Fant v. New England Power Service Co

• Decision Date: 01 August 2000
• Docket Number: No. 99-2142,99-2142
• Citation: 239 F.3d 8
• Parties: (1st Cir. 2001) BRUCE E. FANT, Plaintiff, Appellant, v. NEW ENGLAND POWER SERVICE CO.; NEW ENGLAND ELECTRIC SYSTEMS; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 486, Defendant, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 8

239 F.3d 8 (1st Cir. 2001)

BRUCE E. FANT, Plaintiff, Appellant, v. NEW ENGLAND POWER SERVICE CO.; NEW ENGLAND ELECTRIC SYSTEMS; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 486, Defendant, Appellees.

No. 99-2142

United States Court of Appeals For the First Circuit

Heard August 1, 2000

Decided January 8, 2001

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

[Hon. Nathaniel M. Gorton, U.S. 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.

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

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.

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 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 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-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 claim can be filed in state Superior Court, ch. 151B § 9. SeeJancey 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 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., 120 F.Supp.2d 134, 145(D. Mass. 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. 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...