

July 5, 1995      UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                                                                              

No. 94-1950
                          KARIN CLARKE,

                      Plaintiff, Appellant,

                                v.

           KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC.,

                       Defendant, Appellee.

                                                                                                

                           ERRATA SHEET

     The  opinion of  this  Court issued  on  June 14,  1995,  is
amended as follows:

     Cover sheet, under  listing of  counsel, add:   Nan  Myerson                                                                           
Evans, Bon Tempo &amp; Evans and David A. Robinson on brief of amicus                                                        
curiae National Employment Lawyers Association.

          [Appendix not attached.  Please contact Clerk's Office
        for 
                         opinion with appendix.]
                      UNITED STATES COURT OF APPEALS
                          FOR THE FIRST CIRCUIT
                                                                                                        

        No. 94-1950

                              KARIN CLARKE,

                          Plaintiff, Appellant,

                                    v.

               KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC.,

                           Defendant, Appellee.

                                                                                                        

               APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Edward F. Harrington, U.S. District Judge]                                                                      

                                                                                                        

                          Selya, Circuit Judge,                                                        

                     Campbell, Senior Circuit Judge,                                                             

                         and Cyr, Circuit Judge.                                                         

                                                                                                        

             Kevin G. Powers, with whom Robert S. Mantell and Law                                                                           
        Office of Kevin G. Powers were on brief for appellant.                                           
             Jeffrey   G.  Huvelle,   with  whom   Melissa  Cole,                                                                          
        Covington  &amp;  Burling,  Terry  Philip  Segal,  Brenda  R.                                                                           
        Sharton and Segal &amp; Feinberg were on brief for appellee.                                              
             Nan Myerson Evans,  Bon Tempo &amp;  Evans and David  A.                                                                           
        Robinson on brief  of amicus  curiae National  Employment                          
        Lawyers Association.
                                                                                                        

                              June 14, 1995
                                                                                                        

          CYR,  Circuit Judge.   Plaintiff  Karin Clarke  appeals                    CYR,  Circuit Judge.                                       

from a  district court judgment dismissing  her sexual harassment

claim  against her  former  employer, Kentucky  Fried Chicken  of

California,  Inc. ("KFC"), for  failure to exhaust administrative

remedies,  and dismissing  her related  state-law tort  claims on

preemption grounds.  We affirm the judgment.

                                I                                          I

                            BACKGROUND                                      BACKGROUND                                                

          While employed by defendant  KFC at a fast-food restau-

rant  in  Saugus,  Massachusetts, Clarke  was  sexually harassed,

physically assaulted,  and subjected  to attempted rape  by other

KFC employees.   Clarke quit  her job and  initiated the  present

lawsuit in Massachusetts Superior Court,  alleging sexual harass-

ment,  negligent and reckless  infliction of  emotional distress,

and negligent hiring, retention and supervision.  

          After removing the case  to federal district court, see                                                                           

28 U.S.C.    1441, 1446; see also id.   1332 (diversity jurisdic-                                               

tion), KFC filed a motion to dismiss all claims, see Fed. R. Civ.                                                              

P. 12(b)(6),  contending that  the sexual harassment  claim under

Mass.  Gen. L.  Ann. ch.  214,    1C, was  barred for  failure to

exhaust  mandatory administrative  remedies before  the Massachu-

setts Commission Against Discrimination ("MCAD"), see Mass.  Gen.                                                               

L.  ch. 151B,    5 (prescribing  six-month limitation  period for

MCAD claims),    9 (making section 5  procedure "exclusive"), and

that Clarke's  common  law  tort  claims were  preempted  by  the

Massachusetts Workers'  Compensation Act,  see Mass. Gen.  L. ch.                                                        

                                2

152,   1 et seq. (Supp. 1994).  The motion to dismiss was granted                         

in its entirety.  Clarke v. Kentucky Fried Chicken of California,                                                                           

Inc., No. 94-11101-EFH (D. Mass. Aug. 17, 1994).1                

                                II                                          II

                            DISCUSSION                                      DISCUSSION                                                

A.   Sexual Harassment          A.   Sexual Harassment                                

          Clarke  first contends that  the district  court should

not  have  dismissed her  sexual  harassment  claim, because  the

"jurisdictional" clause  in  Mass. Gen.  L.  Ann. ch.  214,    1C

(1986) ("The  superior court shall have jurisdiction in equity to                                                              

enforce  this  right  and to  award  damages.")  evinces a  clear

legislative intent to except such claims from compliance with the

otherwise mandatory MCAD exhaustion requirement  imposed on other

employment-based discrimination claims  under Massachusetts  law.

In order to place her contention in context, we examine pertinent

case law and statutes, see infra APPENDIX at pp. (i)-(iii).                                           

     1.   Fair Employment Practices  Act, Mass. Gen.  L. Ann. ch.               1.   Fair Employment Practices  Act, Mass. Gen.  L. Ann. ch.                                                                           
     151B               151B                   

          In 1946 the Massachusetts Legislature enacted the  Fair

Employment Practices Act ("FEPA"), Mass. Gen. L. Ann. ch. 151B,  

1  et seq.,  which  contained a  comprehensive  list of  unlawful                   

discriminatory  acts by  covered Massachusetts  employers against

                                                  

     1We review  Rule 12(b)(6) dismissals de  novo, accepting all                                                            
well-pleaded  allegations.   Vartanian v.  Monsanto Co.,  14 F.3d                                                                 
697, 700 (1st Cir. 1994). 

