KAREN A. GREEN vs. WYMAN-GORDON COMPANY.

LYNCH, J. The plaintiff, Karen A. Green, alleges that she was sexually harassed over a three-year period while employed by the defendant, Wyman-Gordon Company. The defendant terminated Green's employment in June, 1992. In April, 1994, Green brought suit against the defendant in the Superior Court, alleging violations of G.L.c. 214, s. 1C (1994 ed.), the Massachusetts Civil Rights Act, G.L.c. 12, s. 11I (1994 ed.) (civil rights act), and the Massachusetts Equal Rights Act, G.L.c. 93, s. 102 (1994 ed.) (equal rights act). Her action included common law claims for negligent failure to investigate and to correct, negligent training and supervision, intentional and negligent infliction of emotional distress, and breach of contract. The trial judge allowed the defendant's motion for summary judgment on all counts. The plaintiff appealed. We granted the defendant's application for direct appellate review and now affirm. [Note 1]

The summary judgment record demonstrates the following (see Judson v. Essex Agric. & Technical Inst., 418 Mass. 159, 162 [1994]): The defendant hired the plaintiff in February, 1985. Starting in June, 1989, until her termination in June, 1992, the plaintiff was subjected to multiple instances of sexual harassment while she was employed in several different departments. While employed in the housekeeping department, Green was threatened and harassed by a coworker using obscene language and sexual slurs. The defendant held a meeting and issued a warning to the coworker, but refused Green's requests to change her work schedule.

After the plaintiff was assigned to another department, she was subjected to lewd and obscene remarks and gestures from another coworker. In addition, she was exposed to posters of naked and partially clothed women on the walls and ceiling of the work area. After Green reported to her supervisors that she was being harassed, a meeting was held, but the defendant took no action against the coworker. Although Green was permitted to change shifts for about one week, she was forced to return to the shift with the offensive coworker.

Page 553

About two weeks later, the plaintiff was terminated from her employment. As a result of the harassment, the plaintiff suffered severe emotional distress.

1. Background. In order to analyze the plaintiff's claims properly, we need to examine the legislative and judicial response to the problem of sexual harassment in the Massachusetts workplace. This court first addressed the issue of sexual harassment in College-Town, Div. of Interco. Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 162(1987). In that case, the court decided that sexual harassment was a form of discrimination and that the plaintiff's claim was cognizable under G.L.c. 151B, s. 4 (1) (1994 ed.). Id. In O'Connell v. Chasdi, 400 Mass. 686, 693 & n.9 (1987), however, the provisions of G.L.c. 151B (1994 ed.) did not apply because the plaintiff's employer had fewer than six employees. See G.L. c. 151B, s. 1 (5). The court nevertheless decided that the plaintiff had a claim under the civil rights act on the rationale that art. 1 of the Massachusetts Declaration of Rights created a right to be free from sexual harassment in the workplace. O'Connell v. Chasdi, supra at 693.

On December 9, 1986, before this court's decisions in College-Town and O'Connell v. Chasdi were published (but while they were pending in this court), the Massachusetts Legislature enacted St. 1986, c. 588, entitled "An act prohibiting sexual harassment." Chapter 588 amended G.L.c. 151A (unemployment compensation), G.L.c. 151B (employment discrimination), G.L. c. 151C (education), and G.L.c. 214 (equity jurisdiction). The legislation added a definition of sexual harassment to G.L. c. 151B, s. 1, see St. 1986, c. 588, s. 2, and added subsection 16A to s. 4, declaring it to be an unlawful practice under c. 151B for an employer "to sexually harass any employee." St. 1986, c. 588, s. 3. In addition, the statute added G.L.c. 214, s. 1C, which states: "A person shall have the right to be free from sexual harassment, as defined in chapter one hundred 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 damages." St. 1986, c. 588, s. 6.

Page 554

In this case and two other cases decided today, [Note 2] we have an opportunity to revisit sexual harassment claims in this new statutory context.

2. Statutory claims. Employees who are victims of sexual harassment by their employers or their agents have a remedy under G.L.c. 151B, secs. 4 (16A) and 5. [Note 3] The plaintiff did not file a complaint with the Massachusetts Commission Against Discrimination (MCAD) within the six-month statutory time period. See G.L.c. 151B, s. 5. The plaintiff argues that her failure to file such a claim does not preclude her from bringing a sexual harassment suit in the Superior Court under G.L.c. 214, s. 1C. Therefore, we must determine whether, by enacting G.L.c. 214, s. 1C, the Legislature intended to create a duplicative remedy for victims of sexual harassment, such that a plaintiff may either seek relief initially by filing a complaint with the MCAD, or bypass the MCAD entirely and file a suit directly in the Superior Court. We conclude that the exclusive statutory remedy for the plaintiff in this case was that provided by c. 151B, for the reasons set out below.

