Fant v. New England Power Service Co.

United States Court of Appeals
For the First Circuit

No. 99-2142

BRUCE E. FANT,

Plaintiff, Appellant,

v.

NEW ENGLAND POWER SERVICE CO.; NEW ENGLAND ELECTRIC SYSTEMS;
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 486,

Defendant, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,
and Casellas,* District Judge.

William F. Scannell, Jr. with whom Richard M. Welsh, Jr. was
on brief for appellant.

David M. Felper, with whom Bowditch & Dewey, LLP, was on
brief for appellees New England Power Company and New England
Electric Systems.

Renee J. Bushey, with whom Feinberg, Campbell & Zack, P.C.,
was on brief for appellee International Brotherhood of
Electrical Workers, Local 486.
 January 8, 2001

*Of the District of Puerto Rico, sitting by designation.

LIPEZ, Circuit Judge. This case, arising from the 1995

termination of Bruce Fant as an employee of New England Power

Service Company (NEPSCO), poses a preemption issue under § 301

of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185.

Fant sought the support of his union, the International

Brotherhood of Electrical Workers, Local 486 (IBEW), in

challenging the termination, but it declined to represent him.

Subsequently, Fant complained of discrimination by his employer

and his union to the Massachusetts Commission Against

Discrimination (MCAD). He says he withdrew his complaint from

the Commission in 1998 and filed a discrimination claim in

Worcester Superior Court. The union removed the case to federal

court. All of the defendants, the union, NEPSCO, and its parent

company, New England Electric Systems (NEES), argued that Fant's

state law claims were preempted by the LMRA. The district court

awarded summary judgment to the power companies because of

preemption and dismissed the claim against the union because it

was time-barred. We affirm as to all of the defendants on the

basis of preemption.

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 I.

Background

Bruce Fant was employed by NEPSCO for eight years prior

to his discharge on June 22, 1995. He worked much of this time

as a first class utility worker in the Maintenance and

Construction Department. In January 1993, Fant hurt his back at

work, an injury covered by workers' compensation. Though he

returned to a reduced work schedule, he was laid off shortly

thereafter, along with 62 other employees. Fant sought recall

for a light-duty job (he could not be rehired for operation of

heavy equipment because of his injury). Despite his seniority

among those laid off, Fant was never recalled. The IBEW refused

to pursue a grievance on his behalf. He was terminated from

employment on June 22, 1995. In August 1995, the IBEW refused

services for the last time, advising Fant that it no longer

considered him a member of the union.

Pursuant to Massachusetts General Laws Chapter 151B,

Fant filed a discrimination charge against his employer and the

union with the MCAD on December 15, 1995, claiming

discrimination based upon a speech impediment described as

stuttering. Fant believed that the stutter defeated his

candidacy for the light-duty positions he sought because of the

communications skills required. Although the parties describe

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the proceedings before the MCAD differently, there is no record

in this proceeding of the MCAD's action. In his brief and at

oral argument, Fant states that he "removed" the MCAD charge to

the Superior Court prior to a final disposition by the MCAD.

Defendant IBEW indicates in a footnote to its brief that Fant's

charge was investigated and dismissed by the MCAD on June 16,

1997 with a lack of probable cause finding, and that the full

Commission affirmed the judgment after Fant appealed.

We do know, however, that on June 3, 1998, Fant filed

a complaint in Worcester Superior Court alleging discrimination

by the defendants and seeking relief on five counts: negligent

infliction of emotional distress, intentional infliction of

emotional distress, civil rights violations, interference with

contractual relations, and interference with advantageous

contractual relations. Six weeks later Fant amended his

complaint by changing the previous complaint's "General

Averments" portion into a section titled "General Averments of

Wrongdoing," now labeled as "Count I." Although these general

averments do not refer to any provisions of Massachusetts law,

Fant says they constitute his state law discrimination claim.

