
USCA1 Opinion

	




          September 20, 1995    [NOT FOR PUBLICATION]                   U.S. COURT OF APPEALS FOR FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2211                       WILLIAM HAMILTON AND CHARLENE HAMILTON,                               Plaintiffs, Appellants,                                          v.                         BAYSTATE MEDICAL EDUCATION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Michael Ponsor, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                      ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Wendy Sibbison for appellants.            ______________            Toby G.  Hartt, with  whom  Jay M.  Presser and  Skoler, Abbott  &            ______________              _______________      _________________        Presser, P.C. were on brief for appellees.        _____________                                 ____________________                                 ____________________                      CAMPBELL, Senior Circuit Judge.  This appeal arises                                ____________________            from the termination of employment of Dr. William Hamilton, a            pathologist  at  Baystate   Medical  Center  ("Baystate")  in            Springfield, Massachusetts.  Dr. Hamilton brought a diversity            action  in the  district  court  against  Baystate,  Baystate            Medical  Education  and  Research Foundation  ("BMERF"),  and            Baystate Health Systems ("BHS"), alleging breach of contract,            negligent  infliction of emotional  distress, and intentional            infliction   of  emotional  distress.1     In  addition,  Dr.            Hamilton's  wife,   Charlene  Hamilton,  sued   for  loss  of            consortium.   The  district court granted  Defendants' motion            for summary  judgment on  all counts.   Hamilton  v. Baystate                                                    ________     ________            Medical  Educ. & Research Found.,  866 F. Supp.  51 (D. Mass.            ________________________________            1994).  We affirm.                                          I.                                          I.                      Dr.  Hamilton worked as  a pathologist  at Baystate            from 1970 to 1989.  In 1986, BHS created BMERF, a corporation            which  employs doctors to work  at Baystate.2   At that time,            Dr.  Hamilton,  along  with  all  full-time  pathologists  at            Baystate, entered  into a  series of annual  BMERF employment            contracts.                                             ____________________            1.  We note Plaintiffs' statement  that "no claim of handicap            discrimination was brought."                 2BHS  is  the parent  corporation  of  both Baystate  (a            hospital) and BMERF.                                         -2-                                          2                      In   1986,  Dr.   Hamilton's   performance   as   a            pathologist  began to deteriorate.   Over the next  two and a            half years,  his performance became  progressively worse, and            he made  a number of errors in  diagnoses and the labeling of            specimens.  In early 1989,  Dr. John Sullivan, Chairperson of            the Baystate Pathology Department,  learned that Dr. Hamilton            had  made  an  egregious error  in  November  of  1988.   Dr.            Hamilton  had incorrectly diagnosed  breast cancer, resulting            in a  patient  receiving unnecessary  surgery, a  potentially            carcinogenic dose of radiation therapy, and a toxic course of            chemotherapy.  On January 19, 1989, Dr. Sullivan met with Dr.            Hamilton and  suggested that  Dr. Hamilton  resign.   At that            meeting, it  was agreed  that  Dr. Hamilton  would take  some            vacation  time to determine whether he was ill.  Dr. Hamilton            soon  learned that he had been  suffering from Graves Disease            for  roughly the previous three  years.  Graves  Disease is a            severe  disease of  the  thyroid gland  which, if  untreated,            results in the impairment of a person's memory and ability to            concentrate.   Dr. Hamilton's  treating physician, Dr.  Haag,            Chief  of  the  Endocrine/Metabolic  Division   at  Baystate,            characterized  Dr.  Hamilton's  condition   as  severe.    He            suggested that it was probably responsible for Dr. Hamilton's            poor  performance.    Dr.  Hamilton  took approximately  five            months of sick leave and paid vacation.                                         -3-                                          3                      By the summer of 1989, Dr. Hamilton's thyroid gland            was functioning  normally,  but he  continued  to  experience            episodes  of cardiac  arrhythmias.   In August,  Dr. Hamilton            wrote to  Dr. Sullivan stating that although  he was not in a            position  to make long-term decisions and he did not think he            was completely cured, he wanted to return  to work on a part-            time basis in  September.  In  early September, Dr.  Hamilton            twice reiterated his desire to  return to Baystate, but  each            time his request was denied.                      Shortly  thereafter,  Dr.   Hamilton  retained   an            attorney  to negotiate a severance agreement with Defendants.            In  January 1990,  a medical  malpractice tribunal  found Dr.            Hamilton  negligent in  the case  of the  misdiagnosed breast            cancer,  and Dr.  Sullivan filled  out a  terminal evaluation            form that  was back dated to September  1, 1989.  