
USCA1 Opinion

	




          January 14, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1473                            THEODORE M. ELLENWOOD, ET AL.,                                Plaintiffs, Appellees,                                          v.                                 EXXON SHIPPING CO.,                                Defendant, Appellant.                                 ____________________                                   STATE OF MAINE,                                     Intervenor.                                _____________________        No. 92-1474                            THEODORE M. ELLENWOOD, ET AL.,                               Plaintiffs, Appellants,                                          v.                                 EXXON SHIPPING CO.,                                 Defendant, Appellee.                                 ____________________                                   STATE OF MAINE,                                     Intervenor.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                      [Hon. D. Brock Horny, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                         _____________                                 ____________________            Peter  Bennett with  whom  Daniel W.  Bates was  on brief  for the            ______________             ________________        Ellenwoods.            Thomas  D. Warren,  Deputy Attorney General, with  whom Michael E.            _________________                                       __________        Carpenter, Attorney General, was on brief for the State of Maine.        _________            Robert  M. Hayes  with whom  Charles  G.  Bakaly, Jr.,  Richard G.            ________________             ________________________   __________        Moon, and Linda D. McGill were on brief for Exxon Shipping Company.        ____      _______________                                 ____________________                                 ____________________               COFFIN,  Senior  Circuit Judge.    Shortly  after the  Exxon                        _____________________                         _____          Valdez struck a  reef off  the Alaskan coast  in 1989,  defendant          ______          Exxon Shipping Company adopted a new policy barring  any employee          who had  ever participated  in an alcohol  rehabilitation program          from  holding designated jobs  within the  company.   Pursuant to          this policy, plaintiff Theodore  Ellenwood, who had no connection          to  the Valdez incident, was  removed from his  position as chief                  ______          engineer  of  another Exxon  oil  tanker,  the Exxon  Wilmington.                                                         _________________          Ellenwood   voluntarily  had   entered,   and  successfully   had          completed,  a  month-long alcohol  rehabilitation program  a year          before  the Valdez  accident.   Despite  his  concerns about  his                      ______          drinking,  Ellenwood never  had  had an  on-the-job problem  with          alcohol.   A  psychiatrist who  examined Ellenwood  in connection          with  this case concluded,  in fact,  that he  had never  been an          alcoholic.  See Tr. Vol. V, at 133.                      ___               Relying primarily  on the company's previous  written policy          that "[n]o employees with alcoholism will have their job security          or  future opportunities jeopardized due to a request for help or          involvement in  a rehabilitation effort," Ellenwood  and his wife          brought suit against  Exxon alleging tort and  contract claims as          well as violations of  state statutes prohibiting  discrimination          against  the  handicapped.1    Ellenwood  ultimately  received  a                                        ____________________               1 The complaint  set forth the  following causes of  action:          breach of  contract (Count  I); breach  of a  duty of good  faith          arising out of Exxon's use of confidential information concerning          Ellenwood's alcohol treatment as a basis  for removing him (Count          II); estoppel arising out of Exxon's representations and promises          (Count III); wrongful discharge in violation of the public policy          promoting  responsible  treatment   of  alcoholism  (Count   IV);                                         -3-          judgment  for $677,648  on his  contract and  promissory estoppel          causes of action.               In  these appeals, both sides contend,  inter alia, that the                                                       _____ ____          district court  committed legal error in  defining the actionable          counts.  Ellenwood claims the judge eliminated too many claims on          various legal grounds, depriving  him of additional relief, while          Exxon  claims  that  the court  allowed  too  many  counts to  be          tried.2   We affirm most  of the  court's rulings.   We conclude,          however,  that the  district court  overestimated the  preemptive          effects of admiralty law  and the Rehabilitation Act of  1973, 29          U.S.C.     701-796, and, accordingly, we must remand for trial on          Ellenwood's state statutory claims of handicap discrimination.3                                        ____________________          discrimination against the handicapped  contrary to various state          laws (Count V); misrepresentation over the career consequences of          seeking alcohol  treatment (Count VI); intentional  and negligent          infliction  of emotional  distress on  both Ellenwoods  in ending          Ellenwood's  career  and  disseminating confidential  information          concerning  his condition  (Counts VII  and VIII);  defamation in          removing  Ellenwood from  his position  as chief  engineer (Count          IX);  invasion of privacy in  the manner in  which Exxon obtained          the  information about  Ellenwood's  treatment and  disclosed  it          (Count  X); invasion of privacy  in placing Ellenwood  in a false          light (Count XI); invasion of privacy in publicizing confidential          information  (Count  XII); Mrs.  Ellenwood's  loss  of consortium          (Count XIII); and punitive damages (Count XIV).               2  This  court  granted   the  State  of  Maine  provisional          permission to intervene on the issue of whether Ellenwood's claim          based on  the Maine Human Rights Act, 2A Me. Rev. Stat. Ann. tit.          5,    4571-72 (Supp. 1992), is preempted by federal law.               3 The  complaint referred to  statutes in Maine,  New Jersey          and Texas,  and we offer  no view as  to the applicable law.   We          note, however, that the district court applied Texas law to Count          XII  of the complaint, which alleged an invasion of privacy.  See                                                                        ___          Memorandum of Decision, Oct. 28, 1991.                                          -4-                      I. Preemption and the Rehabilitation Act4                         _____________________________________          A. Background             __________               Section 503 of the  Rehabilitation Act of 1973, 29  U.S.C.            793, requires any  contract with the federal government in excess          of  $2,500   to  include  a  provision   obligating  the  federal          contractor to "take affirmative  action to employ and advance  in          employment qualified  individuals with  handicaps."  29  U.S.C.            793(a).  Any handicapped individual who believes a contractor has          failed  to comply with this  provision may file  a complaint with          the Department of Labor, which must conduct an investigation  and          take  appropriate  action.   29  U.S.C.    793(b).    Regulations          promulgated pursuant  to   503 specify  a detailed administrative          enforcement mechanism for its breach.  See 41 C.F.R.    60-741.1-                                                 ___          741.32  (1991).   The  Department's  Office  of Federal  Contract          Compliance Programs  (OFCCP) is  empowered, for example,  to seek          injunctive relief in  court, terminate or  cancel a contract,  or          bar  a contractor from receiving  future contracts.   41 C.F.R.            60-741.28(b)-(e)  (1991).  It also may seek such remedies as back          pay and reinstatement for affected employees.  See Dep't of Labor                                                         ___ ______________          v.  Texas Indus.,  Inc., 47 Fair  Empl. Prac.  Cas. (BNA)  18, 28              ___________________          (Dep't Labor 1988).  See Howard v. Uniroyal, Inc., 719 F.2d 1552,                               ___ ______    ______________          1559 (11th Cir. 1983) (detailing enforcement procedures).               In  a motion for summary judgment, Exxon, which is a federal          contractor,  argued   that     503  preempts   virtually  all  of                                        ____________________               4 Our  review of the district  court's preemption decisions,          which were rulings of law, is plenary.                                         -5-          Ellenwood's  state   law  claims,5  and  that   Ellenwood's  only          recourse on matters related to his alcohol treatment is the claim          he has filed  with the OFCCP.   The  district court rejected this          contention,  finding  no  evidence  that  Congress  intended  the          provision  to eliminate  conventional  state law  claims such  as          breach of  contract, misrepresentation, defamation  or infliction          of  emotional  distress,  because these  claims  "are  in no  way          related to the federal Rehabilitation Act, any affirmative action          clause  in a  government contract,  or handicap  discrimination."          See Memorandum of Decision, Oct. 15, 1991, at 3.   The court also          ___          ruled, however, that   503 did preempt  Count V's direct claim of          discrimination  on the basis of handicap  in violation of various          state statutes, and  Count IV's common law claim that Ellenwood's          discharge   violated  a   public  policy   promoting  responsible          treatment of alcoholism.               Neither party  is satisfied with this  Solomonic division of          the claims.   Accordingly, on  appeal, we are  asked to  consider          both Ellenwood's  claim that the  district court erred  in ruling          that    503  preempts  Counts  IV  and  V  and  Exxon's  contrary          assertion  that the  district  court erred  in  finding that  the          federal  statute does  not  preempt the  contract and  promissory          estoppel  claims on which Ellenwood received a jury verdict.  The          State  of Maine joins  Ellenwood in arguing  that   503  does not          preempt  a claim  of  handicap discrimination  brought under  its                                        ____________________               5  According  to  Exxon,  only  Counts  X  and  XII  of  the          complaint,  charging the  company  with obtaining  and disclosing          private information, survived preemption.                                         -6-          Human Rights Act, 2A Me. Rev. Stat. Ann. tit. 5,   4571-72 (Supp.          1992).   We take up each  plea for reversal in  turn, following a          brief review of the well established contours of preemption law.          B. Preemption Principles             _____________________               The preemption  doctrine is rooted in  the Supremacy Clause,          which  invalidates  state  laws  that  "interfere  with,  or  are          contrary to, the laws of congress."  Gibbons v. Ogden, 22 U.S. (9                                               _______    _____          Wheat.)  1, 211  (1824).   See also  Cipollone v.  Liggett Group,                                     ___ ____  _________     ______________          Inc.,  112 S.  Ct. 2608,  2617 (1992).   A  court's sole  task in          ____          determining whether a state statute is preempted is to  ascertain          whether Congress  intended the federal  law to have  such effect.          