                                3

their employees.2   See id.    4; Katz v.  MCAD, 312 N.E.2d  182,                                                         

187  (Mass. 1974) (noting that FEPA was enacted "to implement the

right to  equal  treatment  guaranteed  to all  citizens  by  the

constitutions  of  the  United  States  and the  Commonwealth").3

Gender-based  discrimination was  included  in the  section  four

listing  as an unlawful employment  practice.  See  Mass. Gen. L.                                                            

Ann. ch.  151B,   4(1); see also College-Town v. MCAD, 508 N.E.2d                                                               

587 (Mass. 1987) (interpreting FEPA   4(1) as encompassing sexual

harassment by employers and supervisory employees).

          FEPA claimants  must file their MCAD  claims within six

months  after  the alleged  discriminatory  act,  or forfeit  any

entitlement to judicial review.  See Mass. Gen. L. Ann. ch. 151B,                                              

    5, 9  ("As to  acts declared  unlawful in  section  four, the                                                                      

procedure provided in [chapter 151B,    5] shall, while  pending,

be exclusive;  and the final determination  therein shall exclude                      

any  other action, civil or criminal, based on the same grievance

of the individual concerned.")  (emphasis added); see also Acker-                                                                           

son v. Dennison Mfg. Co., 624 F. Supp. 1148, 1158 (D. Mass. 1986)                                  

(holding that compliance with six-month limitation period becomes

unwaivable "jurisdictional" prerequisite to civil suit).

          As  to  section  four administrative  claims  which are

adjudicated by the  MCAD within ninety  days from filing,  either                     
                                                  

     2A covered FEPA  "employer" is  one who has  more than  five                                                                           
employees.  Id.   1(5).                         

     3While FEPA primarily  targets employment-based  discrimina-                                                        
tion,  it  also  proscribes  a variety  of  other  discriminatory
conduct     in housing, real estate,  credit extension, insurance
and banking    not directly relevant to the appeal.  

                                4

the  claimant  or the  respondent  may obtain  limited  review on                                                                

petition to the superior court, Mass. Gen. L. Ann. ch. 151B,   6,

followed  by an  appeal of  right to  the Supreme  Judicial Court

("SJC").4   Unless the MCAD  fails to act  within ninety days  or

grants an express dispensation, the  claimant may not bypass  the

administrative  claims  process  by  filing a  civil  action  for

damages or  injunctive relief  directly with either  the superior                                                 

court or the probate court.  Id.   9.                                          

          In 1986, the Massachusetts Legislature    presaging the

SJC's College-Town decision, supra     amended FEPA by explicitly                                            

including  "sexual harassment" within  the comprehensive  list of

employer  acts proscribed under section  4.  See  1986 Mass. Acts                                                          

588 (codified at Mass. Gen. L. Ann. ch. 151B,   1(18) (definition

of  "sexual harassment"),     4(16A)).   At  the same  time,  the

Legislature amended  Chapter 214, a separate  statutory provision

vesting the  superior court with original  equity jurisdiction as

follows:  "A person shall  have the right to be free  from sexual

harassment, as defined  in [FEPA    1(18)].   The superior  court

shall  have jurisdiction in equity  to enforce this  right and to                                  

award  damages." 1986 Mass. Acts  588 (codified at  Mass. Gen. L.

Ann. ch. 214,   1C) (emphasis added) [hereinafter: "Section 1C"].

                                                  

     4The  superior court may set  aside or modify  an MCAD order
only if it finds,  according "due weight to the  [MCAD's] experi-
ence, technical competence, and specialized  knowledge," that the
order was  (1) unconstitutional, (2) beyond  the MCAD's jurisdic-
tion or statutory authority; (3) based upon an  error of law; (4)
issued  pursuant to  an  unlawful procedure;  (5) unsupported  by
substantial evidence; or (6) arbitrary and capricious.  See Mass.                                                                     
Gen. L. Ann. ch. 30A,   14 (1995).

                                5

          2.  The ERA and Charland                    2.  The ERA and Charland                                            

          Enacted in  1989, the  Equal Rights Act  ("ERA"), Mass.

Gen. L. Ann. ch. 93,    102, 103, proscribes, inter alia, gender-                                                                  

based  discrimination in  connection with  the execution  and en-                                                                           

forcement of contracts and provides that "[a] person whose rights                                

. . . have been violated  may commence a civil action for injunc-

tive and other appropriate  equitable relief, including the award

of compensatory and  exemplary damages.  Said civil  action shall

be instituted . . . in the superior court . . . ."  Id.   102(b).                                                                 

          Later, in Charland v. Muzi Motors, Inc., 631 N.E.2d 555                                                           

(Mass.  1994),  the SJC  held that  ERA  section 102(b)  does not                                                                           

excuse claimants from compliance with the comprehensive  adminis-                

trative claims  procedure established  in FEPA section  9, supra.                                                                          

