Clarke v. Kentucky Fried Chicken of California, Inc.

• Decision Date: 12 January 1995
• Docket Number: No. 94-1950,94-1950
• Citation: 57 F.3d 21
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 34, 68 Fair Empl.Prac.Cas. (BNA) 352, 66 Empl. Prac. Dec. P 43,617 Karin CLARKE, Plaintiff, Appellant, v. KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 21

57 F.3d 21

68 Fair Empl.Prac.Cas. (BNA) 34,

68 Fair Empl.Prac.Cas. (BNA) 352,

66 Empl. Prac. Dec. P 43,617

Karin CLARKE, Plaintiff, Appellant, v. KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC., Defendant, Appellee.

No. 94-1950.

United States Court of Appeals, First Circuit.

Heard Jan. 12, 1995.

Decided June 14, 1995.

Kevin G. Powers, with whom Robert S. Mantell and Law Office of Kevin G. Powers, Boston, MA, were on brief, for appellant.

Jeffrey G. Huvelle, with whom Melissa Cole, Covington & Burling, Washington, DC, Terry Philip Segal, Brenda R. Sharton and Segal & Feinberg, Boston, MA, were on brief, for appellee.

Nan Myerson Evans, Bon Tempo & Evans and David A. Robinson, on brief of amicus curiae National Employment Lawyers Ass'n.

SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Plaintiff Karin Clarke appeals 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 BACKGROUND

While employed by defendant KFC at a fast-food restaurant 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 harassment, 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. Secs. 1441, 1446; see also id. Sec. 1332 (diversity jurisdiction), 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, Sec. 1C, was barred for failure to exhaust mandatory administrative remedies before the Massachusetts Commission Against Discrimination ("MCAD"), see Mass.Gen.L. ch. 151B, Sec. 5 (prescribing six-month limitation period for MCAD claims), Sec. 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. 152, Sec. 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 DISCUSSION

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, Sec. 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. 151B

In 1946 the Massachusetts Legislature enacted the Fair Employment Practices Act ("FEPA"), Mass.Gen.L.Ann. ch. 151B, Sec. 1 et seq., which contained a comprehensive list of unlawful discriminatory acts by covered Massachusetts employers against their employees. ² See id. Sec. 4; Katz v. MCAD, 365 Mass. 357, 312 N.E.2d 182, 187 (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, Sec. 4(1); see also College-Town v. MCAD, 400 Mass. 156, 508 N.E.2d 587 (1987) (interpreting FEPA Sec. 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, Secs. 5, 9 ("As to acts declared unlawful in section four, the procedure provided in [chapter 151B, Sec. 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 Ackerson v. Dennison Mfg. Co., 624 F.Supp. 1148, 1150 (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 the claimant or the respondent may obtain limited review on petition to the superior court, Mass.Gen.L.Ann. ch. 151B, Sec. 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. Sec. 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, Sec. 1(18) (definition of "sexual harassment"), Sec. 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

                Sec. 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, Sec. 1C) (emphasis added) [hereinafter:  "Section 1C"]
                

2. The ERA and Charland

Enacted in 1989, the Equal Rights Act ("ERA"), Mass.Gen.L.Ann. ch. 93, Secs. 102, 103, proscribes, inter alia, gender-based discrimination in connection with the execution and enforcement of contracts and provides that "[a] person whose rights ... have been violated may commence a civil action for injunctive and other appropriate equitable relief, including the award of compensatory and exemplary damages. Said civil action shall be instituted ... in the superior court...." Id. Sec. 102(b).

Later, in Charland v. Muzi Motors, Inc., 417 Mass. 580, 631 N.E.2d 555 (1994), the SJC held that ERA section 102(b) does not excuse claimants from compliance with the comprehensive administrative 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 practice[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 Charland 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, Sec. 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 at 559; see also Agin v. Federal White Cement, Inc., 417 Mass. 669, 632 N.E.2d 1197, 1199 (1994) (same).

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, 111 S.Ct. 1217, 1225-26, 113 L.Ed.2d 190 (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 exhaustion 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 employment discrimination claim explicitly listed in FEPA section 4(16A) as an unlawful act.

4. Section 1C

Clarke would distinguish Section 1C from ERA sections 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, 377 Mass. 231, 385 N.E.2d 976, 978 (1979) ("It is a common tenet of 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...