California  Federal Savings & Loan Ass'n v. Guerra, 479 U.S. 272,          ________________________________________    ______          280 (1987);  Massachusetts Medical  Society v. Dukakis,  815 F.2d                       ______________________________    _______          790, 791 (1st Cir.  1987).  Although Congress may  articulate its          intent explicitly, see, e.g., Jones v. Rath Packing Co., 430 U.S.                             ___  ____  _____    ________________          519,  532 (1977), it does not always  do so, and the challenge of          preemption law is to  identify occurrences of implied preemption.          Preemption by implication may take place in different ways.               First,  congressional intent  to  preempt state  law may  be          inferred when  the scheme of  federal regulation in  a particular          area is  sufficiently pervasive  and complex "to  make reasonable          the  inference that  Congress  `left no  room' for  supplementary          state regulation,"  California Federal Savings &  Loan Ass'n, 479                              ________________________________________          U.S. at 281 (quoting  Rice v. Santa Fe  Elevator Corp., 331  U.S.                                ____    ________________________          218, 230 (1947)); see also Dukakis, 815 F.2d at 791.   Second, in                            ___ ____ _______          areas where Congress has not entirely displaced state regulation,                                         -7-          state  law will  be deemed  preempted to  the extent  it actually          conflicts  with  federal law.    Such  a conflict  occurs  either          because "`compliance with both federal and state regulations is a          physical  impossibility,'. . . ,  or because the state law stands          `as an obstacle to  the accomplishment and execution of  the full          purposes and objectives of Congress.'" California Federal Savings                                                 __________________________          &  Loan Ass'n,  479 U.S. at  281 (quoting Florida  Lime & Avocado          _____________                             _______________________          Growers, Inc. v. Paul, 373 U.S.  132, 142-143 (1963) and Hines v.          _____________    ____                                    _____          Davidowitz,  312  U.S.  52, 67  (1941)).    See  also O'Brien  v.          __________                                  ___  ____ _______          Consolidated Rail Corp., 972 F.2d 1, 3 (1st Cir. 1992).          _______________________                These alternative  avenues to  preemption do not  mean that          either route is to be chosen lightly.  The Supreme Court recently          reiterated  the longstanding principle that "`the historic police          powers of the States  [are] not to be superseded by . . . Federal          Act unless that  [course is]  the clear and  manifest purpose  of          Congress.'"  Cipollone,  112 S.  Ct. at 2617  (quoting Rice,  331                       _________                                 ____          U.S. at 230).  Thus, the presumption is against  preemption.  Id.                                                                        __          at 2618.               C.  Applying the Principles                   _______________________               1. State handicap discrimination statutes.                  ______________________________________               Section   503  contains   no   express  language   regarding          preemption.   Our task, therefore,  is to determine whether there          are  other  indicia  of  Congressional  intent  to  render  state          discrimination  laws  ineffectual  against  federal  contractors.          Exxon essentially makes a two-pronged argument.   First, it cites          legislative  history suggesting  that  Congress sought  a uniform                                         -8-          federal remedy for violations of   503, which would be frustrated          if contractors  additionally were subject to  varying state laws.          Thus, according to Exxon, Congress must have intended  to preempt          state provisions.               Second,  Exxon  suggests that  the  detailed  nature of  the          administrative  scheme  promulgated   under     503  demonstrates          Congress's intent  to foreclose  other types of  remedies against          federal contractors.   Exxon  maintains that, while  Congress has          not  fully occupied  the field  of handicap  discrimination, with          respect  to federal  contractors,  it  has  "`left no  room'  for          supplementary state  regulation,"  California Federal  Savings  &                                             ______________________________          Loan Ass'n, 479 U.S. at 281.          __________               In our  view, what  Exxon offers  as proof  of an intent  to          preempt  falls short  of the  mark.   The legislative  history on          which  the company  relies  is  a  single  passage  in  a  Senate          Committee Report relating to amendments to the Rehabilitation Act          that were  enacted a year  after the Act itself.   The amendments          made no  change in either  sections 503 or  504 of the  Act,6 but          the Senate Report commented:                    It  is  intended  that  sections 503  and  504  be               administered  in  such  a  manner  that  a  consistent,               uniform,    and    effective   Federal    approach   to               discrimination   against   handicapped  persons   would               result.  Thus, Federal  agencies and departments should               cooperate in developing standards and policies so  that               there  is a  uniform,  consistent  Federal approach  to               these sections.                                        ____________________               6  Section 504,  29 U.S.C.    794,  prohibits discrimination          against the handicapped in  federally funded programs, the United          States Postal Service, and in Executive agencies.                                         -9-          S.  Rep. No.  1297,  93d  Cong.,  2d  Sess.,  reprinted  in  1974                                                        _____________          U.S.C.C.A.N. 6373, 6391.               Exxon  claims  this passage  demonstrates that  Congress was          seeking  an  exclusive  approach  to  handicap discrimination  by          federal  contractors,  and  that,  consequently,  it  must   have          intended   503 to displace parallel state laws governing the same          conduct.  Even without regard for the lesser weight accorded this          subsequent   history  than  would   be  accorded  contemporaneous          legislative comments,  see Heckler v.  Turner, 470 U.S.  184, 209                                 ___ _______     ______          (1985), we believe  Exxon has read far  too much into  the quoted          remarks.               We are persuaded that the passage in no way implicates state          law but  instead reflects  Congress's concern  about the lack  of          coordination  on  the  federal  level between  the  two  agencies                        _______________________          responsible for  implementing sections 503  and 504.   The Senate          Report continues from  the portion quoted  above to elaborate  on          the agencies' relationship:               The  Secretary of the  Department of Health, Education,               and Welfare, because of that Department's experience in               dealing   with   handicapped  persons   and   with  the               elimination  of discrimination  in other  areas, should               assume responsibility for coordinating the  section 504               enforcement  effort and for establishing a coordinating               mechanism with the Secretary of the Department of Labor               to  ensure a consistent  approach to the implementation               of sections 503 and 504.           S.  Rep.  No.  1297, 93rd  Cong.,  2d  Sess.,  reprinted in  1974                                                         ____________          U.S.C.C.A.N. 6373, 6391.  In our view, Congress was calling for a          more  uniform and consistent  "Federal approach to discrimination                                         _______          against handicapped  persons," id. (emphasis  added); nothing  in                                         __                                         -10-          the passage indicates that  it was seeking to eliminate  any role          for state  law.  See D'Amato v. Wisconsin Gas Co., 760 F.2d 1474,                           ___ _______    _________________          1482 (7th Cir. 1985) (by insisting on coordination,  Congress was          directing  "that the two responsible agencies were not to work at          cross purposes  or to duplicate each  other's efforts") (citation          omitted).               Exxon's second basis for  inferring an intent to  preempt --          the comprehensive  and detailed  regulations promulgated  under            503  --  is  equally unavailing.    The  fact  that Congress  has          implemented an  extensive regulatory scheme in  a particular area          does not lead necessarily  to the conclusion that it  intended to          displace parallel state remedies.  As the Supreme Court stated in          Hillsborough  County v. Automated Medical Laboratories, Inc., 471          ____________________    ____________________________________          U.S. 707, 716-18 (1985):               To infer pre-emption whenever  [a federal agency] deals               with a problem comprehensively is  virtually tantamount               to  saying that  whenever a  federal agency  decides to               step into  a field, its regulations  will be exclusive.               Such  a rule  .  . .  would  be inconsistent  with  the               federal-state  balance embodied in our Supremacy Clause               jurisprudence.          See also R.J.  Reynolds Tobacco  Co. v. Durham  County, 479  U.S.          ___ ____ ___________________________    ______________          130, 149 (1986) (preemption should not be inferred simply because          federal  agency's regulations  are comprehensive).    Exxon cites          nothing  in the state provisions  that would make compliance with          both  state law  and  the  detailed     503  scheme  a  "physical          impossibility," Florida  Avocado & Lime Growers, 373 U.S. at 143,                          _______________________________          and, in the absence of other evidence of preemptive intent, there          is no basis for displacing the state law.                                         -11-               In  accepting Exxon's  argument  that  Congress intended  to          preempt  state  anti-discrimination   remedies  against   federal          contractors, the  district court relied entirely  on the analysis          of the Eleventh  Circuit in  Howard v. Uniroyal,  Inc., 719  F.2d                                       ______    _______________          1552 (1983).  In Howard, the  plaintiff had alleged a claim under                           ______          Alabama law as a third party beneficiary of the   503 affirmative          action clause contained in contracts between his employer and the          federal government.               The Eleventh Circuit  rejected this  claim.    It held  that          state  contract remedies  could  not be  used  to enforce     503          essentially for the reasons Exxon has offered to us in support of          its  preemption  argument.    Emphasizing  the  Senate   Report's          reference to federal uniformity  and the comprehensiveness of the             503   administrative  scheme,   the  Howard  court   found  it                                                  ______          "reasonable to infer that Congress left no room in section 503(b)          for state contract  actions to supplement it," id. at  1559.  The                                                         __          court   concluded   that  allowing   the  plaintiff   to  broaden          enforcement of  the affirmative action  clause by means  of state          law  could frustrate  directly  the specific  scheme designed  by          Congress, allowing  a private  claim through  the back  door that          couldn't come through the front door.               