Rather, in enacting the ERA, the Legislature presumably was aware

that FEPA section  9 had  long mandated MCAD  exhaustion for  all                                                                           

employment-based discrimination claims  alleging "unlawful  prac-                                                                           

tice[s]"  listed in FEPA section 4.   Charland, 631 N.E.2d at 558                                                        

(noting "legislative intent to subject all  discrimination claims                                                                           

to administrative  scrutiny") (emphasis added).   And since Char-

land had alleged a breach of his employment contract, arising out                                                              

of his wrongful  discharge based on age and national origin    an

employment-based claim  actionable under FEPA, see  Mass. Gen. L.                                                            

Ann. ch. 151B,   4(1) (barring discharge  from employment because

of  "national origin" or "age")     the SJC  held that Charland's

superior court action  must be  dismissed for failure  to file  a

timely  administrative claim with the MCAD.  Charland, 631 N.E.2d                                                               

                                6

at 559; see  also Agin v. Federal White  Cement, Inc., 632 N.E.2d                                                               

1197, 1199 (Mass. 1994) (same).

     3.  Standard of Review               3.  Standard of Review                                     

          Where, as  here, a district court  dismissal turns upon

an interpretation of state  law, we conduct plenary review.   See                                                                           

Salve Regina  College v. Russell,  499 U.S. 225,  239-40 (1991).5                                          

The issue before us on  appeal is whether Section 1C,  unlike ERA

sections 102 and 103, excepts the instant employment-based sexual

harassment claim from compliance  with the administrative exhaus-

tion  requirement in FEPA section 9.  Clarke argues that Charland                                                                           

is  not controlling,  because  it resolved  only the  legislative                                                          

correlation  between FEPA  and  the ERA,  which  would mean  that                                                 

Charland's reference  to "the  legislative intent to  subject all                                                                           

discrimination  claims  to  administrative  scrutiny"   was  mere                                

dictum.  KFC responds  that the Charland rationale likewise  bars                                                            

Clarke's unexhausted  Section 1C claim --  a gender-based employ-

ment  discrimination  claim  explicitly  listed in  FEPA  section

4(16A) as an unlawful act.    

     4.  Section 1C               4.  Section 1C                             

          Clarke would distinguish  Section 1C from  ERA sections

                                                  

     5Although Clarke  belatedly urges certification to  the SJC,
"[w]e  are rarely receptive to  . . .  requests for certification
newly  asserted on appeal."   See Nieves v.  University of Puerto                                                                           
Rico, 7  F.3d 270, 278 (1st  Cir. 1993); see also  Fischer v. Bar                                                                           
Harbor Banking &amp; Trust Co., 857  F.2d 4, 8 (1st Cir. 1988), cert.                                                                          
denied, 489 U.S.  1018 (1989).  Nor will we  resort to certifica-                
tion unless  the issue presented is  sufficiently unsettled under                                                                     
state law that we could not essay a "reasonably clear" prediction
with  adequate confidence.  See Porter v. Nutter, 913 F.2d 37, 41                                                          
n.4 (1st Cir. 1990).

                                7

102  and 103 on  the ground that  it evinces a  clear legislative

intent  to  create two  parallel  remedial  paths for  redressing                                          

sexual  harassment  claims     one administrative,  one judicial.

Unlike the ERA,  which became  law some fifty  years after  FEPA,

Section 1C was enacted  at the same time the  Legislature amended                                                  

FEPA section  4 to cover sexual harassment claims.  Consequently,

Clarke argues, unless Section 1C is interpreted as establishing a

parallel  judicial path  that  bypasses  the MCAD  administrative

remedy,  Section 1C becomes surplusage.   See Casa  Loma, Inc. v.                                                                        

Alcoholic Beverages  Control Comm'n,  385 N.E.2d 976,  978 (Mass.                                             

1979)  ("It is  a common  tenet of  statutory construction  that,                 

wherever possible, no provision of a legislative enactment should

be treated as superfluous.").  We agree with Clarke that Charland                                                                           

is not directly controlling, since it did not consider the unique

language and legislative history of Section 1C.

          Nevertheless, absent  a definitive  SJC ruling,  we may

look to "analogous decisions, considered  dicta, scholarly works,                                                         

and  any other reliable data tending convincingly to show how the

[SJC] would decide  the issue  at hand, taking  into account  the

broad policies and  trends so evinced."   Michelin Tires (Canada)                                                                           

Ltd. v.  First Nat'l  Bank, 666  F.2d 673,  682  (1st Cir.  1981)                                    

(emphasis  added); see also Gibson  v. City of  Cranston, 37 F.3d                                                                  

731,  736 (1st Cir. 1994).6  Charland categorically states that a                                               
                                                  

     6Clarke  points  to  an unpublished  superior  court opinion
entered  after oral  argument in  this case,  see Burman  v. Boch                                                                           
Oldsmobile, Inc.,  No. 92-02690 (Mass.  Sup. Ct. Apr.  11, 1995),                          
which held Charland inapposite to sexual harassment claims.  Even                             
assuming it were  proper to consider the unreported decision, see                                                                           

                                8

claimant alleging  an unlawful discriminatory act  listed in FEPA                                                                   

section  4  must comply  with  the  MCAD administrative  process,                          

absent  clear evidence that the Legislature  carved out an excep-

tion.  Moreover, the listing of unlawful acts in section  4 is so

comprehensive that the SJC has yet to identify an exception.  See                                                                           

Charland, 631  N.E.2d at 558  (citing with approval  Mouradian v.                                                                        

General  Elec. Co., 503 N.E.2d 1318 (Mass. App. Ct. 1987) (Massa-                            

chusetts Civil Rights Act claimants must first comply with FEPA's

MCAD procedure)).  

