts have declined to create a direct cause of action under Article 114 for work place claims. E.g., Cronan v. New England Telephone Co., 41 Fair Emp. Prac. Dec. 1273, 1279 (Suffolk Super. Ct. August 11, 1986) (no direct action under Art. 114 because c. 151B “constitutes a comprehensive remedial statutory scheme to vindicate the right of the handicapped in employment situations”); Grubba v. Bay State Abrasives, 803 F.2d 746, 748 (1st Cir. 1986) (no direct cause of action under article 114 should be implied where [23]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Conley v. Gibson
355 U.S. 41 (Supreme Court, 1957)
Hazen Paper Co. v. Biggins
507 U.S. 604 (Supreme Court, 1993)
Conway v. Boston Edison Co.
745 F. Supp. 773 (D. Massachusetts, 1990)
St. Arnaud v. Chapdelaine Truck Center, Inc.
836 F. Supp. 41 (D. Massachusetts, 1993)
Charland v. Muzi Motors, Inc.
631 N.E.2d 555 (Massachusetts Supreme Judicial Court, 1994)
Bell v. Mazza
474 N.E.2d 1111 (Massachusetts Supreme Judicial Court, 1985)
Whitinsville Plaza, Inc. v. Kotseas
390 N.E.2d 243 (Massachusetts Supreme Judicial Court, 1979)
Fortune v. National Cash Register Co.
364 N.E.2d 1251 (Massachusetts Supreme Judicial Court, 1977)
O'CONNELL v. Chasdi
511 N.E.2d 349 (Massachusetts Supreme Judicial Court, 1987)
Glaz v. Ralston Purina Co.
509 N.E.2d 297 (Massachusetts Appeals Court, 1987)
Comey v. Hill
438 N.E.2d 811 (Massachusetts Supreme Judicial Court, 1982)
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)
Hobson v. McLean Hospital Corp.
522 N.E.2d 975 (Massachusetts Supreme Judicial Court, 1988)
New England Insulation Co. v. General Dynamics Corp.
522 N.E.2d 997 (Massachusetts Appeals Court, 1988)
Eyal v. Helen Broadcasting Corp.
583 N.E.2d 228 (Massachusetts Supreme Judicial Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
3 Mass. L. Rptr. 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolan-v-bay-construction-group-co-masssuperct-1994.