We ordinarily construe statutes to be consistent with one another. St. Germaine v. Pendergast, 411 Mass. 615, 626 (1992). We assume that the Legislature was aware of existing statutes when enacting subsequent ones. LaBranche v. A.J. Lane & Co., 404 Mass. 725, 728 (1989). Thus, we attempt to interpret statutes addressing the same subject matter harmoniously, "so that effect is given to every provision in all of them." 2B Singer, Sutherland Statutory Construction s. 51.02, at 122 (5th ed. 1992). See St. Germaine v. Pendergast, supra (construing exclusivity provisions of workers' compensation act). With these general principles in mind, we must examine the administrative scheme created by c. 151B and determine the reach of its exclusivity provisions. [Note 4]

General Laws c. 151B, s. 9, provides, in relevant part: "[A]s

Page 555

to acts declared unlawful by section four, the procedure provided in this chapter shall, while pending, be exclusive." We have interpreted this broad exclusivity provision to embody a legislative intent "to subject all discrimination claims to some administrative scrutiny." Charland v. Muzi Motors, Inc., 417 Mass. 580, 585 (1994). [Note 5] Accordingly, where c. 151B applies, a person may not evade its procedural requirements by recasting a discrimination claim as a violation of the equal rights act, see id. at 586, or the civil rights act, see Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 543 (1987). Applying this rationale, we have declined to create new common law remedies for employment discrimination which would allow claimants to sidestep c. 151B's administrative prerequisites. See Melley v. Gillette Corp., 19 Mass. App. Ct. 511 (1985), S.C., 397 Mass. 1004 (1986). Cf. Comey v. Hill, 387 Mass. 11, 20 (1982) (claimants may bring common law claims against employers which are grounded in tort and contract principles established prior to adoption of c. 151B).

Against this background, we see no basis to except claims of sexual harassment from the broad and comprehensive remedial scheme provided in c. 151B absent an explicit statutory authorization. We do not believe that G.L.c. 214, s. 1C, contains such an authorization. Accordingly, we agree with the defendant that, in this case, c. 151B's remedies and procedures are exclusive and bar the plaintiff's claim under G.L.c. 214, s. 1C. See 2B Singer, Sutherland Statutory Construction s. 51.02, at 121 (5th ed. 1992) ("In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in [the] prior statutes").

This interpretation serves the legislative purpose by preserving the integrity of the administrative scheme. As we noted in the Charland case: "Chapter 151B reflects the [L]egislature's balancing of competing interests. Employees are protected

Page 556

against certain types of [unlawful action]. Employers are protected from unnecessary litigation by a relatively short statute of limitations, see ch. 151B s. 5 (six months), and a mandatory conciliation process." Charland v. Muzi Motors, Inc., supra at 583, quoting Crews v. Memorex Corp., 588 F. Supp. 27, 29 (D. Mass. 1984). Indeed, the simultaneous amendment of c. 151B to add sexual harassment in employment to the list of unfair practices indicates a legislative intent to reinforce the administrative scheme, not weaken it. See St. 1986, c. 588, s. 3. See also 2A Singer, Sutherland Statutory Construction s. 46.05, at 103-104 (5th ed. 1992). It is also noteworthy that these sections were added at a time when it was unclear whether any existing statute or constitutional provision provided a remedy for victims of sexual harassment.

Added support for this construction comes from the legislative history of G.L.c. 214, s. 1C. Prior to enactment, eight different versions of the law were proposed. [Note 6] Two of those bills contained the following language: "The filing of a complaint under chapter 151B shall not be a prerequisite to filing a complaint under this section in the superior court." 1986 House Doc. No. 488 at 2. 1986 House Doc. No. 3136 at 2. The above-quoted sentence was omitted from the statute as enacted, and was in fact, "the only pertinent deletion before Section 1C became law." Clarke v. Kentucky Fried Chicken of Cal., Inc., 57 F.3d 21, 26 (1st Cir. 1995). Deletions of limiting language from predecessor bills is normally presumed to be intentional. Id., citing Russello v. United States, 464 U.S. 16, 23-24(1983), and Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 700 (1st Cir.), cert. denied, 115 S. Ct. 298 (1994). See also 2A Singer, Sutherland Statutory Construction s. 48.04, at 325 (5th ed. 1992). [Note 7]

