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Rosemarie Cross v. North Shore Medical Center, Inc.

Superior Court of Massachusetts, Essex

July 11, 2017

Rosemarie Cross
North Shore Medical Center, Inc.

          Filed July 13, 2017


          Joshua I. Wall, Justice

         The 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); [1] 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 .


         The background facts are relatively straightforward.[2] 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 supervisors.

         Prior 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.[3] 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.

         NSMC 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.


         NSMC 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.[4] 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, § 26.

         The 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 12.[5]

         NSMC 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).

         Even if 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 discharge.

         With 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).

         Here, 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. ...

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