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Carol A. WARFIELD vs. BETH
ISRAEL DEACONESS MEDICAL CENTER, INC., & others. [FN1]
SJC-10375
March 5, 2009. - July 27, 2009.
Federal Arbitration Act. Massachusetts
Arbitration Act. Anti-Discrimination Law, Arbitration, Employment. Contract,
Arbitration. Employment,
Discrimination. Practice, Civil,
Interlocutory appeal. Public Policy.
CIVIL ACTION commenced in the Superior Court Department on
March 7, 2008.
Motions to dismiss and to compel arbitration were heard by Isaac
Borenstein, J.
The Supreme Judicial Court granted an application for direct appellate review.
John F. Welsh (Jennifer
Belli with him) for Beth Israel Deaconess Medical Center, Inc.
Tracey E. Spruce for Harvard Medical
Faculty Physicians at Beth Israel Deaconess Medical Center, Inc.
Richard D. Glovsky for Josef E.
Fischer.
Ellen J. Zucker (Laura
R. Studen with her) for the plaintiff.
Ben Robbins, Martin J. Newhouse, & Jo Ann
Shotwell Kaplan, for New England Legal Foundation & another, amici
curiae, submitted a brief.
Patricia A. Washienko, for American
Civil Liberties Union of Massachusetts & others, amici curiae, submitted a
brief.
Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.
BOTSFORD, J.
The plaintiff, Carol A. Warfield, the former chief of anesthesiology at Beth
Israel Deaconess Medical Center, Inc. (BIDMC), filed this action in the Superior
Court against her employers, alleging gender-based discrimination and
retaliation in violation of G.L. c. 151B, and factually related common-law
claims. The BIDMC and the other defendants moved to dismiss Warfield's complaint
and compel arbitration on the ground that the employment agreement she signed
soon after she became chief of anesthesiology mandated arbitration of all her
claims. A judge in the Superior Court denied the motions, and the defendants
filed this interlocutory appeal. We conclude that Warfield's statutory
discrimination claims do not fall within the scope of the arbitration clause
contained in the employment agreement, and that she may proceed with her
discrimination action in the Superior Court. Because her additional claims are
wholly intertwined with her statutory discrimination claims, principles of
judicial economy dictate that they be tried in the same action. [FN2]
1. Facts. We recite
only the facts relevant to the current dispute. Warfield, an anesthesiologist
employed by Harvard Medical Faculty Physicians at Beth Israel Deaconess Medical
Center, Inc. (HMFP), has been an anesthesiologist on the medical staff of BIDMC
since 1980. On March 27, 2000, Warfield entered into an employment agreement
with BIDMC and HMFP in which she agreed to serve in the capacity of
anesthesiologist-in-chief for BIDMC (agreement). [FN3] The agreement provides
that Warfield's duties as anesthesiologist-in-chief would commence on January 1,
2000, and set forth, inter alia, her duties as chief, her compensation and
benefits in that position, and circumstances in which she could be terminated
for cause and without cause. The agreement further provides that Warfield
remained an employee of HMFP, [FN4] and that she was bound by the separate
articles, bylaws, rules, guidelines, regulations, procedures, and standards of
BIDMC, HMFP, and Harvard Medical School that were not part of the agreement. The
agreement additionally provides that it supersedes "any and all previous
discussions, understandings or agreements between the Physician, HMFP, and/or
the Hospital relating to the subject matter hereof or any other employment or
contracting relationship between Dr. Warfield and HMFP or the Hospital."
Section 17 of the agreement, titled Arbitration, provides:
"Arbitration.
Any claim, controversy or dispute arising out of or in connection with this
Agreement or its negotiations shall be settled by arbitration. Each party hereto
shall designate an independent arbitrator and these two [ [FN5]] arbitrators
shall select a third independent arbitrator who shall be chairperson of the
panel. The arbitrators shall then conduct the arbitration at a mutually
acceptable site and a majority shall render a decision as to the matter in
dispute, which decision shall be binding on the parties hereto. Each party shall
bear the expense of its own arbitrator and an equal share of the expense of the
third arbitrator. To the extent not otherwise hereinabove provided, the
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The full rules of discovery shall
apply to any such proceeding.
"In no event, however, shall this Section 17 be deemed to preclude a party
hereto from instituting legal action seeking relief in the nature of a
restraining order, an injunction or the like in order to protect her or its
rights pending the outcome of an arbitration hereunder. With respect to matters
submitted to arbitration other than claims for payment of monies due, the
parties shall continue to perform their obligations hereunder relative to said
matters pending resolution of the dispute by arbitration."