The plaintiff argues that we render G.L.c. 214, s. 1C, a

Page 557

"near nullity" if we do not construe it to provide a duplicative remedy. We disagree. First, G.L.c. 214, s. 1C, ensures that all employees are protected against sexual harassment in the workplace, whether or not their employers fit within the definition in c. 151B. Thus, employees who cannot file claims with the MCAD because of limited size of the workforce, see G.L. c. 151B, s. 1 (5) (employers of fewer than six employees not included) are protected by s. 1C. Second, the statute provides exclusive jurisdiction in the Superior Court for any sexual harassment claim that is brought in the courts because either (a) the employer is not covered by c. 151B, or (b) the claimant has satisfied the procedural prerequisites for a c. 151B claim and has chosen to pursue the case in court. [Note 8] See Clarke v. Kentucky Fried Chicken of Cal., Inc., supra at 26. [Note 9] Therefore, we affirm the motion judge's conclusion that the plaintiff's G.L.c. 214, s. 1c, claim is barred. See id. Accord Johnson v. Plastic Packaging, Inc., 892 F. Supp. 25, 31 (D. Mass. 1995); Desrosiers v. Great Atl. & Pac. Tea Co., 885 F. Supp. 308, 313-314 (D. Mass. 1995).

For the reasons stated above, the plaintiff's claims under the civil rights act and the equal rights act are similarly precluded. See Charland v. Muzi Motors, Inc., supra at 586. Where, as here, c. 151B applies, its comprehensive remedial scheme is exclusive, in the absence of an explicit legislative

Page 558

command to the contrary. Otherwise, "[t]o permit such duplication of remedies would allow claimants to bypass the procedural prerequisites defined by the [L]egislature in [G. L. c. 151B], crippling the effectiveness of this specific statutory remedy for discrimination in employment." Bergeson v. Franchi, 783 F. Supp. 713, 721 (D. Mass. 1992).

3. Common law claims. Insofar as the plaintiff's common law claims are merely recast versions of her sexual harassment claims under c. 151B, they are barred by that statute's exclusivity provision. See Charland v. Muzi Motors, Inc., supra at 586; Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985). We acknowledge, however, that not all of the plaintiff's common law claims are barred under c. 151B. See Comey v. Hill, supra at 20. The defendant argues, however, that those common law claims not barred by c. 151B, notably the claims for intentional and negligent infliction of emotional distress, are barred by the exclusivity provision of the workers' compensation act, G.L.c. 152, s. 24 (1994 ed.). [Note 10] We agree.

Common law actions are barred by the exclusivity provision of the workers' compensation act where: "the plaintiff is shown to be an employee; his condition is shown to be a 'personal injury' within the meaning of the [workers'] compensation act; and the injury is shown to have arisen 'out of and in the course of . . . employment.'" Foley v. Polaroid Corp., 381 Mass. 545, 548-549 (1980) (Foley I), quoting G.L.c. 152, s. 26 (1994 ed.). The plaintiff's common law claims meet this test. It makes no difference that the emotional distress results from a fellow employee since the injury is still compensable under the workers' compensation act. See Anzalone v. Massachusetts Bar Transp.Auth., 403 Mass. 119, 124 (1988); Foley I, supra at 550. See also G.L.c. 152, s. 1 (7A) (1994 ed.) (intentionally inflicted emotional harm compensable under workers' compensation act, even when result of bona fide personnel action). An employer may be vicariously liable for emotional distress intentionally inflicted by one employee on another. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156,

Page 559

167 (1987). However, we need not decide whether the employer was either directly or vicariously liable, since, in either case, the injuries would be compensable under the workers' compensation act. Accordingly, the motion judge correctly dismissed the plaintiff's claim for intentional infliction of emotional distress. The plaintiff's negligent infliction of emotional distress claim also must fail. The plaintiff argues that recent amendments to the definition of "personal injury" permit her to recover for negligently inflicted emotional distress that is the result of a "bona fide, personnel action." [Note 11] The plaintiff argues that the language of the amendment set out in the margin somehow revives common law actions resulting in emotional distress, where that distress is not inflicted intentionally. Thus, goes the argument, if the defendant's bona fide personnel actions unintentionally caused the plaintiff's emotional injuries, then those injuries are not "compensable" under the workers' compensation act, the exclusivity provision does not apply, and the plaintiff can bring a common law action for negligent infliction of emotional distress. We do not agree.

