Clarke v. Kentucky Fried Chicken of California, Inc.

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