
USCA1 Opinion

	




          August 4, 1994    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 93-2121                           THERESA LYONS AND DENNIS LYONS,                               Plaintiffs, Appellants,                                          v.                          NATIONAL CAR RENTAL SYSTEMS, INC.                                    (OF DELAWARE),                                 Defendant, Appellee.                                     ____________                                     ERRATA SHEET               The  opinion of  this  court issued  on  July 27,  1994,  is          amended as follows:               Amend  the cover sheet as follows:  "Kathleen E. Cross, with                                                    _________________          whom Brenda  M. Cotter, Gerald  P. Tishler,  and Brown,  Rudnick,               _________________  __________________       ________________          Freed & Gesmer, P.C. were on brief for appellee."          ____________________                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2121                           THERESA LYONS AND DENNIS LYONS,                               Plaintiffs, Appellants,                                          v.                          NATIONAL CAR RENTAL SYSTEMS, INC.                                    (OF DELAWARE),                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                     [Hon. Donald E. Walter, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Matthew Cobb, with whom the Law Firm of  Matthew Cobb was on brief            ____________                _________________________        for appellants.            Kathleen E. Cross, with whom Brenda  M. Cotter, Gerald P. Tishler,            _________________            _________________  _________________        and Brown, Rudnick, Freed & Gesmer, P.C. were on brief for appellee.            ____________________________________                                 ____________________                                    July 27, 1994                                 ____________________        ____________________        *Chief Judge Stephen Breyer heard oral argument in this matter but did        not  participate  in  the drafting  or  the  issuance  of the  panel's        opinion.   The remaining  two panelists therefore  issue this  opinion        pursuant to 28 U.S.C.   46(d).                      BOWNES, Senior Circuit Judge.  Plaintiff-appellant,                      BOWNES, Senior Circuit Judge.                              ____________________            Theresa  Lyons (Lyons), appeals from the entry of judgment as            a matter of law in  favor of defendant-appellee, National Car            Rental Systems, Inc. (National), on her claims of slander and            violating  the Massachusetts  Civil  Rights Act.   Lyons  had            filed a  nine count complaint  in the district  court against            National after  her termination.   Six counts  were dismissed            pretrial  on a motion for  summary judgment.1   No appeal was            taken  from the  summary judgment  dismissal.   The remaining            three counts,  which included a count  by plaintiff's husband            for loss of consortium, were tried  before a jury.  The trial            was  bifurcated.   After  plaintiff rested  on her  liability            counts, defendant moved for judgment as a matter of law under            Fed.  R. Civ.  P. 50.   After  briefing and  argument by  the            parties, the court entered judgment for defendant as a matter            of law.                      Plaintiff filed a timely appeal which included  the            loss of consortium count.   The issues on appeal  are whether            either  or  both of  the  liability counts  should  have been            submitted  to  the jury.   Our  standard  of review  has been            stated as follows:                      A  reviewing  court   applies  the   same                      standard  that  governed adjudication  of                                            ____________________            1.  The counts dismissed on  motion for summary judgment were            breach of  contract, libel, invasion of  privacy, intentional            infliction of  emotional  distress, negligent  infliction  of            emotional distress, and false imprisonment.                                         -2-                                          2                      the   Rule   50   motion   below:      we                      "scrutiniz[e]    the   proof    and   the                      inferences   reasonably   to   be   drawn                      therefrom in the light most hospitable to                      the nonmovant,"  refraining entirely from                      "differential   factfinding."    In   the                      process,   we   may  "not   consider  the                      credibility    of   witnesses,    resolve                      conflicts in testimony,  or evaluate  the                      weight of the evidence."              Cook  v. Rhode Island Dep't of  Mental Health, 10 F.3d 17, 21            ____     ____________________________________            (1st Cir. 1993) (citations omitted).                                      THE FACTS                                      THE FACTS                                      _________                      In accord with the standard of review, we state the            facts  in the light most  favorable to the  plaintiff.  