          The  language of  1986 Mass. Acts  588     amending the

FEPA section  4 listing and adding new Section 1C, see supra p. 5                                                                      

    does not dictate the interpretation urged by Clarke, since it

does  not specify  at what  point in  the sexual-harassment-claim

process original  superior court  jurisdiction vests.   Under the

Charland  rationale,  once  employment-based   sexual  harassment                  

claims were added  to the FEPA section 4 listing  by the Legisla-                           

ture,  the MCAD claim-filing procedure mandated by FEPA section 9                                      

presumptively became the exclusive procedural path for initiating                                                                           

all  such claims against "employers."   After the  MCAD renders a

final decision,  of course,  jurisdiction to review  its decision                                                             

would lie in  the appropriate superior court.  See supra pp. 4-5.                                                                  

In  some instances,  however,  administrative claims  may not  be

acted  upon within ninety  days by  the MCAD;  alternatively, the
                                                  

U.S. Ct. of  App. 1st Cir. Rule 14, Burman  contains no developed                                                    
analysis and  no discussion of the  relevant statutory provisions
or legislative history.  See id. slip op. at 8 n.5 ("[T]his Court                                          
views  the Charland holding as specific, not extending to G.L. c.                             
214,   1C."). 

                                9

MCAD may permit  the claimant  to proceed directly  with a  civil

action in a judicial forum.  

          Thus, like its  counterpart provision, FEPA section  9,

Mass.  Gen. L. Ann. ch. 151B,   9 (vesting superior, probate, and

housing  courts  with  original  jurisdiction  of  FEPA  claims),

Section  1C serves  an essential  function     by vesting  in the

superior  court  (as distinguished  from  the  SJC, for  example)

exclusive original jurisdiction to entertain such administrative-

ly exhausted     but unadjudicated     sexual harassment claims.7                                            

Therefore,  much  like  ERA  sections 102(b)  and  103(b),  which

provide that claimants  "may commence a civil  action for injunc-

tive and other appropriate equitable relief . . . in the superior

court"  without indicating when such  a civil action  may be com-                                         

menced, the  mere  fact that  Section 1C  designates which  court                                                                           

shall have original jurisdiction  over exhausted    but unadjudi-                                                                           

cated    MCAD claims  does not mean that the  designated judicial               

forum  may assert jurisdiction ab initio, i.e., before (or in the                                                                
                                                  

     7Chapter 214,   1, recognizes  that the superior courts  and
the  SJC are  endowed, concurrently,  with the  requisite general
power  possessed  by  courts  in equity  to  fashion  appropriate
remedies in  the exercise  of their traditional  equity jurisdic-
tion.   Chapter 214,   2, on  the other hand, vests  the SJC with
"exclusive [original] jurisdiction of  all civil actions in which
equitable relief  [authorized by statute] is  sought," unless the                                                                           
statute expressly  provides that another court  shall have exclu-                                                                           
sive  or  concurrent  original  jurisdiction  over  the statutory                                                                           
claims.  Thus, contrary to  Clarke's contention, the bare  refer-                
ence to superior court "jurisdiction" in Section 1C may have been
intended merely to overcome  the automatic "default" mechanism in
Section  2    which would  otherwise vest the  SJC with exclusive                                                                           
original jurisdiction  over all  Section 1C claims  for equitable
relief     and  to  designate which  other court  (i.e., superior                                                                 
court) possesses  jurisdiction once  the Section 1C  claimant has
met the MCAD-exhaustion requirements imposed by FEPA section 9.

                                10

absence of) a timely MCAD claim.        Neither  party  cites  to

the legislative history relating to Section 1C, though it appears

fairly illuminating.  The legislative bill approved by  the House

Committee on Commerce and Labor (H.5732) represented a compromise

melded from eight competing Senate and House versions relating to                           

sexual harassment  in employment  and education.    Two of  these

predecessor versions provided as  follows:  "A person  shall have

the right to be free  from sexual harassment. . . .  The superior

court shall have jurisdiction in equity to enforce this right and

to award damages.  The filing  of a complaint under chapter  151B                                                                           

shall  not be  a prerequisite  to filing  a complaint  under this                                                                           

section  in superior court."  H.3136  (sponsor, B. Gray, Framing-                                    

ham); see also H.488 (Saggese, Winthrop) (emphasis added).  It is                        

noteworthy  that the  only pertinent  deletion before  Section 1C                                    

became law  was the  italicized language  from  H.3136 and  H.488

quoted supra.  See Russello v.  United States, 464 U.S. 16, 23-24                                                       

(1983) (noting that deletions of limiting language from predeces-

sor bills  normally presumed intentional); State  of Rhode Island                                                                           

v. Narragansett Indian Tribe, 19 F.3d 685, 700 (1st Cir.) (same),                                      

cert. denied, 115 S. Ct. 298 (1994).                        