The IBEW removed the case to federal court under 28

U.S.C. § 1441, arguing that the action was governed by federal

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law, specifically § 301 of the LMRA, which provides a federal

cause of action in "[s]uits for violations of contracts between

an employer and a labor organization representing employees in

an industry affecting commerce." 29 U.S.C. § 185. Seeking

summary judgment, NEPSCO and NEES argued successfully that the

federal law preempted the state claims. The IBEW also prevailed

in its contention that Fant failed to state a claim against it

because the applicable statute of limitations had expired.

These successes prompted this appeal.1

II.

The state law discrimination claim

Before addressing the preemption question, we must

determine the scope of Fant's state law discrimination claim.

Because of a troubling factual discrepancy in the parties'

accounts of proceedings before the MCAD, and uncertain drafting

in Fant's complaint, this is not a simple determination.

A. Speech impediment: Chapter 151B

On appeal, Fant insists that he has stated a claim

under Chapter 151B, the Massachusetts omnibus anti-

1 The district court disposed of the state law claims for
emotional distress and tortious interference when it found them
preempted by federal law. The state civil rights claim was
deemed inadequate for failing to allege, among other things,
"threats, intimidation, or coercion." Fant has not appealed
these determinations.

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discrimination statute, on the basis of a stuttering disability.

He relies for this contention on this allegation in his

complaint: "plaintiff was terminated from his employment as a

result of wrongful, illegal, unlawful and discriminatory actions

of the employers and representatives, which actions were solely

based upon the plaintiff's disabilities." Fant says that the

use of the term "disabilities" in this allegation includes

discrimination based upon a stutter and a work-related back

injury. However, only the work-related injury is specifically

identified in the complaint.

A party who wants to file a civil action charging

discrimination in employment under Chapter 151B must first file

the charge with the MCAD. The purpose of mandatory submission

to the MCAD process is to provide notice to the prospective

defendant and to encourage conciliation and settlement of

disputes. See Stephenson v. State Street Bank & Trust Co., 924

F. Supp. 1258, 1276 (D. Mass. 1996). Once a charge is filed

with the MCAD, a complainant may proceed in one of two ways: 1)

seek a Commission decision on the discrimination charge,

followed by judicial review on the administrative record of an

adverse determination, ch. 151B §§ 5 and 6, or 2) obtain

permission from the MCAD to withdraw from the administrative

process, without prejudice to the charge, so that a statutory

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claim can be filed in state Superior Court, ch. 151B § 9. See

Jancey v. School Comm., 658 N.E.2d 162, 171-72 (Mass. 1995). As

noted, Fant says he took the withdrawal route. The IBEW says he

obtained an MCAD decision on the discrimination charge.

Ordinarily, we would seek clarification from the parties about

such an odd conflict. We refrain from that inquiry, however,

because Fant's speech impediment claim fails whatever the route

taken.

1. An MCAD decision

Although the "Charge of Discrimination" document Fant

filed with the MCAD was not part of the record before the

district court, Fant has included that document as an addendum

to his brief on appeal. We consider that document for the

limited purpose of evaluating Fant's insistence that the state

claim he filed in the Superior Court included a claim that he

was discriminated against because of his speech disability.

In the "Charge of Discrimination" document, Fant states

specifically that the disability at issue is "the speech

impediment commonly referred to as stuttering." He also states

specifically that his job-related back injury "is not part of

the claim filed with the Commission." If Fant pursued his

speech impediment claim to a final resolution by the MCAD, as

the IBEW says he did, Fant's access to the state Superior Court

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would be limited to judicial review of the administrative

determination, not the original action Fant filed here. "By

providing for judicial review of MCAD decisions, and by

foreclosing agency action once a party has sought a judicial

remedy pursuant § 9,2 the Legislature signaled its intent that

the parties would be bound by an MCAD decision, subject only to

judicial review." Brunson v. Wall, 541 N.E.2d 338, 342 (Mass.

1989). Put most simply, the state Superior Court would be

precluded by statute from considering Fant's speech impediment

claim in an original action if he pursued that claim to a final

resolution before the MCAD. See Joseph v. Wentworth Inst. of

Tech., No. 99-10989-MEL, 2000 U.S. Dist. LEXIS 16160, at *29 (D.