An inference of preemption  was further warranted, the court          held, because  Congress's substantial  interest in  enforcing the          affirmative  action  clause  --  determining  appropriate  terms,          conditions  and  remedies  --  was "more  substantial"  than  the                                         -12-          state's  interest   in  providing   a  remedy  for   third  party          beneficiaries seeking to enforce the same clause.  Id. at 1561.                                                             __               We believe Exxon and the district court have relied unwisely          on Howard, which  differs from  this case in  a crucial  respect.             ______          There, the  plaintiff sought to  use state  law to enforce    503          itself;  the  court  ruled  that Congress  intended  the  federal          administrative  remedy  to  be  the  plaintiff's  sole  means  of          enforcing  the   affirmative  action  clause.     Here,  however,          Ellenwood  is  seeking to  enforce  not    503,  but  independent          obligations created by state anti-discrimination statutes.               The claim in this  case does not threaten the  uniformity of                                                              __________          the     503  system.     Rather,  the   issue  here  is  one   of          compatibility, specifically,  whether  there  is  any  basis  for          _____________          inferring  that  Congress  believed an  independent  state remedy          could not co-exist with the    503 system.  Howard is not helpful                                                      ______          in  this  context.    In  the  employment  discrimination  field,          Congressional enactments  "have long evinced a  general intent to          accord parallel or  overlapping remedies against discrimination."          Alexander v. Gardner-Denver  Co., 415  U.S. 36, 47  (1974).   See          _________    ___________________                              ___          also  California Federal  Savings  & Loan,  479  U.S. at  282-83;          ____  ___________________________________          Kremer  v.  Chemical Construction  Corp.,  456  U.S. 461,  468-69          ______      ____________________________          (1982);  Muncy v. Norfolk and  Western Railway Co.,  650 F. Supp.                   _____    ________________________________          641, 644 (S.D.W. Va.  1986) (ruling that    503 does not  preempt          state human  rights act).   Nothing  in    503, which is  focused          narrowly on the contractual requirement for an affirmative action                                         -13-          clause,  provides  a  basis  to  infer  a  departure  from   that          traditional approach.               In  addition,  several  references  in    503's  legislative          history suggest that,  rather than seeking  to preempt state  law          through   comprehensive    legislation,   Congressional   leaders          recognized that the federal statute was a modest one:                "We  are  just  beginning  to  do too  little  as  the               dimension   of   the   problem   grows   in   geometric               proportion."  Congressman Vanik, Congressional Record -               -  House 18137 (June 5, 1973); "[W]e have only begun to               scratch  the  surface  in  meeting  the  needs  of  our               disabled fellow citizens."  Congressman Brademus [sic],               Congressional  Record --  House  30149  (September  18,               1973); "I do not  consider [this bill] to be  a perfect               bill,  or  in  all  honesty, even  an  adequate  bill."               Senator  Randolph, Congressional Record -- Senate 34586               (July 18, 1973).7          Raytheon Co. v. Fair  Employment and Hous. Comm'n, 46  Fair Empl.          ____________    _________________________________          Prac. Cas. (BNA) 1089, 1099 (Cal. Sup. Ct. 1988), aff'd, 212 Cal.                                                            _____          App. 3d 1242, 261 Cal. Rptr. 197 (2d Dist. 1989).               A year later, in the Rehabilitation  Act Amendments of 1974,          Congress  added  a   provision  requiring  state  agencies   that          administer  programs funded  under  the Act  to take  affirmative          action to  employ and advance  qualified handicapped  individuals          who  are  covered under     503.   See  Senate  Report No.  1297,                                             ___          reprinted in 1974 U.S.C.C.A.N., at 6391-92.  The Senate Committee          ____________          Report noted that  these agencies "are  expected to adopt  strong          affirmative  action programs  which  are at  least equivalent  to                                                   _________          those now being  developed for  Federal agencies."   Id. at  6392                                                               __                                        ____________________               7 Both Congressman Brademas  and Senator Randolph were among          the  managers of the legislation.   See Conf.  Rep. No. 500, 93rd                                              ___          Cong., 1st Sess., reprinted in 1973 U.S.C.C.A.N. 2143, 2154.                            ____________                                         -14-          (emphasis  added).     These  comments,  although   referring  to          administering   agencies   rather   than   federal   contractors,          nevertheless  suggest  that Congress  both acknowledged  the role          played  by  states in  the  area of  handicap  discrimination and          assumed that states might choose to provide  different -- greater          --  protection than that afforded by the federal government.  See                                                                        ___          Raytheon, 46 Fair Empl. Prac. Cas., at 1099.8          ________               Finally,  we  note  that,   in  the  recent  Americans  with          Disabilities Act of 1990, 42 U.S.C.    12101-12213, which amended          the  Rehabilitation  Act  and  extended   remedies  for  handicap          discrimination  against  many  more  private  employers, Congress          stated  explicitly  that  the  legislation  did  not  "limit  the          remedies, rights, and procedures of any .  . . law of any State .          . . or jurisdiction that provides greater or equal protection for          the rights  of individuals with disabilities than are afforded by          this chapter."     42 U.S.C.    12201(b).   While  this provision          obviously  can have no effect on our view of Congressional intent          in 1973,  it is  a particularly  pertinent example  of Congress's          historical   practice  of   allowing  overlapping   remedies  for          employment discrimination.9                                        ____________________               8 We ackowledge that this post-enactment legislative history          is  of  less weight  than  contemporary  commentary,  but  it  is          nevertheless of some significance.   See, e.g., Heckler, 470 U.S.                                               ___  ____  _______          at 209; Cannon v.  University of Chicago, 441 U.S.  677, 686-687,                  ______     _____________________          n.7 (1979).                 9 The absence of a provision disclaiming preemption from the          Rehabilitation Act of 1973  does not demonstrate, in  the absence          of  other  evidence,  an  intent  to  foreclose  state  remedies.          Because of its far more comprehensive reach, the ADA is likely to          have  appeared  more  preemptive  than  the  earlier  legisation.                                         -15-               Exxon attempts  to distance this case from  the tradition of          overlapping  remedies  in  two  ways.   First,  it  asserts  that          Congress has a unique  interest in regulating federal contractors          and,  second, it claims that  the area of handicap discrimination          requires an  extraordinary balancing of  competing interests that          distinguishes it from  other types of  employment discrimination,          such  as those  involving race, gender  or age.   In the handicap          discrimination   field,  Exxon  maintains,   the  possibility  of          conflicting judgments is much greater because courts in different          jurisdictions could reach  widely disparate  conclusions on  such          basic  questions  as  what  constitutes a  "handicap"  and  which          handicapped persons are "qualified" to hold particular positions.          Restricting individuals to their   503 remedy would ensure that a          federal  contractor doing business  in more than  one state would          face uniform obligations nationwide.               We think it unlikely that Congress has a special interest in          immunizing   federal   contractors  from   obligations  otherwise          applicable to them under state handicap  discrimination statutes.          These companies may do  only $2,500 in business with  the federal          government, with the bulk of their enterprise devoted to commerce          within  a  single  state.    This  division  gives  the  state  a          substantial interest  in protecting  the employment  interests of          its  handicapped citizens.   The developing nature  of the issues          raised in  the field  of handicap  discrimination  strikes us  as                                        ____________________          Congress evidently made the  sensible decision to avoid confusion          by including an express provision.                                           -16-          insufficient  justification for  excusing  these  employers  from          obligations imposed on others who differ only in that the federal          government is not one of their customers.               Moreover,  Exxon's  obligation  is  not  simply to  identify          reasons why Congress might have departed from its usual practice,          but to demonstrate a reasonable basis for inferring that Congress          did, in fact, intend to make the federal remedy exclusive in this          single  area of employment discrimination law.  Exxon has offered          nothing from which we can discern such an intent.                  In sum, we find no "clear and manifest" intent on the part          of  Congress  to  preempt  state  handicap discrimination  claims          against  federal contractors.  Indeed, we find no signals of such          an intent.10               2. Contract and promissory estoppel.                  ________________________________               In its appeal, Exxon contends that the district court should          have extended its   503 preemption ruling to Ellenwood's contract          and  promissory estoppel claims as  well.  Exxon  points out that          these claims  allege that  the company  breached an  agreement or          promise  not   to  discriminate  on  the   basis  of  Ellenwood's          "handicap"  of  alcohol  abuse.   Again  relying  solely  on  the          uniformity rationale, Exxon argues that all state claims based on          the same  assertedly discriminatory  conduct are foreclosed  by            503.                                        ____________________               10 Our  preemption analysis  applies as well  to Ellenwood's          claim for wrongful discharge based on public policy.  We offer no          view,  however, as  to  whether such  a  claim exists  under  the          applicable state law.                                         -17-               Our ruling on the statutory claims also is dispositive here.          We note, however, one instance in which a contract claim based on          statements in a company policy manual may be  preempted by   503.          Regulations  promulgated under the  statute require  employers to          post  notices  of their  Rehabilitation  Act  obligations and  of          employee  rights under    503  in "conspicuous  places."   See 41                                                                     ___          C.F.R.   60-741.4(d).  If  an employer included such a  notice in          its  policy manual solely to comply with this regulation, a state          contract claim based on a breach of the manual provision arguably          would be preempted by the federal law.  See Arellano v. Amax Coal                                                  ___ ________    _________          Co., 56 Fair Empl. Prac. Cas. (BNA)  1519, 1524-25 (D. Wy. 1991).          ___          Such a  claim, though in the  guise of a contract  claim based on          the manual, would seem no different from one directly asserting a          breach of   503.  A direct claim under   503 unquestionably would          be preempted for the reasons set out in Howard.                                                  ______               Exxon does not  contend that  the statements  at issue  here          were  required by     503.   Indeed, such  a contention  would be          patently unsupportable.  Ellenwood's contract and estoppel claims          are  not  premised on  a  general notice  of  Exxon's affirmative          action obligations toward handicapped  individuals, but on a very          specific written  assurance from the  company that  it would  not          disadvantage employees for seeking treatment for alcoholism.               We  therefore   hold  that  the  district   court  correctly          determined that Ellenwood's contract and estoppel claims were not          preempted by   503.                                         -18-                            II. The Role of Admiralty Law                                _________________________               Our conclusion that   503 does not preempt Ellenwood's state          statutory and common  law claims  does not end  our inquiry  into          whether those claims are  foreclosed by federal law.   Exxon also          contends that, even if   503  does not preempt them, maritime law          does.  We consider this contention first as to the state statutes          and second as to the contract and estoppel claims.          A. State handicap discrimination statutes.             ______________________________________               In a brief footnote, the  district court observed that, even          if it had erred in its judgment about   503 preemption, the state          handicap  discrimination claims nevertheless  would be foreclosed          because  maritime law, rather than state  law, governs all issues          surrounding Ellenwood's  employment as a chief  engineer on board          ship.  The court  stated that, "I am not aware of any basis under          maritime  law for such a recovery."  Memorandum of Decision, Oct.          15, 1991, at 4 n.3.                The district court underestimated  the role state law plays          in maritime cases.  Supreme Court cases make it clear that courts          in admiralty cases may reach beyond maritime precedents and apply          state laws "absent  a clear conflict with  the federal [maritime]          law," Askew v. American Waterways Operators, Inc., 411  U.S. 325,                _____    __________________________________          341 (1973).  See  also Romero v. International Terminal  Co., 358                       ___  ____ ______    ___________________________          U.S.  354, 373-75, 378, n.42  (1959); Just v.  Chambers, 312 U.S.                                                ____     ________          383, 391  (1941); Lyon v. Ranger  III, 858 F.2d 22,  27 (1st Cir.                            ____    ___________          1988); 1 S. Friedell, Benedict  on Admiralty   112, at 7-36  (7th                                ______________________          ed.  1991); 14 C. Wright, A. Miller & E. Cooper, Federal Practice                                                           ________________                                         -19-          and Procedure  (hereafter Wright  &  Miller)    3672, at  441-444          _____________             _________________          (1985).               Exxon contends that this is a case of  conflict.  It asserts          that  applying state non-discrimination  statutes in an admiralty          case  will contravene  federal maritime  law by  undermining that          "most fundamental and long established characteristic of maritime          law: the need for `harmony  and uniformity' of that law."   Exxon          Brief at 21  (quoting Southern  Pacific Co. v.  Jensen, 244  U.S.                                _____________________     ______          205, 216  (1917)).  See also  Miles v. Apex Marine  Corp., 111 S.                              ___ ____  _____    __________________          Ct.  317,  322-23  (1990)  (noting "`the  constitutionally  based          principle that federal admiralty  law should be "a system  of law          coextensive  with,   and  operating  uniformly   in,  the   whole          country"'") (quoting  Moragne v.  States Marine Lines,  Inc., 398                                _______     __________________________          U.S. 375, 398 (1970)  (quoting The Lottawanna, 21 Wall.  558, 575                                         ______________          (1875)));  Carey v. Bahama Cruise  Lines, 864 F.2d  201, 207 (1st                     _____    ____________________          Cir. 1988).               Once again,  however, Exxon heralds the  need for uniformity          without an appreciation for the boundaries of its relevance.  All          state laws, if given effect in admiralty cases, will interfere to          a degree with the uniformity of admiralty law.  See 1 Benedict on                                                          ___   ___________          Admiralty    112,  at  7-36.   But  when Congress  established  a          _________          separate admiralty  jurisdiction and  empowered the  judiciary to          develop substantive  maritime principles  for use  nationwide, 14          Wright  & Miller   3671, it simultaneously assured that state law          ________________          would  continue to play some role in maritime affairs through the                                         -20-          "saving to  suitors" clause.11  This  provision allows plaintiffs          to  pursue,  in  addition  to  maritime  relief,  ordinary  civil          remedies provided by state law,  so long as they do not  conflict          with  the national  substantive maritime  law.   See 14  Wright &                                                           ___          Miller   3672, at 440-444.               Through  the years,  the  Supreme Court  has confirmed  that          "[t]he  State and  Federal Governments  jointly  exert regulatory          powers" in maritime  matters, Romero, 358 U.S. at 374,  and it is                                        ______          by now well established that state law is displaced only  when it          materially  prejudices "the  characteristic features  of maritime          law," 1 Benedict on Admiralty   112, at 7-36.  As we  observed in                  _____________________          Carey, "the Supreme Court . . . no longer construes the Admiralty          _____          Clause  as  requiring  `rigid  national  uniformity  in  maritime          legislation.'" 864 F.2d at 207 (citation omitted).  See also Lyon                                                              ___ ____ ____          v. Ranger III, 858 F.2d at 27; G. Gilmore & C. Black, The  Law of             __________                                         ___________          Admiralty,  at 49-50 (2d ed. 1975).   In other words, a state law          _________          claim should not be  dismissed simply because it would  result in          differing  remedies  for plaintiffs  in  different  parts of  the          country; such  a claim  is foreclosed  only if  the state  law in          question frustrates  a fundamental tenet  of admiralty law.   See                                                                        ___                                        ____________________               11 The  Judiciary  Act of  1789  granted the  federal  trial          courts  "exclusive original  cognizance  of all  civil causes  of          admiralty  and  maritime  jurisdiction,"  but  also  reserved  to          "suitors, in all  cases, the right of a  common law remedy, where          the common  law is competent to  give it."   See Southern Pacific                                                       ___ ________________          Co., 244 U.S.  at 215-216.  In its present form,  see 28 U.S.C.            ___                                               ___          1333(1),   the  clause   gives  the   district   courts  original          jurisdiction, "exclusive of the  courts of the States,"  of: "Any          civil  case  of admiralty  or  maritime  jurisdiction, saving  to          suitors  in  all  cases all  other  remedies  to  which they  are          otherwise entitled."                                         -21-          Steelmet,  Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th          _______________    ___________________          Cir. 1986).               For example,  in  Carey, 864  F.2d at  207, we  held that  a                                 _____          Massachusetts rule barring tort recovery when a plaintiff is more          than 50 percent negligent could not be applied in a maritime case          because  "[o]ne of  the  essential and  longstanding features  of          substantive admiralty law is  that contributory negligence can be          considered only  in  mitigation of  damages."   The  rule  wholly          foreclosing  recovery is  "`completely incompatible'  with modern          admiralty practice."  Id.  (quoting Pope & Talbot, Inc.  v. Hawn,                                __            ___________________     ____          346 U.S. 406, 409 (1953)).               Although the rule barring state claims only if they directly          conflict   with  basic  maritime  principles  often  requires  "a          delicate accommodation  of federal  and state interests,"  Carey,                                                                     _____          864  F.2d at  207,  we have  been  shown nothing  in  substantive          maritime  law that is even  potentially at odds  with state human          rights  statutes such as those underlying Count IV of Ellenwood's          complaint.     Congress's  only   legislation  in  the   area  of          handicapped rights  has not been directed at  maritime cases and,          as  discussed  supra,  its  legislation  did  not  preempt  state                         _____          remedies.  We find no indications that the absence of substantive          maritime  law  governing   issues  concerning  individuals   with          handicaps  reflects a  federal  interest  in protecting  maritime          employers from such obligations.   See 1 Benedict on  Admiralty                                               ___   ______________________          112,  at  7-37.    To  the  contrary,  the  Rehabilitation  Act's                                         -22-          applicability to maritime employers demonstrates federal approval          of such obligations.               Thus, the district court's observation that maritime law has          not  addressed  handicap  discrimination  specifically  is not  a          reason to  dismiss the state claim but a basis upon which to give          effect to  the state provisions.   Maritime law  historically has          appreciated  the  leading  role  of state  statutes  in  creating          additional  bases of recovery.  In maritime wrongful death cases,          for example, remedies first were provided solely under state law.          See Miles, 111  S. Ct. at 320-23; Moragne v. States Marine Lines,          ___ _____                         _______    ____________________          Inc., 398 U.S. 375,  397 (1970).  When Congress  enacted maritime          ____          wrongful  death legislation  in 1920,  it provided  remedies only          where state law did not.  Miles,  111 S. Ct. at 321; Moragne, 398                                    _____                      _______          U.S. at 397-98.  State statutes continued to  play a primary role          for  another  fifty  years, until  the  Supreme  Court  created a          general  maritime cause of action for wrongful death.  See Miles,                                                                 ___ _____          111 S. Ct. at 321-323; Moragne, 398 U.S. at 398-402.12                                 _______                In its reply  brief, the  State of Maine  notes a  possible          concern that  strict state standards regarding  employment of the          handicapped  would  conflict   with  the  maritime   doctrine  of          seaworthiness.   