Lyons            worked for National at Logan International Airport in Boston,            Massachusetts.  She began  working for National in 1983  as a            rental representative,  became a customer  service manager in            1985, and was promoted to regional  training manager in 1989.            Lyons' immediate supervisor was Ellen Justiniano.                      This action arose from  events that occurred during            a training conference held by National at its headquarters in            Minneapolis,  Minnesota, during  the week  of April  8, 1991.            Lyons  attended  the  conference  along  with   her  regional            counterparts.  During the conference, Lyons encountered  some            problems with her supervisor, Justiniano.  The  first day she            arrived  Lyons was  in the  elevator with Justiniano.   Lyons            looked  at  her  keys  and  remarked,  "I  am  a  little  bit            confused."  Whereupon Justiniano  responded, "Well, what else            is new?"  She was told during one  session by Justiniano that                                         -3-                                          3            she was  embarrassing her by  nodding off and to  go into the            bathroom and put on some make-up.  During one of the training            sessions Justiniano slipped her a  note which read, "Terry, I            just  put you through training.  Why are you embarrassing me?            Why aren't you answering any questions?"                      On  Friday,   April  12,   the  last  day   of  the            conference, Justiniano pulled her aside and told her that the            company was  investigating  a car  theft from  its office  in            Boston and  Bryan Viau,  National's chief of  security, would            like to  speak to Lyons to  get some input.   Lyons agreed to            meet with Viau at his office at ten o'clock.                      After greeting Lyons in  his office, Viau  escorted            her into a very small room.  It had a round table with  a box            of tissues  on it, which  caught her  eye, and chairs  at the            table two or three feet apart.  One of the chairs was already            occupied  by a woman, Trudie Levesque.  She was there because            of  National's  policy  when  questioning  employees  of  the            opposite sex.  Viau started the interview by asking Lyons how            her  week had been going.  She  responded by starting to cry.            She told Viau  that she had a  bad week, that  she had a  bad            relationship  with her boss, and  that her boss  had not been            very nice to her.                      Lyons then asked  Viau to please tell  her what was            going on.  Viau pointed to a folder and said,  "I have strong            evidence that you were  involved in a company theft."   Lyons                                         -4-                                          4            became hysterical and  asked several times  if she could  see            the evidence.   Viau refused to show her the evidence.  Lyons            then said, "Why would  I be crying so hard if I was guilty of            doing something like that?"  Viau responded by saying that it            was people like her who  cry a lot that are the  guilty ones.            He also said that it was people like her who know the ins and            outs  of the company that do things  such as that.  Viau also            told her that she had the face of a good liar. Viau continued            to say,  "Terry, you know, you  know the ins and  outs.  It's            people like  you.    If you  don't  speak now,  you  will  be            prosecuted.   You will lose  your job."   At some  point Viau            left the  room. When he  came back, Lyons asked  him what was            going to happen at this point.  He said, "You go back to your            job, and when  we have  the evidence we  will prosecute  you.            Just  go back and do your job."  Viau also told her that if a            trial  "was to  come forward,"  he would  let her  know. This            ended the interview.  During  the interview, Lyons named  her            stepson as the possible  thief because he had a  prior record            of stealing  cars.  She did  this in an attempt  to help Viau            identify the real thief.                      On  cross-examination  Lyons  said that  she  never            asked to leave  the interrogation room.   She testified  that            Viau never touched her  or threatened to touch her,  and that            although Viau raised his voice during the interview, he never            shouted.  Based on  facts that were represented to  have been                                         -5-                                          5            known by National, Lyons agreed that  National had some basis            for questioning her.  She further testified on cross that she            had  the opportunity  to say  anything she  wanted about  the            theft.                      When  Lyons got into the  van to go  to the airport            for her trip  home, she  was still visibly  very much  upset.            When asked by some of her colleagues what was wrong, she told            them that she had  been accused of car theft.  