Mass. Oct. 23, 2000) ("Under Massachusetts law, a Final

Commission Order of the MCAD is given preclusive effect to bar

a plaintiff from bringing a new court action.").

2 Section 9 of Massachusetts General Laws, Chapter 151B
provides for removal of the matter from the MCAD prior to a
final disposition. The statute reads: "Any person claiming to
be aggrieved under [151B]. . . 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 no 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 for the county in which the alleged
unlawful practice occurred. . . . The petitioner shall notify
the commission of the filing of the action, and any complaint
before the commission shall then be dismissed without
prejudice."

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 2. Removal of the charge from the MCAD

Alternatively, accepting Fant's insistence that he

removed his speech impediment claim from the MCAD before a final

resolution, we must assess whether the specifics of the MCAD

charge inform the meaning of "disabilities" in Fant's Superior

Court complaint. It is appropriate for a court to consider the

MCAD charge when the "charge is referenced in [the complaint]

and its content determines the parameters of [the] civil

complaint." Edwin v. Blenwood Assoc. Inc., 9 F. Supp. 2d 70, 72

(D. Mass. 1998) (relating to the disputed scope of the MCAD

charge). True, we have ruled that when "a complaint's factual

allegations are expressly linked to -- and admittedly dependent

upon -- a document . . . , that document effectively merges into

the pleadings" when the complaint makes reference to or is

attached to that document. Bedall v. State Street Bank & Trust

Co., 137 F.3d 12, 17 (1st Cir. 1998). See also Chatman v.

Gentle Dental Ctr., 973 F. Supp. 228, 232 (D. Mass. 1997) ("[O]n

a Rule 12(b)(6) motion, the court may consider public records

and other documents referred to in the complaint, without

treating the motion as one under Rule 56. The MCAD Charge is a

public record and is also referred to in the complaint."

(citation omitted)).

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 However, Fant's complaint does not reference the MCAD

charge, nor does it even reference Chapter 151B, the state's

employment discrimination statute, which Fant says on appeal is

the basis for his speech impediment claim. Yet Fant refers

specifically to his work-related injury. Moreover, Fant's

complaint is not dependent on a previous charge filed with the

MCAD because his claim under Chapter 152, § 75B, see infra, does

not require a prior filing with the MCAD. 3 Under these

circumstances, the mere plural reference to "disabilities" in

Fant's complaint does not provide fair notice that he is also

claiming discrimination on the basis of a speech impediment.

Not surprisingly, the district court does not even

mention the speech impediment in its decision disposing of

Fant's claims. Instead, it focuses only on the work-related

back injury. Furthermore, the court summarily denied Fant's

3We note one important caveat about the relevance of the
MCAD charge. The Massachusetts cases make clear that the 151B
charge of employment discrimination that is filed before the
MCAD establishes the parameters of the claim in a subsequent
civil action in Superior Court. See Edwin, 9 F. Supp. 2d at 73
("A civil complaint for employment discrimination is confined to
the content of the charge filed with MCAD and claims reasonably
within the scope of an MCAD investigation."). If defendants to
a civil action for employment discrimination believe that the
151B charge of employment discrimination exceeds the scope of
the administrative charge, they could seek dismissal for failure
to exhaust the administrative remedy. There is no such claim
here. We do not have to examine the MCAD charge to evaluate a
failure to exhaust claim.

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motion for reconsideration of its summary judgment ruling. In

