July 13, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION TO DISMISS
I. Wall, Justice
plaintiff, Rosemarie Cross (" Cross"), filed this
action against her former employer, North Shore Medical
Center, Inc. (" NSMC"), asserting claims for:
failure to provide a safe workplace (Count I); discrimination
due to health condition, asthma (Count II); constructive
termination (Count III); failure to pay compensable work time
(Count IV); negligent hiring (Count IV);  and negligent
supervision (Count V). The matter is before the Court on
NSMC's motion to dismiss pursuant to Mass.R.Civ.P.
12(b)(6). For the reasons that follow, NSMC's Motion to
Dismiss will be ALLOWED .
background facts are relatively
straightforward. From November 2010 to March 2015,
Cross worked as a secretary in the Birth Place Department at
NSMC. At all times during her employment, Cross received
exceptional performance reviews from both her peers and
to working at NSMC, Cross suffered from asthmatic symptoms
brought on by seasonal allergies. On April 13, 2011, Cross
was hospitalized due to breathing problems; she was
subsequently diagnosed with allergy-induced asthma brought on
by mold in the ceilings and floors at NSMC. Over the
course of her employment, Cross was hospitalized on numerous
occasions due to asthma-related complications. Due to the
number of days that Cross missed from work on account of
these hospitalizations, her fellow employees donated over 400
hours of earned time to help cover her time off, as well as
medical and insurance expenses. Despite these donations, NSMC
Human Resources manager Arthur Bowes (" Bowes")
authorized Cross's use of only 15 of the 400 plus hours
of earned time donated. Cross sought to discuss Bowes'
decision with NSMC President Bob Norton ("
Norton"). Norton declined, however, to meet with Cross
on the grounds that he trusted Bowes' decision.
offered to reassign Cross to a secretary position in a
different department at NSMC. However, due to Bowes'
refusal to credit Cross with more than 15 hours of donated
earned time, as well as NSMC manager Lisa Cavallaro's
(" Cavallaro") repeated false representations that
there was no mold in the Birth Place Department, Cross felt
that she could no longer work at NSMC. Cross quit in March
2015, and filed a workers' compensation claim with the
DIA shortly thereafter. The DIA denied the claim in May of
2015. Cross did not appeal that denial.
contends that Cross's claims for failure to provide a
safe work environment (Count I), negligent hiring (Count IV),
and negligent supervision (Count V) are barred by the
exclusivity provision of the Workers' Compensation Act,
G.L.c. 152, § § 24-26 (" the Act"). The
Court agrees. Section 24 is " a comprehensive preemption
provision precluding injured workers from instituting tort
actions 'in respect to an [employment-related] injury
that is compensable [through the payment of disability
benefits] under this chapter.'" Clarke v.
Kentucky Fried Chicken of California, 57 F.3d 21, 28
(1st Cir. 1995), quoting G.L.c. 152, § 24. This
exclusivity provision bars common-law actions where "
the plaintiff is shown to be an employee; [her] condition is
shown to be a 'personal injury' within the meaning of
the [ ] [A]ct; and the injury is shown to have arisen
'out of and in the course of . . . [her]
employment.'" Foley v. Polaroid Corp., 381
Mass. 545, 549-50, 413 N.E.2d 711 (1980), citing G.L.c. 152,
Complaint, fairly read, alleges under Counts I, IV, and V
that Cross was employed by NSMC and that her injury arose in
the course of her employment due to the following: (1)
NSMC's failure to maintain a safe workplace; (2)
Bowes' decision to allow Cross to use only 15 hours of
earned time donated by co-workers; and (3) Norton's
refusal to meet with her because he trusted Bowes'
performance and decision. Cross's three negligence claims
are barred by the exclusivity provision of the Act because
all of the complained of acts, as well as the injuries
allegedly sustained therefrom, occurred during the course of
Cross's employment at NSMC. See Estate of Moulton v.