Neither § 17 nor any other provision of the agreement made
reference to employment discrimination statutes or claims.
In the fall of 2001, BIDMC hired Dr. Josef Fischer to be chief of surgery. In
January, 2002, Paul Levy was hired as the president and chief executive officer
of BIDMC.
Warfield alleges in her complaint that during the next several years, Fischer
engaged in a relentless pattern of gender-based discriminatory treatment of her.
She also alleges that she repeatedly complained to Levy about Fischer's
treatment, but that no or insufficient action was taken. On July 18, 2007,
carrying out a decision made by Levy and BIDMC that Warfield characterizes as
"discriminatory and retaliatory in its motivation and defaming in its
effect," Levy terminated Warfield's appointment as
anesthesiologist-in-chief, effective immediately. Warfield further alleges that,
since her termination, BIDMC, Levy, and HMFP have "marginalize[d]" her
by collaborating to push her out of her job as a staff anesthesiologist at BIDMC,
and to deny her benefits to which she would have had access, absent the alleged
discriminatory and retaliatory treatment.
Warfield commenced this action in the Superior Court on March 7, 2008.
|
[FN6]
In her complaint, Warfield alleges claims of gender discrimination under
G.L. c. 151B, § 4(1), against BIDMC, Levy, and Fischer; retaliation
under G.L. c. 151B, § 4(4), against all defendants; tortious
interference with advantageous or contractual relations against BIDMC,
Levy, and Fischer; and defamation against BIDMC, Levy, and Fischer. Her
claims of tortious interference with contractual relations are entirely
based on the same alleged conduct that gave rise to Warfield's statutory
discrimination complaints. Her claims of defamation are primarily based
on the same conduct that gave rise to her statutory claims, although as
discussed below, Warfield additionally alleges that the defendants
continued to defame her even after her termination as
anesthesiologist-in-chief. |
The defendants moved to dismiss the case and to compel arbitration of Warfield's
claims pursuant to G.L. c. 251, § 2. [FN7] On September 15, 2008, a judge in
the Superior Court denied the defendants' motions. He concluded that the
arbitration clause did not reach Warfield's claims for gender discrimination and
retaliation because the agreement did not govern her employment relationship
with BIDMC and HMFP generally, but only the narrow topic of her duties as chief
of anesthesiology, and the claims of discrimination fell outside this narrow
topic. He also concluded that to the extent Warfield's claims concerned her
termination, they were not arbitrable because the agreement
provided specifically that it ended on Warfield's termination, and therefore the
arbitration clause would no longer be in effect.
The defendants appealed pursuant to G.L. c. 251, § 18 (a
) (1), which grants a right of interlocutory appeal from orders denying an
application to compel arbitration. We granted the defendants' application for
direct appellate review. We affirm the order of the Superior Court judge but for
different reasons.
2. Discussion. By its express terms,
the agreement is governed by Massachusetts law, and thus the Massachusetts
Arbitration Act (MAA) applies to it. At the same time, the agreement comes
within the scope of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006)
(FAA), because it concerns Warfield's employment as anesthesiologist-in-chief,
and the defendants, as hospital-based health care providers, are involved in
interstate commerce. See Miller v. Cotter,
448 Mass. 671, 678 (2007). In all relevant respects, the language of the FAA and
the MAA providing for enforcement of arbitration provisions are similar, and we
have interpreted the cognate provisions in the same manner. Id.
at 678- 679. The FAA provides in relevant part:
"A written provision in ... a contract evidencing a transaction involving interstate
commerce to settle by arbitration a controversy thereafter arising out of such
contract ... or the refusal to perform the whole or any part thereof ... shall
be valid, irrevocable and enforceable, save upon such grounds as exist at law or
in equity for the revocation of any contract."
9 U.S.C. § 2. [FN8]
Because procedures to compel arbitration under the FAA apply only in Federal
courts, we apply the MAA's procedures. See St.
Fleur v. WPI Cable Sys./ Mutron, 450 Mass. 345, 351-352 (2008). The MAA
authorizes proceedings in the Superior Court to compel arbitration in accordance
with the terms of an arbitration agreement, and permits an interlocutory appeal
from orders denying an application to compel arbitration. See G.L. c. 251, §§
2, 18. A defendant's motion to compel arbitration is treated summarily. [FN9]
See Miller v. Cotter, 448 Mass. at 676;
G.L. c. 251, § 2. We review the judge's order de novo. See Commonwealth
v. Philip Morris Inc., 448 Mass. 836, 844 (2007).
