CAROL PERKINS vs. COMMONWEALTH & others

DREBEN, J. While training as a cadet at the State Police Academy (Academy), the plaintiff became ill with a severe cold. She brought this action against three agencies of the Commonwealth [Note 1] and three employees of the Academy [Note 2], alleging that during her illness she was required to participate in physical activities contrary to a physician's advice, was deprived of sufficient water, and suffered other humiliations and hazing. As a result, she became fearful for her health and found it necessary to resign. She contends that the defendant agencies were negligent in providing her with medical care and, citing G. L. c. 269, s. 17, see note 7, infra, that the defendants, by allowing her to be hazed by Academy personnel, constructively discharged her in violation of public policy. She also claims that one of the individual defendants, Trooper Cambria, violated her civil rights. She sought damages for physical and emotional distress, loss of compensation and benefits, attorneys' fees, and reinstatement as a cadet at the Academy. A judge of the Superior Court granted motions for summary judgment for all the defendants. We affirm.

Although the defendants deny that the plaintiff was deprived of rest, water or medicine, for purposes of reviewing the motion judge's ruling, we assume the facts to be as alleged by the plaintiff and make all logically permissible inferences in her favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991).

1. Negligence. The plaintiff recognizes that under G. L. c. 152, s. 24, unless an employee expressly preserves his or her common law rights of action, a claim alleging negligence of an employer or of a coemployee is foreclosed by the exclusivity

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provisions of the workers' compensation act (act) [Note 3]. Foley v. Boston Housing Authy., 407 Mass. 640 , 641 n.3 (1990). The plaintiff, however, argues that her common law claim of negligence is not barred because her illness, initially a severe cold, may have arisen from sources outside her employment and hence is not compensable under the act [Note 4]. This argument is without merit as her negligence claims are premised upon allegations that Academy personnel exacerbated her medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication. If these claims were sustained at trial, the harm caused by the defendants' conduct would be compensable under G. L. c. 152, s. 1(7A) [Note 5], as such conduct was at least a major cause of her disability or need for treatment. The exclusivity provisions of the act would, therefore, control and preclude her negligence claim.

The plaintiff also urges that her negligence claims are not barred because of the "dual persona" doctrine which provides that an employer's conduct may in some instances be regarded as conduct of a third party and be subject to liability despite the exclusivity provisions of G. L. c. 152. Under this theory, an employer may be subject to suit if its "liability to the injured employee 'derives from a second persona so completely

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independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.' " Barrett v. Rodgers, 408 Mass. 614 , 617 (1990), quoting from Gurry v. Cumberland Farms, Inc., 406 Mass. 615 , 620-621 (1990), in turn quoting from 2 A. Larson, Workmen's Compensation s. 72.80, at 14-229 (1988). That doctrine, which has not been explicitly adopted in Massachusetts, although it has been alluded to favorably, Barrett v. Rodgers, supra at 617, does not aid the plaintiffs cause. The acts and omissions of the medical personnel claimed to be wrongful were an integral part of the Academy's role of providing medical assistance to cadets. The plaintiff did not see the medical personnel as a private patient, but rather as a cadet entitled to medical services. See Scott v. Wolf Creek Nuclear Operating Corp., 23 Kan. App. 2d 156, 160 (1996) (malpractice action against company medical personnel barred by workers' compensation statute).

2. Constructive discharge. Claims for emotional or physical injuries because of wrongful termination or constructive discharge are also precluded by the workers' compensation act, Simmons v. Merchants Mut. Ins. Co., 394 Mass. 1007 , 10071008 (1985); see Anzalone v. Massachusetts Bay Transp. Authy., 403 Mass. 119 , 124-125 (1988), unless they are sustained in connection with claims that are not barred by the exclusivity provisions of the workers' compensation act. Green v. Wyman/Gordon Co., 422 Mass. 551 , 560-561 (1996). For this reason, the plaintiff argues that her claim of constructive discharge seeks contract damages [Note 6]. Although it is dubious that she can show that she was constructively discharged, that is, that her employer created "working conditions . . . so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign," GTE Prods. Corp. v. Stewart, 421 Mass. 22 , 34-36 (1995), quoting from Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977), we will again assume for purposes of reviewing the summary judgment motion that she can sustain the claim.

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Recognizing that an at-will employee may be terminated at any time for any reason or for no reason at all, Upton v. JWP Businessland, 425 Mass. 756 , 757 (1997), the plaintiff points out that liability may be imposed on the employer if the employee is terminated "for a reason that violates a clearly established public policy." Ibid. The plaintiff claims that G. L. c. 269, s. 17, is such a policy. That statute, set out fully in the margin [Note 7], defines "hazing" as "any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person" (emphasis supplied). The "brutal treatment or forced physical activity" made criminal by the statute is directed at student organizations, not at the educational institutions themselves. The "lengthy statement" of Attorney General Shannon mentioned in Shepard v. Attorney Gen., 409 Mass. 398 , 400 (1991), and made a part of the record on this appeal, also considers the statute as applying solely to student organizations. Compare Shepard, supra at 400 n.3, where the trial judge found that State troopers and employees of the Massachusetts Criminal Justice Training Council may have violated the hazing statute.

