Constructive Discharge Cases

Sandy Williams vs. Episcopal Diocese of Massachusetts & another. Suffolk. February 4, 2002. - April 25, 2002. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Church. Religion. Employment, Discrimination. Anti-Discrimination Law, Employment, Termination of employment. Constitutional Law, Establishment of religion, Freedom of religion. Jurisdiction, Ecclesiastical controversy. The First Amendment to the United States Constitution precluded a Superior Court judge’s exercise of jurisdiction over an employment discrimination complaint brought by a priest against the Episcopal Diocese of Massachusetts and its presiding bishop, where resolution of the dispute would involve assessment of the diocese’s priorities of its ministries and require the defendants to defend the church’s policies regarding its ministers. [579-582] This court declined to address the issue, not presented on the facts of an appeal, whether the First Amendment provided a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim. [582-583] Civil action commenced in the Superior Court'Department on July 21, 2000. A motion to dismiss was heard by Margaret R. Hinkle, J. The Supreme Judicial Court granted an application for direct appellate review. David R Angueira for the plaintiff. L. Martin Nussbaum, of Colorado (William F. Looney, Jr., & Kimberly Y. Jones with him) for the defendants. The presiding Bishop of the Episcopal Diocese of Massachusetts. Greaney, J. The plaintiff, an Episcopal priest, filed an employment discrimination action in the Superior Court, alleging that the defendants, the Episcopal Diocese of Massachusetts (Diocese) and the Right Reverend M. Thomas Shaw (the presiding bishop of the Diocese [Bishop]), discriminated against her based on her gender, in violation of G. L. c. 151B, § 4 (1) and (4), resulting in her constructive discharge when she was forced to resign from her position as an ordained minister and vicar of Saint Andrew’s Episcopal Church of the Deaf in Brookline (St. Andrew’s). The plaintiff’s complaint alleges that (1) throughout her employment, she was paid considerably less than her similarly situated male colleagues; (2) when she complained about the disparate treatment, she was admonished and threatened with termination; and (3) she was constructively discharged as a result of being forced to work in a hostile work environment. The defendants moved to dismiss under Mass. R. Civ. R 12 (b) (6), 365 Mass. 754 (1974), or, alternatively, for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974). A Superior Court judge considered the defendants’ motion as one pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974), and allowed the motion on the ground that the First Amendment to the United States Constitution precludes civil courts from adjudicating disputes between a priest and her diocese. We granted the defendants’ application for direct appellate review, and we now affirm the judgment of dismissal. We begin by summarizing the factual background of this dispute, incorporating relevant facts alleged by the plaintiff in her complaint and supporting affidavit, as well as undisputed facts presented in documents submitted by the parties that were considered by the judge. In 1989, the plaintiff was hired by the Diocese to be director of liturgical life at Saint Andrew’s, and to act as liaison between the deaf community and the Diocese. Part of the plaintiff’s job was to advocate for the members of her congregation and defend their rights under civil and canon law. During the eight years of her employment, the plaintiff claims, she was treated disparately as compared to her male counterparts, including, but not limited to, her rate of pay and benefits. When the plaintiff complained of the disparate treatment, she was either ignored, had her salary and benefits frozen or reduced, or was told that she had no civil or ecclesiastical right to question the treatment she received. Specifically, the plaintiff’s affidavit states that, when she interviewed for the position at Saint Andrew’s, she was given an information packet that contained a salary and benefit range that was above the level of compensation she eventually received for her work. Her complaints to the Diocesan treasurer regarding the insufficient travel allowance provided her, according to the plaintiff, marked “the start of a pattern of behavior directed at [her] that was not directed at [her] male counterparts.” The plaintiff’s affidavit states that the presiding bishop of the Diocese at that time (the predecessor to the Bishop who is a defendant in this action) consistently discredited her work and excluded her from important meetings. He once attempted to fire the plaintiff. Shortly