It is settled that the FAA allows for the arbitration of Federal employment
discrimination disputes, unless otherwise barred by law. See, e.g., Gilmer
v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24-26 (1991); Rosenberg
v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 170 F.3d 1, 19-20 (1st Cir.1999). We
have not had occasion to rule on whether employment discrimination claims
arising under G.L. c. 151B are arbitrable, but the parties here correctly assume
their arbitrability. The dispute before us concerns only whether the parties
have contractually agreed, in the agreement, to submit statutory claims of
discrimination to arbitration. See Mugnano-Bornstein
v. Crowell, 42 Mass.App.Ct. 347, 350 (1997), quoting Local
285, Serv. Employees Int'l Union v. Nonotuck Resource Assocs., Inc., 64
F.3d 735, 738 (1st Cir.1995) (Mugnano-Bornstein
) ("a party cannot be required to submit to arbitration any dispute which
he has not agreed ... to submit").
We apply general principles of State contract law to determine whether a
particular agreement requires arbitration of a claim. Mugnano-Bornstein,
supra. See Brennan v. King, 139
F.3d 258, 264 (1st Cir.1998), quoting First
Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 944 (1995) ("As with other issues involving the construction
of individual employment contracts, in determining whether a contract requires
arbitration, 'courts generally ... should apply ordinary state-law principles
that govern the formation of contracts' "). See also Volt
Info. Sciences, Inc. v. Trustees of
Leland Stanford Jr. Univ., 489 U.S. 468, 474-476, 477 (1989) (where
contract covered by FAA but choice of law clause provided California law would
govern, parties in effect incorporated California
arbitration rules into contract; under those rules, arbitration properly stayed
even though FAA would not have called for stay).
The arbitration clause in the agreement provides that "[a]ny claim,
controversy or dispute arising out of or in connection with this Agreement or
its negotiations shall be settled by arbitration." Federal as well as State
law and policy favor arbitration. See Moses H.
Cone Memorial Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983) (Federal); Miller
v. Cotter, 448 Mass. at 676 (Commonwealth). This policy generally
instructs us that where a contract has an arbitration clause that is
"broad" in its reach, there is a rebuttable presumption that a
contract dispute is covered by the clause, and doubts whether a particular
dispute comes within the scope of the clause should be resolved in favor of
arbitration. See Drywall Sys., Inc. v. ZVI
Constr. Co., 435 Mass. 664, 666-667 (2002). See also Commonwealth
v. Philip Morris Inc., 448 Mass. at 843-844. Cf. Local
No. 1710, Int'l Ass'n of Fire Fighters v. Chicopee, 430 Mass. 417,
421-422 (1999). [FN10] In a number of contexts, we have construed the phrase
"arising out of" and similar phrases (e.g., "connected to,"
or "relating to") in an arbitration clause as constituting
"broad" language that invokes the FAA's (and MAA's) presumption in
favor of arbitration. See, e.g., Commonwealth
v. Philip Morris Inc., supra at 844-845 (settlement
agreement between Commonwealth and tobacco companies providing for arbitration
of disputes "arising out of" or "relating to" calculation of
companies' annual payments required arbitration of claim under agreement); Drywall
Sys., Inc. v. ZVI Constr. Co., supra
at 666 (construction subcontracts between general contractor and subcontractor
providing for arbitration of claims "arising out of or relative to"
subcontracts required arbitration of all parties' construction project claims,
including claim under G.L. c. 93A). However, this court has never been called on
to interpret the scope of such language when used in an employment agreement's
arbitration clause where the employee raises claims of discrimination under G.L.
c. 151B. Cf. Mugnano-Bornstein, 42
Mass.App.Ct. at 351-353. [FN11]
Our State law principles of contract interpretation make clear that
considerations of public policy play an important role in the interpretation and
enforcement of contracts. See Feeney v. Dell
Inc., ante 192, 193 (2009) (Commonwealth's strong public policy
supporting ability of consumers to bring class actions as means of seeking
remedy for unfair or deceptive commercial conduct rendered unenforceable sales
contract arbitration provision barring class actions). See also, e.g., A.Z.
v. B.Z., 431 Mass. 150, 160 (2000); Beacon
Hill Civic Ass'n v. Ristorante Toscano, Inc., 422 Mass. 318,
320-322 (1996). The Commonwealth has an "overriding governmental policy
proscribing various types of discrimination, set forth in G.L. c. 151B." Massachusetts
Bay Transp. Auth. v. Boston Carmen's
Union, Local 589, ante 19, 26, 29 (2009). Section 9 of G.L. c. 151B, the
Commonwealth's antidiscrimination law, states expressly that it is to "be
construed liberally for the accomplishment of its purposes, and any law
inconsistent with any provision of [c. 151B] shall not apply." The statute
not only establishes substantive rights, but also makes available to an
aggrieved party comprehensive administrative as well as judicial avenues of
redress for substantive statutory violations. [FN12] Thurdin
v. SEI Boston LLC, 452 Mass. 436, 441-442 (2008). See Ayash
v. Dana Farber Cancer Inst., 443 Mass. 367, 391-392, cert. denied sub
nom. Globe Newspaper Co. v. Ayash,
546 U.S. 927 (2005) (G.L. c. 151B is "comprehensive statute enacted to
provide judicial and administrative remedies for destructive acts of
discrimination in the workplace").
