Bergeson v. Franchi, Civ. A. No. 91-11878-C.

• Citation: 783 F. Supp. 713
• Decision Date: 13 February 1992
• Docket Number: Civ. A. No. 91-11878-C.
• Parties: Nancy BERGESON, Plaintiff, v. Domenic FRANCHI, Individually and in his capacity as Director of Franchi Group Associates; and Franchi Group Associates, Defendants.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

783 F. Supp. 713

Nancy BERGESON, Plaintiff, v. Domenic FRANCHI, Individually and in his capacity as Director of Franchi Group Associates; and Franchi Group Associates, Defendants.

Civ. A. No. 91-11878-C.

United States District Court, D. Massachusetts.

February 13, 1992.

Joanne C. Fray, Offices of Joanne Fray, Lexington, Mass., for plaintiff.

Kenneth M. Bello and Kathleen D.H. Pawlowski, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Boston, Mass., for defendants.

MEMORANDUM

CAFFREY, Senior District Judge.

This matter is before the Court on defendants' Domenic Franchi ("Franchi") and Franchi Group Associates ("Associates") motion to dismiss. The plaintiff, Nancy Bergeson ("Bergeson"), is a former employee of the defendant Associates, a real estate management enterprise, at which defendant Franchi was her direct supervisor. In her complaint, plaintiff asks for declaratory relief and monetary damages for statutory and common law claims due to sexual harassment, including breach of contract, assault and battery, wrongful discharge, state and federal civil rights violations, and intentional infliction of emotional distress. Plaintiff originally filed her nine-count complaint in Suffolk Superior Court on June 14, 1991. Defendants then removed the case to this Court pursuant to 28 U.S.C. § 1441.

Defendants move for dismissal of four counts, Counts VI, VII, IV, and VIII, under Federal Rules of Civil Procedure Rule 12(b)(6). The first count, Count VI, alleges that defendant Domenic Franchi intentionally inflicted emotional distress upon the plaintiff. For the reasons set forth in § IIA below, this Court denies the motion with respect to that count. The second of these counts, Count VII, alleges that both defendants breached plaintiff's employment contract in violation of good faith and fair dealing as well as public policy. As discussed in § IIB, this Court grants the motion with respect to Count VII. In the last of these counts, Count IV, plaintiff claims, inter alia, that both defendants violated her civil rights, pursuant to the Massachusetts Civil Rights Act ("Act"). Mass. Gen.Laws Ann. ch. 12, §§ 11H, 11I (West 1986). For the reasons set forth in § IIC below, this Court grants the motion with respect to Count IV.¹

I.

As alleged by the plaintiff, the relevant facts of this case are as follows. This Court accepts as true all allegations set forth in the complaint for the purposes of this motion.

In March, 1989, defendant Franchi hired the plaintiff as a full-time bookkeeper for defendant Associates. In addition to performing her bookkeeping duties, the plaintiff acted as an office manager and performed a variety of administrative tasks. In the beginning of May, the plaintiff asked to start working part-time on or about May 22, 1989. During that month, Franchi started making sexual advances towards the plaintiff, which continued and worsened over the next three months. These advances began as sexually suggestive comments and actions, such as commenting "You make my blood boil" and throwing hugs and kisses from his desk to hers. Soon thereafter, Franchi began making physical advances toward plaintiff, such as placing his hands on plaintiff's legs, shoulders, and arms while seated in defendant's power-locked car after a business lunch meeting. He threatened that the incident in his car was to remain a secret. Other advances included attempting to kiss her, discussing infidelity and rape, and begging her to fly to Florida with him on business and stay at his house there. Plaintiff continually spurned defendant's many advances.

During this period of time, Franchi offered plaintiff monetary rewards in an attempt to convince her to accept his sexual advances. Such rewards included an offer to reimburse plaintiff for medical expenses, a raise in her salary for no reason, an offer to buy her a fur coat, and an offer to lend plaintiff money to finance her restaurant business. Plaintiff alleges that he once asked her, "How much would it take to buy your love?"

On approximately July 24, 1989, plaintiff telephoned Franchi in Florida to resign from her position because of his constant sexual harassment. During that conversation, he became quite upset when plaintiff admitted that she had discussed his behavior with others. On August 10, 1989, Franchi requested that plaintiff come to his office to dissuade her from leaving. The following day, plaintiff left a resignation letter on his desk. Later that day, plaintiff received a telephone call from an employee of Associates stating that Franchi had fired her.