Our cases interpret the public policy exception narrowly.

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King v. Driscoll, 418 Mass. 576 , 582 (1994) [Note 8]. For example, in Upton v. JWP Businessland, 425 Mass. at 759, a mother was not permitted to invoke public policy to bring an action for wrongful discharge where, because of childcare commitments, she could not work the long hours required by her employer. The court so held despite the strong policy favoring the care and protection of children, which is reflected in the possible eligibility for unemployment compensation in such circumstances.

Moreover, "the internal administration, policy, functioning and other matters of an organization cannot be the basis for a public policy exception to the general rule that at-will employees are terminable at any time with or without cause." King v. Driscoll, 418 Mass. at 583. The requirements of police training and the rigors to which cadets are subjected are internal matters of the Academy. See the portion of the Police Academy Handbook set out in the margin [Note 9].

Here, there is no Legislative directive or enunciated public policy that precludes the Academy, a quasi military training institution, from discharging a cadet who cannot tolerate the rigors and discipline required of other recruits or from discharging a cadet without any cause at all. The Academy need not "adjust its expectations, based on a case-by-case analysis of an

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at-will employee's [fears for her or his health], or face liability for having discharged the employee." Upton v. JWP Businessland, 425 Mass. at 760.

3. Civil rights claims. Claims under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, s. 11I, are not barred by the exclusivity provisions of the workers' compensation act. Foley v. Polaroid Corp., 381 Mass. 545 , 553 (1980). The claim here is that the defendant Trooper Cambria refused to allow the plaintiff to obtain sufficient water, and violated the MCRA by hazing and by depriving her of a safe work environment and appropriate medical care. To establish a claim under the MCRA, a plaintiff must prove that "(1) [her] exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by 'threats, intimidation or coercion.' Swanset Dev. Corp. v. Taunton, 423 Mass. 390 , 395 (1996)." Brunelle v. Lynn Pub. Schools, 433 Mass. 179 , 182 (2001).

The plaintiffs claims founder on the first requirement and we need not reach the other two. She has not, as required, "clearly identified any 'secured right' with which [Trooper Cambria] interfered." See Flesner v. Technical Communications Corp., 410 Mass. 805 , 818 (1991).

As indicated earlier, G. L. c. 269, s. 17, the hazing statute, is not applicable to the Academy, as it is not a student organization, but rather a school, an educational institution. Moreover, even if the statute were applicable, in order "to seek redress through [MCRA as under its Federal analog] [Note 10] s. 1983 . . . a plaintiff must assert the violation of a federal [or State] right, not merely a violation of federal [or State] law." Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original). Our courts are "reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference." Loffredo v. Center for Addictive Behaviors, 426 Mass. 541 , 544 (1998).

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Moreover, "penal statutes [G.L. c. 269, s. 17, is such a statute] have been construed as creating a new cause of action . . . if, and only if, that appears by express terms or by clear implication to have been the legislative intent." Johnson v. United States Steel Corp., 348 Mass. 168 , 169-170 (1964), quoting from Mezullo v. Maletz, 331 Mass. 233 , 238 (1954). No such intent is evident in the hazing statute. "[I]t would be anomalous, on the facts of this case, to allow a remedy under the State Civil Rights Act where a legislative remedy was not made available under [c. 269, s. 17]." Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. at 210 n.11.

In addition to the hazing statute, the plaintiff cites to G. L. c. 149, s.s. 3, 5, and 6, to sustain her claim that she has a secured right to a safe working environment. Section 3 provides for "inspection and investigation" by the Attorney General of "all places of employment," and s. 5 permits him or her to investigate conditions existing in any industry, and to receive complaints "concerning alleged violations of any laws enforced under his direction." Section 6 permits "any person aggrieved" by the violation of any "rule, regulation or requirement made by the department" of labor and workforce development to file a complaint in the District Court. Assuming, without deciding, that such a violation creates a secured right, but see Luftedo v. Center for Addictive Behaviors, 426 Mass. at 545-546, the plaintiff has not pointed to any rule or regulation that has been violated. See Collins v. Harker Heights, 503 U.S. 115, 126-129 (1992) (no Federal due process right to a safe working environment; such a claim is "unprecedented").

The plaintiff has made no argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), in support of her contention that she is entitled to appropriate medical care under the MCRA, and, accordingly, we do not reach that claim.

Since there are here no genuine issues of material fact, and the record as presented shows that the defendants are entitled to judgment as matter of law, the motion judge was correct in granting summary judgment for the defendants.

Judgments affirmed.