Consistent with the public policy against workplace discrimination reflected in
G.L. c. 151B, we conclude that an employment contract containing an agreement by
the employee to limit or waive any of the rights or remedies conferred by c.
151B is enforceable only if such an agreement is stated in clear and
unmistakable terms. [FN13] See Garfinkel v.
Morristown Obstetrics & Gynecology
Assocs.,P.A., 168 N.J. 124, 130-132 (2001) (plaintiff physician's
gender-based discrimination claims against defendant employer not subject to
arbitration under arbitration clause in employment contract where terms of
contract not sufficiently clear to constitute waiver of plaintiff's remedies
under New Jersey antidiscrimination law).
The interpretive rule we state here is not inconsistent with the presumption of
arbitrability embedded in the FAA. That presumption signifies that "in
applying general state-law principles of contract interpretation to the
interpretation of an arbitration agreement within the scope of the [FAA] ... due
regard must be given to the federal policy favoring arbitration, and ambiguities
as to the scope of the arbitration clause itself resolved in favor of
arbitration." Volt Info. Sciences, Inc.
v. Trustees of Leland Stanford Jr. Univ.,
489 U.S. at 475-476. Accord Moses H. Cone
Memorial Hosp. v. Mercury Constr.
Corp., 460 U.S. at 24-25. But the purpose of the FAA was and is "to
reverse the longstanding judicial hostility to arbitration agreements that had
existed at English common law and had been adopted by American courts, and to
place arbitration agreements upon the same footing as other contracts." Gilmer
v. Interstate/Johnson Lane Corp., 500 U.S. at 24. See Dean
Witter Reynolds Inc. v. Byrd,
470 U.S. 213, 219-220 & n. 6 (1985); St.
Fleur v. WPI Cable Sys./Mutron, 450 Mass. at 349. The concern was to
enforce private agreements to arbitrate according to their
terms, not to encourage arbitration of contractual disputes for its own sake.
See Volt Info. Sciences, Inc. v. Trustees
of Leland Stanford Jr. Univ., supra at 474-475. See also Dean
Witter Reynolds Inc. v. Byrd, supra
at 221.
Our interpretive rule states only that as a matter of the Commonwealth's general
law of contract, a private agreement that purports to waive or limit-- whether
in an arbitration clause or on some other contract provision--the employee's
otherwise available right to seek redress for employment discrimination through
the remedial paths set out in c. 151B, must reflect that intent in unambiguous
terms. [FN14] In relation to an arbitration clause, the rule continues to uphold
the language and generous spirit of the FAA and the Commonwealth's own public
policy in favor of arbitration agreements: parties to an employment contract are
free to agree on arbitration of statutory discrimination claims, and the
presumption of arbitrability is in effect. However, parties seeking to provide
for arbitration of statutory discrimination claims must, at a minimum, state
clearly and specifically that such claims are covered by the contract's
arbitration clause. [FN15], [FN16]
A recent decision of the United States Supreme Court supports our view that an
intent to arbitrate statutory employment discrimination claims should be clearly
stated in order to be enforced. See 14 Penn
Plaza LLC v. Pyett, 129 S.Ct. 1456 (2009). The 14
Penn Plaza case concerned a collective bargaining agreement, and although
we are aware of the significant differences between collective bargaining
agreements and individual employment contracts, the Supreme Court's decision is
instructive. The Court upheld the validity of agreements to arbitrate statutory
discrimination claims in a NLRA-governed collective bargaining agreement, so
long as the agreement to arbitrate such claims is "explicitly stated"
in the agreement. [FN17] Id. at 1465.
In reaching this conclusion, the Court stated that "[n]othing in the law
suggests a distinction between the status of arbitration agreements signed by an
individual employee and those agreed to by a union representative." Id.
We return to the agreement in this case to determine whether its arbitration
clause or any other of its provisions reflect a clear intent to subject
statutory discrimination claims to arbitration. [FN18] Section 17, the
arbitration clause, requires arbitration of any dispute "arising out of or
in connection with this Agreement or its negotiations." The phrase,
"arising out of or in connection with the Agreement or its
negotiations" is not defined.
