
USCA1 Opinion

	




          July 5, 1995      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      __________________          No. 94-1950                                    KARIN CLARKE,                                Plaintiff, Appellant,                                          v.                     KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC.,                                 Defendant, Appellee.                                                                                      ____________________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  June 14,  1995,  is          amended as follows:               Cover sheet, under  listing of  counsel, add:   Nan  Myerson                                                               ____________          Evans, Bon Tempo & Evans and David A. Robinson on brief of amicus          _____  _________________     _________________          curiae National Employment Lawyers Association.                    [Appendix not attached.  Please contact Clerk's Office                  for                                    opinion with appendix.]                                UNITED STATES COURT OF APPEALS                                    FOR THE FIRST CIRCUIT                                                                                              ____________________                  No. 94-1950                                        KARIN CLARKE,                                    Plaintiff, Appellant,                                              v.                         KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC.,                                     Defendant, Appellee.                                                                                              ____________________                         APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Edward F. Harrington, U.S. District Judge]                                                   ___________________                                                                                              ____________________                                    Selya, Circuit Judge,                                           _____________                               Campbell, Senior Circuit Judge,                                         ____________________                                   and Cyr, Circuit Judge.                                            _____________                                                                                              ____________________                       Kevin G. Powers, with whom Robert S. Mantell and Law                       _______________            _________________     ___                  Office of Kevin G. Powers were on brief for appellant.                  _________________________                       Jeffrey   G.  Huvelle,   with  whom   Melissa  Cole,                       _____________________                 _____________                  Covington  &  Burling,  Terry  Philip  Segal,  Brenda  R.                  _____________________   ____________________   __________                  Sharton and Segal & Feinberg were on brief for appellee.                  _______     ________________                       Nan Myerson Evans,  Bon Tempo &  Evans and David  A.                       _________________   __________________     _________                  Robinson on brief  of amicus  curiae National  Employment                  ________                  Lawyers Association.                                                                                              ____________________                                        June 14, 1995                                                                                              ____________________                    CYR,  Circuit Judge.   Plaintiff  Karin Clarke  appeals                    CYR,  Circuit Judge.                          _____________          from a  district court judgment dismissing  her sexual harassment          claim  against her  former  employer, Kentucky  Fried Chicken  of          California,  Inc. ("KFC"), for  failure to exhaust administrative          remedies,  and dismissing  her related  state-law tort  claims on          preemption grounds.  We affirm the judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    While employed by defendant  KFC at a fast-food restau-          rant  in  Saugus,  Massachusetts, Clarke  was  sexually harassed,          physically assaulted,  and subjected  to attempted rape  by other          KFC employees.   Clarke quit  her job and  initiated the  present          lawsuit in Massachusetts Superior Court,  alleging sexual harass-          ment,  negligent and reckless  infliction of  emotional distress,          and negligent hiring, retention and supervision.                      After removing the case  to federal district court, see                                                                        ___          28 U.S.C.    1441, 1446; see also id.   1332 (diversity jurisdic-                                   ___ ____ ___          tion), KFC filed a motion to dismiss all claims, see Fed. R. Civ.                                                           ___          P. 12(b)(6),  contending that  the sexual harassment  claim under          Mass.  Gen. L.  Ann. ch.  214,    1C, was  barred for  failure to          exhaust  mandatory administrative  remedies before  the Massachu-          setts Commission Against Discrimination ("MCAD"), see Mass.  Gen.                                                            ___          L.  ch. 151B,    5 (prescribing  six-month limitation  period for          MCAD claims),    9 (making section 5  procedure "exclusive"), and          that Clarke's  common  law  tort  claims were  preempted  by  the          Massachusetts Workers'  Compensation Act,  see Mass. Gen.  L. ch.                                                     ___                                          2          152,   1 et seq. (Supp. 1994).  The motion to dismiss was granted                   __ ___          in its entirety.  Clarke v. Kentucky Fried Chicken of California,                            ______    _____________________________________          Inc., No. 94-11101-EFH (D. Mass. Aug. 17, 1994).1            ____                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Sexual Harassment          A.   Sexual Harassment               _________________                    Clarke  first contends that  the district  court should          not  have  dismissed her  sexual  harassment  claim, because  the          "jurisdictional" clause  in  Mass. Gen.  L.  Ann. ch.  214,    1C          (1986) ("The  superior court shall have jurisdiction in equity to                                       _____ ____ ____________          enforce  this  right  and to  award  damages.")  evinces a  clear          legislative intent to except such claims from compliance with the          otherwise mandatory MCAD exhaustion requirement  imposed on other          employment-based discrimination claims  under Massachusetts  law.          In order to place her contention in context, we examine pertinent          case law and statutes, see infra APPENDIX at pp. (i)-(iii).                                  ___ _____               1.   Fair Employment Practices  Act, Mass. Gen.  L. Ann. ch.               1.   Fair Employment Practices  Act, Mass. Gen.  L. Ann. ch.                    _______________________________________________________               151B               151B               ____                    In 1946 the Massachusetts Legislature enacted the  Fair          Employment Practices Act ("FEPA"), Mass. Gen. L. Ann. ch. 151B,            1  et seq.,  which  contained a  comprehensive  list of  unlawful             __ ___          discriminatory  acts by  covered Massachusetts  employers against                                        ____________________               1We review  Rule 12(b)(6) dismissals de  novo, accepting all                                                    __  ____          well-pleaded  allegations.   Vartanian v.  Monsanto Co.,  14 F.3d                                       _________     ____________          697, 700 (1st Cir. 1994).                                           3          their employees.2   See id.    4; Katz v.  MCAD, 312 N.E.2d  182,                              ___ ___       ____     ____          187  (Mass. 1974) (noting that FEPA was enacted "to implement the          right to  equal  treatment  guaranteed  to all  citizens  by  the          constitutions  of  the  United  States  and the  Commonwealth").3          Gender-based  discrimination was  included  in the  section  four          listing  as an unlawful employment  practice.  See  Mass. Gen. L.                                                         ___          Ann. ch.  151B,   4(1); see also College-Town v. MCAD, 508 N.E.2d                                  ___ ____ ____________    ____          587 (Mass. 1987) (interpreting FEPA   4(1) as encompassing sexual          harassment by employers and supervisory employees).                    FEPA claimants  must file their MCAD  claims within six          months  after  the alleged  discriminatory  act,  or forfeit  any          entitlement to judicial review.  See Mass. Gen. L. Ann. ch. 151B,                                           ___              5, 9  ("As to  acts declared  unlawful in  section  four, the                      __ __  ____ ________  ________ __  _______  ____          procedure provided in [chapter 151B,    5] shall, while  pending,          be exclusive;  and the final determination  therein shall exclude             _________          any  other action, civil or criminal, based on the same grievance          of the individual concerned.")  (emphasis added); see also Acker-                                                            ___ ____ ______          son v. Dennison Mfg. Co., 624 F. Supp. 1148, 1158 (D. Mass. 1986)          ___    _________________          (holding that compliance with six-month limitation period becomes          unwaivable "jurisdictional" prerequisite to civil suit).                    As  to  section  four administrative  claims  which are          adjudicated by the  MCAD within ninety  days from filing,  either          ___________                                        ____________________               2A covered FEPA  "employer" is  one who has  more than  five                                                                       ____          employees.  Id.   1(5).                      ___               3While FEPA primarily  targets employment-based  discrimina-                                              __________          tion,  it  also  proscribes  a variety  of  other  discriminatory          conduct     in housing, real estate,  credit extension, insurance          and banking    not directly relevant to the appeal.                                            4          the  claimant  or the  respondent  may obtain  limited  review on                                                         _______          petition to the superior court, Mass. Gen. L. Ann. ch. 151B,   6,          followed  by an  appeal of  right to  the Supreme  Judicial Court          ("SJC").4   Unless the MCAD  fails to act  within ninety days  or          grants an express dispensation, the  claimant may not bypass  the          administrative  claims  process  by  filing a  civil  action  for          damages or  injunctive relief  directly with either  the superior                                         ________          court or the probate court.  Id.   9.                                       ___                    In 1986, the Massachusetts Legislature    presaging the          SJC's College-Town decision, supra     amended FEPA by explicitly                ____________           _____          including  "sexual harassment" within  the comprehensive  list of          employer  acts proscribed under section  4.  See  1986 Mass. Acts                                                       ___          588 (codified at Mass. Gen. L. Ann. ch. 151B,   1(18) (definition          of  "sexual harassment"),     4(16A)).   At  the same  time,  the          Legislature amended  Chapter 214, a separate  statutory provision          vesting the  superior court with original  equity jurisdiction as          follows:  "A person shall  have the right to be free  from sexual          harassment, as defined  in [FEPA    1(18)].   The superior  court          shall  have jurisdiction in equity  to enforce this  right and to          _____  ____ ____________          award  damages." 1986 Mass. Acts  588 (codified at  Mass. Gen. L.          Ann. ch. 214,   1C) (emphasis added) [hereinafter: "Section 1C"].                                        ____________________               4The  superior court may set  aside or modify  an MCAD order          only if it finds,  according "due weight to the  [MCAD's] experi-          ence, technical competence, and specialized  knowledge," that the          order was  (1) unconstitutional, (2) beyond  the MCAD's jurisdic-          tion or statutory authority; (3) based upon an  error of law; (4)          issued  pursuant to  an  unlawful procedure;  (5) unsupported  by          substantial evidence; or (6) arbitrary and capricious.  See Mass.                                                                  ___          Gen. L. Ann. ch. 30A,   14 (1995).                                          5                    2.  The ERA and Charland                    2.  The ERA and Charland                        ____________________                    Enacted in  1989, the  Equal Rights Act  ("ERA"), Mass.          Gen. L. Ann. ch. 93,    102, 103, proscribes, inter alia, gender-                                                        _____ ____          based  discrimination in  connection with  the execution  and en-                                                                        ___          forcement of contracts and provides that "[a] person whose rights          _________ __ _________          . . . have been violated  may commence a civil action for injunc-          tive and other appropriate  equitable relief, including the award          of compensatory and  exemplary damages.  Said civil  action shall          be instituted . . . in the superior court . . . ."  Id.   102(b).                                                              ___                    Later, in Charland v. Muzi Motors, Inc., 631 N.E.2d 555                              ________    _________________          (Mass.  1994),  the SJC  held that  ERA  section 102(b)  does not                                                                        ___          excuse claimants from compliance with the comprehensive  adminis-          ______          trative claims  procedure established  in FEPA section  9, supra.                                                                     _____          Rather, in enacting the ERA, the Legislature presumably was aware          that FEPA section  9 had  long mandated MCAD  exhaustion for  all                                                                        ___          employment-based discrimination claims  alleging "unlawful  prac-                                                            ________  _____          tice[s]"  listed in FEPA section 4.   