In February            1990, settlement negotiations between Dr. Hamilton's attorney            and Defendants  broke  down, and  Dr. Hamilton  was asked  to            retrieve his belongings from Baystate.                                          II.                                         II.                                      Discussion                                      Discussion                      We  review the  district court's  grant of  summary            judgment de novo.   Goldman v. First National Bank,  985 F.2d                                _______    ___________________            1113, 1116 (1st Cir. 1993); Velez-Gomez v. SMA Life Assurance                                        ___________    __________________            Co., 8  F.3d 873, 874 (1st Cir. 1993).  Summary judgment will            ___            be affirmed only if "no genuine issue of material fact exists                                         -4-                                          4            and  the moving party is entitled  to judgment as a matter of            law."   Fed. R. Civ. P. 56(c);  O'Connor v. Steeves, 994 F.2d                                            ________    _______            905,  906-907 (1st Cir. 1993).   A genuine  issue of material            fact exists "if the  evidence is such that a  reasonable jury            could return a verdict  for the nonmoving party."   Oliver v.                                                                ______            Digital Equipment  Corp., 846 F.2d  103, 105 (1st  Cir. 1988)            ________________________            (quoting  Anderson v. Liberty Lobby,  Inc., 477 U.S. 242, 248                      ________    ____________________            (1986)).                      In  determining whether  a factual  dispute exists,            all reasonable inferences are made in  favor of the nonmoving            party, in this case,  the Hamiltons.  See O'Connor,  994 F.2d                                                  ___ ________            at 907.  Nevertheless, the Hamiltons must provide evidence of            an  issue of  material fact,  and may  not rely  "merely upon            conclusory    allegations,    improbable   inferences,    and            unsupported  speculation."    Medina-Munoz v.  R.J.  Reynolds                                          ____________     ______________            Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).            ___________            A.   Breach of Contract            A.   Breach of Contract                      Dr.  Hamilton had  two separate  relationships with            Defendants:   an  employee-employer relationship  with BMERF3            and  a professional  staff  appointment with  Baystate.   Dr.            Hamilton  argues  that  Defendants  (1)  violated  the  BMERF                                            ____________________                 3The relevant employment  contract between Dr.  Hamilton            and  BMERF was between January 1, 1989, and January 31, 1990.            Although no  signed contract  was produced  by either  of the            parties,  Defendants  do not  object,  for  purposes of  this            appeal,  to  the district  court's  finding  that an  implied            contract  existed for the above period with the same terms as            the standard 1989 BMERF physician employment contract.                                         -5-                                          5            employment contract by discharging  him without cause and (2)            violated the  BMERF  and Baystate  contracts by  disregarding            pre-termination procedural requirements.  We address each  of            these contentions.                      1.   Substantive Breach of Contract                      1.   Substantive Breach of Contract                      Dr. Hamilton alleges that he was discharged without            cause in violation of his BMERF employment contract.  Summary            judgment was correctly allowed if  the evidence, viewed in  a            light  most  favorable  to Dr.  Hamilton,  was  such  that no            reasonable  juror could  find  that his  termination violated            either  the express terms of  his contract or  the common law            standard of "just cause."   Under either standard, Defendants            were justified in terminating Dr. Hamilton if they reasonably            believed that he was unable to  fulfill the duties of a full-            time pathologist  at Baystate.4   Based on the  record before                                            ____________________                 4The employment contract provided in relevant part:                      The Foundation [BMERF] may terminate this                      Agreement    promptly    . . . if     the                      Foundation learns  of circumstances which                      the   Foundation    reasonably   believes                      substantially  and  adversely affect  the                      Member's  ability  to fulfill  the duties                      hereunder . . . .            The common law standard  of "just cause" has been  defined by            Massachusetts courts to mean:                      [T]here  existed  (1) a  reasonable basis                      for  employer  dissatisfaction with  a[n]                      . . .   employee,   entertained  in  good                      faith,  for  reasons   such  as  lack  of                      capacity or diligence, failure to conform                      to usual standards  of conduct, or  other                                         -6-                                          6            the district court, we  affirm the district court's  grant of            summary judgment.                      