The intent of the amendment was to reverse the result in Kelly's Case, 394 Mass. 684 (1985), where we permitted an employee to recover for emotional distress associated with a threatened layoff and transfer. See Robinson's Case, 416 Mass. 454, 458-459 (1993). See generally L. Locke, Workmen's Compensation s. 10.5, at 270-271 (Nason & Wall Supp. 1995). The plaintiff purports to turn this intention on its head, presuming that the Legislature, in cutting off an avenue of recovery for employees under the workers' compensation act, intended to open up a previously closed common law route. We see no reason to attribute such paradoxical intentions to the Legislature, especially where the result would "negate the intended purpose of the Workers' Compensation Act to provide a uniform, statutory remedy for injured workers, in

Page 560

contrast to a piecemeal, tort-based system." Catalano v. First Essex Sav. Bank, 37 Mass. App. Ct. 377, 380 (1994). See Clarke v. Kentucky Fried Chicken of Cal., Inc., supra at 29.

There is no question that an action for negligent infliction of emotional distress that is not the result of a bona fide personnel action is barred by the exclusivity provision of the workers' compensation act. See Foley I, supra at 552. Assuming that the plaintiff's emotional injuries were the result of bona fide personnel actions, [Note 12] however, there is still no basis for recovery. "[I]t 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 negligence suits based on bona fide personnel actions." Clarke v. Kentucky Fried Chicken of Cal., Inc., supra at 29. See Catalano v. First Essex Sav. Bank, supra.

The result we reach here is not inconsistent with our decisions concluding that plaintiffs may recover for emotional injuries sustained in connection with claims that are not barred by the exclusivity provisions of the workers' compensation act. See Flesner v. Technical Communications Corp., 410 Mass. 805, 814 n.9 (1991); Foley v. Polaroid Corp., 400 Mass. 82, 93 (1987) (Foley II); College-Town, supra at 169; Foley I, supra at 552. In those cases we concluded that emotional distress damages are not barred where the underlying claim is not barred. Furthermore, we concluded that underlying common law claims survived where "physical or mental harm is incidental, and is not an indispensable ingredient" of the claim. Foley I, supra. For example, in Foley I, we concluded that claims for defamation, malicious prosecution, and violation of civil rights [Note 13] were not compensable under the workers' compensation act and so were not barred. Id. at 552-554. See Madden's Case, 222 Mass. 487, 492 (1916) (claims for libel,

Page 561

malicious prosecution, false imprisonment, invasion of privacy, alienation of affection, seduction, false arrest, and "kindred tortious acts" not compensable). On the other hand, where "mental harm is the essence of the [claim]," it is an indispensable ingredient, and the claim is barred. Foley I, supra at 552. Here, as in the intentional infliction of emotional distress claim in Foley I, mental harm is an essential element of the plaintiff's claim. Therefore, that claim is barred under the workers' compensation act. [Note 14]

Cases from other jurisdictions support our conclusion that the plaintiff's tort claims are barred by the exclusivity provision of the workers' compensation act. See, e.g., Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 323-324 (7th Cir. 1992); Lui v. Intercontinental Hotels Corp., 634 F. Supp. 684, 688 (D. Haw. 1986); Fields v. Cummins Employees Fed. Credit Union, 540 N.E.2d 631, 637 (Ind. Ct. App. 1989); Knox v. Combined Ins. Co., 542 A.2d 363,365-366 (Me. 1988); Dickert v. Metropolitan Life Ins. Co., 311 S.C. 218, 222 (1993); Haddon v. Metropolitan Life Ins. Co., 239 Va. 397, 400 (1990), overruled on other grounds, Lichtman v. Knouf, 248 Va. 138 (1994); Baker v. Wendy's of Mont., Inc., 687 P.2d 885, 892 (Wyo. 1984). See also Busse v. Gelco Express Corp., 678 F. Supp. 1398, 1401 (E.D. Wis. 1988) (workers' compensation exclusivity bars negligence claim against employer based on sexual harassment); Downer v. Detroit Receiving Hosp., 191 Mich. App. 232, 235-236 (1991)(same). See generally 2A A. Larson, Workmen's Compensation s. 68.34 (d) (1995 & Supp. 1995). [Note 15]

Page 562

4. Conclusion. To summarize, we conclude that the plaintiff's statutory claims are barred by the exclusivity provision of G.L.c. 151B, as are most of the common law claims. In addition, the workers' compensation act bars the plaintiff's claims for negligent and intentional infliction of emotional distress. Accordingly, the trial judge properly entered summary judgment on behalf of the defendant on all counts. [Note 16]

Judgment affirmed.