Charland, 631 N.E.2d at 558          _______                               ________          (noting "legislative intent to subject all  discrimination claims                                                 ___  ______________ ______          to administrative  scrutiny") (emphasis added).   And since Char-          land had alleged a breach of his employment contract, arising out                                           __________ ________          of his wrongful  discharge based on age and national origin    an          employment-based claim  actionable under FEPA, see  Mass. Gen. L.                                  __________ _____ ____  ___          Ann. ch. 151B,   4(1) (barring discharge  from employment because          of  "national origin" or "age")     the SJC  held that Charland's          superior court action  must be  dismissed for failure  to file  a          timely  administrative claim with the MCAD.  Charland, 631 N.E.2d                                                       ________                                          6          at 559; see  also Agin v. Federal White  Cement, Inc., 632 N.E.2d                  ___  ____ ____    ___________________________          1197, 1199 (Mass. 1994) (same).               3.  Standard of Review               3.  Standard of Review                   __________________                    Where, as  here, a district court  dismissal turns upon          an interpretation of state  law, we conduct plenary review.   See                                                                        ___          Salve Regina  College v. Russell,  499 U.S. 225,  239-40 (1991).5          _____________________    _______          The issue before us on  appeal is whether Section 1C,  unlike ERA          sections 102 and 103, excepts the instant employment-based sexual          harassment claim from compliance  with the administrative exhaus-          tion  requirement in FEPA section 9.  Clarke argues that Charland                                                                   ________          is  not controlling,  because  it resolved  only the  legislative                                                      ____          correlation  between FEPA  and  the ERA,  which  would mean  that                                     ___  ___ ___          Charland's reference  to "the  legislative intent to  subject all          ________                                                      ___          discrimination  claims  to  administrative  scrutiny"   was  mere          ______________  ______          dictum.  KFC responds  that the Charland rationale likewise  bars                                          ________ _________          Clarke's unexhausted  Section 1C claim --  a gender-based employ-          ment  discrimination  claim  explicitly  listed in  FEPA  section          4(16A) as an unlawful act.                   4.  Section 1C               4.  Section 1C                   __________                    Clarke would distinguish  Section 1C from  ERA sections                                        ____________________               5Although Clarke  belatedly urges certification to  the SJC,          "[w]e  are rarely receptive to  . . .  requests for certification          newly  asserted on appeal."   See Nieves v.  University of Puerto                                        ___ ______     ____________________          Rico, 7  F.3d 270, 278 (1st  Cir. 1993); see also  Fischer v. Bar          ____                                     ___ ____  _______    ___          Harbor Banking & Trust Co., 857  F.2d 4, 8 (1st Cir. 1988), cert.          _________________________                                   ____          denied, 489 U.S.  1018 (1989).  Nor will we  resort to certifica-          ______          tion unless  the issue presented is  sufficiently unsettled under                                                            _________          state law that we could not essay a "reasonably clear" prediction          with  adequate confidence.  See Porter v. Nutter, 913 F.2d 37, 41                                      ___ ______    ______          n.4 (1st Cir. 1990).                                          7          102  and 103 on  the ground that  it evinces a  clear legislative          intent  to  create two  parallel  remedial  paths for  redressing                                  ________          sexual  harassment  claims     one administrative,  one judicial.          Unlike the ERA,  which became  law some fifty  years after  FEPA,          Section 1C was enacted  at the same time the  Legislature amended                                  __ ___ ____ ____          FEPA section  4 to cover sexual harassment claims.  Consequently,          Clarke argues, unless Section 1C is interpreted as establishing a          parallel  judicial path  that  bypasses  the MCAD  administrative          remedy,  Section 1C becomes surplusage.   See Casa  Loma, Inc. v.                                                    ___ ________________          Alcoholic Beverages  Control Comm'n,  385 N.E.2d 976,  978 (Mass.          ___________________________________          1979)  ("It is  a common  tenet of  statutory construction  that,                           wherever possible, no provision of a legislative enactment should          be treated as superfluous.").  We agree with Clarke that Charland                                                                   ________          is not directly controlling, since it did not consider the unique          language and legislative history of Section 1C.                    Nevertheless, absent  a definitive  SJC ruling,  we may          look to "analogous decisions, considered  dicta, scholarly works,                                        __________  _____          and  any other reliable data tending convincingly to show how the          [SJC] would decide  the issue  at hand, taking  into account  the          broad policies and  trends so evinced."   Michelin Tires (Canada)                                                    _______________________          Ltd. v.  First Nat'l  Bank, 666  F.2d 673,  682  (1st Cir.  1981)          ___      _________________          (emphasis  added); see also Gibson  v. City of  Cranston, 37 F.3d                             ___ ____ ______     _________________          731,  736 (1st Cir. 1994).6  Charland categorically states that a                                       ________                                        ____________________               6Clarke  points  to  an unpublished  superior  court opinion          entered  after oral  argument in  this case,  see Burman  v. Boch                                                        ___ ______     ____          Oldsmobile, Inc.,  No. 92-02690 (Mass.  Sup. Ct. Apr.  11, 1995),          ________________          which held Charland inapposite to sexual harassment claims.  Even                     ________          assuming it were  proper to consider the unreported decision, see                                                                        ___                                          8          claimant alleging  an unlawful discriminatory act  listed in FEPA                                                             ______          section  4  must comply  with  the  MCAD administrative  process,                      ____          absent  clear evidence that the Legislature  carved out an excep-          tion.  Moreover, the listing of unlawful acts in section  4 is so          comprehensive that the SJC has yet to identify an exception.  