O'Connell v. Chasdi

Decision Date12 August 1987
Citation400 Mass. 686,511 N.E.2d 349
Parties, 50 Fair Empl.Prac.Cas. (BNA) 574 Kathleen O'CONNELL v. Shimon CHASDI et al. 1
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Wendy A. Kaplan (Marion Sugden Lill, Cambridge, with her), for plaintiff.

Marjorie Heins, Boston, for Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The plaintiff brought this action in the Superior Court against the defendants, alleging assault and battery, intentional infliction of emotional distress, and violation of her civil rights under G.L. c. 12, § 11 (1986 ed.). After the jury returned verdicts for the plaintiff on her claims against Chasdi for assault and battery and intentional infliction of emotional distress, the judge granted Chasdi's motion for judgment notwithstanding the verdicts on the ground that those claims were barred by the exclusivity provisions of the Workers' Compensation Act, G.L. c. 152, §§ 15 and 24 (1986 ed.). In addition, the judge ordered judgment for the defendants on the plaintiff's claims under the Massachusetts Civil Rights Act, G.L. c. 12, § 11I.

In the spring of 1980, the plaintiff, Kathleen O'Connell, was hired as assistant to the director of the Institute for International Education Programs, Inc. (Institute). The defendant, Shimon Chasdi, was the director of the Institute. Shortly thereafter, Chasdi and O'Connell departed on a business trip to South America. Beginning on the airplane flight at the start of the trip, Chasdi engaged in a series of sexual advances and other objectionable actions of a sexual nature. On the airplane, Chasdi asked O'Connell to share a hotel room with him. When she refused Chasdi said that it was "rigid and inflexible" on her part. He repeated this request in the taxi from the airport. Again she refused.

During the business trip, Chasdi repeatedly made physical advances toward O'Connell placing his hand on her knee, hugging her, stroking her hair and face, and attempting to hold her hand. O'Connell resisted his advances, telling him that such contact was unwelcome. Nevertheless, Chasdi persisted. He renewed his request that O'Connell share his hotel room, and when she refused, Chasdi said that she "was very unsophisticated. It was probably because of [her] Catholic background, and that kind of thing is very common when you're working internationally, and that [she] would have to learn how to deal with these things in a more sophisticated way."

As O'Connell resisted Chasdi's advances, he became increasingly critical of her, and began to threaten her job. During one taxi ride from a meeting, Chasdi attempted to hold O'Connell's hand. When she withdrew her hand, Chasdi said, "I think you should go back to Boston. When I get back, we can discuss whether you should continue to work for the organization." Soon thereafter, however, Chasdi changed his mind about having O'Connell return to Boston. O'Connell felt that her job was in jeopardy if she did not continue on the trip.

Chasdi's behavior did not improve. He questioned O'Connell about her personal life, and criticized her for her morals, calling her "rigid and Catholic." Chasdi continually tried to touch O'Connell, and became angry and critical when she resisted. Chasdi told her, "You have no quality in your thinking. I'm eliminating you." Another time, Chasdi punished O'Connell for resisting his advances by not allowing her to attend meetings that day, and later told her "he didn't know if [she] was capable of the close working relationship you needed in this job." Once, when Chasdi visited O'Connell in her hotel room because she was ill, Chasdi lifted the bedcovers and stroked her thighs. Finally, when Chasdi had a maid let him into O'Connell's room while she was sleeping, O'Connell decided to return to Boston alone. She left the next day. When Chasdi returned to Boston a few days later, O'Connell confronted him. He denied that anything had happened, and said that nobody would believe her. O'Connell resigned shortly thereafter.

O'Connell brought this action against Chasdi and the Institute, asserting claims against Chasdi for assault and battery and intentional infliction of emotional distress, and against Chasdi and the Institute for violation of her civil rights under G.L. c. 12, § 11I. 2 The judge ruled that G.L. c. 12, § 11I, did not entitle the plaintiff to a jury trial, and therefore instructed the jury only on the assault and battery and intentional infliction of emotional distress claims against Chasdi. The jury returned a verdict for damages of $25,000 for assault and battery and $100,000 for intentional infliction of emotional distress. In response to a special question, the jury indicated that the damages awarded for intentional infliction of emotional distress included the amount awarded for assault and battery.