The  State emphasizes,  however, that  under its          law, any legitimate physical  requirements for crew members under                                        ____________________               12 Even  today, plaintiffs  may invoke state  wrongful death          statutes  under  the  saving   clause  insofar  as  they  involve          accidents  in  territorial waters  and do  not conflict  with the          substantive  principles  developed  under the  maritime  wrongful          death  doctrine.  See Offshore Logistics, Inc. v. Tallentire, 477                            ___ ________________________    __________          U.S. 207, 227 (1986).                                         -23-          the   seaworthiness   doctrine   would   constitute   bona   fide          occupational requirements that would  provide a defense to claims          brought under the statute.  See 2A Me. Rev. Stat. Ann.  tit. 5,                                        ___          4572(1)  (Supp. 1992).    Of course,  whether  or not  a  state's          statute specifically included such a defensive provision,  vessel          owners obviously could not be held liable for damages under state          anti-discrimination   laws   when  federal   maritime  principles          required the employer to  make the contested employment decision.          In that narrow way, maritime law would be preemptive.               As a  general matter, however, we conclude  that state human          rights statutes may  be applied  in maritime cases.   Indeed,  it          would  be anomalous for maritime  law, which has  always shown "a          special solicitude for the welfare of seamen and their families,"          Miles,  111 S. Ct. at  327, to reject  such an employee-sensitive          _____          provision. See  also Smith v.  Atlas Off-Shore Boat  Serv., Inc.,                     ___  ____ _____     _________________________________          653 F.2d 1057, 1063 (5th Cir. Unit A 1981) (noting "the admiralty          court's protective attitude  towards the seaman).   "`[C]ertainly          it better becomes the humane and liberal character of proceedings          in admiralty to  give than to withhold the remedy.'"   Miles, 111                                                                 _____          S. Ct. at  327 (quoting Moragne,  398 U.S. at 387  (quoting Chief                                  _______          Justice Chase in  The Sea Gull, 21 F. Cas.  909, 910 (No. 12,578)                            ____________          (CC Md. 1865))).  See also Austin v. Unarco Industries, Inc., 705                            ___ ____ ______    _______________________          F.2d 1, 6  n.1 (1st Cir. 1983) (state  law "is generally referred          to only  when it affords greater protection to maritime employees          than that afforded by admiralty law").                B. Contract and promissory estoppel.                   ________________________________                                         -24-               Exxon  contends  that,  in  allowing the  jury  to  consider          Ellenwood's  contract and  estoppel  claims,  the district  court          improperly created an exception to the well-established rule that          maritime  employment is terminable at will by either party in the          absence  of a  contract setting  a specific  term.   According to          Exxon,  maritime  law  has  "clung tenaciously"  to  the  at-will          principle,  and only  one  narrow exception  previously has  been          carved from it.  In Atlas Off-Shore Boat Serv., 653 F.2d at 1062-                              __________________________          63, the court  permitted a  claim for wrongful  discharge when  a          seaman was fired for filing a  personal injury claim that he  was          entitled  to file by statute.  No additional exceptions should be          allowed  to erode  the  strength of  the at-will  doctrine, Exxon          argues, since the seaman's rights as an employee already are well          protected  by federal statute.  See generally, e.g., 46 U.S.C.                                             ___ _________  ____          10302,  10303, 10313,  10502,  10504,  10505, 10506  (prescribing          procedures governing meals, hours and wages for seamen).               Exxon misperceives  the district court's ruling.   The court          did  not devise  a new  "wrongful discharge"  cause of  action on          behalf  of Ellenwood.  It simply recognized the obvious fact that          -- notwithstanding the general rule that a seaman's employment is          at-will  -- a maritime employer may  make a contractual agreement          with, or an enforceable promise to, its employees.               In this case, Ellenwood claimed that Exxon had promised that          his  job   security  and   future  opportunities  would   not  be          jeopardized  if  he sought  treatment for  alcoholism.   The jury          found that the requirements for establishing a binding obligation                                         -25-          were  met.  We  see no reason  why maritime law  would invalidate          this self-imposed obligation.13               Accordingly, we affirm the  district court's judgment on the          breach of contract and estoppel claims.  See infra Section V.                                                   ___ _____                   III.  Negligent Infliction of Emotional Distress                         __________________________________________               The  jury awarded  Theodore Ellenwood  $50,000 and  his wife          $25,000  on their  claims for  negligent infliction  of emotional          distress.   The district  court overturned these  verdicts on the          ground that  maritime plaintiffs may not  recover for negligently          caused  emotional  damages unless  they  demonstrate accompanying          physical  injury  or  impact.14    The  Ellenwoods  presented  no          evidence of physical harm.               In  granting  judgment for  defendants,  the district  court          noted that the Supreme Court in Atchison, Topeka and Santa Fe Ry.                                          _________________________________                                        ____________________               13 Exxon does not  argue that the district  court improperly          instructed  the jury  on  the elements  necessary to  establish a          contract or promissory estoppel claim in these circumstances, and          we therefore do not delve into this issue.  See, e.g., Pearson v.                                                      ___  ____  _______          John Hancock Mutual  Life Ins.  Co., No. 92-1684,  slip op.  (1st          ___________________________________          Cir. Nov.  10, 1992)  (discussing factors necessary  to establish          contract based on employee manual).               We do note that, as  Exxon recognizes in its reply brief,  a          contract must  be "reasonably  certain" to  be enforceable.   See                                                                        ___          Restatement (Second) of Contracts   33 (1981).  An estoppel claim          _________________________________          similarly must  be supported by a  sufficiently definite promise.          See Santoni v. Federal  Deposit Ins. Corp., 677 F.2d  174, 178-79          ___ _______    ___________________________          (1st  Cir. 1982).   Exxon does  not --  and, in  our view, cannot          reasonably -- argue that its policy statement assuring no adverse          consequences  based  on  alcoholism  treatment  is insufficiently          definite to support a contract or estoppel claim.               14 The court very prudently allowed  the claims to go to the          jury,  thus   foreclosing  the  possibility  of   a  later  heavy          investment of time and expense in the event that it should render          a  judgment  notwithstanding  the   verdict  and  that  we  would          disagree.                                         -26-          Co.   v.  Buell,  480  U.S.  557,  568  (1987),  had  raised  the          ___       _____          possibility of recovery for purely emotional injury in cases such          as this one.15   The court recognized, however, that  our circuit          has  had no opportunity since  Buell to consider  the issue.  See                                         _____                          ___          Moody v. Maine Cent. Ry.  Co., 823 F.2d 693, 694 (1st  Cir. 1987)          _____    ____________________          (declining  to  consider   physical  injury  requirement  because          plaintiff  failed to show causation).  It therefore relied on our          decision in Bullard  v. Central  Vermont Ry., 565  F.2d 193,  197                      _______     ____________________          (1st Cir. 1977), to hold that a physical injury is a prerequisite          for recovery of emotional distress damages.16               In  the aftermath  of Buell,  recovery for  wholly emotional                                     _____          injury under the Jones Act and FELA has become an "important  and          recurring issue" of federal law.  Ray v. Consolidated Rail Corp.,                                            ___    _______________________          112  S.  Ct. 914  (1992) (White,  J.,  dissenting from  denial of          certiorari).17   The circuits  vary in  their  treatment of  such          claims.  See, e.g., Ray v. Consolidated Rail Corp., 938 F.2d 704,                   ___  ____  ___    _______________________          705 (7th Cir. 1991) (no recovery under FELA unless injury results                                        ____________________               15  Buell  involved  a   claim  brought  under  the  Federal                   _____          Employers Liability Act (FELA), 45 U.S.C.    51-60, which creates          a negligence cause  of action for railroad  workers against their          employers.  The Jones Act, 46 U.S.C. App.   688, creates the same          cause of  action for seamen,  and incorporates  by reference  the          FELA.   Caselaw developed  under both statutes  guides subsequent          interpretation of either of them.  See Mitchell v. Trawler Racer,                                             ___ ________    ______________          Inc.,  362 U.S. 539, 547  (1960); Gaston v.  Flowers Transp., 866          ____                              ______     _______________          F.2d 816, 817 (5th Cir. 1989).               16 Recovery for wholly  emotional injuries was not at  issue          in Bullard because the plaintiff also  had injured his foot.  See             _______                                                    ___          565 F.2d at 197 & n.3.                17  Ray was, in fact,  an FELA case,  but, as noted earlier,                   ___          see supra note 15, FELA jurisprudence applies to Jones Act cases.          ___ _____                                         -27-          from physical  contact or threat of physical  contact); Taylor v.                                                                  ______          Burlington Northern R.R. Co., 787 F.2d 1309, 1313 (9th Cir. 1986)          ____________________________          (claims  for wholly  mental injury  are cognizable);  Holliday v.                                                                ________          Consolidated  Rail Corp.,  914 F.2d  421, 426-27  (3d  Cir. 1990)          ________________________          (rejecting specific  claim, but suggesting that,  under the right          circumstances,  emotional distress  damages may  be recoverable);          Gaston  v. Flowers  Transp., 866  F.2d 816,  821 (5th  Cir. 1989)          ______     ________________          (same).18               On  appeal, plaintiffs  urge us  to hold  explicitly that  a          seaman may  recover emotional distress damages  without showing a          physical injury.  Resolving this  issue requires not only careful          analysis of  the specific facts of  the case at hand,  but also a          review of  common law  jurisprudence  and policy  considerations.          Buell, 480  U.S. at 568-70.  As the Supreme Court noted in Buell,          _____                                                      _____          state court decisions reveal  a number of "doctrinal divergences"          concerning  intentional and  negligent  infliction  of  emotional          distress.  Id.  at 569-70.   