After arriving            home, Lyons  told members of  her family about  the interview            and  accusation of  car  theft.   She  went back  to  work in            National's Boston office.                      Viau's questioning of Lyons was prompted by a prior            investigation  which disclosed  evidence suggesting  that the            theft  was an inside job  involving someone with  the name of            Lyons.  The stolen car was ultimately found in the possession            of a Barbara  Lyons.  The only link between Barbara Lyons and            the plaintiff  was that, unknown to  plaintiff, Barbara Lyons            was  having a  relationship with  plaintiff's brother-in-law,            Patrick  Dello  Iacono, who  was  a sergeant  on  the Everett            Police department.  Viau decided to interview plaintiff after            consultation  with  her   supervisors,  Foley,  Ceruolo,  and            Justiniano.                                  THE SLANDER COUNT                                  THE SLANDER COUNT                                  _________________                      Because this is a diversity case, Massachusetts law            applies.    We   agree  with  the  district  court  that  the                                         -6-                                          6            statement, "National has strong  evidence you are involved in            a car  theft," was slanderous.  Galvin v. New York, New Haven                                            ______    ___________________            and  Hartford R.R.  Co.,  168 N.E.2d  262,  294 (Mass.  1960)            _______________________            (accusations of  crime actionable  without  proof of  special            damage); Bander v. Metropolitan Life Ins. Co., 47 N.E.2d 595,                     ______    __________________________            598 (Mass. 1943) (same).                      The district  court held that the  other statements            made during the interview were not slanderous:  "You have the            face  of a good  liar"; "It's people like  [you] who cry that            are  the guilty ones"; "It's  people like [you]  who know the            ins and  outs of the  company that  do things such  as that";            "Terry, you know, you know the ins and outs. It's people like            you"; and "If you don't speak now, you will be prosecuted."                      We do  not think that these  statements should have            been  excised  from the  accusation of  car  theft.   All the            statements  made  by  Viau  were  part  and  parcel  of  that            accusation.   This is  not a  situation where  statements are            made  at different  times  and in  different  contexts.   The            statements were made during  one interview.  National accused            plaintiff of car theft,  and because she denied it,  said she            was a  liar.   Part of  the theft accusation  was that  as an            employee  of  National,  she  had the  knowledge  of  company            practice and the opportunity  to commit the theft.   She also            was told that  if she did not confess to  the theft she would            be prosecuted.  The statements, taken as a whole, constituted                                         -7-                                          7            a single accusation that  Lyons had stolen a company  car and            an attempt by National to have her confess to the accusation.                      Defendant  argues that  because  plaintiff did  not            specifically object to the district court rulings finding the            statements not slanderous during the Rule 50 hearings, she is            precluded from raising the issue here.   There is no merit to            this contention.   The  plaintiff argued that  the statements            were slanderous during the Rule 50 hearing.  Tr., 2d day, pp.            95-97.   And  she also  argues  to  the same  effect  in  her            appellate  brief.    Plaintiff's  Brief  at  13.    This  was            sufficient to preserve  the issue  for review.   There is  no            requirement that specific objections  to the court's  rulings            be  made during  a Rule  50 hearing.    It suffices  that the            plaintiff raise the issues so that the court understands what            they are.  This was clearly done here.  The  requirement that            specific objections  be made to the  introduction of evidence            or to the court's  final charge to the jury do  not, contrary            to defendant's suggestion, apply to a Rule 50 hearing.                      Although   defendant   has  not   argued   lack  of            publication on appeal, the  district court did express doubts            about publication during the Rule 50 hearing.  We simply note            that the  publication requirement for a  slander action under            Massachusetts law  was met here.   Brauer v.  Globe Newspaper                                               ______     _______________            Co., 217 N.E.2d 736, 739 (Mass. 1966):            ___                      There is no  requirement in an  action of                      libel  "that  the  defamatory  matter  be                                         -8-                                          8                      communicated   to   a   large   or   even                      substantial  group  of  persons.   