Contrary to the dissent, our review of the agreement does not persuade us that
the arbitration clause at issue covers claims of statutorily based gender discrimination
and retaliation under c. 151B. The clause refers to disputes arising out of or
concerning the agreement or negotiations leading to the agreement rather than
concerning employment generally, and it seems to presume a continuing working
relationship even as disputes pertaining to the provisions of the agreement
would be resolved through arbitration. [FN19] Read as a whole, the contract
language chosen by the parties suggests an intent to arbitrate disputes that
might arise from or be connected to the specific terms of the agreement itself;
there is no contractual term dealing with discrimination. It is true, as the
defendants point out, that the agreement has in effect an integration clause in
§ 19 stating that the agreement "supersedes any and all previous
discussions, understandings or agreements between [Warfield], HMFP and/or [BIDMC]
relating to the subject matter hereof or any other employment or contracting
relationship between Dr. Warfield and HMFP or [BIDMC]." This provision does
reference Warfield's "employment" generally, but it sheds no light on
the nature or scope of any previous discussions, understandings, or agreements
that she may have had with the defendants. More to the point we discuss in this
opinion, there is nothing in the arbitration clause or elsewhere in the
agreement stating that any claims of employment discrimination by Warfield are
subject to arbitration. We thus conclude that the terms of the agreement are
insufficiently clear to constitute an enforceable agreement by Warfield to
arbitrate her claims that the defendants violated her
rights under G.L. c. 151B. [FN20]
Having concluded that Warfield's statutory claims are not covered by the
arbitration clause of the agreement, we turn to her common-law claims. Warfield
alleges tortious interference with contractual relations and defamation against
defendants BIDMC, Levy, and Fischer. Her claim of tortious interference with
contractual relations is based entirely on the same conduct that is the basis
for her claims pursuant to G.L. c. 151B. Her defamation claim is based on
statements allegedly made by the defendants both prior to and subsequent to her
termination. However, the posttermination comments are inextricably intertwined
with her termination, because, as previously noted, the gist of Warfield's
allegations is that the defendants have defamed her in the course of their
attempts to justify to others their decision to terminate Warfield and as they
carried out those provisions in the agreement pertaining to her posttermination
status as a hospital physician.
We recognize that in appropriate instances, a plaintiff's complaint may be
resolved through arbitration of those claims that are covered by an arbitration
clause and litigation of those claims that are not so covered, despite the lack
of efficiency of such an outcome. See Miller
v. Cotter, 448 Mass. at 685, 686 (that arbitration agreement may result
in actions brought in two forums and thereby be
"inconvenient, duplicative, or inefficient" is not determinative if it
is "necessary result" of choice made when parties entered into
arbitration agreement). See also Dean Witter
Reynolds Inc. v. Byrd, 470 U.S.
at 220- 221. However, proceeding in two forums is not proper where, as here,
Warfield's common-law claims are so integrally connected to her c. 151B claims.
Cf. Mouradian v. General Elec. Co., 23
Mass.App.Ct. 538, 543 (1987) (although plaintiff brought several claims under
various tort and contract theories, common-law claims were merely c. 151B age
discrimination claims dressed "in several different outfits"). Here,
the evidence that Warfield would introduce in support of her statutory claims is
virtually identical to the evidence she would introduce to support her
common-law claims. All of Warfield's claims should therefore be resolved in one
judicial proceeding. See Garfinkel v.
Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. at 137
(physician's claims of tortious interference with his economic advantage and
defamation should be resolved in same court proceeding as his claims of
statutory discrimination).
In light of the foregoing, we do not reach the issue whether the employment
agreement would require Warfield to arbitrate her claims against Levy and
Fischer.
Order denying motions to
dismiss and to compel arbitration affirmed.
COWIN, J. (dissenting).
I agree with the court that discrimination claims are arbitrable. While G.L. c.
151B creates substantive rights, and provides both judicial and administrative
remedies, there is no legal principle that precludes a potential plaintiff from
agreeing that his or her claims shall be arbitrated instead. Indeed, while
arbitration clauses in employment agreements are generally inserted at the
employer's behest, arbitration may well bring about a speedier, less expensive,
less stressful result from which an employee may be able to benefit. I accept
also that, as in the case of any arbitration, the parties must agree that a
given dispute is to be arbitrated rather than left to administrative or judicial
proceedings. In other words, arbitration cannot be imposed unilaterally; it is a
product of a mutual understanding.
