Choroszy v. Wentworth Institute of Technology

• Decision Date: 22 January 1996
• Docket Number: Civil Action No. 95-11138.
• Parties: Zygmunt CHOROSZY and Denson Hudgens, Plaintiffs, v. WENTWORTH INSTITUTE OF TECHNOLOGY, Defendant.
• Court: U.S. District Court — District of Massachusetts

915 F. Supp. 446

Zygmunt CHOROSZY and Denson Hudgens, Plaintiffs, v. WENTWORTH INSTITUTE OF TECHNOLOGY, Defendant.

Civil Action No. 95-11138.

United States District Court, D. Massachusetts.

January 22, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kevin G. Powers, Boston, MA, for Zygmunt Choroszy.

Paul G. Lannon, Nutter, McClennen & Fish, Boston, MA, for Denson Hudgens.

Sharon R. Burger, Paul G. Lannon, Nutter, McClennen & Fish, Boston, MA, for Wentworth Institute of Technology.

MEMORANDUM AND ORDER

O'TOOLE, District Judge.

Zygmunt Choroszy and Denson Hudgens, former security guards at the Wentworth Institute of Technology ("Wentworth"), have sued Wentworth on a variety of state and federal claims related to events that occurred at their place of employment. Wentworth moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Hudgens' claim regarding negligent supervision, while Hudgens moves to add an additional claim against Wentworth for sexual harassment. The Court now grants Wentworth's motion to dismiss and, finding that Hudgens' proposed addition would not state a valid claim either, denies the motion to amend.

I. FACTS

For the purposes of these motions, the Court accepts as true all the facts stated in the plaintiffs' complaint. Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993). The complaint indicates that Hudgens worked for Wentworth as a security officer beginning in 1990. In June 1990, Hudgens witnessed a group of fellow officers harassing another officer whom they believed to be homosexual. Hudgens spoke out against the harassment, whereupon the other officers turned on him and even, on one occasion, threatened him with violence. Once, an officer drew his service revolver, pointed it at Hudgens, and stated, "I should kill you, you're a faggot." Hudgens complained about these events several times to the director of security, Kevin Moore. Moore failed to take any appropriate action. Hudgens claims that as a result of Moore's failure to supervise and discipline the other officers properly, Hudgens was further harassed and threatened. Additionally, although the complaint does not elucidate the causal connection, Hudgens avers that Moore's inaction led Moore to terminate Hudgens' employment.

Choroszy's tenure at Wentworth apparently followed a similar pattern. Choroszy initially incurred the displeasure of his co-workers by speaking out when they called Hudgens a "faggot." Thereafter, he was repeatedly insulted because of his Polish and supposed Jewish background (Choroszy is of Polish descent but is not Jewish). Like Hudgens, Choroszy reported these personal attacks to Moore to no avail. Choroszy also refused to sign an affidavit at Moore's request stating that Hudgens had violated Wentworth's policy regarding computer use. In the end, Choroszy decided he could no longer endure the work environment because of the emotional and physical distress it caused him and resigned, a resignation Choroszy considers a constructive discharge.

Choroszy and Hudgens jointly filed suit in state court pursuant to Massachusetts statutory and common law and "Title VII of the Civil Rights Act of 1964 29 USC 6000E."¹ On the basis of this federal claim, Wentworth removed the case to federal court pursuant to 28 U.S.C. §§ 1331 and 1441(b).

II. DISCUSSION

A. Jurisdictional Issues

Although addressed by neither party, there lurks in the background of this case a quasi-jurisdictional question regarding the presence of Hudgens' claims in a federal court. Unlike Choroszy, Hudgens has asserted no federal cause of action against Wentworth; his action, as stated in the complaint, is based solely on Massachusetts common law. Ordinarily, supplemental jurisdiction would suffice to keep Hudgens in federal court, if his claim was so related to Choroszy's "that they form part of the same case or controversy." 28 U.S.C. § 1367(a). These plaintiffs' claims, however, have only a limited relation to one another; except for a common defendant and somewhat similar fact patterns, Choroszy's and Hudgens' claims are based on completely different legal theories and, for the most part, alleged action and inaction on behalf of the defendant. This separateness has led the Court to wonder whether it should, on its own initiative, sever the claims pursuant to Fed. R.Civ.P. 21 and then dismiss Hudgens' claim for lack of jurisdiction. Indeed, given the plaintiffs' initial desire to sue in state court, it would appear that Hudgens, had he so desired, could easily have accomplished as much on his own motion. Nonetheless, the collection of operative facts are sufficiently common for the purposes of Fed.R.Civ.P. 20(a) that, when coupled with the interest in judicial economy, the Court concludes it has an adequate basis for jurisdiction over Hudgens' state law claims and will resolve the motions presented.