Puopolo, 467 Mass. 478, 484, 5 N.E.3d 908 (2014), and
cases cited therein (" So long as the injuries were
sustained while the employee was acting in the course of her
employment, . . . actions for negligence, recklessness, gross
negligence, and wilful and wanton misconduct by an employer
are precluded by the exclusive remedy provision");
Anzalone, 403 Mass. at 124-25 (where complained-of
conduct related wholly to co-worker's position as
plaintiff's supervisor and to the manner in which he
exercised his supervisory duties, claims are covered
exclusively by the Act); Fusaro v. Blakely, 40
Mass.App.Ct. 120, 123-24, 661 N.E.2d 1339 (1996). Moreover,
Cross filed a claim for, and was subsequently denied
benefits, under the Act. Having failed to file an appeal,
Cross cannot maintain the negligence claims asserted under
Counts I, IV, and V. See G.L.c. 152, § § 11 and
next argues that Cross's claims for handicap
discrimination (Count II) and constructive discharge (Count
III) must be dismissed because Cross failed to exhaust her
administrative remedies before filing this action. The Court
agrees. In order to bring an action under G.L.c. 151B, a
plaintiff must first file an administrative charge with the
Massachusetts Commission Against Discrimination ("
MCAD") within 180 days of the conduct of which the
complaint is made. G.L.c. 151B, § 5. Because the
Complaint here does not allege that Cross filed a complaint
with MCAD prior to filing this action, the claims asserted
under Counts II and III must be dismissed. Andrews v.
Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 n.1, 673
N.E.2d 40 (1996).
Counts II and III were not barred by the procedural mandates
of G.L.c. 151B, those claims fail because the allegations
made in support thereof are insufficient to state claims for
handicap discrimination and constructive discharge.
Cross's claim for handicap discrimination is based on
NSMC's purported failure to provide her with a reasonable
accommodation. Her claim for constructive termination is
based on NSMC's failure to provide her with a reasonable
accommodation, combined with misrepresentations about the
presence of mold in the Birth Place Department and Bowes'
refusal to credit her the full 400 hours of donated time. Not
only does Cross explicitly state that NSMC offered to
reassign her to a secretarial position in a different,
presumably mold-free department, but her allegations
similarly fail to establish a claim for constructive
regard to this claim, the Supreme Judicial Court's
decision in GTE Prods. Corp. v. Stewart, 421 Mass.
22, 653 N.E.2d 161 (1995) is controlling. A "
constructive discharge occurs when the employer's conduct
effectively forces an employee to resign. Although the
employee may say, 'I quit, ' the employment
relationship is actually severed involuntarily by the
employer's acts, against the employee's will. As a
result, a constructive discharge is legally regarded as a
firing rather than a resignation." Id. at
33-34, quoting Turner v. Anheuser-Busch, Inc., 7
Cal.4th 1238, 1244-45, 32 Cal.Rptr.2d 223, 876 P.2d 1022
(1994). In order to establish a claim for constructive
discharge, Cross must plead facts sufficient to establish
that " the working conditions would have been so
difficult or unpleasant that a reasonable person in [ ] [her]
shoes would have felt compelled to resign." Id.
at 34, quoting Alicea Rosado v. Garcia Santiago, 562
F.2d 114, 119 (1st Cir. 1977). The test is met if, based on
an objective assessment of the conditions under
which the employee has asserted she was expected to work, it
could be found they were so difficult as to be intolerable.
Id.; see also Salvi v. Suffolk County
Sheriff's Dep't, 67 Mass.App.Ct. 596, 606-07,
855 N.E.2d 777 (2006).
the conditions which Cross alleges were not so intolerable
that a reasonable person would have felt compelled to resign.
To the extent that Cross's claim rests on the mold and
misrepresentations about the presence thereof in the Birth
Place Department, Cross was offered a comparable position in
a different department. Regarding NSMC's refusal to
authorize her use of over 400 hours of donated time, Cross
has not alleged that NSMC employees were permitted, by
written policy or practice, to use of all donated time. The
allegations are simply insufficient to establish a finding of
constructive discharge. See, e.g., Tilghman v. Mass. Med.