Where I depart from the court is with its conclusion that the arbitration clause
in this employment agreement does not reflect the consent of all parties to
arbitrate discrimination claims. The arbitration provision applies to "[a]ny
claim, controversy or dispute arising out of
or in connection with this Agreement
" (emphasis supplied). Had there been no employment agreement, the plaintiff
would have had no claims. Thus, I fail to understand how there can be doubt that
the plaintiff's claims arise out of the contract or in connection with it. Nor
do I rest this conclusion on the policy favoring arbitration of disputes, though
that policy provides additional support; I rely only on what appears to me to be
language that is free of ambiguity.
The court pays lip service to the intent of the parties, and then refuses to
enforce the clearly stated intent on the basis of its public policy views. In so
doing, the court, in my opinion, exaggerates the significance of
antidiscrimination claims as opposed to other claims of equal importance to
those who assert them. That G.L. c. 151B "shall be construed liberally for
the accomplishment of its purposes, and any law inconsistent with any provision
of this chapter shall not apply," G.L. c. 151B, § 9, repeats an admonition
found in a number of our statutes, [FN1] and cannot fairly be interpreted to
place G.L. c. 151B in a special category insofar as arbitration clauses are
concerned. Nor does the nature of antidiscrimination claims require a special
approach. We readily enforce the arbitration of constraint, tort, consumer and
other claims without insisting on special language in the applicable arbitration
agreements, and I see no principled reason, other than the court's preference
for the subject matter, why antidiscrimination claims should be treated
differently.
The court characterizes its "interpretive rule" as leaving
"parties to an employment contract ... free to agree on arbitration of
statutory discrimination claims, and the presumption of arbitrability is in
effect, but in this context, that presumption comes into play only when the
parties express their intent to arbitrate these claims clearly and
specifically." Ante at,--. In my
opinion, the parties before us have done so. When they entered the agreement,
they stated that they agreed to arbitrate "[a]ny claim, controversy or
dispute arising out of or in connection with this Agreement." They could
hardly expect that the court would rewrite their agreement for them by insisting
on a redrafting of contractual language that plainly expresses their purpose. We
can only wonder what type of claims will be singled out next for such treatment.
Accordingly, I respectfully dissent.
|
FN1.
Paul F. Levy; Harvard Medical Faculty Physicians at Beth Israel
Deaconess Medical Center, Inc.; and Josef E. Fischer. |
|
FN2.
We acknowledge the amicus briefs filed by New England Legal Foundation
and Associated Industries of Massachusetts on behalf of the defendants;
and by the American Civil Liberties Union of Massachusetts, Lawyers'
Committee for Civil Rights Under the Law of Boston Bar Association, and
the National |
|
Employment
Lawyers Association, Massachusetts Chapter, on behalf of the plaintiff. |
|
FN3.
The parties to Warfield's employment agreement (agreement) were all
represented by counsel in connection with its negotiation and drafting. |
|
FN4.
The language of the agreement on this point is that "the Physician
[Warfield] shall render services as an employee of HMFP to the Hospital
and HMFP consistent with the terms of this Agreement." |
|
FN5.
There were three rather than two parties to the agreement: Warfield,
Beth Israel Deaconess Medical Center, Inc. (BIDMC), and Harvard Medical
Faculty Physicians at Beth Israel Deaconess Medical Center, Inc. (HMFP).
The language in the arbitration clause providing that "[e]ach
party" is to select an independent arbitrator might suggest that
there be three rather than two independent arbitrators chosen by the
parties, but the agreement clearly does not so provide. |
|
FN6.
Warfield filed a complaint of discrimination with the Massachusetts
Commission Against Discrimination (MCAD) on December 4, 2007; the
complaint named BIDMC, HMFP, Josef Fischer, and Paul Levy as
respondents. Pursuant to |
|
G.L.
c. 151B, § 9, she filed her complaint in the Superior Court against the
same parties a little over ninety days later, and her complaint before
the MCAD was dismissed. |
|
FN7.
BIDMC and Levy also moved to dismiss the case on other grounds that are
not relevant to this appeal. |
|
FN8.
The Massachusetts Arbitration Act (MAA), G.L. c. 251, § 1, in turn,
provides in pertinent part: |
|
"A
written agreement to submit any existing controversy to arbitration or a
provision in a written contract to submit to arbitration any controversy
thereafter arising between the parties shall be valid, enforceable and
irrevocable, save upon such grounds as exist at law or in equity for the
revocation of any contract." |
|
FN9.
The defendants did not request any evidentiary hearing to support their
motion to dismiss and compel arbitration. We therefore analyze the facts
alleged as we would a motion to dismiss. |
|
FN10.