See                                                                        ___          Charland, 631  N.E.2d at 558  (citing with approval  Mouradian v.          ________                                             _________          General  Elec. Co., 503 N.E.2d 1318 (Mass. App. Ct. 1987) (Massa-          __________________          chusetts Civil Rights Act claimants must first comply with FEPA's          MCAD procedure)).                      The  language of  1986 Mass. Acts  588     amending the          FEPA section  4 listing and adding new Section 1C, see supra p. 5                                                             ___ _____              does not dictate the interpretation urged by Clarke, since it          does  not specify  at what  point in  the sexual-harassment-claim          process original  superior court  jurisdiction vests.   Under the          Charland  rationale,  once  employment-based   sexual  harassment          ________          claims were added  to the FEPA section 4 listing  by the Legisla-                      _____          ture,  the MCAD claim-filing procedure mandated by FEPA section 9                                ______          presumptively became the exclusive procedural path for initiating                                   _________                     __________          all  such claims against "employers."   After the  MCAD renders a          final decision,  of course,  jurisdiction to review  its decision                                                       ______          would lie in  the appropriate superior court.  See supra pp. 4-5.                                                         ___ _____          In  some instances,  however,  administrative claims  may not  be          acted  upon within ninety  days by  the MCAD;  alternatively, the                                        ____________________          U.S. Ct. of  App. 1st Cir. Rule 14, Burman  contains no developed                                              ______          analysis and  no discussion of the  relevant statutory provisions          or legislative history.  See id. slip op. at 8 n.5 ("[T]his Court                                   ___ ___          views  the Charland holding as specific, not extending to G.L. c.                     ________          214,   1C.").                                           9          MCAD may permit  the claimant  to proceed directly  with a  civil          action in a judicial forum.                      Thus, like its  counterpart provision, FEPA section  9,          Mass.  Gen. L. Ann. ch. 151B,   9 (vesting superior, probate, and          housing  courts  with  original  jurisdiction  of  FEPA  claims),          Section  1C serves  an essential  function     by vesting  in the          superior  court  (as distinguished  from  the  SJC, for  example)          exclusive original jurisdiction to entertain such administrative-          ly exhausted     but unadjudicated     sexual harassment claims.7             _________         _____________          Therefore,  much  like  ERA  sections 102(b)  and  103(b),  which          provide that claimants  "may commence a civil  action for injunc-          tive and other appropriate equitable relief . . . in the superior          court"  without indicating when such  a civil action  may be com-                                     ____          menced, the  mere  fact that  Section 1C  designates which  court                                                               _____  _____          shall have original jurisdiction  over exhausted    but unadjudi-                                                 _________        _________          cated    MCAD claims  does not mean that the  designated judicial          _____          forum  may assert jurisdiction ab initio, i.e., before (or in the                                         __ ______  ____  ______                                        ____________________               7Chapter 214,   1, recognizes  that the superior courts  and          the  SJC are  endowed, concurrently,  with the  requisite general          power  possessed  by  courts  in equity  to  fashion  appropriate          remedies in  the exercise  of their traditional  equity jurisdic-          tion.   Chapter 214,   2, on  the other hand, vests  the SJC with          "exclusive [original] jurisdiction of  all civil actions in which          equitable relief  [authorized by statute] is  sought," unless the                                        __ _______               ______ ___          statute expressly  provides that another court  shall have exclu-          _______ _________  ________ ____ _______ _____  _____ ____ ______          sive  or  concurrent  original  jurisdiction  over  the statutory          ____  __  __________  ________  ____________  ____  ___ _________          claims.  Thus, contrary to  Clarke's contention, the bare  refer-          ______          ence to superior court "jurisdiction" in Section 1C may have been          intended merely to overcome  the automatic "default" mechanism in          Section  2    which would  otherwise vest the  SJC with exclusive                                                                  _________          original jurisdiction  over all  Section 1C claims  for equitable          relief     and  to  designate which  other court  (i.e., superior                                        _____  _____ _____   ____          court) possesses  jurisdiction once  the Section 1C  claimant has          met the MCAD-exhaustion requirements imposed by FEPA section 9.                                          10          absence of) a timely MCAD claim.        Neither  party  cites  to          the legislative history relating to Section 1C, though it appears          fairly illuminating.  The legislative bill approved by  the House          Committee on Commerce and Labor (H.5732) represented a compromise          melded from eight competing Senate and House versions relating to                      _____          sexual harassment  in employment  and education.    Two of  these          predecessor versions provided as  follows:  "A person  shall have          the right to be free  from sexual harassment. . . .  The superior          court shall have jurisdiction in equity to enforce this right and          to award damages.  The filing  of a complaint under chapter  151B                             ___ ______  __ _ _________ _____ _______  ____          shall  not be  a prerequisite  to filing  a complaint  under this          _____  ___ __  _ ____________  __ ______  _ _________  _____ ____          section  in superior court."  H.3136  (sponsor, B. Gray, Framing-          _______  __ ________ _____          ham); see also H.488 (Saggese, Winthrop) (emphasis added).  It is                ___ ____          noteworthy  that the  only pertinent  deletion before  Section 1C                                ____          became law  was the  italicized language  from  H.3136 and  H.488          quoted supra.  See Russello v.  United States, 464 U.S. 16, 23-24                 _____   ___ ________     _____________          (1983) (noting that deletions of limiting language from predeces-          sor bills  normally presumed intentional); State  of Rhode Island                                                     ______________________          v. Narragansett Indian Tribe, 19 F.3d 685, 700 (1st Cir.) (same),             _________________________          cert. denied, 115 S. Ct. 298 (1994).            ____  ______                    Clarke argues  that Section  1C is unlike  ERA sections          102 and 103, which encompass claims for employment-based discrim-                                                  __________          ination  listed in FEPA section  4 as well  as sundry non-employ-                                                                ___________          ment-based  discrimination claims  which might  not be  listed in          ____                                            ___          FEPA.  Thus, the ERA enactment may be seen as serving an indepen-          dent  function  even after  Charland.   That  is, though  all ERA                                      ________                                          11          employment-based  claims of a type listed in FEPA section 4 would          __________          be subject  to FEPA's administrative exhaustion  requirement, see                                                                        ___          Charland, 631 N.E.2d  at 558-59, non-employment-based ERA  claims          ________                         ______________       ___          not listed in FEPA section 4 (if any) might be initiated directly          in  the superior  court  without administrative  exhaustion.   By          contrast,  Section 1C  encompasses only sexual  harassment claims                                             ____          which are employment-based, compare Mass. Gen.  L. Ann. ch. 151B,                    __________        _______             1(18) (defining  "sexual harassment"  in terms  of "employment          decisions,"  "work  performance,"  and "work  environment")  with                                                                       ____          Mass.  Gen. L.  Ann. ch.  214,    1C (prohibiting  harassment "as          defined in  chapter  [151B]"), and  all  employment-based  gender                                                   __________          discrimination claims  already fall  within FEPA section  4, and,          consequently, come within the mandatory administrative exhaustion          provision.  Clarke reasons, therefore, that unless  Section 1C is          interpreted  as  providing  employment-based   sexual  harassment          claimants an MCAD bypass  into superior court, its  enactment was          redundant  and superfluous.  See  Casa Loma, Inc.,  385 N.E.2d at                                       ___  _______________          978 (noting  that, where possible,  statutes ought not  be inter-          preted so as to render any provision superfluous).  But see supra                                                              ___ ___ _____          note  7  (investing superior  court  with  jurisdiction over  all          exhausted Section 1C claims, as opposed to superior, probate, and          housing courts designated in FEPA section 9).                    On the other hand,  KFC points out    correctly  in our          view     that the Legislature may well have intended that Section          1C  make  all  employment-based  sexual  harassment  unlawful  in                    ___  __________          Massachusetts, without regard to  the number of employees working                                          12          for the  particular employer, whereas other  forms of employment-                                                _____  _____ __ ___________          based discrimination would  be covered by FEPA  only if practiced          _____ ______________          by employers who hire more than  five persons.  See supra note 2.                                                          ___ _____          This interpretation is  substantiated by the fact that Section 1C          is not tied  into FEPA's  definition of "employer,"  but only  to             ___                                                   ____          FEPA's  definition  of  "sexual  harassment."    Although  Clarke          counters that the Legislature could have achieved the same result          simply  by amending the FEPA definition of "employer" to accommo-          date  this exception,  we are  not persuaded--  nor aware  of any          authority-- that  the amendatory  technique she suggests  was the          only one open to the Legislature.                     Clarke further contends that it would be incongruous to          require  only the  employees of  large-scale employers  to comply          with the MCAD administrative claims process, and not employees of          small-scale employers, since such an interpretation would contra-          vene  the Charland  holding  that all  discrimination claims  are                    ________                ___          subject  to  the  exhaustion  requirement.   This  contention  is          demonstrably  flawed as  well.   Charland simply  held that  MCAD                                           ________          exhaustion  is  required if  the  claim alleges  an  unlawful act          listed in FEPA section  4.  And discriminatory conduct  by small-                                                                     ______          scale employers  is not  listed in section  4. See Mass.  Gen. L.          _____               ___                        ___          Ann. ch. 151B,    4(16A) (unlawful "[f]or an employer, personally                                                    __ ________          or  through its agents,  to sexually  harass any  employee"); see                                                                        ___          also supra note 2.   Absent ambiguity in the  statutory language,          ____ _____          we think it inappropriate to second-guess the Legislature's clear          language establishing broadened protection for victims of  sexual                                          13          harassment.                     Finally,  Clarke argues  that the  Legislature singled          out all sexual harassment  claims    from other types  of employ-                                                    _____          ment-based discrimination  claims  under FEPA     because  sexual                     ______________          harassment normally warrants more  urgent remedial action and, by          affording sexual harassment victims direct access to the superior          court, Section  1C would enable more  immediate equitable relief.          Her contention is unavailing for two reasons.                    First,  Clarke reserved  this  argument  for her  reply          brief on  appeal, thereby denying KFC an  opportunity to respond.          See VanHaaren  v. State Farm Mut.  Auto. Ins. Co., 989  F.2d 1, 7          ___ _________     _______________________________          n.6 (1st  Cir. 1993).   Second, even if  it were not  waived, the          claim is meritless  since FEPA already provides the very remedial          mechanisms Clarke would have us read into Section  1C.  See Mass.                                                                  ___          Gen. L.  Ann. ch. 151B,    5 (MCAD commissioner "may  also file a                                        ____ ____________          petition in equity in the superior  court . . . seeking appropri-          ate injunctive relief against such respondent . . . .");   9 ("An                                                                         __          aggrieved person may also seek temporary injunctive relief in the          _________ ______          superior . . .  court . .  . at any  time to prevent  irreparable          injury during  the pendency of or  prior to the filing  of a com-          plaint with the [MCAD].") (emphasis added).                    