          Clarke argues  that Section  1C is unlike  ERA sections

102 and 103, which encompass claims for employment-based discrim-                                                            

ination  listed in FEPA section  4 as well  as sundry non-employ-                                                                           

ment-based  discrimination claims  which might  not be  listed in                                                             

FEPA.  Thus, the ERA enactment may be seen as serving an indepen-

dent  function  even after  Charland.   That  is, though  all ERA                                              

                                11

employment-based  claims of a type listed in FEPA section 4 would                    

be subject  to FEPA's administrative exhaustion  requirement, see                                                                           

Charland, 631 N.E.2d  at 558-59, non-employment-based ERA  claims                                                                   

not listed in FEPA section 4 (if any) might be initiated directly

in  the superior  court  without administrative  exhaustion.   By

contrast,  Section 1C  encompasses only sexual  harassment claims                                                 

which are employment-based, compare Mass. Gen.  L. Ann. ch. 151B,                                             

   1(18) (defining  "sexual harassment"  in terms  of "employment

decisions,"  "work  performance,"  and "work  environment")  with                                                                           

Mass.  Gen. L.  Ann. ch.  214,    1C (prohibiting  harassment "as

defined in  chapter  [151B]"), and  all  employment-based  gender                                                             

discrimination claims  already fall  within FEPA section  4, and,

consequently, come within the mandatory administrative exhaustion

provision.  Clarke reasons, therefore, that unless  Section 1C is

interpreted  as  providing  employment-based   sexual  harassment

claimants an MCAD bypass  into superior court, its  enactment was

redundant  and superfluous.  See  Casa Loma, Inc.,  385 N.E.2d at                                                           

978 (noting  that, where possible,  statutes ought not  be inter-

preted so as to render any provision superfluous).  But see supra                                                                           

note  7  (investing superior  court  with  jurisdiction over  all

exhausted Section 1C claims, as opposed to superior, probate, and

housing courts designated in FEPA section 9).

          On the other hand,  KFC points out    correctly  in our

view     that the Legislature may well have intended that Section

1C  make  all  employment-based  sexual  harassment  unlawful  in                                   

Massachusetts, without regard to  the number of employees working

                                12

for the  particular employer, whereas other  forms of employment-                                                                           

based discrimination would  be covered by FEPA  only if practiced                              

by employers who hire more than  five persons.  See supra note 2.                                                                   

This interpretation is  substantiated by the fact that Section 1C

is not tied  into FEPA's  definition of "employer,"  but only  to                                                                       

FEPA's  definition  of  "sexual  harassment."    Although  Clarke

counters that the Legislature could have achieved the same result

simply  by amending the FEPA definition of "employer" to accommo-

date  this exception,  we are  not persuaded--  nor aware  of any

authority-- that  the amendatory  technique she suggests  was the

only one open to the Legislature. 

          Clarke further contends that it would be incongruous to

require  only the  employees of  large-scale employers  to comply

with the MCAD administrative claims process, and not employees of

small-scale employers, since such an interpretation would contra-

vene  the Charland  holding  that all  discrimination claims  are                                               

subject  to  the  exhaustion  requirement.   This  contention  is

demonstrably  flawed as  well.   Charland simply  held that  MCAD                                                   

exhaustion  is  required if  the  claim alleges  an  unlawful act

listed in FEPA section  4.  And discriminatory conduct  by small-                                                                           

scale employers  is not  listed in section  4. See Mass.  Gen. L.                                                            

Ann. ch. 151B,    4(16A) (unlawful "[f]or an employer, personally                                                               

or  through its agents,  to sexually  harass any  employee"); see                                                                           

also supra note 2.   Absent ambiguity in the  statutory language,                    

we think it inappropriate to second-guess the Legislature's clear

language establishing broadened protection for victims of  sexual

                                13

harassment.

           Finally,  Clarke argues  that the  Legislature singled

out all sexual harassment  claims    from other types  of employ-                                                         

ment-based discrimination  claims  under FEPA     because  sexual                                   

harassment normally warrants more  urgent remedial action and, by

affording sexual harassment victims direct access to the superior

court, Section  1C would enable more  immediate equitable relief.

Her contention is unavailing for two reasons.

          First,  Clarke reserved  this  argument  for her  reply

brief on  appeal, thereby denying KFC an  opportunity to respond.

See VanHaaren  v. State Farm Mut.  Auto. Ins. Co., 989  F.2d 1, 7                                                           

n.6 (1st  Cir. 1993).   Second, even if  it were not  waived, the

claim is meritless  since FEPA already provides the very remedial

mechanisms Clarke would have us read into Section  1C.  See Mass.                                                                     

Gen. L.  Ann. ch. 151B,    5 (MCAD commissioner "may  also file a                                                         

petition in equity in the superior  court . . . seeking appropri-

ate injunctive relief against such respondent . . . .");   9 ("An                                                                           

aggrieved person may also seek temporary injunctive relief in the                          

superior . . .  court . .  . at any  time to prevent  irreparable

injury during  the pendency of or  prior to the filing  of a com-

plaint with the [MCAD].") (emphasis added).

          For the foregoing reasons,  therefore, we conclude that

it  is reasonably likely that  the SJC would  extend its Charland                                                                           

rationale  to  Section 1C,  thereby preserving  the comprehensive

procedural  framework  established  by  the  Legislature in  FEPA

section 9.  Consequently,  the district court judgment dismissing

                                14

the sexual harassment claim for failure to exhaust administrative

remedies under the MCAD must be affirmed.