This court's decision in Local No.
1710, Int'l Ass'n of Fire Fighters v. Chicopee, 430 Mass.
417(1999), concerned a public sector collective |
|
bargaining
agreement, not a private employment contract. Nevertheless, this case is
often cited as the State law source, or at least an important source, of
the principle that the presumption of arbitrability applies to a private
agreement. |
|
FN11.
In Mugnano-Bornstein v. Crowell,
42 Mass.App.Ct. 347 (1997) (Mugnano-Bornstein
), the Appeals Court addressed the question whether the arbitration
clause in the plaintiff's employment agreement covered her claims of
sexual harassment and gender discrimination in violation of G.L. c. 93
and G.L. c. 151B. The clause provided in relevant part: "I hereby
agree that any controversy arising out of or in connection with my
compensation, employment or termination of employment shall be submitted
to arbitration...." Id. at
348 n. 3. The employment agreement did not contain any specific
reference to claims of sexual harassment or gender discrimination.
Stating that the comprehensive scope of the arbitration clause created a
presumption of arbitrability, the Appeals Court concluded that the
clause covered the plaintiff's claims because they arose out of her
employment and later termination from her job. Id.
at 352-353. Federal courts have similarly construed comparable language
in arbitration clauses of employment agreements. See, e.g., Myrick
v. GTE Main Inc., 73 F.Supp.2d 94, 95 (D.Mass.1999). For reasons
discussed infra, and applying
Massachusetts rules of contract interpretation, we do not adopt |
|
Mugnano-Bornstein
's analysis. |
|
FN12.
The administrative avenue includes provisions for the MCAD to (1)
prosecute the discrimination claim on behalf of the complainant and to
vindicate the public interest, (2) award damages to the complainant in
appropriate cases for emotional distress, and (3) fashion equitable
remedies intended to promote the broader public interest in eliminating
employment discrimination. See G.L. c. 151B, §§ 5, 6. See also Stonehill
College v. Massachusetts Comm'n Against Discrimination, 441 Mass.
549, 563, cert. denied sub nom. Wilfert
Bros. Realty Co. v. Massachusetts
Comm'n Against Discrimination, 543 U.S. 979 (2004). The judicial
remedy includes the right to a speedy trial, see c. 151B, § 9, as well
as rights generally available in a judicial forum such as the right to a
jury trial, full discovery limited only by the Massachusetts Rules of
Civil Procedure, and full appellate review. |
|
FN13.
While not an issue in this case, it seems obvious that in view of the
strength of the Commonwealth's policy against employment discrimination,
no employment contract purporting to waive entirely an employee's right
to assert or seek any redress for a claim of discrimination, no matter
how unambiguously the waiver might be stated, would be entitled to
enforcement. Cf. Spence v. Reeder,
382 Mass. 398, 412 (1981) ("courts have long refused to give effect
to |
|
purported
waivers of statutory rights where enforcement of particular waiver would
do violence to the public policy underlying the legislative
enactment"); Canal Elec. Co.
v. Westinghouse Elec. Corp.,
406 Mass. 369, 378 (1990), quoting Spence
v. Reeder, supra at 413. A more limited contractual waiver is a
different matter. An agreement to arbitrate employment discrimination
claims represents a limited waiver of rights under G.L. c. 151B. An
employee who agrees to arbitrate such a claim of course does not forgo
the substantive rights afforded by the statute, see generally Mitsubishi
Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985), but does give
up the substantial right to seek administrative or judicial remedies.
Because it is not raised here, we do not reach the question whether, in
view of our public policy proscribing employment discrimination, any
additional protections beyond unambiguous language may be necessary
before an employment contract may provide for limitations on the rights
and remedies spelled out in G.L. c. 151B. |
|
FN14.
We recognize that where the FAA applies, it would preempt a conflicting
State law--one that might, for example, bar arbitration or authorize a
party to proceed in a judicial forum regardless of the party's having
entered into an agreement to arbitrate. See, e.g., Perry
v. Thomas, 482 U.S. 483, 490-492 (1987). We also appreciate that
a State court cannot |
|
invalidate
an arbitration agreement in a private contract pursuant to a State law
or policy that applies only to
arbitration agreements when doing so would be in conflict with the FAA.
See Doctor's Assocs., Inc. v. Casarotto,
517 U.S. 681, 687 (1996). As indicated in the text, however, our rule of
contract interpretation neither bars agreements to arbitrate employment
discrimination disputes nor applies only to arbitration clauses. |
|
FN15.
