Clarke v. Kentucky Fried Chicken of California, Inc. , 57 F.3d 21 ( 1995 )

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
6at 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