Dr.  Hamilton correctly  states  that, in  order to            satisfy the terms of his employment contract, Defendants must            have had a current belief at the time of termination that Dr.            Hamilton  was  unable  to  perform  his  duties.     All  the            admissible evidence here points  to such a belief:   there is            little or nothing to the contrary.  Dr. Hamilton had suffered            from untreated Graves Disease for approximately  three years.            This illness most  affected his  brain, causing  him to  make            repeated,  serious  mistakes.    Dr.  Hamilton  submitted  no            evidence directly  from his  treating physicians that  he was            fit  to return  to work in  September of 1989.   He tendered,            instead, only  his own  hearsay statements that  his treating            physician said  he was  cured of Graves  Disease,5 statements                                            ____________________                      culpable  or  inappropriate behavior,  or                      (2)  grounds   for  discharge  reasonably                      related,   in   the   employer's   honest                      judgement,  to the needs of his business.                      (emphasis omitted).             Goldhor  v.  Hampshire College,  25 Mass.  App. Ct.  716, 521            _______      _________________            N.E.2d  1381,  1385  (1988)  (quoting Klein  v.  President  &                                                  _____      ____________            Fellows of Harvard College, 25 Mass. App. Ct. 204, 517 N.E.2d            __________________________            167, 169 (1987)).                 5Dr. Hamilton alleges that his statements are persuasive            evidence  that he was capable of returning to work.  Although            a party  with the requisite degree of expertise may sometimes            offer  opinion  evidence on  his own  behalf,   see  Shane v.                                                            ___  ________            Shane,  891 F.2d 976, 982  (1st Cir. 1989);  Von Henneberg v.            _____                                        _____________            Generazio,  403 Mass. 519, 531 N.E.2d  563, 566 (1988); Foley            _________                                               _____            v. Foley,  27 Mass. App.  Ct. 221, 537  N.E.2d 158, 160  n.4,               _____            review denied, 405 Mass. 1202, 541 N.E.2d 344 (1989), we need            _____________                                         -7-                                          7            which  must   be  read  in  conjunction   with  his  treating            physician's deposition statement that,  in his opinion, as of            September 1,  1989, he  did not  know whether  Dr. Hamilton's            cognitive function  had returned to normal, that  he was very            concerned  by the  slowness  of his  recovery,  and that  Dr.            Hamilton "was not able  to return to a full-time  post, doing            everything that a  general pathologist had  to do to  perform            all of his duties."  Moreover, given the debilitating effects            of Graves Disease, it  could reasonably be surmised that  Dr.            Hamilton was unlikely  to have  kept abreast  of the  medical            knowledge  within his field during the period of his illness.            We  see no basis in  this record for  concluding anything but            that Defendants'  discharge of  Dr. Hamilton was  prompted by            their reasonable belief that his condition "substantially and            adversely" affected  his ability to perform  as a pathologist            at Baystate in September of 1989.                      Dr.  Hamilton  cautions  against  the  granting  of            summary judgment  when "state of  mind" is a  critical issue.            See  Stepanischen v.  Merchants Despatch  Transp.  Corp., 722            ___  ____________     __________________________________            F.2d 922, 928-29  (1st Cir.  1983).  However,  the fact  that                                            ____________________            not decide  whether a physician can  provide medical evidence            as his own  expert witness  because Dr. Hamilton  was not  an            expert in endocrinology nor did he base his statements on his            own medical opinion but  rather on the purported opinions  of            his   treating   physicians.      Dr.    Hamilton's   hearsay            representation  of these opinions  was not competent evidence            within  Fed. R.  Civ. P. 56(e).   See  Garside v.  Osco Drug,                                              ___  _______     __________            Inc., 895 F.2d 46, 50 (1st Cir. 1990).            ____                                         -8-                                          8            "state of mind" or motivation is an element of proof does not            necessarily   preclude  summary  judgment   in  an  otherwise            appropriate case.   Id.   Accord White v.  Hearst Corp.,  669                                ___   ______ _____     ____________            F.2d 14,  17 (1st Cir. 1982); Hahn  v. Sargent, 523 F.2d 461,                                          ____     _______            468 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976).                                  ____________                      Dr. Hamilton  argues that there is  a triable issue            as to whether Defendants were honest in their asserted belief            that he was unable  to perform his duties at Baystate.  