B.   Common Law Tort Claims8          B.   Common Law Tort Claims                                     

          Clarke contends that the district court erred in ruling

that the three remaining common law claims    alleging negligence

in hiring, supervising and  retaining the offending KFC employees

     were  preempted by  the Massachusetts  Workers' Compensation

Act, Mass. Gen. L.  Ann. ch. 152,   24.   We briefly reprise  the

legislative history relating to recent amendments to the workers'

compensation statute. 

          From the  start, section  24 of the  Massachusetts wor-

kers'  compensation statute  included 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."   Mass.  Gen. L.  Ann. ch.  152,    24  (emphasis

added).9   Until 1985,  employment-induced emotional disabilities                                                              

                                                  

     8The  failure to file a claim with  the MCAD did not bar the
common law claims.  See Felinske v. New Eng. Teamsters &amp; Trucking                                                                           
Indus. Pension Fund,  855 F.  Supp. 474 (D.  Mass. 1994)  (citing                             
Melley v. Gillette Corp., 475 N.E.2d 252 (Mass. 1985)).  However,                                  
Clarke  has not appealed the  dismissal of the  common law claims
alleging intentional tortfeasance.

     9Massachusetts workers  may avoid  section 24  preemption by
expressly  reserving their common law rights at the time they are
hired.  Id.  Clarke made no such reservation.                     

                                15

were considered  fully "compensable" injuries under  the workers'

compensation statute,  without regard  to whether  the disability

resulted from employer negligence.  See Foley v.  Polaroid Corp.,                                                                          

413 N.E.2d 711, 714-15 (Mass. 1980).  

          Clarke  concedes  that   her  negligence-based   claims

against KFC allege employment-induced emotional injury and, thus,                                                         

would have  been preempted under the  pre-1985 workers' compensa-                                                   

tion  statute.  In 1985,  however, the SJC  held that employment-

related emotional injuries likewise  were "compensable" under the

workers' compensation statute,  even though the emotional  injury                                                     

resulted from  such bona fide  employer decisions as  layoffs and

interdepartmental transfers.  Kelly's  Case, 477 N.E.2d 582, 584-                                                     

85 (Mass.  1985) (noting that disallowance  of workers' compensa-

tion for such  emotional injuries  is a policy  decision for  the

Legislature, not the courts).  

          The  ensuing uproar  from  the  Massachusetts  business

community  over the  implications  of Kelly's  Case prompted  the                                                             

Legislature to amend the  "personal injury" definition in chapter

152 to read:

          Personal  injuries  shall  include mental  or
          emotional disabilities only where the predom-
          inant contributing cause  of such  disability
          is an  event  or series  of events  occurring
          within any employment.  . . .   No mental  or                                                                 
          emotional disability  arising principally out                                                             
          of a bona fide,  personnel action including a                                                               
          transfer, promotion, demotion, or termination
          except such  action which is  the intentional
          infliction of emotional harm shall  be deemed                                                                 
          to be a personal injury within the meaning of                                           
          this chapter.  

See  1985 Mass.  Acts 572  ("Workers' Compensation  Reform Act");             

                                16

1986 Mass.  Acts 662 (codified at  Mass. Gen. L. Ann.  ch. 152,  

1(7A)).   Although ostensibly a pro-employer  enactment, serendi-                                                      

pitously the 1985 amendment  also presented claimants like Clarke

with a basis  for attempting to  circumvent the broad  preemption

provision  in section  24 of  the workers'  compensation statute.

From the  beginning, section  24 had  preempted  tort actions  at

common  law,  but  only in  respect  to  injuries compensable  by                                                                       

disability benefits under the workers' compensation statute.  See                                                                           

Mass. Gen.  Laws Ann. ch. 152,    24.  After  the 1985 amendment,

however, emotional injuries caused by an employer's "bona fide []

personnel  action[s]"      [hereinafter  otherwise:   "BFPA"]    

literally became "noncompensable" under the workers' compensation

statute.   Consequently, Clarke argues,  if it can be established

that her emotional injuries  were caused by a good  faith, albeit                                                                   

negligent, personnel decision on the part of KFC    for which she                   

would  not be  entitled to  workers' compensation  benefits under

chapter 152, amended section 1(7A), see supra p. 16     she would                                                       

be entitled  to redress her  negligence-based tort claims  in the

courts by virtue of  the "noncompensability" exception to section

24 preemption.

          Clarke's argument  cannot succeed, however,  unless she

can  demonstrate both  that (1)  the decision  not to  screen KFC                               

hirees, nor alter their working  conditions to minimize the  risk

that Clarke  be emotionally harmed by  sexual harassment, consti-

tuted  a  "bona  fide personnel  action"  within  the meaning  of

amended section 1(7A); and (2) the 1985 Legislature, in rendering                                    

                                17

all  BFPA-induced emotional  injuries  noncompensable  under  the

workers' compensation  statute, intended  to deny  BFPA claimants

like Clarke the right  to collect workers' compensation benefits,

and,  as an offsetting form  of relief, to  save their common law

tort remedies from preemption under  section 24.  Since  Clarke's

argument plainly  founders on the second prong, we simply assume,

arguendo, that the  personnel actions at  issue qualify as  BFPAs                  

under amended section 1(7A).