It  is                      enough  that  it  is  communicated  to  a                      single  individual  other  than  the  one                      defamed."   Restatement:   Torts,    577.                      See  Bigelow v.  Sprague, 140  Mass. 425,                      ___  _______     _______                      426-427,  5 N.E. 144; Rumney v. Worthley,                                            ______    ________                      186  Mass.  144, 71  N.E. 316;  Bander v.                                                      ______                      Metropolitan  Life  Ins.  Co., 313  Mass.                      _____________________________                      337, 349, 47  N.E.2d 595; Prosser,  Torts                      (3d ed.)   108.                      In Bander v. Metropolitan  Life Ins. Co., 47 N.E.2d                         ______    ___________________________            at  601,  the court  held that  there  was no  "immunity from            liability  for defamation"  communicated  by one  agent of  a            corporation  to  another agent.   The  presence of  the third            person in the  interrogation room was sufficient to  meet the            publication requirement.                        We now  turn to  the related issues  of conditional            privilege  and malice.  We agree with the district court that            the facts giving rise to a conditional privilege  by National            were  proven  during plaintiff's  case-in-chief.   National's            prior investigation had disclosed that  a person by the  name            of Lyons was probably  involved in the  car theft.  Prior  to            the  interrogation  of  plaintiff,   Viau  had  grounds   for            suspecting that the theft  was an inside job.   And plaintiff            herself stated that  National had some basis  to question her            about the car theft.                      Massachusetts courts have recognized that                      a  person  may   possess  a   conditional                      privilege to  publish defamatory material                      if   the    publication   is   reasonably                      necessary    to    the   protection    or                                         -9-                                          9                      furtherance  of   a  legitimate  business                      interest.            Bratt  v. Int'l Business Machines  Corp., 467 N.E.2d 126, 131            _____     ______________________________            (Mass.  1984); see also McCone  v. New England  Tel. and Tel.                           ___ ____ ______     __________________________            Co., 471 N.E.2d 47, 51 (Mass. 1984).            ___                      The  basic  issue  is  whether  National  lost  its            conditional  privilege by abusing it.  We rule that under the            law and  the facts  this was  a jury question.   In  Foley v.                                                                 _____            Polaroid  Corp.,  508 N.E.2d  72  (Mass.  1987), the  Supreme            _______________            Judicial  Court   reiterated  the  test  for   abuse  of  the            privilege:                      [w]hen as here, executives of a corporate                      employer make statements  that defame  an                      employee,  and the  information disclosed                      by those statements is reasonably related                      to  the  employer's  legitimate  business                      interests, the employee has the burden to                      prove  that  the  statements   were  made                      recklessly,  that  is,  that   they  were                      unnecessary, unreasonable, or excessively                      published.  Of  course, a statement  made                      with  knowledge of  its  falsity or  with                      reckless disregard for the truth would be                      reckless within the meaning of the rule.            Id. at 79-80 (citations omitted).              ___                      A finding of recklessness is necessary  to overcome            a  conditional privilege.  In  Bratt, 467 N.E.2d  at 131, the                                           _____            court pointed out  that proof  of "actual malice"  was not  a            prerequisite  to the  loss  of the  privilege.   Id.  (citing                                                             ___            Galvin, 168  N.E.2d  at 266).    The court  then  went on  to            ______            explain  that  Massachusetts  law  favored  "recklessness" or            "malice in fact"  as the standard.  Id.   It defined one type                                                ___                                         -10-                                          10            of  "malice in fact" as  "'the willful doing  of an injurious            act  without lawful  excuse.'"   Id.,  n.9 (quoting  Doane v.                                             ___                 _____            Grew, 107 N.E. 620, 621 (Mass. 1915)).  The court concluded,            ____                      that  loss  of a  defendant's conditional                      privilege in a defamation  action through                      "unnecessary,  unreasonable or  excessive                      publication"  requires   proof  that  the                      defendant acted recklessly.            