Under            Massachusetts  law,  an  employer's reasons  for  termination            cannot be  given in  bad faith.    See Klein  v. President  &                                               ___ _____     ____________            Fellows of Harvard College, 25 Mass. App. Ct. 204, 517 N.E.2d            __________________________            167, 169-170 (1987).  Defendants should have known, plaintiff            argues, that his thyroid gland was functioning normally as of            September  1989.   But, as  pointed out  above, Dr.  Hamilton            presented no objective medical evidence that he was fully fit            to  perform his duties then and, indeed, did not even himself            claim that he was cured.  Dr. Hamilton urges that Defendants'            failure  to   report  him  to  the   Massachusetts  Board  of            Registration  in  Medicine  as an  "impaired  physician," and            their failure to warn other hospitals where he was working in            December of  1989, shows that  they did not  honestly believe            that he was  unfit to  return to work,  and, therefore,  that            they terminated him in  bad faith.  We think  these omissions            were  insufficient, by  themselves,  to establish  bad faith.            While believing that Dr. Hamilton was unfit to return to work                                         -9-                                          9            at  Baystate,  Defendants may,  at  the same  time,  have not            wanted  to destroy  his medical  career  by reporting  him to            other hospitals and to the Registration Board.                      Dr.   Hamilton  argues  that  Defendants  were  not            reasonable in  believing that  he was  unable to  perform his            duties  at Baystate.  He  points to their  failure to consult            his  physicians  in September  of  1989 in  order  further to            ascertain  his  medical  condition.     Given,  however,  the            seriousness of Dr. Hamilton's prior mistakes, his hiatus from            practicing medicine, his own admission that  he was not fully            "cured,"  and his  own failure  to have  presented supporting            letters  or the  like from  his physicians  attesting to  his            fitness  to practice, we do not think that more was required.            Dr.  Hamilton   further  argues   that  a  jury   could  find            Defendants' belief was not  reasonable because he was current            in  his   continuing   medical  education   credits.     Yet,            notwithstanding  such  credits,  Defendants could  reasonably            surmise that his medical  knowledge could not have progressed            at the normal rate during the three years he suffered acutely            from Graves Disease.                      2.  Violation of Procedural Safeguards                      2.  Violation of Procedural Safeguards                      Dr.  Hamilton  argues   that  Defendants   violated            relevant procedural safeguards by not affording him notice or            a  hearing.  It is undisputed that certain procedures must be            followed upon  suspension of medical staff  privileges or any                                         -10-                                          10            other specified  "adverse action" at Baystate.6   An "adverse            action,"   as  defined  in   Baystate's  Fair  Hearing  Plan,            includes:  revocation of medical staff membership,  reduction            in staff category,7 special limitation of the right to  admit            patients, or reduction of clinical privileges.                      Dr. Hamilton  argues that he suffered  a suspension            of staff  privileges and a reduction  in clinical privileges.            Defendants respond  that they did not  suspend Dr. Hamilton's            staff privileges at Baystate.  They point to the affidavit of            Michael  Kujath, Executive  Director  of BMERF,  which stated            that  Dr. Hamilton's  "medical staff membership  and clinical                                            ____________________                 6The  procedural protections  set forth  in  the Medical            Staff  Bylaws,  the  Medical  Staff  Credentialing  Procedure            Manual, and  the Fair  Hearing Plan  include:  (1) review  of            suspension  within  72  hours  by  a  Medical  Staff  Summary            Suspension Review Committee, (2) written notice to the doctor            of the suspension or "adverse action," and (3) a hearing.                 7Dr.  Hamilton argues  that he  suffered a  reduction in            staff category because he lost his appointment as Co-Director            of Microbiology at Baystate.  Defendants respond in two ways.            First,  they  point to  Baystate's  Fair  Hearing Plan  which            states  that "the  removal of  a practitioner from  a medico-            administrative office  within the  Medical  Center" does  not            entitle the practitioner  to a hearing.   Second, they  argue            that  the  reduction in  staff  category  argument is  waived            because Dr.  Hamilton  failed to  raise  it in  the  district            court.  Defendants  were  given  no  opportunity  to  present            evidence as to  the meaning of "reduction  in staff category"            and  "medico-administrative  office."     We  hold  that  Dr.            Hamilton  has  waived this  line  of argument.    See Playboy                                                              ___ _______            Enters., Inc., v. Public Serv. Comm. of Puerto Rico, 906 F.2d            _____________     _________________________________            25,  40 (1st  Cir.),  cert. denied,  Rivera  Cruz v.  