Employment – MCRA – Preemption

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Where a defendant employer has moved to dismiss a plaintiff’s Massachusetts Civil Rights Act claim, the motion should be allowed because that claim is preempted by Chapter 151B and because the plaintiff has failed to allege cognizable threats, intimidation or coercion.

“Plaintiff Kristine Gordon-Johnson (‘Gordon-Johnson’) filed this six-count lawsuit against her former employer, Defendant Clinical & Support Options, Inc. (‘CSO’). Gordon-Johnson brings forth claims of disability discrimination and failure to accommodate as well as retaliation for engaging in a protected activity under 42 U.S.C. §12112 (the ‘ADA’) and under M.G.L. Chapter 151B §4 (‘Chapter 151B’ or ‘151B’). Further, she claims she is entitled to relief under the Massachusetts Civil Rights Act, M.G.L.c. 12, §111 (‘MCRA’), and under a breach of contract theory.

“CSO now moves to dismiss Count V (violation of the MCRA) and Count VI (breach of contract) [ECF No. 9]. …

“Gordon-Johnson brings two claims under Chapter 151B (Counts III and IV), as well as a claim under the MCRA (Count V). The Court finds that Count V must be dismissed for two reasons, set forth below. …

“… Section 9 establishes Chapter 151B as the exclusive remedy in employment discrimination cases and preempts all other civil actions based on the same conduct. … Courts considering whether a Plaintiff’s Chapter 151B claim preempts a claim under the MCRA must assess whether the two claims are based on the same facts and events. … Gordon-Johnson’s MCRA claim is based on the same events and facts as her 151B claims her MCRA claim is preempted. …

“Because Gordon-Johnson fails to allege cognizable ‘threats, intimidation, or coercion’ for her MCRA claim, she has also failed to state a claim on which relief can be granted. …

“… As an at-will employee, Gordon-Johnson is unable to plead her threatened loss of employment or her ultimate termination as evidence of threats, intimidation, or coercion under the MCRA. Accordingly, for this additional reason, the Court grants Defendant’s motion to dismiss with respect to Count V. …

“Similar to her MCRA claim, Gordon-Johnson’s breach of contract claim is also preempted by 151B. … Just as she did with the MCRA claim, Gordon-Johnson submits the same facts to prove her breach of contract claim as she does to prove her 151B claims. … Under this framing, Gordon-Johnson will have to use the same evidence for Count VI that she posits to prove her Count III claim, disability discrimination under 151B, and her Count IV claim, unlawful retaliation under 151B.

“… As the complaint stands, Gordon Johnson’s breach of contract claim derives from seeking accommodations and disability discrimination — the same allegations that she puts forth for her Chapter 151B claims.

“Despite this, Gordon-Johnson tries to argue that Massachusetts courts have frequently allowed complaints alleging violations of 151B and breach of contract claims originating from non-discrimination policies to proceed together in the same lawsuit. Specifically, she cites Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24 (Mass. 2016), where the Massachusetts Supreme Judicial Court (‘SJC’) reviewed a grant of summary judgment against a plaintiff who had claims of both employment discrimination in violation of 151B, and a breach of contract claim based on his termination. In the opinion, the SJC does not mention or discuss preemption, and Gordon-Johnson argues that this silence plus the court’s allowance of both claims to move forward indicates that preemption should not be applied here. … In Bulwer, though, the plaintiff alleged a breach of contract in five ways. … The first was an allegation of failing to comply with the non-discrimination policy, but the remaining four allegations were breaches that had nothing to do with the non-discrimination policy. … Alternatively, in Gordon-Johnson’s case, she has alleged no violation of CSO’s contractual obligations other than ‘discrimination, harassment, and retaliation based on, among other things, physical or mental handicap or disability.’ … Since the discriminatory conduct is the only source of Gordon-Johnson’s breach of contract claim, it is also preempted by 151B. Accordingly, the Court grants the defendant’s motion to dismiss with respect to Count VI.”

Gordon-Johnson v. Clinical & Support Options, Inc. (Lawyers Weekly No. 02-084-25) (13 pages) (Guzman, J.) (Docket No. 4:24-cv-40050 MRG) (Feb. 14, 2025).

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