Id. at 132.            ___                      We   think  that  a   factfinder  could  reasonably            conclude that the statements made during the interrogation of            plaintiff were reckless.  Plaintiff was told at the outset by            Viau:   "I have strong evidence  that you were involved  in a            company  theft."    Viau  pointed  to  a  folder  during  the            accusation;  this implied  that it  contained such  evidence.            But the evidence was not  disclosed to plaintiff, despite her            request to  see it.  In fact,  there was no "strong evidence"            that plaintiff had  been involved  in a company  theft.   All            that National had  at that  time was, at  best, a  reasonable            suspicion.   Plaintiff was then  called a liar  and told that            because  of her position in the company she had the knowledge            to  commit  the   theft.    She  was  then   threatened  with            prosecution and loss of her job if she did not confess to the            theft.  These statements considered as a whole could be found            to be "reckless" under Massachusetts law.                      We  also   think  that  "malice   in  fact"   could            legitimately be found.  First, there was evidence  from which                                         -11-                                          11            a  jury  could find  that  plaintiff's  immediate supervisor,            Justiniano,  either  disliked  plaintiff  personally  or  was            displeased with her conduct  at the meeting.  But  of telling            significance was the conduct of the interrogation.  In  fact,            it was not an interrogation  but an inquisition.  Accusations            and  threats were made; there was no attempt to determine the            facts objectively.  The manner in which the interrogation was            conducted  fairly reeked  of malice.  It could  reasonably be            found that the accusations and threats made to plaintiff were            "the  willful  doing  of  an  injurious  act  without  lawful            excuse."  Bratt, 467 N.E.2d at 131, n.9.                      _____                      The judgment  of the district court  on the slander            count  is  reversed.   The  determination was  for  the jury.            Because  the loss of consortium count rises or falls with the            slander count, it also remains viable.                                    THE MCRA COUNT                                    THE MCRA COUNT                                    ______________                      Plaintiff's next argument on appeal arises from the            district court's granting  of National's motion  for judgment            as  a matter  of law  on her  Massachusetts Civil  Rights Act            [MCRA] claim.   Plaintiff claimed that  National, through its            employee  Viau,  violated  the  MCRA  by  using  threats  and            intimidation  in an  attempt to cause  her to  relinquish her            Fifth Amendment right against self-incrimination.   See Mass.                                                                ___            Gen. Laws ch.  12   11I.  No claim  was asserted against Viau            individually.                                           -12-                                          12                      The MCRA states, in pertinent part:                      Any person whose exercise or enjoyment of                      rights  secured  by  the constitution  or                      laws of the United States  . . . has been                      interfered  with,  or  attempted   to  be                      interfered   with   [by  any   person  or                      persons,  whether  or  not  acting  under                      color of law, by threats, intimidation or                      coercion,] may institute and prosecute in                      his  own name  and  on his  own behalf  a                      civil action for . . . money damages. . .                      .              Id.     11H,  11I.   The  district court  granted  National's            ___            motion, finding  first that the MCRA did not recognize claims            based on the doctrine of respondeat superior, and second that            plaintiff presented not a "scintilla" of evidence that Viau's            actions  were   taken  pursuant  to  any   policy  or  custom            established by National.  Plaintiff challenges on appeal only            the first finding.  Assuming,    without    deciding,    that            plaintiff  would have had an actionable MCRA claim if she had            named Viau as a defendant, we turn to the respondeat superior            issue.                          The  question of  whether an  employer may  be held            vicariously  liable  under the  MCRA for  the actions  of its            employee has  not been  addressed by any  Massachusetts state            court.   See, e.g.,  Rodriques v.  Furtado, 575  N.E.2d 1124,                     ___  ____   _________     _______            1131 n.14  (Mass. 1991) (expressly declining  to decide issue            with respect to municipal  employer); cf., e.g., O'Connell v.                                                  ___  ____  _________            Chasdi, 511 N.E.2d 349, 354 (Mass. 1987) (remanding for trial            ______            MCRA  claim asserted  against  private employer  for acts  of                                         -13-                                          13            employer's  agent,  without   questioning  applicability   of            respondeat superior).  Similarly,  we have never had occasion            to  answer this  question.    See,  e.g.,  Dean  v.  City  of                                          ___   ____   ____      ________            Worcester, 924  F.2d 364, 370 n.7 (1st  Cir. 1991) (declining            _________            to comment on issue with respect to municipal employer).  The            only  courts that  have addressed  the issue  have determined            that claims under the MCRA cannot be based on the doctrine of            respondeat superior.  E.g., Broderick v. Roache, 803 F. Supp.                                  ____  _________    ______            480, 484  (D. Mass. 1992) (municipal employer); Jones v. City                                                            _____    ____            of Boston, 738  F. Supp.  604, 606 (D.  Mass. 1990)  (private            _________            employer).                       "Absent  controlling  state   court  precedent,   a            federal court sitting  in diversity may  certify a state  law            issue  to  the  state's   highest  court,  or  undertake  its            prediction, `when  the [route] [the] state  courts would take            is reasonably clear.'"   Vanhaaren v.  State Farm Mut.  Auto.                                     _________     ______________________            Ins. Co., 989 F.2d  1, 3 (1st Cir. 1993)  (citation omitted).            ________            Because we  find sufficient guidance on this issue, we follow            the latter course.                      The Massachusetts Supreme Judicial Court  [SJC] has            clearly described the scope of the MCRA:                      The  Legislature  enacted  [the MCRA]  to                      provide a State  remedy for  deprivations                      of  civil rights.   The  statute extended                      beyond   the   limits   of  its   Federal                      counterpart   by  incorporating   private                      action  within its  bounds.   We conclude                                                    ___________                      that the Legislature intended  to provide                      _________________________________________                      a  remedy  under [the  MCRA], coextensive                      _________________________________________                                         -14-                                          14                      with 42 U.S.C.    1983,  except that  the                      ______________________                      Federal  statute  requires  State  action                      whereas its State counterpart does not.            Batchelder  v. Allied  Stores  Corp., 473  N.E.2d 1128,  1131            __________     _____________________            (Mass. 1985) (emphasis added).   "[B]y reaching private party            actions, the  Legislature did  not intend  to create  `a vast            constitutional tort,'"  and thus  limited the MCRA  remedy to            cases involving threats, intimidation, or coercion.  Bally v.                                                                 _____            Northeastern Univ., 532 N.E.2d  49, 52 (Mass. 1989) (citation            __________________            omitted).                        Rulings in   1983  cases predating the MCRA  may be            used to  determine  whether  doctrines  applicable  under  42            U.S.C.    1983  also  apply under  the MCRA.   See  Duarte v.                                                           ___  ______            Healy, 537  N.E.2d 1230, 1232 (Mass. 1989)  ("We presume that            _____            the  Legislature was  aware of  this case  law [on  qualified            immunity] when  it chose  to pattern the  Massachusetts Civil            Rights  Act after   1983.").   Accordingly, we  look to cases            construing the federal Civil Rights  Act for guidance in  the            present action.                      In Monell v.  New York  Dep't of  Soc. Servs.,  436                         ______     _______________________________            U.S. 658  (1978), the Supreme Court  considered whether local            governments   may   be   liable   under      1983   for   the            unconstitutional conduct of their  employees.  The Court held            that claims against municipalities cannot rest on a theory of            respondeat  superior, but may proceed if  there is proof that            the employee  acted in accordance with  the employer's policy                                         -15-                                          15            or custom.   Id. at  694.  In  a concurrence,  Justice Powell                         ___            stated  that   Congress's   intent,  as   expressed  in   the            legislative  history of    1983,  can best  be understood  as            limiting "the  statutory ambit to actual  wrongdoers, i.e., a                                                                  ____            rejection of  respondeat superior  or any other  principle of                          __________ ________            vicarious liability."  