For the foregoing reasons,  therefore, we conclude that          it  is reasonably likely that  the SJC would  extend its Charland                                                                   ________          rationale  to  Section 1C,  thereby preserving  the comprehensive          procedural  framework  established  by  the  Legislature in  FEPA          section 9.  Consequently,  the district court judgment dismissing                                          14          the sexual harassment claim for failure to exhaust administrative          remedies under the MCAD must be affirmed.          B.   Common Law Tort Claims8          B.   Common Law Tort Claims               ______________________                    Clarke contends that the district court erred in ruling          that the three remaining common law claims    alleging negligence          in hiring, supervising and  retaining the offending KFC employees               were  preempted by  the Massachusetts  Workers' Compensation          Act, Mass. Gen. L.  Ann. ch. 152,   24.   We briefly reprise  the          legislative history relating to recent amendments to the workers'          compensation statute.                     From the  start, section  24 of the  Massachusetts wor-          kers'  compensation statute  included a  comprehensive preemption          provision   precluding  injured  workers  from  instituting  tort          actions  "in respect  to an  [employment-related] injury  that is                                                            ______          compensable  [through the payment  of disability  benefits] under          ___________          this  chapter."   Mass.  Gen. L.  Ann. ch.  152,    24  (emphasis          added).9   Until 1985,  employment-induced emotional disabilities                                                     _________                                        ____________________               8The  failure to file a claim with  the MCAD did not bar the          common law claims.  See Felinske v. New Eng. Teamsters & Trucking                              ___ ________    _____________________________          Indus. Pension Fund,  855 F.  Supp. 474 (D.  Mass. 1994)  (citing          ___________________          Melley v. Gillette Corp., 475 N.E.2d 252 (Mass. 1985)).  However,          ______    ______________          Clarke  has not appealed the  dismissal of the  common law claims          alleging intentional tortfeasance.               9Massachusetts workers  may avoid  section 24  preemption by          expressly  reserving their common law rights at the time they are          hired.  Id.  Clarke made no such reservation.                  ___                                          15          were considered  fully "compensable" injuries under  the workers'          compensation statute,  without regard  to whether  the disability          resulted from employer negligence.  See Foley v.  Polaroid Corp.,                                              ___ _____     ______________          413 N.E.2d 711, 714-15 (Mass. 1980).                      Clarke  concedes  that   her  negligence-based   claims          against KFC allege employment-induced emotional injury and, thus,                                                _________          would have  been preempted under the  pre-1985 workers' compensa-                                                ___          tion  statute.  In 1985,  however, the SJC  held that employment-          related emotional injuries likewise  were "compensable" under the          workers' compensation statute,  even though the emotional  injury                                          ____ ______          resulted from  such bona fide  employer decisions as  layoffs and          interdepartmental transfers.  Kelly's  Case, 477 N.E.2d 582, 584-                                        _____________          85 (Mass.  1985) (noting that disallowance  of workers' compensa-          tion for such  emotional injuries  is a policy  decision for  the          Legislature, not the courts).                      The  ensuing uproar  from  the  Massachusetts  business          community  over the  implications  of Kelly's  Case prompted  the                                                _____________          Legislature to amend the  "personal injury" definition in chapter          152 to read:                    Personal  injuries  shall  include mental  or                    emotional disabilities only where the predom-                    inant contributing cause  of such  disability                    is an  event  or series  of events  occurring                    within any employment.  . . .   No mental  or                                                    __ ______  __                    emotional disability  arising principally out                    _________ __________          ___________                    of a bona fide,  personnel action including a                         ____ _____  _________ ______ _________                    transfer, promotion, demotion, or termination                    except such  action which is  the intentional                    infliction of emotional harm shall  be deemed                                                           ______                    to be a personal injury within the meaning of                          _ ________ ______                    this chapter.            See  1985 Mass.  Acts 572  ("Workers' Compensation  Reform Act");          ___                                          16          1986 Mass.  Acts 662 (codified at  Mass. Gen. L. Ann.  ch. 152,            1(7A)).   Although ostensibly a pro-employer  enactment, serendi-                                          ____________          pitously the 1985 amendment  also presented claimants like Clarke          with a basis  for attempting to  circumvent the broad  preemption          provision  in section  24 of  the workers'  compensation statute.          From the  beginning, section  24 had  preempted  tort actions  at          common  law,  but  only in  respect  to  injuries compensable  by                                                            ___________          disability benefits under the workers' compensation statute.  See                                                                        ___          Mass. Gen.  Laws Ann. ch. 152,    24.  After  the 1985 amendment,          however, emotional injuries caused by an employer's "bona fide []          personnel  action[s]"      [hereinafter  otherwise:   "BFPA"]              literally became "noncompensable" under the workers' compensation          statute.   Consequently, Clarke argues,  if it can be established          that her emotional injuries  were caused by a good  faith, albeit                                                        ____  _____          negligent, personnel decision on the part of KFC    for which she          _________          would  not be  entitled to  workers' compensation  benefits under          chapter 152, amended section 1(7A), see supra p. 16     she would                                              ___ _____          be entitled  to redress her  negligence-based tort claims  in the          courts by virtue of  the "noncompensability" exception to section          24 preemption.                    Clarke's argument  cannot succeed, however,  unless she          can  demonstrate both  that (1)  the decision  not to  screen KFC                           ____          hirees, nor alter their working  conditions to minimize the  risk          that Clarke  be emotionally harmed by  sexual harassment, consti-          tuted  a  "bona  fide personnel  action"  within  the meaning  of          amended section 1(7A); and (2) the 1985 Legislature, in rendering                                 ___                                          17          all  BFPA-induced emotional  injuries  noncompensable  under  the          workers' compensation  statute, intended  to deny  BFPA claimants          like Clarke the right  to collect workers' compensation benefits,          and,  as an offsetting form  of relief, to  save their common law          tort remedies from preemption under  section 24.  