
USCA1 Opinion

	




                                [Not For Publication]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 96-1814                               GEORGE F. REIDY, ET AL.,                               Plaintiffs, Appellants,                                          v.                             TRAVELERS INSURANCE COMPANY,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                                                                      ____________________             Frederick T. Golder, with whom  Bernstein, Golder & Miller,  P.A.             ___________________             _________________________________        was on brief for appellants.             Jay M. Presser, with whom Jeffrey C. Hummel and  Skoler, Abbott &             ______________            _________________      ________________        Presser, P.C. were on brief for appellee.        _____________                                                                                      ____________________                                  February 13, 1997                                                                                      ____________________                    Per Curiam.  George Reidy challenges a summary judgment                    Per Curiam.                      __________          ruling  dismissing  his  wrongful discharge  claims  against  The          Travelers Insurance Company  ("Travelers") for whom Reidy  worked          for over twenty  years.  Although  Travelers contends that  Reidy          proved incapable of performing his  work as a claims  representa-          tive despite  a reasonable  accommodation  of his  stress-related          "disability,"  Reidy  asserts that  Travelers'  justification was          pretextual.  We affirm the district court judgment.                      The  four-count complaint  alleged  (i)  breach of  the          employment contract; (ii) employment discrimination based on age;          (iii) and on handicap; and (iv) claims for loss of consortium and          nurture by his  spouse and children.1  As  concerns the claim for          breach  of contract, Reidy appears to have believed that his long          tenure  as  an  employee-at-will  protected  him  from  arbitrary          termination, but  he adduced no  competent evidence, see  Fed. R.                                                               ___          Civ.  P.  56(e),  that Travelers  gave  him  any such  assurance.          Instead,  Reidy  principally contends  that the  written employee          manual  constituted  a   binding  employment  "contract"  barring          arbitrary discharge  even though it  unambiguously provided  that          Travelers was "free to terminate your employment at any time, for                                                           __ ___ ____          any or for  no reason, and with  or without advance  notice," and                 ___  __ ______          that  "no Travelers' manager or  other person at  the company has          the  authority to make  a commitment of  guaranteed or continuing                                                   __________          employment."   (Emphasis added.)   Nor does Reidy  cite any other                                                                                     _________________________________________________________________               1We review the summary judgment ruling de novo,  viewing all               1                                      __ ____          evidence in the light  most favorable to Reidy. Byrd  v. Ronayne,                                                          ____     _______          61 F.3d 1026, 1030 (1st Cir. 1995).                                          2          provision (e.g.,  minimum term  of employment) which  assured him                     ____          protection  from  unilateral,  unconditional  termination.   See,                                                                       ___          e.g., Pearson v. John Hancock  Mut. Life Ins. Co., 979 F.2d  254,          ____  _______    ________________________________          256-57 (1st Cir. 1992).                    The  age and  handicap  discrimination claims  fare  no          better.   Massachusetts courts have no  jurisdiction over employ-                                                  ____________          ment-discrimination  claims  unless  the  plaintiff-employee  has          filed  a  formal  complaint  with  the  Massachusetts  Commission          Against Discrimination ("MCAD") within  six months of the alleged          discriminatory act.   See Mass.  Gen. Laws ch.  151B,     4(1.B),                                ___          4(16), 5, 9; Clarke v. Kentucky Fried Chicken of Calif., Inc., 57                       ______    ______________________________________          F.3d 21, 23 (1st Cir. 1995); Andrews v. Arkwright Mut. Ins.  Co.,                                       _______    ________________________          673 N.E.2d 40, 41  (Mass. 1996).  Reidy contends that his counsel          mailed  a formal complaint  to the MCAD  on August  30, 1991, but          there is  no evidence to  confirm its receipt  by the MCAD.   The          official  MCAD  record  itself   reflects  no  formal  complaint.          Moreover,  on September  20,  the MCAD  compliance officer  wrote          Reidy  and  confirmed  the   receipt  of  his  letter  describing          _____          Travelers'  alleged discriminatory  conduct,  but advised  that a                                                                          _          formal  complaint  would  still  be necessary  to  initiate  MCAD          ______  _________          action.   A  copy of  the  MCAD letter  was  provided to  Reidy's          counsel as well.                      Although the MCAD letter  plainly placed both Reidy and          counsel on notice that the MCAD had received a letter from Reidy,                                                         ______ ____ _____          rather than any August 30 letter from Reidy's counsel enclosing a          formal MCAD complaint,  neither Reidy nor counsel followed  up on                                          3          this obvious discrepancy or on the formal advice contained in the          letter  from  the MCAD  compliance  officer.2   Accordingly,  the          district  court  lacked  jurisdiction  and  the  employment-based          discrimination claims were properly dismissed.3                    Affirmed.                    Affirmed.                    ________                                                                                     _________________________________________________________________               2Thus,  Reidy's insistence that  the summary judgment ruling               2          penalized him for MCAD's administrative incompetence lacks record                            ____          support.  Of course, if cognizable, such unsubstantiated "defens-          es" would all but eviscerate the exhaustion requirement.               3Since Reidy no longer holds actionable employment discrimi-               3          nation  claims  against  Travelers, the  district  court properly          dismissed  the related claims by the spouse and children as well.          See Tauriac v.  Polaroid Corp., 716 F.  Supp. 672, 673 (D.  Mass.          ___ _______     ______________          1989) (citing Mouradian v.   General Elec. Co., 503  N.E.2d 1318,                        _________      _________________          1321    (Mass.  App.  Ct.) (dismissing  wife's  consortium  claim          because husband had  no viable employment  discrimination claim),          review  denied, 507 N.E.2d 1056 (1987)); see also Mass. Gen. Laws          ______  ______                           ___ ____          ch.  152,    24  (1990) (workers'  compensation statute  preempts          consortium claims  of spouse, children and  parents); Hamilton v.                                                                ________          Baystate Med. Educ.  & Research Found.,  866 F. Supp. 51,  57 (D.          ______________________________________          Mass.  1994), aff'd, 66 F.3d 306 (1st Cir. 1995); St. Germaine v.                        _____                               ____________          Pendergast, 584 N.E.2d 611, 617-18 (Mass. 1992).          __________                                          4