that motion, Fant contended that the court overlooked his

allegations of "tortious conduct" by the defendants based upon

his speech impediment.4 Implicit in the court's summary denial

of the motion is confirmation of its initial judgment that a

Chapter 151B discrimination claim based on Fant's speech

impediment is not in Fant's complaint. We agree. It is not

there.5

B. Work-related injury: Chapter 152, § 75B

Chapter 152 of the Massachusetts General Laws is the

state workers' compensation law. Chapter 152, § 75B bars

4
By referencing the motion for reconsideration we do not
suggest that Fant has perfected an appeal from the denial of
that motion. Appellees assert correctly that Fant filed a
notice of appeal after the entry of summary judgment, but prior
to the court's final disposition of the motion for
reconsideration. According to Fed. R. App. P. 4(a)(4)(B)(ii),
a notice of appeal must be amended to include review of such a
ruling. Fant never amended his notice of appeal. Nevertheless,
in our view, Fant could argue, pursuant to the notice of appeal
from the district court's entry of summary judgment, that among
the court's errors was a failure to recognize a 151B speech
impediment claim. We discuss the motion for reconsideration
only to emphasize the district court's view that Fant failed to
set forth a 151B claim.
5
Fant suggests, in the alternative, that the defendants
brought the MCAD charge into the case when they referenced the
MCAD proceedings in their affidavit and memorandum pertaining to
the motion for summary judgment. However, the defendants merely
recited the filing of an administrative complaint in describing
the history of the case. That reference does not bring the
substance of the MCAD charge into this case.

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discrimination against qualified handicapped workers exercising

their rights under the workers' compensation law, which includes

procedures for filing claims for injuries, receiving payments,

and determining re-employment. The statute provides in

pertinent part that "[n]o employer or duly authorized agent of

an employer shall discharge, refuse to hire or in any other

manner discriminate against an employee because the employee has

exercised a right afforded by this chapter." Mass. Gen. Laws

ch. 152, § 75B(2). Although Fant's complaint also fails to

invoke specifically Chapter 152, § 75B, he alleges that he

"suffered a work related injury and was seperated [sic] from his

employment" based upon his "disabilities."

Fant asserts a violation of § 75B because he was a

qualified handicapped person capable of performing the essential

functions of a particular job with reasonable accommodation,

despite his work-related injury.6 In his complaint, he cites his

work-related injury, his separation from employment, and the

subsequent refusals to rehire, "despite his seniority over other

6
Unlike a civil action for employment discrimination under
Chapter 151B, a civil action for discrimination under Chapter
152, § 75B does not have to be preceded by an administrative
complaint before the MCAD. Pursuant to the statute, "[a]ny
person claiming to be aggrieved by a violation of this section
may initiate proceedings in the superior court department of the
trial court for the county in which the alleged violation
occurred." Mass. Gen. Laws ch. 152, § 75B(2).

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individuals who were re-employed by the defendant after his said

seperation [sic] of service." Fant also indicates that he

sought the services of the IBEW in an effort to regain his

employment, but it refused to represent him saying "that he was

no longer considered a member of the union." Given his specific

reference to a work-related injury, the district court found

that Fant alleged a § 75B claim under the state workers'

compensation law. We accept this reading.

In that claim, Fant asserts that his termination "was

in violation of the Collective Bargaining Agreement entered into

by defendants, NEPSCO and IBEW," a contention that is

incorporated into each count of the complaint. Under the state

statute, the protections of § 75B are subordinate to the terms

of any collective bargaining agreement (CBA) between the

employee's union and employer. "In the event that any right set

forth in this section is inconsistent with an applicable

collective bargaining agreement, such agreement shall prevail."

Mass. Gen. Laws ch. 152, § 75B(3).

Having found that the amended complaint alleged a claim

under Chapter 152, § 75B, the district court also concluded that

the state "law upon which Fant relies expressly states that the

rights it creates are not independent of collective bargaining

agreements." Furthermore, "[d]etermining whether [the CBA] is

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consistent with the workers' compensation law. . . would require

interpreting the collective bargaining agreement," an analysis

that the court could not pursue "because of the preemptive

effect of the federal law governing relations between labor and

management," a reference to the LMRA.

III.

Preemption

As noted, § 301 of the LMRA allows a "[s]uit for

violation of contracts between an employer and a labor

organization representing employees in an industry affecting

commerce." 29 U.S.C. § 185(a)(1982). State law claims

implicating rights and duties under a CBA may be preempted by §

301. "[T]he question which controls preemption disputes under

section 301 is, simply, whether a state law action is based, in

its essence, on a claim of rights or duties under a collective

bargaining agreement." The Developing Labor Law, 1699 (Patrick

Hardin et al. eds., 3d ed. 1992) (1971). Employers have an

obligation to comply with the terms of the CBA and unions have

a corresponding duty of "fair representation," meaning that they

must not engage in "arbitrary or bad faith conduct" that

evidences "hostility, discrimination, or dishonesty" toward an

employee-union member. Figueroa de Arroyo v. Sindicato de

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Trabajadores Packinghouse, 425 F.2d 281, 284 (1st Cir. 1970)

(involving union action in a grievance proceeding).

