Judge: comp exclusivity doesn’t bar workplace IIED action

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The exclusivity provision of the Massachusetts Workers’ Compensation Act did not bar a claim that a plumbing supply wholesaler intentionally inflicted emotional distress in the course of retaliating against a sales representative for testifying in support of a co-worker’s allegation of race discrimination, a U.S. District Court judge has ruled.

Plaintiff Timothy Sheldon sued F.W. Webb Co. for retaliation in violation of federal and state law in response to his termination after he testified before the Massachusetts Commission Against Discrimination in support of a Black co-worker’s bias claim. The plaintiff’s suit included multiple state law claims, including a claim for intentional infliction of emotional distress predicated on alleged conduct by his purported supervisors, co-defendants Michael Perry, F.W. Webb’s general manager, and Ryan Milliken.

F.W. Webb filed a partial motion to dismiss, contending that the plaintiff’s intentionally inflicted emotional distress, or IIED, claim was precluded by the exclusivity provision of the Workers’ Compensation Act.

Judge Margaret R. Guzman rejected that argument.

“Here, Plaintiff Sheldon is an employee of F.W. Webb, asserting that he suffered from IIED by Defendants Perry and Milliken as a retaliatory result of Sheldon’s testimony for MCAD,” Guzman wrote. “Massachusetts courts do not consider unlawful acts of discrimination and retaliation to be within the scope of employment. Therefore, Plaintiff’s IIED claim is not barred by the Act.”

Guzman nonetheless granted the motion to dismiss the IIED claim, finding the allegations in the plaintiff’s complaint failed to raise a plausible basis for relief.

The 20-page decision is Sheldon v. F.W. Webb Company, Lawyers Weekly No. 02-534-25.

All that matters is result

Boston attorney James M. Nicholas, who represents F.W. Webb, said he and his client were pleased with the ruling with respect to the plaintiff’s IIED claim, notwithstanding Guzman’s ruling that workers’ compensation exclusivity did not apply.

“There is caselaw both ways on this issue,” Nicholas said. “Ultimately, the decision to dismiss that claim was premised exclusively on the plaintiff’s failure to plead appropriately.”

Nicholas expressed confidence with respect to the remaining claims in the plaintiff’s case.

“My client and I are very confident that once discovery is completed and all of the facts related to Mr. Sheldon and his employment with F.W. Webb are revealed, it will be determined that my client has done absolutely nothing wrong here,” he said.

Needham attorney Timothy M. Burke, who represents the plaintiff, did not respond to a request for comment.

The court drew an appropriate line for the application of workers’ compensation exclusivity to claims involving assertions of emotional harm, according to Ana I. Munoz, an employment attorney in Boston.

“Because this is the kind of emotional distress injury that touches upon other areas of public policy, those injuries are outside the core of what workers’ compensation was designed to protect,” she said.

Because this is the kind of emotional distress injury that touches upon other areas of public policy, those injuries are outside the core of what workers’ compensation was designed to protect.

— Ana I. Munoz, Boston

Springfield employment attorney Marylou Fabbo said Guzman’s decision on workers’ comp exclusivity was consistent with existing precedent and the policies underlying the Workers’ Compensation Act.

“The workers’ compensation statute is the exclusive remedy for workplace claims that have arisen out of and in the course of employment,” Fabbo said. “It generally applies to negligence claims. Here we have an exception where there’s an actual intent to do harm. The courts have said the intentional aspect of [a claim] means the employee is not furthering the interests of the employer and therefore it is not covered by the statute.”

Race discrimination complaint

According to the plaintiff’s complaint, he worked for 11 years at F.W. Webb before being terminated in January 2024. In 2021, the plaintiff worked as an inside sales representative at F.W. Webb’s Auburn location.

The plaintiff alleged that while working at the company, he would routinely hear discriminatory comments directed at a Black co-worker, Stephen Devlin. In April 2021, Devlin filed an internal complaint alleging he was being subjected to discriminatory comments and conduct by his co-workers.

The plaintiff confirmed Devlin’s discrimination claims in the course of being interviewed as part of an internal investigation at the company. The information provided by the plaintiff during the investigation was allegedly shared with the F.W. Webb management team, including Perry and Milliken.

In a footnote, Judge Guzman explained that the plaintiff in his complaint did not explicitly state that Perry and Milliken were his “supervisors,” describing them generally as management figures who had the authority to approve his time-off requests. The judge wrote that, nevertheless, she would construe Perry and Milliken as the plaintiff’s supervisors for purposes of her order.

In May 2022, Devlin filed a race bias claim against F.W. Webb with MCAD. In August 2023, the plaintiff submitted a witness statement with MCAD in support of Devlin’s claims.