The Court  therefore theorized  that                     __          recovery  for emotional injury "might rest on a variety of subtle          and intricate distinctions  related to the  nature of the  injury          and  the character of  the tortious activity."   Id. at  568.  It                                                           __                                        ____________________               18  In Plaisance v. Texaco,  Inc., 937 F.2d  1004, 1009 (5th                      _________    _____________          Cir.  1991), a  divided panel  of the  Fifth Circuit  announced a          broad rule  permitting recovery for negligently  caused emotional          injury,  but  denied recovery  in  the instant  case  because the          accident  was  so unexceptional  that  the  significant emotional          injury  sustained  by  a   tugboat  captain  was  not  reasonably          foreseeable.  Subsequently,  in an  en banc  ruling, the  circuit                                              __ ____          affirmed  the denial of recovery but withdrew the broad ruling of          law.   966 F.2d 166 (1992).  The Supreme Court denied certiorari.          See 61 U.S.L.W. 3400 (U.S. Nov. 30, 1992).           ___                                         -28-          concluded its discussion by cautioning that, in this area of law,          "broad  pronouncements  . .  . may  have  to bow  to  the precise          application  of  developing legal  principles  to  the particular          facts at hand."  Id. at 570.                           __               Because the  Ellenwoods have failed to  present their claims          of negligence with particularity, this is not an appropriate case          in which to undertake such a substantial inquiry.  Counts VII and          VIII  of the  complaint,  in the  words  of the  district  court,          alleged  "intentional  and   negligent  infliction  of  emotional          distress  on both  Mr. and Mrs.  Ellenwood in  ending Ellenwood's          career and disseminating confidential information  concerning his          condition."    Memorandum  of  Decision,  Oct.  15,  1991, at  2.          Neither  the  complaint  nor  the  Ellenwoods'  briefs,  however,          specifically  identifies the  negligent  acts  of  commission  or          omission.19   In closing  argument, plaintiffs'  counsel referred          in one sentence, in conclusory terms, to the negligent infliction          claim.20                                          ____________________               19 For  example,  was the  alleged  breach of  contract  the          asserted negligent action?  Or was it the manner in which the new          policy  was devised?  or  communicated?  or  applied?    Was  the          disclosure of  Ted Ellenwood's  alcohol treatment negligent?   If          so,  how?   Instead  of  specifically  identifying the  allegedly          unreasonable  conduct   that  constituted   a  breach  of   duty,          plaintiffs apparently  assumed that we could,  and would, discern          from  the underlying facts one or more bases for their negligence          claims.  This approach dates back to plaintiffs' complaint, where          they  simply incorporated  by  reference  the factual  background          underlying the  other causes of action to  support the negligence          claims.  See Complaint at    88-90.                   ___               20 Following lengthy discussions of the contract, promissory          estoppel and intentional infliction of emotional distress claims,          counsel stated:                                         -29-               The  lack  of attention  devoted  to this  claim  is further          illustrated   by  plaintiffs'  assertion   that  Ted  Ellenwood's          negligence  cause of  action was  brought under  general maritime          law, not the Jones Act.  See, e.g., Tr. Vol. XII, at 7.  In fact,                                   ___  ____          the Jones Act provides the  exclusive recovery in negligence  for          claims  by seamen  against their  employers.   See Miles  v. Apex                                                         ___ _____     ____          Marine,  111 S. Ct. 317, 324 (1990)  (Jones Act was a response to          ______          The Osceola, 189  U.S. 158 (1903), which established  that seamen          ___________          could recover  under general maritime law  for injuries resulting          from unseaworthiness but not negligence); Beltia v. Sidney Torres                                                    ______    _____________          Marine  Transport, Inc., 701 F.2d 491, 493 (5th Cir. 1983) (Jones          _______________________          Act is "the  sole basis upon which a  seaman or his beneficiaries          may   sue  his  employer  for  negligence")  (citation  omitted).                                        ____________________                    I  suggest  to you  that  even if  you  don't find               outrageousness   [an   element   of   the   intentional               infliction tort], you should  still return a verdict of               negligent  infliction  of  mental  distress.    I feel,               however, very  strongly that intentional  infliction of               emotional distress  has  been  shown  because  of  this               policy itself and  the actions  Exxon Shipping  Company               took against  him deliberately  after this policy  came               into effect.          Tr. Vol. XI, at 98.               The court's  instructions on the negligence  count also were          framed broadly.  The  court told the jury that the plaintiff must          prove that  (1) Exxon  acted or  failed to  act as  "a reasonably          prudent corporation would act in the  management of its affairs;"          (2)   that  "severe   emotional  distress"   to  plaintiffs   was          foreseeable;  and (3) that plaintiffs suffered such distress as a          result of negligence.  See Tr. Vol. XI, at 47.                                 ___                                         -30-          Ellenwood's general  maritime cause of action  could be dismissed          for that reason alone.21               The Supreme Court in Buell only speculated that  some claims                                    _____          for purely emotional injury  may be brought under the  FELA.  See                                                                        ___          Moody, 823 F.2d at  694 (door to recovery only  "somewhat ajar").          _____          Conducting the  particularized review  needed to evaluate  such a          claim  here  would  require  a detailed  examination  of  Exxon's          assertedly  negligent conduct, its context, and its impact on the          Ellenwoods.   Arguably,  even  in a  routine  case, it  would  be          inappropriate  for us to construct a theory of negligence so that          we could analyze a  claim of apparently little importance  to the          plaintiffs.  A  fortiori, we would be ill-advised  to do so here,                       ___________          where we  are asked  to take  a precedential  step with a  highly          circumscribed license from the Supreme Court.22                                        ____________________               21  Although  Mrs. Ellenwood's  claim  arises  under general          maritime law, the  limitations on recovery contained in the Jones          Act  nonetheless  are relevant  because  her  claim is  based  on          assertedly  negligent  conduct  governed  by the  statute.    See                                                                        ___          generally Miles  v. Apex Marine, 111  S. Ct. at 327  ("We sail in          _________ _____     ___________          occupied waters.  Maritime  tort law is now dominated  by federal          statute . . . .").               22  We note that the viability  of emotional distress claims          based  on  management  policy  decisions  and   other  day-to-day          interactions between  employees and  employers is  a particularly          sensitive  matter.   See,  e.g.,  Holliday  v. Consolidated  Rail                               ___   ____   ________     __________________          Corp.,  914 F.2d  421,  425, 427  (3d  Cir. 1990);  Lancaster  v.          _____                                               _________          Norfolk and Western Ry. Co.,  773 F.2d 807, 813 (7th  Cir. 1985);          ___________________________          Puthe v.  Exxon Shipping  Co., No.  89-CV-1619,  1992 U.S.  Dist.          _____     ___________________          LEXIS 14950, at *33-34 (E.D.N.Y.  Sept. 26, 1992).  Additionally,          we question whether a case such as this,  whose dominant claim is          that the  defendant intentionally reneged on  a promise, presents          the sort of tortious conduct properly compensable under the Jones          Act.                                         -31-               We  decline  to  explore  the  frontiers  of  the  negligent          infliction  tort  in  these   circumstances.    Accordingly,  the          district court's judgment vacating the  Ellenwoods' damage awards          is affirmed.23                                 IV. Punitive Damages                                     ________________               The  Ellenwoods contend  that  the district  court erred  in          refusing  to submit  their punitive  damages  claim to  the jury.          This argument  faces a  threshold barrier because  the Ellenwoods          have  prevailed   so  far  only  on   contractual  claims,  which          ordinarily  do not  support an  award of  punitive damages.   See                                                                        ___          Restatement (Second)  of Contracts   355  (1981)24; Thyssen, Inc.          __________________________________                  _____________          v. S.S. Fortune  Star, 777 F.2d  57, 62-63 (2d  Cir. 1985).   See             __________________                                         ___          generally Molzof v.  United States,  112 S. Ct.  711, 715  (1992)          _________ ______     _____________          (noting  common  law  understanding that  punitive  damages  were          awarded  "to punish  defendants for  torts committed  with fraud,                                               _____          actual malice, violence, or oppression") (emphasis added).                                        ____________________               23  We find  no  merit in  plaintiffs'  assertions of  error          concerning their claims  for intentional infliction of  emotional          distress.   The instructions accurately reflected prevailing law,          see Restatement  (Second) of Torts    46 cmt. d, and  the court's          ___ ______________________________          evidentiary decisions fell well  within its broad discretion, see                                                                        ___          Harrison v. Sears, Roebuck and Co., No. 92-1055, slip  op. at 6-7          ________    ______________________          (1st Cir. Dec. 9, 1992) (expert testimony); Elgabri v. Lekas, 964                                                      _______    _____          F.2d 1255, 1261 (1st Cir. 1992) (Rule 403).                 24 This provision states:               Punitive damages  are not  recoverable for a  breach of               contract unless the conduct constituting the breach  is               also a tort for which punitive damages are recoverable.                                         -32-               Despite the  general principle, the Ellenwoods  contend that          an award  of punitive damages  is permissible here  because their          claim  involved breach  of  a non-contractual  legal duty  not to          discriminate  on   the  basis   of  a  perceived   handicap  and,          consequently,    contractual    limitations   on    damages   are          inapplicable.  See Reply Brief at 22.  They seek support from our                         ___          decision upholding punitive damages for a shipowner's willful and          callous  withholding  of  a  seaman's  maintenance  and  cure  in          Robinson v.  Pocahontas, Inc., 477  F.2d 1048, 1051-52  (1st Cir.          ________     ________________          1973).   There,  we emphasized the  Supreme Court's  statement in          Vaughan   v.   