Fant does not assert a claim under the LMRA. Indeed,

he disavows one. Nevertheless, his state law claim alleging

discrimination by NEPSCO and NEES, and breach of representation

duties by the IBEW, is tantamount to a hybrid cause of action

governed by § 301 of the LMRA.

Hybrid claims involve alleged wrongdoing on the part

of both the employer and the union with respect to the rights of

employees. "If, in an action alleging a breach of the duty of

fair representation, the employee seeks relief for a related

breach of contract by the employer, the employee's claim against

the employer is 'based upon' a breach of the labor contract

within the scope of section 301." The Developing Labor Law, at

1418. In these hybrid cases, the court must resolve whether the

union failed in fairly representing the employee and whether the

employer acted in violation of the CBA terms. The Supreme Court

has found these parallel claims against the parties to a CBA to

be "inextricably interdependent." DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 151, 164 (1983). The

component parts of a hybrid § 301 claim, the employer's breach

of the CBA and the union's failure to defend employee rights

under the CBA, each require interpretation of the terms set

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forth in the labor agreement. In creating § 301 of the LMRA,

Congress intended "that a comprehensive, unified, body of

federal law should govern actions concerning the interpretation

and enforcement of collective bargaining agreements." The

Developing Labor Law, at 1698-99. As such, state law claims

that require interpretation of a labor contract for adjudication

are generally preempted by the federal law. See id.

Despite the preemptive scope of § 301, state law claims

survive if they do not require interpretation of the CBA. See

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409

n.8 (1988) ("§ 301 pre-empts state law only insofar as

resolution of the state-law claim requires the interpretation of

a collective- bargaining agreement"). The degree to which a

state law claim depends upon an understanding of the CBA

requires careful judicial analysis. "Courts confronted with

state law claims must. . . locate the line between the need for

mere consultation of a CBA, which does not demand federal

preemption, and more active interpretation of that agreement,

which does preempt the state law claims." Lydon v. Boston Sand

& Gravel Co., 175 F.3d 6, 10 (1st Cir. 1999). See also Livadas

v. Bradshaw, 512 U.S. 107, 124 (1994) (checking wage rates set

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forth in the CBA does not rise to interpretation).7 As we have

put it, a "real interpretive dispute" regarding the CBA must

exist for other claims to be preempted. Martin v. Shaw's

Supermarkets, Inc., 105 F.3d 40, 42 (1st Cir. 1997).

A state law claim may depend upon the meaning of the

CBA if the conduct at issue constitutes a breach of duty under

the CBA or resolution of the dispute hinges upon interpretation

of the CBA. See Flibotte v. Pennsylvania Truck Lines, Inc., 131

F.3d 21, 26 (1st Cir. 1997). Both tests are met in this case.

As best we can tell from the complaint, Fant's case involves

recent leave-time for recovery from a work-related injury, a

lay-off, a subsequent request for reassignment to a different

type of job, seniority, and his availability for immediate

reemployment. Disputes relating to such matters are usually

CBA-based disputes because the rights at issue are created by

the agreement. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

7 In cases alleging a violation of a state law without
asserting a breach of the CBA, the action need not be preempted
by federal law. See Welch v. General Motors Corp., 922 F.2d 287
(6th Cir. 1990). In Welch, the plaintiff's claim against the
employer concerned rights established by the Michigan
Handicapper's Civil Rights Act. The court affirmed the district
court's ruling that independent state statutory rights could be
asserted, even if the CBA also provided a remedy for
discrimination. In such cases, the court generally reasons that
the rights created by the state law are independent, non-
negotiable and "not inextricably intertwined with the collective
bargaining agreement." Id. at 290. See also Livadas, 512 U.S.
at 124-25.