The plaintiff alleged that, in September 2023, a human resources employee for F.W. Webb interviewed him to discuss his testimony before MCAD. The plaintiff alleged that the information he provided during that interview was communicated to company management, including Perry and Milliken.

The plaintiff alleged that, a week later, Perry called him into his office where he chastised him for testifying on behalf of Devlin. According to the plaintiff, Perry told him his actions violated company policy and that he should find another job.

The plaintiff alleged that, in October, Milliken called him into his office. The plaintiff alleged that Milliken told him Perry could “become a felon overnight with the guns that he owned if certain laws get passed.” The plaintiff said he interpreted that comment and other comments by Milliken as efforts to threaten, intimidate and coerce him for his refusal to sign an affidavit refuting his MCAD testimony.

The plaintiff alleged additional incidents at work involving Milliken and Perry that made him feel isolated or threatened.

For example, following his October meeting with Milliken, the plaintiff alleged that Milliken called him a “smart ass” in front of co-workers, prompting Perry to approach the plaintiff from behind, place his hands on the back of his neck, and call him into his office for another meeting.

The plaintiff alleged that he found the “invasion of his personal space” by Perry to be threatening.

F.W. Webb terminated the plaintiff on Jan. 16, 2024. According to the plaintiff, the company made several false allegations to justify his firing, including the use of a fabricated customer complaint against him.

In November 2024, after filing his own complaint for discrimination before MCAD, the plaintiff sued F.W. Webb, Milliken and Perry for discrimination in Middlesex Superior Court. The defendants thereafter removed the case to federal court.

The plaintiff’s suit asserted claims alleging retaliation under both Title VII and Chapter 151B. In addition, the plaintiff asserted state law claims for IIED, intentional interference with advantageous business relations, hostile work environment in violation of Chapter 51B, aiding and abetting in violation of Chapter 151B, and interference, coercion or intimidation in violation of Chapter 151B.

In its partial motion to dismiss, F.W. Webb refrained from seeking dismissal of the retaliation claims under federal and state civil rights laws.

Exclusivity doesn’t apply

In rejecting F.W. Webb’s assertion of workers’ compensation exclusivity, Guzman said that, under G.L.c. 152, the Workers’ Compensation Act provides the exclusive remedy for workplace personal injury claims, barring common law claims that fall within its scope.

“The Act’s exclusivity applies where (1) the plaintiff is an employee, (2) the plaintiff’s condition is a ‘personal injury’ as defined in the act and (3) the injury is shown to have arisen out of and in the course of employment,” Guzman wrote.

In arguing for the application of workers’ comp exclusivity to bar the plaintiff’s IIED claim, defense attorney Nicholas cited in his client’s brief the Supreme Judicial Court’s 1987 decision in Foley v. Polaroid Corp. The plaintiff in that case asserted an IIED claim based on alleged wrongful conduct by the employer in investigating an alleged rape committed in the workplace by the plaintiff.

The court concluded the plaintiff’s severe emotional distress resulting from the employer’s conduct relative to instigating criminal charges of rape for which the plaintiff was ultimately acquitted was compensable under the act as a “personal injury arising out of and in the course of … employment.”

Accordingly, the court held that no action for intentional infliction of mental distress could be maintained.

However, Guzman found the SJC’s 1987 decision in O’Connell v. Chasdi and subsequent decisions interpreting O’Connell as particularly instructive. In O’Connell, the court recognized an exception to the exclusivity provision for when an employee brings “an action against a fellow employee who commits an intentional tort which was is no way within the scope of employment furthering the interests of the employer.”

With respect to the alleged actions of Milliken and Perry, Guzman was persuaded by the 1998 U.S. District Court decision in LeGoff v. Trustees of Boston University. In LeGoff, the court found unlawful acts such as discrimination, threats and retaliation are not deemed to be within the scope of a supervisor’s duties.

Concluding that the plaintiff’s IIED claim was not barred by the Workers’ Compensation Act, Guzman turned to the question of whether the plaintiff’s complaint stated a plausible claim for relief. She found it did not.

Specifically, the judge found the complaint failed to plausibly allege the level of severe misconduct necessary to support an IIED claim.

“An inference can be made from the filings that Defendants intended to cause Sheldon fear with their reference to firearms, and when Defendant Perry approached Plaintiff from behind and placed his hands on the back of his neck,” Guzman wrote. “However, these allegations fail to reach the high bar of extreme and outrageous conduct.”

Moreover, in granting F.W. Webb’s motion to dismiss the IIED claim, Guzman cited the lack of any factual allegation in the complaint concerning the nature and severity of emotional distress allegedly suffered by the plaintiff.