As to the claims for assault and battery and intentional infliction of emotional distress, the judge granted Chasdi's motion for judgment notwithstanding the verdicts. As to the claim under the Civil Rights Act, the judge, who was hearing that matter without jury, ordered the entry of judgment for the defendants. 3

1. In granting Chasdi's motion for judgment notwithstanding the verdicts on the claims of assault and battery and intentional infliction of emotional distress, the judge reasoned that the exclusivity provisions of the Workers' Compensation Act precluded separate, common law claims against Chasdi. The judge relied on Foley v. Polaroid Corp., 381 Mass. 545, 413 N.E.2d 711 (1980), S.C., 400 Mass. 82, 508 N.E.2d 72 (1987), and Tenedios v. Wm. Filene's Sons Co., 20 Mass.App.Ct. 252, 479 N.E.2d 723 (1985). We disagree, and conclude that the judge erred.

General Laws c. 152, § 15 (1986 ed.), provides in part: "Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee shall be entitled, without election, to the compensation and other benefits provided under this chapter.... Nothing in this section ... shall be construed to bar an action at law for damages for personal injuries or wrongful death by an employee against any person other than the insured person employing such employee and liable for payment of the compensation provided by this chapter for the employee's personal injury or wrongful death and said insured person's employees" (emphasis added). The precise question before us is whether the act bars an action against a fellow employee who commits an intentional tort which was in no way within the scope of employment furthering the interests of the employer. 4 We have stated that "an employee injured in the course of his employment by the negligence of a fellow employee may not recover from that fellow employee if he also was acting in the course of his employment." Saharceski v. Marcure, 373 Mass. 304, 306, 366 N.E.2d 1245 (1977), citing Murphy v. Miettinen, 317 Mass. 633, 635, 59 N.E.2d 252 (1945). See Mendes v. Tin Kee Ng, 400 Mass. 131, 134-135, 507 N.E.2d 1048 (1987). Where a fellow employee commits an intentional tort not related to the interests of the employer, on the other hand, the policies behind the act would not be served by immunizing the coemployee.5 Two purposes of immunizing coemployees have been suggested. First, employee immunity might be considered a quid pro quo, part of the general compromise of employer and employee rights involved in the act. Second, the act might be considered to protect employees not only from being injured themselves, but also from the risk of personal liability for negligently injuring others as part of the circumstances of employment. 2A A. Larson, Workmen's Compensation Law § 72.10 (1987). L. Locke, Workmen's Compensation § 662, at 802 n. 9 (2d ed. 1981). Neither of those policies supports immunizing coemployees for intentional torts not related to the interests of the employer. We do not think that the right to commit such acts with impunity was part of the general compromise of rights involved in the act. Moreover, liability for such intentional torts is not part of the circumstances of employment, unlike liability for negligently injuring others in the course of employment. Such intentional torts are not an accepted risk of doing business. See, e.g., Elliott v. Brown, 569 P.2d 1323 (Alaska 1977); Maines v. Cronomer Valley Fire Dep't, 50 N.Y.2d 535, 429 N.Y.S.2d 622, 407 N.E.2d 466 (1980); Williams v. Smith, 222 Tenn. 284, 435 S.W.2d 808 (1968); Bryan v. Utah Int'l, 533 P.2d 892 (Utah 1975); 2A A. Larson, Workmen's Compensation Law, supra. In all respects, the evidence was sufficient to warrant the jury verdicts. Therefore, we conclude that the judge erred in granting Chasdi's motion for judgment notwithstanding the verdicts on O'Connell's claims for assault and battery and intentional infliction of emotional distress.

2. The judge concluded that O'Connell's claims under the Massachusetts Civil Rights Act, G.L. c. 12, § 11I, would not be submitted to the jury, but instead would be determined by the judge. 6 The judge found that Chasdi's conduct involved force, threats, and intimidation. Nevertheless, the judge concluded that O'Connell had not shown that the defendants interfered with any rights secured by the Constitution or laws of the United States or of the Commonwealth. O'Connell argues that the judge erred in ordering judgment for the defendants as to the civil rights claims. 7

The Massachusetts Civil Rights Act was enacted in response to problems of racial violence and harassment. See Batchelder v. Allied Stores Corp., 393 Mass. 819, 821, 473 N.E.2d 1128 (1985) (Batchelder II ). In addressing these problems, "[t]he Legislature at least intended to incorporate a proscription on private acts in deprivation of secured...

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