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218 (1985). Similarly, questions relating to qualifications and

seniority usually require recourse to details that are imbedded

in CBAs. See O'Brien v. Consolidated Rail Corp., 972 F.2d 1, 5

(1st Cir. 1992) (regarding Chapter 151B and Railway Labor Act

preemption); Wilhelm v. Sunrise Northeast, Inc., 923 F. Supp.

330 (D.Conn. 1995).

In this case, the "Agreement as to Wages, Working

Conditions and Seniority" establishes a procedure for laying off

and rehiring workers:

When forces are reduced in any class of work, the last
man hired into the class shall be furloughed first and
so on. . . . When forces are increased in any class,
preference for reemployment shall be given to
furloughed employees defined as "regular employees"8.
. . , the last man furloughed to be the first rehired,
if available for immediate reemployment and so on
until the required force has been obtained or until
all furloughed employees have been reemployed.

Article V. Fant's entitlement to employment can only be

resolved by referring to the terms of the CBA. Furthermore,

Fant's claim of failed representation by the union upon his

termination is governed by Article VI of the CBA, which says,

"Upon the written request of the Brotherhood. . . the Company

shall grant a hearing to the [suspended or discharged] employee.

8 The CBA defines a "regular employee" as "any employee who
has been employed by the Company for a continuous period of one
year preceding the date hereof or who may be employed by the
Company for a continuous period of one year during the term of
this agreement." Article II.

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. . . The hearing shall be conducted in accordance with the

method of adjusting grievances as provided in Article VIII [of

the CBA]." Finally, the CBA contains a broad management rights

clause:

The Brotherhood agrees. . . not to hinder or interfere
with the management of the Company. . . , including
the assignment of work, the direction of work forces,
the right to hire, suspend, or discharge for proper
cause, to transfer employees. . . and to furlough
employees. . . , but, in the exercise of these
responsibilities in management, the Company agrees
that it will not discriminate against any member of
the Brotherhood.

Article IX. A similar clause in Martin played a role in our

decision that the plaintiff's claim was preempted because it

could not be resolved without interpreting the CBA. See 105

F.3d at 43-44. That is also the case here. Fant's state claim

of discrimination under Chapter 152, § 75B is preempted by § 301

of the LMRA because it requires interpretation of the CBA.

Fant virtually invited this preemption conclusion in

his complaint, where he alleged that the treatment constituting

the substance of his grievance "was in violation of the

Collective Bargaining Agreement entered into by and between the

defendants, NEPSCO and IBEW." Moreover, given our precedents,

the preemption conclusion is not surprising. We have dealt

previously with claims under Chapter 152, § 75 and preemption.

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See Martin, 105 F.3d at 44 (finding both § 75A9 and § 75B

preempted); Magerer v. John Sexton & Co., 912 F.2d 525, 529-30

(1st Cir. 1990) (preemption of § 75B). In those cases, we found

that § 75B claims for retaliatory discharge are subject to the

CBA by the express terms of the statute. See Mass. Gen. Laws

ch. 152, § 75B(3). Indeed, there need not be an explicit

finding of inconsistency for claims under this section to be

preempted. As we have said, the state law claims are preempted

"not because the collective bargaining agreement is inconsistent

with the state claims asserted, but because it may be so and

requires interpretation." Martin, 105 F.3d at 44. See also

Magerer, 912 F.2d at 529 ("[C]laims under section 75B will

require interpretation of the agreement and, therefore, will be

preempted by Section 301.").

As Fant himself acknowledges, his § 75B claims against

his employer and union inescapably require resort to the CBA.

Those claims are preempted by § 301 of the LMRA.10

Affirmed.

9 This statute gives an employee "preference in hiring by
the employer for whom he worked at the time of compensable
injury. . . ." Mass. Gen. Laws ch. 152, § 75A.
10 Because we find that Fant's state law claim is preempted
by federal law, and because Fant has not pursued a § 301 claim,
we need not determine whether a § 301 fair representation claim
against the union would be timely under the applicable statute
of limitations.

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