Atkinson,  369   U.S.   527,   532  (1962),   that          _______        ________          "[m]aintenance and  cure differs from  rights normally classified          as contractual" because "the duty to provide maintenance and cure          `is imposed by the law itself as one annexed to the employment.'"          Robinson, 477 F.2d at 1052 (citation in Vaughan omitted).          ________                                _______               This argument assumes that the Ellenwoods proved more than a          breach  of contract.    They have  not.   In  Robinson,  punitive                                                        ________          damages  were permissible  because  the "`[t]he  duty to  provide          maintenance and cure is in no  real sense contractual, and a suit          for failure to provide maintenance or cure can hardly be equated,          therefore, with an action  for breach of contract,'" 477  F.2d at          1052  n.3  (quoting  Vaughan,  369  U.S.  at  534  (Stewart,  J.,                               _______          dissenting)).     Ellenwood's  proven  breach  of   contract  and          promissory  estoppel claims did not arise from a duty "imposed by          the law itself,"  Robinson, 477  F.2d at 1052,  but from  Exxon's                            ________          self-imposed  obligation not  to jeopardize  the job  security or                                         -33-          future  opportunities  of  employees  who  sought  treatment  for          alcoholism.    The Ellenwoods  have  cited  no maritime  decision          awarding punitive damages for breach of this type  of contractual          obligation.  See Thyssen, Inc., 777 F.2d at 62 (no  case found in                       ___ _____________          which  admiralty court  awarded  punitive damages  for breach  of          contract).               We are aware of a recent trend to permit punitive damages in          the contract setting  in a narrow range of circumstances.   See 5                                                                      ___          A.  Corbin, Corbin  on Contracts    1077  (1964 and  Supp. 1992).                      ____________________          This  practice has  been  deemed appropriate  when the  breaching          party  acted  with "[t]he  state  of  mind which  accompanies  an          intentional tort." id. (Supp.)  at 179.   In this case, the  jury                             __          found against  the Ellenwoods  on their intentional  tort claims.          Plaintiffs,  however,  maintain  that  this  finding  should  not          foreclose punitive  damages because they claim  that the standard          for punitive damages  under maritime law  is less demanding  than          the standard for  intentional infliction  of emotional  distress.          See  Restatement (Second) of Torts    46; Muratore  v. M/S Scotia          ___  _____________________________        ________     __________          Prince, 845 F.2d  347, 354 (1st  Cir. 1988) (maritime  standard).          ______          And  so,   plaintiffs  contend   that  the  rejection   of  their          intentional  tort claims  is not  fatal to  an award  of punitive          damages.               Assuming that maritime law would  permit a limited role  for          punitive damages in the  contract setting -- an  issue we do  not          reach -- we  think it  inconceivable that such  damages would  be          available  when the  jury  specifically has  rejected plaintiffs'                                         -34-          accompanying  intentional tort  claims.   Thus, even  if punitive          damages may be awarded  under maritime tort law based  on conduct                                                 ____          that would not satisfy the standard for intentional infliction of          emotional distress, we decline  to hold that they may  be awarded          for breach of contract in these circumstances.                        ________               Whether punitive damages  may be available  should Ellenwood          prevail upon remand on  the handicap discrimination claims  is an          issue  not  before us  today.   At the  moment  this is  solely a          contract  case,  and  we  adhere  to  the  settled  rule  of  law          prohibiting such an award.                                  V. Burden of Proof                                     _______________               Exxon attempted  to prove at  trial that, even  if Ellenwood          had  not been  removed from  his chief  engineer's post  in April          1989,  he would have  lost his job  later in the  year when Exxon          downsized its  fleet.   Consequently, because Exxon  continued to          pay Ellenwood's  full salary  and benefits through  January 1991,          the company argued that Ellenwood was not entitled to any damages          for breach of contract or promise.               On appeal, Exxon claims  that the district court incorrectly          instructed the jury that  the company bore the burden  of proving          that  Ellenwood would have been terminated  for bona fide reasons                                                          ____ ____          unrelated  to the new alcohol  rehabilitation policy.  The burden          should have been placed on the plaintiff, Exxon asserts, and this          error entitles the  company, at a minimum, to a  new trial on the          contract and estoppel claims.                                           -35-               We  find it unnecessary to consider this issue on the merits          because we conclude  that Exxon  failed to preserve  it.  At  two          separate  times, once before the  jury charge and  once after it,          the court and  counsel discussed the instruction on this defense.          On the first occasion, during the precharge conference, the court          announced its decision to  impose the burden on the  defendant to          prove  that  Ellenwood would  have lost  his job  for independent          reasons, and  twice  repeated  its  intention  to  give  such  an          instruction.  See Tr. Vol. XI, at 24, 28, 29.                        ___               At  that  time,  Exxon  responded  by  asking  the  court to          include,  within the  "independent reasons"  portion of  the jury          charge,  a sentence  about  "business judgment."   This  addition          would have emphasized  to the jury  that, in considering  whether          Ellenwood would have been  terminated as a result of  the fleet's          downsizing, it was not permitted to second-guess Exxon's business          judgment  in devising and applying  its ranking system.   See Tr.                                                                    ___          Vol.  XI, at  26.   The  ensuing  discussion  focused on  how  to          communicate  to the jury that its task was limited to determining          whether  the ranking  system  was  a  pretext.   The  instruction          ultimately adopted  by the  court included language  suggested by          Exxon's counsel.   Id. at 29.  At no  time during this discussion                             __          did counsel object to the court's imposing the burden on Exxon.               Subsequently, the  district court  instructed the  jury that          "Exxon Shipping  has the  burden of  proof to  show you that  Mr.          Ellenwood would have lost  his job for independent, nonpretextual          reasons," see Tr. Vol. XI,  at 51.  Following the full  charge on                    ___                                         -36-          all claims, the district court held a sidebar conference in which          it heard and responded  to both sides' objections.  At that time,          Exxon's counsel requested an "additional  instruction" on damages          for breach of contract or promise.               The  proposed  addition  consumes  43  lines  in  the  trial          transcript.   See  Tr.  Vol. XI,  at  64-66.25   The  first  four                        ___          paragraphs  contained essentially  the  instruction  on  business          judgment that  Exxon had requested earlier.   See Tr. Vol. XI, at                                                        ___          65 ("You may not consider whether in your opinion the evaluations          or  the rankings  are appropriate  or were  done in a  manner you          agree with.).   The next  section opens with  the assertion  that          "[t]he  sole  question  you  are  to  consider  is whether  Exxon          Shipping  maintained its  employee ranking  list in  good faith,"          id., and then states that, in deciding  the question, "plaintiffs          __          have  the  burden of  proof."    Id.   The  proposal  goes on  to                                           __          elaborate  on  the  plaintiff's  burden,  i.e.,  to  show  "by  a          preponderance of the evidence  that Exxon Shipping manipulated or          otherwise misused its ranking procedure in bad faith to cause Mr.          Ellenwood  to  be  ranked lower  on  the  ranking  list of  chief          engineers than he otherwise would have been."  Id. at 65-66.                                                         __               The district  court gave  the following response  to Exxon's          proposal:                    So far as the requested lengthy instruction  . . .               by  the defendant involving rank, proximate cause, good               faith, management  practices and so on,  I am satisfied               that  would involve me in too great a commentary on the                                        ____________________               25 The  requested instruction is reproduced  in its entirety          in an appendix to this opinion.                                         -37-               evidence.    Instead,  I've   given  a  general  charge               concerning the  issue of whether  Exxon would otherwise               have terminated him, required  only that its reasons be               independent and  not pretextual.   I believe  that that               adequately meets the standards in this area.          Tr.  Vol. XI, at 72.  It  appears that the district court focused          primarily,  if not exclusively,  on the first  portion of Exxon's          lengthy request  and concluded  that its own  pretext instruction          adequately met Exxon's  concern that  the jury  not consider  how          good the  ranking system was but only whether it was used in good          faith.  Exxon  made no further  response and did  not inform  the          court that it also was concerned about who had the burden on this          issue.               What Exxon did  here was not enough to  entitle it to assert          this issue on appeal as a basis for a new trial.  Counsel did not          object  to the court's  burden instruction, but  proposed only an          addition.   The  proposal was  long and,  in its  latter portion,          contradicted the court's earlier instruction on burden.  When the          court reacted with comments apparently directed only to the first          part of the  proposal, counsel  made no effort  to highlight  its          concern  regarding the  burden.   This  omission is  particularly          significant  in light  of the  earlier discussion,  which focused          solely on the business judgment rule.                 Similarly, in its post-trial  memorandum seeking a new trial          on the contract and estoppel claims, under  the heading "Employee          Rankings," Exxon argued only  that the court erred "in  declining          to instruct the jury that it could not  second guess the business          judgment  of  Exxon  Shipping  with respect  to  its  performance                                         -38-          evaluations and employee ranking system."  See Memorandum, at  9.                                                     ___          Again, no reference was made to the burden of proof.               Not until  its reply brief  on appeal  did Exxon  articulate          clearly  and concisely its burden of proof objection.  It is well          established, the company now contends, that the burden of proving          bad  faith must  be  on the  party  seeking  to show  it  because          "[d]isproving bad  faith is  almost always close  to impossible."          Reply Brief, at 17.   