Since  Clarke's          argument plainly  founders on the second prong, we simply assume,          arguendo, that the  personnel actions at  issue qualify as  BFPAs          ________          under amended section 1(7A).                    Although there  is no  SJC decision directly  in point,          the interpretation Clarke urges was rejected recently by the Mas-          sachusetts Appeals Court,  in Catalano v. First  Essex Sav. Bank,                                        ________    ______________________          639 N.E.2d 1113 (Mass.  App. Ct.), review denied, 644  N.E.2d 225                                             ______ ______          (1994).  The Catalano court noted that the 1985 amendments to the                       ________          workers'  compensation  statute were  in  direct  response to  an          invitation the SJC extended  to the Legislature in Kelly's  Case:                                                             _____________          to "determine, as  a matter of public policy, whether  one of the          costs of doing business in this Commonwealth shall be the compen-          sation of those few employees  who do suffer emotional disability          as  a result  of being  laid off  or transferred."   Id.  at 1115                                                               ___          (quoting Kelly's Case, 477 N.E.2d at 584-85):                   ____________                    It is  obvious that the Legislature wished to                    protect the employer from liability under the                    [Workers' Compensation] Act for  claims aris-                    ing out of bona fide personnel actions unless                    motivated  by an intent  to inflict emotional                    distress.  In  those circumstances, it  seems                    unlikely  that  the  Legislature intended  to                    preserve a civil action  for claims based  on                    negligent  infliction  of emotional  distress                    that arise from a bona fide personnel action.                    To  do so would negate  . . .  the purpose of                    relieving employers from  the financial  bur-                                          18                    dens of such claims . . . .          Id. at 1116.          ___                    Clarke correctly points out that  the Catalano analysis                                                          ________          constitutes dicta because  the court dismissed  the appeal on  an          alternate ground.  Id.   Nevertheless, persuasive, reasoned dicta                             ___          may provide  a valuable guide  to statutory interpretation.   See                                                                        ___          Gibson, 37 F.3d at 736 (absent explicit ruling by state's highest          ______          court, federal court sitting in diversity may consult "considered          dicta") (citing Michelin Tires,  666 F.2d at 682); see  also Bank                          ______________                     ___  ____ ____          of New England Old Colony, N.A. v. Clark, 986 F.2d  600, 603 (1st          _______________________________    _____          Cir.  1993)  (relying  on  "persuasive" dicta  of  United  States          Supreme Court);  cf. also Sainz  Gonzalez v. Banco  de Santander-                           ___ ____ _______________    ____________________          Puerto Rico, 932  F.2d 999,  1001 (1st Cir.  1991) (declining  to          ___________          credit dicta unsupported by  reasoned analysis); United States v.                                                           _____________          Rivera,  872 F.2d 507, 509  (1st Cir.) (same),  cert. denied, 493          ______                                          ____  ______          U.S. 818 (1989).  Moreover, the Catalano analysis was prompted by                                          ________          the  appeals  court's  express  desire to  resolve  "the  alleged          uncertainty  and  confusion  that  purportedly  exists among  the          members  of the  [Massachusetts]  bar and  public concerning  the          initiation of  legal proceedings  involving the claims  raised in          this appeal," Catalano, 639 N.E.2d at 1115, and the SJC summarily                        ________          denied review.                      The original workers' compensation  statute effectively          preempted  a broad  range of  civil actions based  on employment-          related emotional injury, see  supra p. 15, and one  would expect                                    ___  _____          any significant retreat from this longstanding legislative policy                                          19          to be heralded with considerably greater clarity than is discern-          ible in Mass. Gen.  L. Ann. ch. 152,   1(7A).   We agree with the          appeals  court that it would strain credulity and common sense to          presume that the Legislature chose to limit employers' collective          liability under the workers'  compensation scheme, only to expose          individual employers  to greater  liability in common  law negli-          gence suits based on bona fide personnel actions.                                           III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    The grievous sexual harassment claims alleged by appel-          lant were  entitled to just  adjudication in  the first  instance          under  the administrative claims process established by Massachu-          setts  law.   As  the courts  are  powerless to  reinstate  legal          remedies foreclosed  by failure to comply with a mandatory admin-          istrative  exhaustion  requirement, the  district  court judgment          dismissing  the sexual harassment claim must be affirmed.  Final-          ly, the district court judgment dismissing the related common law          tort claims must be affirmed on preemption grounds.                    The district  court judgment is affirmed.   The parties                    The district  court judgment is affirmed.   The parties                    ________________________________________    ___________          shall bear their own costs.          shall bear their own costs.          __________________________                                          20                                       APPENDIX                                       APPENDIX          A.   Equal Rights Act, Mass. Ann. Laws ch. 93, sec. 102 (1994):          A.   Equal Rights Act, Mass. Ann. Laws ch. 93, sec. 102 (1994):               ________________               Section 102.  Equal Rights for All  Persons Within Com-               monwealth;  Enforcement by  Civil Action  for Equitable               Relief;  Jurisdiction  of  Superior  Court;  Degree  of               Proof; Damages, Costs and Attorneys' Fees.                    (a) All  persons within the  commonwealth, regard-                    less of  sex, race, color, creed  or national ori-                    gin, shall have, except  as is otherwise  provided                    or permitted  by law,  the same rights  enjoyed by                    white male citizens, to make and enforce contracts                    .  . . and  to the full  and equal  benefit of all                    laws and  proceedings for the security  of persons                    and property . . . .                     (b) A person whose  rights under the provisions of                    subsection  (a) have been  violated may commence a                    civil  action for injunctive and other appropriate                    equitable relief, including the award of compensa-                    tory and exemplary damages[] . . . in the superior                    court . . . .           B.   Fair  Employment Practices  Act, Mass.  Ann. Laws  ch. 151B,          B.   Fair  Employment Practices  Act, Mass.  Ann. Laws  ch. 151B,               _______________________________               sec. 1 (1995):               sec. 1 (1995)               Section 1. Definitions.                    As used in this chapter                         . . . .                         5. The term "employer" does not include . . .                    any employer  with fewer  than six persons  in his                    employ . . . .                         . . . .                         18.  The term "sexual  harassment" shall mean                    sexual advances, requests  for sexual favors,  and                    other verbal  or physical conduct of  a sexual na-                    ture . . . (b)  . . . [which] have the  purpose or                    effect of unreasonably interfering with an indivi-                    dual's work performance  by creating an intimidat-                    ing,  hostile,  humiliating or  sexually offensive                    work environment. Discrimination  on the basis  of                    sex shall  include, but not be  limited to, sexual                    harassment.                                          i               Section 4.  Unlawful Practices;  Certain Records  to be               Kept; Employer,  etc., Not Required  to Grant Preferen-               tial Treatment to Any Individual or Group.                                   It shall be an unlawful practice:                                       1. For an employer,  by himself or his agent,                    because of  the race, color, religious  creed, na-                    tional origin,  sex, sexual orientation, .  . . or                    ancestry of  any individual  to refuse to  hire or                    employ or  to bar or to  discharge from employment                    such  individual or  to discriminate  against such                    individual in compensation or in terms, conditions                    or  privileges of employment,  unless based upon a                    bona fide occupational qualification. . . .                         . . . .                                       16A. For an  employer, personally or  through                    its agents, to sexually harass any employee.                             Section  5.  Complaints Alleging  Unlawful  Practice or               Violation  of  Certain  Statutes;   Proceedings  Before               Commission; Injunctive Relief; Award of Damages.                         Any  person  claiming to  be aggrieved  by an                    alleged unlawful  practice [listed in section 4] .                    .  .  may .  .  . make,  sign  and  file with  the                    commission a verified complaint in writing . . . .                         . . . .                         .  . .  Before  or after  a determination  of                    probable  cause  hereunder  such commissioner  may                    also  file a  petition in  equity in  the superior                    court . . . .                Section  6. Judicial  Review  of  Order of  Commission;               Injunctive Relief.                         Any complainant, respondent  or other  person                    aggrieved by  such  order of  the  commission  may                    obtain judicial review  thereof . . . in the supe-                    rior court . . . .               Section  9.  Chapter Construed  Liberally; Inconsistent               Laws;  Procedure Exclusive;  Damages or  Injunctive Re-               lief.                         . . . [A]s to acts declared unlawful  by sec-                    tion four, the procedure provided in this  chapter                    shall, while pending, be  exclusive; and the final                                          ii                    determination  therein  shall  exclude  any  other                    action, civil or criminal, based on the same grie-                    vance of the individual concerned.                         Any  person  claiming to  be  aggrieved  by a                    practice made unlawful under this chapter or under                    chapter  one hundred  and fifty-one  C, or  by any                    other unlawful practice within the jurisdiction of                    the commission,  may, at the  expiration of ninety                    days  after the  filing  of a  complaint with  the                    commission, or sooner if a commissioner assents in                    writing, but not later  than three years after the                    alleged  unlawful practice occurred, bring a civil                    action for damages or injunctive relief or both in                    the  superior or  probate court  . .  . or  in the                    housing  court within  whose district  the alleged                    unlawful practice  occurred if the  unlawful prac-                    tice involves residential housing. .  . .  An  ag-                    grieved  person may also seek temporary injunctive                    relief in the superior,  housing or probate  court                    within such county at  any time to prevent irrepa-                    rable injury  during the  pendency of or  prior to                    the filing of a complaint with the commission. . .                    .          C.   Equity Jurisdiction Statute, Mass. Ann. Laws ch. 214 (1995)          C.   Equity Jurisdiction Statute, Mass. Ann. Laws ch. 214 (1995)               ___________________________               Section 1. General Equity Jurisdiction, Concurrent.                         The  supreme  judicial  and  superior  courts                    shall have original and concurrent jurisdiction of                    all cases and  matters of equity cognizable  under                    the  general  principles  of equity  jurisprudence                    and,  with reference thereto,  shall be  courts of                    general equity jurisdiction . . . .                Section 1C. Right to be Free From Sexual Harassment.                         A person shall have the right to be free from                    sexual harassment,  as defined in chapter one hun-                    dred and fifty-one B and one hundred and fifty-one                    C.  The superior court shall have the jurisdiction                    in equity to enforce this  right and to award dam-                    ages.               Section 2. Statutory Equity Jurisdiction.                         The  supreme judicial court shall have origi-                    nal and  exclusive jurisdiction  of all  civil ac-                    tions in which equitable relief is sought cogniza-                    ble under any statute and not within the jurisdic-                                         iii                    tion conferred by section  one, unless a different                    provision is  made; and the  superior court  shall                    have like original and exclusive, or like original                    and concurrent, jurisdiction  only if the  statute                    so provides.                                          iv