Playboy                                  ____________   ____________     _______            Enters., Inc., 498 U.S. 959 (1990) ("Issues not raised before            _____________            the  trial court  are waived  on appeal  . . . absent unusual            circumstances  or  plain  error  suggesting  that  a   'clear            miscarriage of justice' has occurred.")                                         -11-                                          11            privileges  at Baystate  Medical Center,  were not,  in fact,            ever suspended."  Suspension of staff privileges would affect            Dr.  Hamilton's  ability to  practice  medicine  not only  at            Baystate,  but at  any  facility.    Dr. Hamilton  relies  on            Defendants'  statement  of intent  to  "remove  him from  the            staff" made  at the January  1989 meeting where  Dr. Sullivan            and  Dr. Hamilton  discussed what  should be  done  about Dr.            Hamilton's  slipping performance.   But  the outcome  of that            meeting  was a  decision that  Dr. Hamilton should  take some            vacation time to  determine if  he was ill  and that  nothing            would  be  done with  respect  to  Dr. Hamilton's  employment            status at that time.                        Dr. Hamilton also relies on the fact that his  name            was omitted  from a list  of pathology department  members in            the House  Staff Recruitment  Brochure.  However,  given that            this omission  was made  at a time  when Dr. Hamilton  was on            medical   leave,  and   given  Executive   Director  Kujath's            affidavit that Dr. Hamilton  was not removed from the  staff,            we  find  the  omission  of  Dr.  Hamilton's  name  from  the            recruitment  brochure insufficient,  by itself,  to create  a            triable issue as to whether Dr. Hamilton's medical privileges            were reduced or suspended.  There is no probative evidence in            the record that Dr. Hamilton's  staff privileges were in fact            ever suspended.                                         -12-                                          12                      Dr.  Hamilton  argues that  even if  his privileges            were  not   formally   reduced  or   suspended,   they   were            constructively suspended  as a necessary  consequence of  his            termination  because all full-time Baystate pathologists must            be  BMERF members.  However, in St. Louis v. Baystate Medical                                            _________    ________________            Center,  Inc., 30 Mass. App.  Ct. 393, 568  N.E.2d 1181, 1186            _____________            (1991),  the court noted that  physicians who no longer could            perform  services  at   Baystate  could   still  have   staff            privileges.8    Termination  of  BMERF  employment  does  not            constructively  result   in  a  change   in  Baystate   staff            privileges.                        Dr.   Hamilton  also   argues  that   the  Baystate            procedural safeguards should apply  to the termination of his            BMERF contract.  BMERF's bylaws provide that all its members'            "professional activities"                      shall  be  subject to  and  in compliance                      with the medical staff review procedures,                      bylaws,     rules,    and     regulations                      established by the  hospital or  facility                      in    which   Foundation    members   are                      practicing.            Dr. Hamilton argues that because his  professional activities            were  governed  by  Baystate's   rules,  he  is  entitled  to            Baystate's  procedural  protections  upon   termination  from                                            ____________________                 8The court stated "[The] doctors no longer performed any            professional services at Baystate, even though they continued            to enjoy clinical privileges  there."  St. Louis,  568 N.E.2d                                                   _________            at 1186.  (The St. Louis case involved a different issue than                           _________            this case since there  Baystate proceeded to formally suspend            the clinical privileges of the doctors in question.)                                         -13-                                          13            BMERF.    This argument  fails because  Baystate's procedural            protections  expressly apply only  to "adverse  actions," and            the  exhaustive list  of "adverse  actions" does  not include            termination  of a  physician's  contract with  BMERF.   Hence            termination of Dr. Hamilton's  BMERF employment contract  did            not trigger Baystate's hearing process.            B.   Tort Claims            B.   Tort Claims                      Dr.   Hamilton   alleges   that   Defendants   both            negligently  and  intentionally inflicted  emotional distress            upon  him  because  of  their callous  treatment  during  his            termination.   Defendants  allegedly  failed  to  notify  Dr.            Hamilton of his termination for several months.  As a result,            Dr. Hamilton asserts, he suffered emotional distress from the            uncertainty  of not knowing when, if ever, he would return to            his job.  The district court held that both the negligent and            intentional  infliction of  emotional  distress  claims  were            barred by  the Massachusetts Workers'  Compensation Act, and,            in  addition,  that  Dr.   