Because the issue here was not  the quality          of Exxon's ranking system, but  whether the system was maintained          in good faith,  the company claims the burden should have been on          Ellenwood to  prove that  Exxon manipulated  its rankings  in bad          faith.               We do  not reach this argument  because it is too  late.  To          consider  disassembling  the  court and  jury's  substantial work          without clearer  notice than  Exxon gave  to  the district  court          would be to  snub the requirement  in Fed. R.  Civ. P. 51 that  a          party must  "stat[e] distinctly  the matter objected  to and  the          grounds  of objection."   Accordingly,  we leave  undisturbed the          district court's judgment on the contract and estoppel claims.                                 VI. Benefits Offset                                     _______________               Exxon has claimed error  in the district court's instruction          to the  jury not to  offset the  damages award by  the amount  of          special retirement benefits the  company has paid or will  pay to          Ellenwood.  Under a "special sea service plan," Exxon contributed          to  an  annuity  that  distributed monthly  payments  to  retired                                         -39-          employees in  amounts based on life expectancy.   Ellenwood began          receiving annuity payments of nearly $20,000 a year following his          retirement in  1991 at age 45.   It is these  payments that Exxon          seeks to have offset.               Exxon's argument is based on  the general principle that  an          award of  lost earnings makes the  wrongfully discharged employee          whole and  that to add pension benefits would give the employee a          windfall.   Ellenwood  counters with  his own  windfall argument:          subtracting the  expected benefits from the  damages award treats          the employer who breaches  an employment contract more charitably          than  one who  has observed  one faithfully.   Both  parties cite          caselaw to support their claims.               In fact, however, we  conclude that the record made  in this          case, rather than general principles,  dictates the result.   The          relevant facts are contained  in a letter from an  Exxon official          in  response  to a  request from  Ellenwood's counsel  to provide          "[t]he  1990  percentages of  payroll  for  the various  benefits          provided  to  employees."    Brief  of   Plaintiffs-Appellees  at          Addendum  18.   The  letter, which  is  not mentioned  in Exxon's          brief, itemized  the percentages of payroll  attributable to life          insurance, medical and dental insurance, Medicare, a thrift plan,          long term  disability insurance, workers' compensation,  and "all          other."  These items totalled 20.8%  But included in the listing,          indeed  heading  the  list,  was "Annuity"  and  its  percentage,          "(2.7%)".   In other words, this percentage was deducted from the                                         -40-          total of the  above listed  items, making the  bottom line  total          percentage for fringe benefits 18.1%.               The effect  of this listing  was to indicate  to Ellenwood's          economic  expert on damages that he should add to his computation          of lost earnings 18.1% of those earnings  to reflect compensation          in  the form  of fringe  benefits.   Exxon did  not add  into the          benefits  total the 2.7% annuity  item, which would  amount to an          annual  payment  of approximately  $2,300.    Indeed, the  letter          subtracted the 2.7% from the remaining total of benefits, thereby          reducing by a substantial amount the present discounted value  of          Ellenwood's fringe benefits.               Had there  been no breach  of the  employment contract,  the          $2,300  yearly  contribution  apparently  would  have  bought  an          annuity that, upon Ellenwood's retirement  at age 65, would  have          yielded annual payments in an amount much larger than the present          $20,000 amount.   We look upon this amount as  having been bought          by prior Exxon contributions  and earned by Ellenwood as  part of          Exxon's compensation package.  To allow Exxon a further deduction          for the  income stream  purchased  by the  annual $2,300  payment          would seem to be, as Ellenwood argues, to allow a double credit.               This,  at least, is how we read the testimony of plaintiff's          economist,  Dr. McCausland,  who  had asked  for the  percentages          applicable to fringe benefits.  He testified that               the  fringe benefit  [sic] had  to be put  into present               value terms . . . , it's how many dollars do we have to               give  him  today so  he'll  have that  amount  of money               available  to  him in  each year  to  pay for  the same               fringe benefits.                                         -41-                    And I based it on their fringe benefit package . .               . .  And what I did, I took 18.1 percent of the present               value  of  lost earnings,  and  that  works out  to  be               $294,528.79.          Tr. Vol. V, at 111.  On cross examination Exxon's  counsel asked,          "Now you were also  aware that Mr. Ellenwood is  receiving almost          $20,000 a year in pension benefits currently from Exxon  Shipping          Company?"  To this, Ellenwood's counsel objected, saying, "that's          his money, and it  is not properly considered to  be mitigation."          Whereupon Exxon's counsel withdrew the question.  Id. at 121-122.                                                            __               On this record  the district  court ruled that  it was  "the          burden of  proof of the defendant  to come forward and  show that          these are benefits being received that  should be subtracted from          the amounts that  plaintiff would  otherwise . .  . receive"  and          that "the state of the record doesn't permit that determination."          Tr. Vol. XI, at 35.   We agree.  Indeed, it seems to  us that the          record  is not merely insufficient to support a basis for offset,          but points affirmatively to an already accomplished deduction.                                   VII. Conclusion                                        __________               The following is a brief summary of our major holdings:               (1)    we reverse  the  district court's  ruling  that state          statutes  prohibiting discrimination against  the handicapped are          preempted  by the Rehabilitation Act of 1973 and maritime law, as          well as its ruling  that plaintiff's claim of violation  of state          public policy is  similarly preempted, and the  case therefore is          remanded for further proceedings on such claims;                                         -42-               (2) we  affirm the district court's  ruling that Ellenwood's          state contract  and promissory estoppel claims  are not preempted          by either the Rehabilitation Act or maritime law;               (3) we  decline to  address the  Ellenwoods' claim that  the          district court improperly granted Exxon's request for judgment as          a  matter  of law  on their  claims  for negligent  infliction of          emotional  distress,   concluding  that  these  claims  were  not          adequately developed;               (4) we  affirm the  district court's  refusal to  submit the          issue of punitive damages to the jury;               (5) we find that  Exxon failed to preserve its  challenge to          the  district court's instruction imposing upon  it the burden of          demonstrating  that Ellenwood  would have  been removed  from his          chief engineer's  position  in late  1989 for  bona fide  reasons                                                         ____ ____          independent  of his  participation in  an alcohol  rehabilitation          program;               (6) and we  affirm the district court's decision  to exclude          from  the  jury's  damages  calculation  Ellenwood's sea  service          retirement benefits.26               The judgment of the district  court is therefore affirmed in               ____________________________________________________________          part,  reversed in  part,  and remanded  for further  proceedings          _________________________________________________________________          consistent with this opinion.  No costs.           ____________________________   ________                                        ____________________               26  We  have  reviewed   the  district  court's  rulings  on          Ellenwood's privacy claims, and find no error.                                          -43-                                       APPENDIX          The following  is the full  text of  Exxon's proposed  additional          instruction  on damages  for breach  of contract  or  promise, as          discussed supra at page 36.                    _____               As you  know, Mr.  Ellenwood ceased receiving  a salary               from Exxon Shipping on  January 15, 1991.  If  you find               as Exxon Shipping claims  that Mr. Ellenwood would have               been  terminated prior to that time in the fall of 1989               because  of his  low  performance  ranking compared  to               other chief engineers when Exxon  Shipping's oceangoing               fleet was downsized, then  no damages should be awarded               even  if  you  find  that  Exxon  Shipping  breached  a               contract with Mr. Ellenwood.                    Under  such circumstances,  the  conduct of  Exxon               Shipping complained of here was not the proximate cause               of  any loss Mr. Ellenwood  suffered.  If  on the other               hand you  find that Mr.  Ellenwood would not  have been               terminated  when  the  fleet  was  downsized,  you  may               continue to consider damages.                    During  this  case  a  number  of  witnesses  have               testified   regarding   Exxon  Shipping's   performance               evaluation and ranking system.  This case is  not about               whether  you  agree  with  or   like  Exxon  Shipping's               performance  evaluation  or   ranking  procedures,   or               whether  you  agree  with  or  like   Exxon  Shipping's               employment practices.  As  I previously instructed you,               you may not substitute your judgment for the company's.                    I  therefore   instruct   you  that   your   views               concerning  whether Exxon Shipping's ranking system was               well  administered  cannot  be  considered  by  you  in               rendering  your decision  in this  case.   You  may not               consider whether in your opinion the evaluations or the               rankings are appropriate  or were done in  a manner you               agree with.                    The sole  question you are to  consider is whether               Exxon Shipping  maintained its employee ranking list in               good faith.  In  deciding the question, plaintiffs have               the burden of  proof.  By  that I mean you  must decide               whether the  plaintiffs have proven  by a preponderance               of  the evidence  that  Exxon  Shipping manipulated  or                                         -44-               otherwise misused its ranking procedure in bad faith to               cause Mr. Ellenwood to  be ranked lower on the  ranking               list of  chief engineers  than he otherwise  would have               been.                    In   essence,   did   Exxon   Shipping   make  its               evaluations  of  Mr. Ellenwood  in  bad  faith with  an               intent  to  injure  him   in  order  to  improve  Exxon               Shipping's defense in this case.                    If you conclude that plaintiffs have not proven by               a  preponderance  of the  evidence that  Exxon Shipping               acted in bad faith in establishing  its ranking list in               1989,  then  you  must  find  that  Mr.  Ellenwood  has               suffered  no  damages  under  either  of  his  contract               claims.                                         -45-