          Although there  is no  SJC decision directly  in point,

the interpretation Clarke urges was rejected recently by the Mas-

sachusetts Appeals Court,  in Catalano v. First  Essex Sav. Bank,                                                                          

639 N.E.2d 1113 (Mass.  App. Ct.), review denied, 644  N.E.2d 225                                                          

(1994).  The Catalano court noted that the 1985 amendments to the                               

workers'  compensation  statute were  in  direct  response to  an

invitation the SJC extended  to the Legislature in Kelly's  Case:                                                                          

to "determine, as  a matter of public policy, whether  one of the

costs of doing business in this Commonwealth shall be the compen-

sation of those few employees  who do suffer emotional disability

as  a result  of being  laid off  or transferred."   Id.  at 1115                                                                  

(quoting Kelly's Case, 477 N.E.2d at 584-85):                               

          It is  obvious that the Legislature wished to
          protect the employer from liability under the
          [Workers' Compensation] Act for  claims aris-
          ing out of bona fide personnel actions unless
          motivated  by an intent  to inflict emotional
          distress.  In  those circumstances, it  seems
          unlikely  that  the  Legislature intended  to
          preserve a civil action  for claims based  on
          negligent  infliction  of emotional  distress
          that arise from a bona fide personnel action.
          To  do so would negate  . . .  the purpose of
          relieving employers from  the financial  bur-

                                18

          dens of such claims . . . .

Id. at 1116.             

          Clarke correctly points out that  the Catalano analysis                                                                  

constitutes dicta because  the court dismissed  the appeal on  an

alternate ground.  Id.   Nevertheless, persuasive, reasoned dicta                                

may provide  a valuable guide  to statutory interpretation.   See                                                                           

Gibson, 37 F.3d at 736 (absent explicit ruling by state's highest                

court, federal court sitting in diversity may consult "considered

dicta") (citing Michelin Tires,  666 F.2d at 682); see  also Bank                                                                           

of New England Old Colony, N.A. v. Clark, 986 F.2d  600, 603 (1st                                                  

Cir.  1993)  (relying  on  "persuasive" dicta  of  United  States

Supreme Court);  cf. also Sainz  Gonzalez v. Banco  de Santander-                                                                           

Puerto Rico, 932  F.2d 999,  1001 (1st Cir.  1991) (declining  to                     

credit dicta unsupported by  reasoned analysis); United States v.                                                                        

Rivera,  872 F.2d 507, 509  (1st Cir.) (same),  cert. denied, 493                                                                      

U.S. 818 (1989).  Moreover, the Catalano analysis was prompted by                                                  

the  appeals  court's  express  desire to  resolve  "the  alleged

uncertainty  and  confusion  that  purportedly  exists among  the

members  of the  [Massachusetts]  bar and  public concerning  the

initiation of  legal proceedings  involving the claims  raised in

this appeal," Catalano, 639 N.E.2d at 1115, and the SJC summarily                                

denied review.  

          The original workers' compensation  statute effectively

preempted  a broad  range of  civil actions based  on employment-

related emotional injury, see  supra p. 15, and one  would expect                                              

any significant retreat from this longstanding legislative policy

                                19

to be heralded with considerably greater clarity than is discern-

ible in Mass. Gen.  L. Ann. ch. 152,   1(7A).   We agree with the

appeals  court that it would strain credulity and common sense to

presume that the Legislature chose to limit employers' collective

liability under the workers'  compensation scheme, only to expose

individual employers  to greater  liability in common  law negli-

gence suits based on bona fide personnel actions.  

                               III                                         III

                            CONCLUSION                                      CONCLUSION                                                

          The grievous sexual harassment claims alleged by appel-

lant were  entitled to just  adjudication in  the first  instance

under  the administrative claims process established by Massachu-

setts  law.   As  the courts  are  powerless to  reinstate  legal

remedies foreclosed  by failure to comply with a mandatory admin-

istrative  exhaustion  requirement, the  district  court judgment

dismissing  the sexual harassment claim must be affirmed.  Final-

ly, the district court judgment dismissing the related common law

tort claims must be affirmed on preemption grounds.

          The district  court judgment is affirmed.   The parties                    The district  court judgment is affirmed.   The parties                                                                           

shall bear their own costs.          shall bear their own costs.                                    

                                20

                             APPENDIX                                       APPENDIX

A.   Equal Rights Act, Mass. Ann. Laws ch. 93, sec. 102 (1994):          A.   Equal Rights Act, Mass. Ann. Laws ch. 93, sec. 102 (1994):                               

     Section 102.  Equal Rights for All  Persons Within Com-
     monwealth;  Enforcement by  Civil Action  for Equitable
     Relief;  Jurisdiction  of  Superior  Court;  Degree  of
     Proof; Damages, Costs and Attorneys' Fees.

          (a) All  persons within the  commonwealth, regard-
          less of  sex, race, color, creed  or national ori-
          gin, shall have, except  as is otherwise  provided
          or permitted  by law,  the same rights  enjoyed by
          white male citizens, to make and enforce contracts
          .  . . and  to the full  and equal  benefit of all
          laws and  proceedings for the security  of persons
          and property . . . . 