Hamilton  had  not  alleged  facts            sufficient  to  make  out a  claim  for  either negligent  or            intentional infliction of emotional distress.                      Under  Massachusetts law,  common  law actions  are            barred by the state's workers' compensation act where (1) the            Plaintiff is an employee of  the Defendant, (2) the condition            is a  "personal injury," and the injury arises "out of and in            the course  of . . . employment."   Foley v.  Polaroid Corp.,                                                _____     ______________                                         -14-                                          14            381  Mass. 545, 413 N.E.2d 711, 713-714 (1980); Mass. Gen. L.            ch.  152,    26.9    "Personal  injury"  includes "mental  or            emotional disabilities only  where a significant contributing            cause  of such disability [is]  an event or  series of events            occurring within the employment."  Mass. Gen. L. ch. 152,   1            (7A).   This bar applies to  claims of intentional infliction            of emotional distress, see Tennaro v. Ryder System, Inc., 832                                   ___ _______    __________________            F. Supp. 494, 500 (D. Mass. 1993);  Anzalone v. Massachusetts                                                ________    _____________            Bay Transp. Auth., 403 Mass. 119, 526 N.E.2d 246, 249 (1988);            _________________            Mullen  v. Ludlow  Hosp. Soc'y,  32 Mass.  App. Ct.  968, 592            ______     ___________________            N.E.2d  1342, 1345, review denied, 413 Mass. 1103, 598 N.E.2d                                _____________            1133 (1992), and claims  of negligent infliction of emotional            distress, see Clarke v. Kentucky Fried Chicken of California,                      ___ ______    _____________________________________            Inc.,  57 F.3d 21, 27-29  (1st Cir. 1995);  Catalano v. First            ____                                        ________    _____            Essex Savings Bank, 37  Mass. App. Ct. 377, 639  N.E.2d 1113,            __________________            1115-16,  review  denied,  419  Mass. 1101,  644  N.E.2d  225                      ______________            (1994).                       Dr. Hamilton argues  that the Workers' Compensation            Act is not applicable because he was no longer an employee at            the  time Defendants  caused  his injuries.   However,  under            Massachusetts law, injuries that arise out of the termination            process  are  considered to  have  arisen "in  the  course of                                            ____________________                 9There  is an  exception to  preemption if  the employee            expressly reserves his  right to bring  common law causes  of            action.  Mass.  Gen. L. c. 152,   24.   However, Dr. Hamilton            does not assert that he reserved his right to sue outside the            Workers' Compensation Act.                                         -15-                                          15            employment" for purposes  of the  Workers' Compensation  Act.            See   Bertrand v. Quincy  Mkt. Cold Storage  & Warehouse Co.,            ___   ________    __________________________________________            728  F.2d 568,  572 (1st  Cir. 1984)  (holding that  injuries            caused  in  part by  a  letter that  may  have  been sent  to            plaintiff  after  termination  were  nonetheless   barred  by            Workers' Compensation  Act because it  was part  of a  single            course  of   conduct  begun  when  plaintiff   was  still  an            employee); Presto v. Sequoia Sys.,  Inc., 633 F. Supp.  1117,                       ______    ___________________            1120-21 (D. Mass. 1986);  Flynn v. New England Tel.  Co., 615                                      _____    _____________________            F.  Supp. 1205, 1209-10 (D. Mass. 1985) (holding that a claim            for emotional  injury arising out of  termination process was            barred  by  Workers' Compensation  Act).    The conduct  that            allegedly  injured Dr.  Hamilton  was  part  of a  series  of            actions that resulted  in his termination.   We conclude that            Dr. Hamilton's personal  injury claims  against his  employer            were barred by the Workers' Compensation Act.                      After  deciding that the  emotional distress claims            were statutorily  barred, the district court went on to find,            in  addition, that Dr. Hamilton had failed to set forth facts            sufficient  to make out  a claim of  negligent or intentional            infliction of emotional distress.  The court was also correct            in this determination.                      The Supreme  Judicial  Court of  Massachusetts  has            held  that the  negligent  infliction of  emotional  distress            requires    physical    harm    "manifested   by    objective                                         -16-                                          16            symptomatology."  Payton v.  Abbott Labs, 386 Mass.  540, 437                              ______     ___________            N.E.2d   171,  181   (1982).     There  must   be  "objective            corroboration of the emotional distress alleged." Sullivan v.                                                              ________            Boston Gas Co.,  414 Mass.  129, 605 N.E.2d  805, 809  (1993)            ______________            (quoting Payton,  437 N.E.2d at  175).  