Melley v. Gillette Corp.

• Decision Date: 21 March 1985
• Citation: 475 N.E.2d 1227,19 Mass.App.Ct. 511
• Parties: , 41 Fair Empl.Prac.Cas. (BNA) 1320, 1 IER Cases 720 David T. MELLEY v. The GILLETTE CORPORATION.
• Court: Appeals Court of Massachusetts

Page 1227

475 N.E.2d 1227

19 Mass.App.Ct. 511, 41 Fair Empl.Prac.Cas.

(BNA) 1320,

1 IER Cases 720

David T. MELLEY v. The GILLETTE CORPORATION.

Appeals Court of Massachusetts Middlesex.

Argued Dec. 12, 1984.

Decided March 21, 1985.

Damon R. Scarano, Boston, for plaintiff.

Joseph F. Ryan, Boston, for defendant.

Before DREBEN, KAPLAN and SMITH, JJ.

DREBEN, Judge.

The question presented by this appeal is whether the plaintiff may bring an action against his employer for wrongful termination of employment on grounds of age discrimination without following the procedures set forth in G.L. c. 151B. We hold that the plaintiff may not bypass the provisions of that statute. Accordingly, we affirm the dismissal of his action.

Melley claims that the only reason he was fired was because of his age, that there is a strong public policy against age discrimination, see G.L. c. 149, § 24A, and G.L. c. 151B, § 4, and that an employer's action which violates such a clear public policy is a breach of an implied covenant of good faith and fair dealing. See Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 & n. 6, 429 N.E.2d 21 (1981); Cort v. Bristol-Myers Co., 385 Mass. 300, 306 n. 6, 431 N.E.2d 908 (1982).

The difficulty with Melley's argument is that a finding that certain conduct contravenes public policy does not, in itself, warrant the creation of a new common law remedy for wrongful dismissal by an employer. The rationale for implying a private remedy under the "public policy exception" to the traditional rule governing at-will employment contracts is that, unless a remedy is recognized, there is no other way to vindicate such public policy. Wehr v. Burroughs Corp., 438 F.Supp. 1052, 1055 (E.D.Pa.1977), aff'd. with modification on other grounds, 619 F.2d 276 (3d Cir.1980). McCluney v. Jos. Schlitz Brewing Co., 489 F.Supp. 24, 26 (E.D.Wis.1980). See Crews v. Memorex Corp., 588 F.Supp. 27, 29 (D.Mass.1984). Cf. Gram v. Liberty Mut. Ins. Co., 384 Mass. at n. 6, 668-669, 429 N.E.2d 21.

In Massachusetts, however, the public policy against age discrimination is already protected by a comprehensive legislative scheme, G.L. c. 151B. That plan provides for administrative remedies by the Massachusetts Commission Against Discrimination (MCAD) as well as for judicial remedies. Section 5 of c. 151 B, as appearing in St.1967, c. 483, provides that the MCAD is to investigate any claim, and, if a commissioner finds probable cause for crediting the allegations of the complaint, "he shall immediately endeavor to eliminate the unlawful practice complained of ... by conference, conciliation and persuasion." Under G.L. c. 151B, § 9, as inserted by St.1974, c. 478, a civil action may be brought "at the expiration of ninety days after the filing of a complaint with the commission, or sooner if a commissioner assents in writing." This clear suggestion that a litigant is first to follow the administrative route accords with the usual requirement that administrative remedies are to be exhausted before resort is had to the courts. See Banquer Realty Co. v. Acting Bldg Commr. of Boston, 389 Mass. 565, 572, 451 N.E.2d 422 (1983). This rule has been applied specifically to the MCAD. East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 448, 453, 305 N.E.2d 507 (1973). Cf. Rock v. Massachusetts Commn. Against Discrimination, 384 Mass. 198, 204, 424 N.E.2d 244 (1981), where deference was accorded to the agency's view as to whether the statute had been violated.

The statutory scheme also outlines the specific remedies available to a petitioner. Thus, § 9 provides that damages or injunctive relief, or both, may be sought. The case is to be advanced for a speedy trial, and the petitioner, if successful, is to be awarded reasonable attorney's fees and costs unless particular circumstances would render such an award unjust. A special two-year statute of limitations is provided.

We think that where, as here, there is a comprehensive remedial statute, the creation of a new common law action based on the public policy expressed in that statute would interfere with that remedial scheme. Not only would the legislative preference for an administrative solution be circumvented, but serious problems would be posed as to the extent of the remedy to be provided. In awarding damages for breach of the implied covenant of good faith and fair dealing, the Supreme Judicial Court has stated that the "goal is ... simply to deny to [the employer] any readily definable, financial windfall resulting from the denial to [the employee] of the compensation for past services." McCone v. New England Tel. & Tel. Co., 393 Mass. 231, 234, 471 N.E.2d 47 (1984), quoting from Gram v. Liberty Mut. Ins. Co., 391 Mass. 333, 335, 461 N.E.2d 796 (1984). This measure of recovery is, of course, much more limited than that permitted under c. 151B.

We are not unmindful that Comey v. Hill, 387 Mass. 11, 20, 438 N.E.2d 811 (1982), indicates that the Supreme Judicial Court does not view G.L. c. 151B as "tending to narrow or eliminate a person's common law rights where applicable. The statute broadens existing remedies rather than requiring resort to it as exclusive of all other remedies." The plaintiff, however, has no common law right unless we create one now. Prior to the 1974 amendment to § 9 of G.L. c. 151B, St.1974, c. 478, an employee had no remedy for discharge on account of age. Johnson v. United States Steel Corp., 348 Mass. 168, 170, 202 N.E.2d 816 (1964). Unlike the case at bar, in Comey, the wrong alleged was the common law tort of interference with an...