          (b) A person whose  rights under the provisions of
          subsection  (a) have been  violated may commence a
          civil  action for injunctive and other appropriate
          equitable relief, including the award of compensa-
          tory and exemplary damages[] . . . in the superior
          court . . . . 

B.   Fair  Employment Practices  Act, Mass.  Ann. Laws  ch. 151B,          B.   Fair  Employment Practices  Act, Mass.  Ann. Laws  ch. 151B,                                              
     sec. 1 (1995):               sec. 1 (1995)

     Section 1. Definitions.

          As used in this chapter
               . . . .

               5. The term "employer" does not include . . .
          any employer  with fewer  than six persons  in his
          employ . . . .

               . . . .

               18.  The term "sexual  harassment" shall mean
          sexual advances, requests  for sexual favors,  and
          other verbal  or physical conduct of  a sexual na-
          ture . . . (b)  . . . [which] have the  purpose or
          effect of unreasonably interfering with an indivi-
          dual's work performance  by creating an intimidat-
          ing,  hostile,  humiliating or  sexually offensive
          work environment. Discrimination  on the basis  of
          sex shall  include, but not be  limited to, sexual
          harassment.

                                i

     Section 4.  Unlawful Practices;  Certain Records  to be
     Kept; Employer,  etc., Not Required  to Grant Preferen-
     tial Treatment to Any Individual or Group.   

          It shall be an unlawful practice:  

               1. For an employer,  by himself or his agent,
          because of  the race, color, religious  creed, na-
          tional origin,  sex, sexual orientation, .  . . or
          ancestry of  any individual  to refuse to  hire or
          employ or  to bar or to  discharge from employment
          such  individual or  to discriminate  against such
          individual in compensation or in terms, conditions
          or  privileges of employment,  unless based upon a
          bona fide occupational qualification. . . .

               . . . .

               16A. For an  employer, personally or  through
          its agents, to sexually harass any employee.  

     Section  5.  Complaints Alleging  Unlawful  Practice or
     Violation  of  Certain  Statutes;   Proceedings  Before
     Commission; Injunctive Relief; Award of Damages.

               Any  person  claiming to  be aggrieved  by an
          alleged unlawful  practice [listed in section 4] .
          .  .  may .  .  . make,  sign  and  file with  the
          commission a verified complaint in writing . . . .

               . . . .

               .  . .  Before  or after  a determination  of
          probable  cause  hereunder  such commissioner  may
          also  file a  petition in  equity in  the superior
          court . . . . 

     Section  6. Judicial  Review  of  Order of  Commission;
     Injunctive Relief.

               Any complainant, respondent  or other  person
          aggrieved by  such  order of  the  commission  may
          obtain judicial review  thereof . . . in the supe-
          rior court . . . .

     Section  9.  Chapter Construed  Liberally; Inconsistent
     Laws;  Procedure Exclusive;  Damages or  Injunctive Re-
     lief.

               . . . [A]s to acts declared unlawful  by sec-
          tion four, the procedure provided in this  chapter
          shall, while pending, be  exclusive; and the final

                                ii

          determination  therein  shall  exclude  any  other
          action, civil or criminal, based on the same grie-
          vance of the individual concerned.

               Any  person  claiming to  be  aggrieved  by a
          practice made unlawful under this chapter or under
          chapter  one hundred  and fifty-one  C, or  by any
          other unlawful practice within the jurisdiction of
          the commission,  may, at the  expiration of ninety
          days  after the  filing  of a  complaint with  the
          commission, or sooner if a commissioner assents in
          writing, but not later  than three years after the
          alleged  unlawful practice occurred, bring a civil
          action for damages or injunctive relief or both in
          the  superior or  probate court  . .  . or  in the
          housing  court within  whose district  the alleged
          unlawful practice  occurred if the  unlawful prac-
          tice involves residential housing. .  . .  An  ag-
          grieved  person may also seek temporary injunctive
          relief in the superior,  housing or probate  court
          within such county at  any time to prevent irrepa-
          rable injury  during the  pendency of or  prior to
          the filing of a complaint with the commission. . .
          .

C.   Equity Jurisdiction Statute, Mass. Ann. Laws ch. 214 (1995)          C.   Equity Jurisdiction Statute, Mass. Ann. Laws ch. 214 (1995)                                          

     Section 1. General Equity Jurisdiction, Concurrent.

               The  supreme  judicial  and  superior  courts
          shall have original and concurrent jurisdiction of
          all cases and  matters of equity cognizable  under
          the  general  principles  of equity  jurisprudence
          and,  with reference thereto,  shall be  courts of
          general equity jurisdiction . . . . 

     Section 1C. Right to be Free From Sexual Harassment.

               A person shall have the right to be free from
          sexual harassment,  as defined in chapter one hun-
          dred and fifty-one B and one hundred and fifty-one
          C.  The superior court shall have the jurisdiction
          in equity to enforce this  right and to award dam-
          ages.

     Section 2. Statutory Equity Jurisdiction.

               The  supreme judicial court shall have origi-
          nal and  exclusive jurisdiction  of all  civil ac-
          tions in which equitable relief is sought cogniza-
          ble under any statute and not within the jurisdic-

                               iii

          tion conferred by section  one, unless a different
          provision is  made; and the  superior court  shall
          have like original and exclusive, or like original
          and concurrent, jurisdiction  only if the  statute
          so provides.

                                iv