Dr.  Hamilton alleges                     ______            that he  suffered severe  stomach pains,  frequent headaches,            and insomnia as a result of Defendants' actions.                        Dr.  Hamilton argues  that under  Massachusetts law            his  symptoms  suffice  to  sustain  a  claim  for  negligent            infliction of  emotional distress.   Sullivan, 605  N.E.2d at                                                 ________            806-07, 810-11.   The  Sullivan court found  that plaintiffs'                                   ________            showing satisfied the physical harm requirement of a claim of            negligent infliction  of emotional  distress.  In  that case,            one   plaintiff  suffered  from   tension  headaches,  muscle            tenderness,   insomnia,   gastrointestinal  distress,   upset            stomach,  nightmares,  depression,  despair,   difficulty  in            driving and working, and concentration and reading  problems.            The second plaintiff  suffered from severe  physical symptoms            associated  with  clinical  post  traumatic  stress  disorder            including diarrhea, heart palpitations,  insomnia, depression            and  despair.    Both   plaintiffs  provided  expert  medical            evidence of their physical harm. Id.  Dr. Hamilton's  alleged                                             ___            symptoms were  less severe than  those in Sullivan,  were not                                                      ________            treated,   resulted  in   no   related  expenses,   and  were                                         -17-                                          17            corroborated  by no  medical testimony.   The  Sullivan court                                                           ________            stated that                      plaintiffs must  corroborate their mental                      distress  claims  with  enough  objective                      evidence of harm to convince a judge that                      their   claims   present   a   sufficient                      likelihood of genuineness to go to trial.                      Expert medical testimony may be needed to                      make this showing . . . .  The judge will                      consider  each  case  in  its  particular                      factual context . . . . [T]he  judge will                      use his or her discretion to evaluate the                      evidence.            Id.  at 810.  The  record here supports  the district court's            ___            conclusion that Dr. Hamilton "is unable to prove the physical            harm that is required."  Hamilton, 866 F. Supp. at 57.                                     ________                      The district court also ruled that Dr. Hamilton had            not  set forth facts sufficient to meet the requirements of a            claim of  intentional infliction of emotional  distress.  The            standard for this cause of action is "extreme and outrageous"            conduct, "beyond all possible bounds of decency" and "utterly            intolerable in  a civilized  community."  Redgrave  v. Boston                                                      ________     ______            Symphony  Orchestra, Inc.,  557 F.  Supp. 230, 236  (D. Mass.            _________________________            1983);  Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72,                    _____    ______________            82 (1987); Agis  v. Howard  Johnson Co., 371  Mass. 140,  355                       ____     ___________________            N.E.2d  315, 318-19 (1976).  We agree with the district court            that  none  of the  Defendants'  actions, viewed  in  a light            favorable to Dr. Hamilton, rises to this level.                      Dr.  Hamilton argues  that  Defendants mislead  him            into believing  that he might be  able to return to  work and                                         -18-                                          18            withheld notice of  his termination for  a period of  several            months.  Whatever Defendants' motivation, the actions alleged            were  not extreme,  outrageous  or intolerable.    We see  no            evidence  of  behavior  sufficient  to sustain  a  claim  for            intentional infliction of emotional distress.            C.   Loss of Consortium            C.   Loss of Consortium                      Mrs. Hamilton  appeals  from the  grant  of summary            judgment  for Defendants  on  her loss  of consortium  claim.            Mrs. Hamilton's  claim fails for two reasons.  First, spousal            loss of consortium claims based on injuries compensable under            the Workers' Compensation Act are specifically barred.  Mass.            Gen.  L. ch. 152,   24.   Second, Mrs. Hamilton's claim fails            because  summary judgment  was appropriately  granted against            the  underlying  tort  claims  of emotional  distress.    Any            recovery  for loss of spousal consortium  requires proof of a            tortious  act causing injury to the spouse.  See Mouradian v.                                                         ___ _________            General Electric Co., 23 Mass. App. Ct. 538, 503 N.E.2d 1318,            ____________________            1321, review denied, 399 Mass. 1105, 507 N.E.2d 1056 (1987).                   _____________                      Affirmed.                      Affirmed                      ________                                         -19-                                          19