B. Wentworth's Motion to Dismiss Hudgens' Claims

Initially, Hudgens' complaint appeared to include claims under both Massachusetts common law and Mass.Gen.L. ch. 151B for discrimination in employment. See Complaint ¶ A. ("This case is brought pursuant to Massachusetts General Law 151B, ... All conditions to jurisdiction under 151B have been met."). Wentworth has pointed out in its motion to dismiss that Hudgens did not allege facts indicating compliance with the procedural requirements for bringing a chapter 151B suit, namely, that a complaint had been filed with the Massachusetts Commission Against Discrimination ("MCAD") within six months of the alleged discrimination or retaliation. See Mass.Gen.L. ch. 151B, § 5. In his opposition memorandum, Hudgens does not deny this failure to comply with chapter 151B but instead asserts that he has a valid claim against Wentworth under Massachusetts common law. Accordingly, the Court will assume that Hudgens has waived his chapter 151B arguments and relies solely on state common law.

Hudgens' common law claim is based on the tort of "negligent hiring, retention, and supervision." See Foster v. The Loft, Inc., 26 Mass.App. 289, 526 N.E.2d 1309, 1310-11 (1988). On Hudgens' theory, Wentworth negligently failed to discipline or dismiss his abusive co-workers, and that negligence proximately caused his dismissal. This theory of recovery is itself somewhat troublesome; this Court could locate no cases under Massachusetts law in this century in which any federal or state court applied this tort to an employee's suit against his employer.² Indeed, most statements of the tort appear to state the duty as running to members of the public and not to the employees themselves. See id.; 1 Stuart M. Speiser et al., The American Law of Torts § 4:11 (Lawyer's Co-operative 1985 & 1995 Supp.) (discussing tort of negligent supervision but nowhere mentioning employees as persons to whom duty may be owed). That lacuna may be the result of the workers' compensation statute rather than any studied objection to the imposition of liability on an employer for employee-on-employee misconduct. See Bresnahan v. Barre, 286 Mass. 593, 190 N.E. 815, 816 (1934); see also Bruni v. United States, 964 F.2d 76 (1st Cir.1992) (holding that plaintiffs could only sue government on behalf of deceased postal employee killed by another under Federal Employees Compensation Act and not Federal Tort Claims Act); Missouri, K & T Ry. Co. of Texas v. Day, 104 Tex. 237, 136 S.W. 435 (1911) (permitting suit by employee against railroad for negligently employing and retaining a co-worker who assaulted him); 3 Stuart M. Speiser, The American Law of Torts § 9:92 (Lawyers Co-Operative 1986). After all, employees are often required to trust their safety to their co-workers, and employers are usually in a better position to know and monitor how these other employees will behave than any one employee. Furthermore, an employer does have a common law obligation to provide an employee with a safe place to work. Di Bari v. J.W. Bishop Co., 199 Mass. 254, 85 N.E. 89 (1908). Dictum in an even earlier Massachusetts case states that "the master could not be made liable to a servant for such an injury resulting from the fault of the fellow-servants, unless the master had himself been guilty of negligence in selecting or employing them." Osborne v. Morgan, 130 Mass. 102, 104 (1881). See also id. at 105 ("Even the master is not exempt from liability to his servants for his own negligence...."); Di Bari, 85 N.E. at 90 ("If a master knowingly employs servants who are incompetent by reason of their habits or otherwise he is liable for an injury occasioned to a fellow servant by their incompetency just as he would be liable for an injury caused by a defective machine."). Passing the point, this Court will assume that Massachusetts courts would recognize a negligent supervision action by an employee against his employer.

Nevertheless, Hudgens' claim falters on several other grounds. First, the Massachusetts Supreme Judicial Court has held "that, where applicable, G.L. c. 151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections, and that the ... failure to adhere to the requirements of G.L. c. 151B requires the dismissal of the complaint." Charland v. Muzi Motors, Inc., 417 Mass. 580, 631 N.E.2d 555, 559 (1994); see also Comey v. Hill, 387 Mass. 11, 438 N.E.2d 811, 817 (1982). The fact that Hudgens describes what he suffered as damages flowing from negligent supervision rather than from employment discrimination does not change the essence of his claim, which he originally characterized as a discrimination claim. See Woods v. Friction Materials, Inc., 30 F.3d 255, 264 (1st Cir.1994); Mouradian v. General El. Co., 23 Mass.App. 538, 503 N.E.2d 1318, 1320-21, review denied, 399 Mass. 1105, 507 N.E.2d 1056 (1987).

Second, even assuming that he can escape the chapter 151B exclusivity bar, Hudgens still has not stated a cognizable claim for anything. Hudgens was...