Id. at 707 (Powell, J. concurring).                                   ___                      Plaintiff   argues   that  Monell's   rejection  of                                                 ______            respondeat  superior cannot  be grafted  on the  MCRA because            Monell concerns  only municipalities,  while the MCRA  may be            ______            invoked against private parties.  We  disagree.  Although the            holding in Monell is framed so that it expressly applies only                       ______            to local governments, the decision  is based generally on the            language  and   legislative  history   of     1983,   not  on            principles--such   as   sovereign  or   qualified  immunity--            applicable only  to governmental  entities.  See  Monell, 436                                                         ___  ______            U.S. at 690-94.                        It is  true that one aspect  of Monell's discussion                                                      ______            of  the legislative  history of    1983  has no  relevance to            private corporations:   certain  members of Congress  opposed            making municipalities  vicariously liable on the  ground that            Congress  lacked the  power  to impose  "positive" duties  on            local governments.   Id. at 679-83, 693.  We  do not believe,                                 ___            however, that this aspect of the Court's reasoning undermines            our conclusion.  The remainder of Monell focusses  on matters                                              ______            pertinent to  all employers,  public or  private.  The  Court                                         -16-                                          16            stated,  for  example,   that  Congress   declined  to   make            municipalities  vicariously  liable  under     1983,  despite            arguments that vicarious liability would reduce the incidence            of  unconstitutional  acts  and  would  spread  the  cost  of            injuries throughout  the community.   Id.  at 693-94.   These                                                  ___            justifications    are    equally   applicable    to   private            corporations.                      The  Massachusetts legislature enacted  the MCRA in            1979,  one year  after Monell  was decided.   Presumably, the                                   ______            legislature was aware of Monell.  Duarte, 537 N.E.2d at 1232.                                     ______   ______            The  language of  the MCRA  contains  no indication  that the            legislature  intended  to  expand   the  scope  of   employer            liability under the MCRA beyond that available under    1983.            Compare Mass. Gen. Laws  ch. 12,   11H ("Whenever  any person            _______            or  persons,  whether  or  not  acting  under  color of  law,            interfere  by threats, intimidation or  coercion . . .") with                                                                     ____            42  U.S.C.   1983 ("Every  person who, under  color [of law],            subjects, or  causes to be  subjected, any [other  person] to            the deprivation of any rights . . .").  Moreover, it is clear            that  the  state  legislature   knew  how  to  pass  statutes            embracing the  doctrine of respondeat superior.   E.g., Mass.                                                              ____            Gen. Laws ch. 151B   3(1) ("It shall be an unlawful practice:            For  an employer, by himself or his agent" to discriminate on            the basis of race, religion, ethnicity, sex, or age); id. ch.                                                                  ___            258,   2  ("Public employers  shall be liable  for injury  or                                         -17-                                          17            loss of  property . .  . caused by the  negligent or wrongful            act  or omission of  any public employee  while acting within            the scope  of his  office or  employment .  . .  .") (enacted            1978).  Finally, the  parties have not cited anything  in the            legislative  history   of  the   MCRA  indicating  that   the            legislature intended to make employers vicariously liable for            the  acts  of their  employees.   Accordingly,  we  hold that            claims  against employers under  the MCRA cannot  rest on the            doctrine of respondeat superior.                                        SUMMARY                                       SUMMARY                                       _______                      We reverse  the district  court's  judgment on  the            slander  claim and on the  loss of consortium  claim based on            the slander issue and remand for a new trial on those claims.            As  to  the MCRA  claim,  the  district court's  judgment  is            affirmed.                       Affirmed in part, reversed in part.  No costs.                        Affirmed in part, reversed in part.  No costs.                      ______________________________________________                                         -18-                                          18