The Supreme Court, which frequently has instructed all State and Federal
courts to address questions of arbitrability "with a healthy regard
for the federal policy favoring arbitration," Moses
H. Cone Mem. Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983), has very recently observed
that this is a "vague prescription" with an opaque meaning. Arthur
Andersen LLP v. Carlisle, 129 S.Ct. 1896, 1902 n. 5 (2009). In
any event, an appropriately respectful regard for the Federal policy
favoring arbitration does not require arbitration where an agreement is
so vaguely or generally worded that an employee would not know that she
had waived her right to pursue statutorily available administrative and
judicial remedies. Cf. Campbell v.
General Dynamics Gov't Sys. Corp., 407 F.3d 546, 559 (1st
Cir.2005) ("an employer who takes a barebones approach to affording
notice [of what claims are subject to arbitration] runs the risk that
its efforts will fall short"). |
|
FN16.
We emphasize that we deal here with what we have termed an
"overriding" statutorily expressed, public policy against
discrimination. Massachusetts Bay
Transp. Auth. v. Boston
Carmen's Union, Local 589, ante 19, 26 (2009). The presumption of
arbitrability that accompanies the use of a "broad"
arbitration clause, articulated in our cases such as Drywall
Sys., Inc. v. ZVI Constr. Co.,
435 Mass. 664, 666 (2002), serves the purpose of generally providing
interpretive guidance to contracting parties and avoiding or at least
reducing the need for frequent litigation over whether a particular
dispute is or is not covered by a particular arbitration clause. But the
countervailing public policy reflected in G.L. c. 151B of protecting
against employment discrimination and offering employees comprehensive
administrative and judicial remedies is so strong that, in our view, it
calls for distinct treatment. Our conclusion in this case should not be
understood to suggest that parties entering into an employment (or any
other) contract must specifically list every possible statutory claim
that might arise or else the claim will not be covered by an otherwise
"broad" arbitration clause. |
|
FN17.
In 14 Penn Plaza LLC v. Pyett,
129 S.Ct. 1456 (2009), the Supreme Court concluded that Federal law
permits a collective bargaining agreement to compel arbitration of
claims alleging statutory discrimination, provided the provision is
clearly stated. Id. at 1474.
The four dissenting Justices |
|
disagreed
with the Court's holding that a collective bargaining agreement could
waive an individual's right to court access for individually based
statutory claims (and further disagreed with the Court's description of
the Supreme Court's precedent), but they did not challenge the clarity
of the notice provided by the collective bargaining agreement under
review in the case. Id. at
1476-1481 (Souter, J., dissenting, with whom Stevens, Ginsburg, &
Breyer, JJ., joined). |
|
FN18.
As indicated at the outset, the agreement expressly provides that it is
to be "governed by the laws of the Commonwealth of
Massachusetts," and therefore the rule of contract interpretation
discussed above applies to it. Cf. Volt
Info. Sciences, Inc. v. Trustees
of Leland Stanford Jr. Univ., 489 U.S. 468, 472, 474-477 (1989). |
|
FN19.
Section 17 specifies that "[w]ith respect to matters submitted to
arbitration other than claims for payment of monies due, the parties
shall continue to perform their obligations hereunder relative to said
matters pending resolution of the dispute by arbitration." |
|
FN20.
In reaching this conclusion, we thus agree with the Superior Court judge
that the defendants' motions to compel arbitration should be denied. We |
|
do
not agree, however, with the judge's conclusion that Warfield's
statutory discrimination claims relating to her termination are
separately barred from arbitration on the grounds that the employment
agreement itself ended and was nonoperative when Levy terminated
Warfield's service as anesthesiologist-in-chief. Agreements to arbitrate
are separable from and generally survive the termination of the
underlying contract. See, e.g., Buckeye
Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 445-446 (2006) (arbitration provisions "are
enforceable apart from the remainder of the contract"); Mendez
v. Trustees of Boston Univ., 362 Mass. 353, 356 (1972)
(termination of contract does not necessarily terminate provision for
arbitration; "[s]uch a provision should be construed as broadly as
the parties intended"). Cf. Nolde
Bros. v. Local No. 358, Bakery
& Confectionery Workers Union, 430 U.S. 243, 253-255 (1977)
(recognizing presumption that arbitration clause in collective
bargaining agreement remains available for resolution of disputes after
agreement itself has terminated). |
|
FN1.
See, e.g., St.1978, c. 512 ("claims and indemnity procedure for the
Commonwealth, its municipalities, counties and districts"). As to
liberal construction, see, e.g., G.L. c. 175A, § 2; G.L. c. 174A, § 2. |
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