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 &amp; Gesmer, P.C. were on brief for appellee."
                  

                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.

                                         

         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 &amp; 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
                                   

          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
                                       

          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
                                      

          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

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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
                                  

          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.
                                                        

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