On approximately August 14, 1989, plaintiff filed a claim with the Massachusetts Commission Against Discrimination ("Commission"). The Commission had not acted upon plaintiff's complaint as of June 14, 1991, when this case was filed in Suffolk Superior Court and later removed to this Court.

II.

As noted above, defendants have moved to dismiss Counts VI, VII, and IV of the complaint, arguing that the three counts fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A court may grant such a dismissal only "if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). In deciding the motion, a court must accept as true all the factual allegations set forth in the complaint and must draw all reasonable inferences in favor of the plaintiff. Id. at 52; Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). In light of these standards, the Court will consider each count in turn.

A.

First, defendant Franchi moves to dismiss Count VI of plaintiff's complaint, which alleges that he intentionally inflicted emotional distress upon the plaintiff. Defendant asserts that the Workmen's Compensation Statute ("statute") bars the plaintiff from bringing separate, common law claims against the defendant, as the statute serves as the sole and exclusive remedy for personal injuries arising out of employment. See Mass.Gen.Laws Ann. ch. 152, §§ 15, 24 (West 1988). Under these exclusivity provisions of the statute, employees are barred from suing the insured entity that is liable for payment under the statute. Id. As discussed below, governing Massachusetts law instructs the Court to deny the defendant's motion.

The Massachusetts Supreme Judicial Court has held that the exclusivity provisions of the statute do not bar an employee from suing a co-employee for intentional infliction of emotional distress arising from sexual harassment. O'Connell v. Chasdi, 400 Mass. 686, 511 N.E.2d 349 (1987). In O'Connell, the plaintiff brought a sexual harassment claim against the corporation and her supervisor for civil rights violations, and against the supervisor for assault and battery and intentional infliction of emotional distress. Id. at 686, 511 N.E.2d 349. She alleged that her supervisor, the director of the corporation, repeatedly sexually harassed her, both physically and verbally, while on a business trip. Id. at 687-88, 511 N.E.2d 349. She later resigned because of the abuse. Id. at 688, 511 N.E.2d 349. A Superior Court jury returned verdicts for the plaintiff on the assault and battery and intentional infliction of emotional distress claims. Relying on Foley v. Polaroid Corp., 381 Mass. 545, 413 N.E.2d 711 (1980), and Tenedios v. Wm. Filene's Sons Co., 20 Mass.App.Ct. 252, 479 N.E.2d 723 (1985), the trial judge granted defendant's motion for judgment notwithstanding the verdict and entered judgment for the defendant. O'Connell, 400 Mass. at 689, 511 N.E.2d 349. He reasoned that these separate, common law claims were barred by the exclusivity provisions of the statute. Id.

On appeal, the Supreme Judicial Court reversed, holding that the statute did not bar claims against co-employees who commit intentional torts "not related to the interests of the employer." Id. at 690, 511 N.E.2d 349; see Anzalone v. Massachusetts Bay Transp. Auth., 403 Mass. 119, 124-25, 526 N.E.2d 246 (1988) (conduct by supervisor related to his position as plaintiff's supervisor and was therefore furthering the interests of the transportation authority). The court contrasted employees who negligently injure a fellow employee in the course of employment with employees who commit intentional torts that are not related to the employer's interest. While the statute immunizes negligent employees who commit torts in the course of employment and bars double recovery, the Court held that the statute did not bar recovery for the commission of intentional torts because such "torts are not an accepted risk of doing business." O'Connell, 400 Mass. at 691, 511 N.E.2d 349. As such, employees who are subjected to intentional torts such as assault and battery and intentional infliction of emotional distress stemming from sexual harassment should be able to recover for such common law claims. Id.

The instant case is factually analogous to O'Connell. Plaintiff claims verbal and physical sexual harassment by her direct supervisor, and bases her common law claim for intentional infliction of emotional distress on the alleged harassment. As noted above, the Supreme Judicial Court has clearly stated that the workmen's compensation exclusivity provision shall not bar common law claims from intentional torts committed by co-employees. O'Connell, 400 Mass. at 690, 511 N.E.2d 349. In so holding, the Supreme Judicial Court specifically rejected the reasoning of certain precedents upon which the defendant relies in the instant case. See id. at 689, 511 N.E.2d 349 (citing Foley, 381 Mass. at 545, 413 N.E.2d 711; Tenedios, 20 Mass.App.Ct. at 252, 479 N.E.2d 723).

Further, defendant's argument that Franchi is a director of the company, and therefore the one responsible for the workmens' compensation insurance, is without merit. The claim in question charges defendant Franchi, not the defendant Associates, with intentional...