after a new presiding bishop (the defendant Shaw) was elected, the plaintiff discussed with him the discriminatory actions taken against her and informed him that she was considering legal action against the Diocese. The Bishop then expressed his desire to work things out with the plaintiff. Although she received regular salary raises for the next two years, the plaintiff states in her affidavit that she “do[es] not believe [she] was ever raised to the Diocesan minimum standard, nor to the level of [her] male counterparts.” The plaintiff continued to feel ignored by the Diocese. When the plaintiff expressed interest in relocating her ministry from Saint Andrew’s, due to the possibility of a gift of land on the North Shore that was adjacent to two institutions for the deaf, the plaintiff felt that the Bishop failed sufficiently to consider the matter. The plaintiff’s affidavit states that “if [she] had not been a woman, [the Bishop] would have taken this issue seriously, which he didn’t.” On April 21, 1997, on learning that the Bishop intended to conduct an evaluation of her ministry by outside consultants, the plaintiff tendered the Bishop her letter of resignation, effective July 31, 1997. The plaintiff’s letter offered the following reasons for her resignation: (1) “the failure of the Episcopacy and the Episcopal staff to recognize and respect the primary role that the members of St. Andrew’s must have in deciding, not only their own destiny, but also the direction of [d]eaf [mjinistry in the Diocese”; (2) the Bishop’s “failure to respect and trust [the plaintiff’s] insights and judgments .... [The Bishop’s] need to bring in [a m]issioner to the [d]eaf from another [d]iocese to evaluate the program here indicates to me that you do not trust the [m]issioner you have”; (3) the lack of “advocacy and support, both tangible and emotional, from the Episcopacy” and the “cloud of distrust and animosity that ha[s] plagued this Diocese since before either [the Bishop or the plaintiff] were ordained”; and (4) the “inequity of salary and benefits” that she was receiving. The judge allowed the defendants’ motion to dismiss the plaintiff’s claims on the ground that the First Amendment deprived the Superior Court of subject matter jurisdiction. The judge recognized that the doctrine known as the “ministerial exception,” adopted by Federal courts in the context of Federal employment discrimination suits, precludes civil courts from adjudicating employment discrimination suits by ministers against their church or religious institution. See McClure v. Salvation Army, 460 F.2d 553, 559-561 (5th Cir.), cert. denied, 409 U.S. 896 (1972) (reviewing cases in which United States Supreme Court had placed matters of church government and administration beyond regulation of civil authorities; holding that application of Title VII of the Civil Rights Act of 1964 to employment relationships between ministers and churches involves prohibited intrusion into matters of ecclesiastical concern). See also Combs v. Central Tex. Annual Conference of the United Methodist Church, 173 F.3d 343, 348-349 (5th Cir. 1999); Schmoll v. Chapman Univ., 70 Cal. App. 4th 1434, 1436, 1438-1440 (1999); Van Osdol v. Vogt, 908 P.2d 1122, 1129, 1132-1133, 1134 (Colo. 1996); Newport Church of the Nazarene v. Hensley, 161 Or. App. 12, 22-23 (1999). The “ministerial exception” doctrine is based on the premise that a minister’s relationship to an organized church is intrinsically religious. Because civil resolution of disputes surrounding a minister’s employment unavoidably would involve investigation and review of the church’s practices and decisions with respect to, among other matters, the minister’s assignment, salary, and duties, allowing jurisdiction of employment discrimination claims would result in governmental intrusion into an area of religious freedom forbidden by the principles of the First Amendment. See McClure v. Salvation Army, supra at 560 (articulating, for first time,- the “ministerial exception” to Title VII claims). In the words of the United States Court of Appeals for the Fifth Circuit in the McClure decision, as quoted by the judge: “The relationship between an organized chinch and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.” Id. at 558-559. The judge reasoned that, given the “ministerial exception” doctrine’s widespread acceptance in Federal and State appellate courts, including its application by the United States Court of Appeals for the First Circuit, see Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989), and Dowd v. Society of St. Columbans, 861 F.2d 761 (1st Cir. 1988), the doctrine should be applied to this case. The judge subsequently concluded that the exception “squarely addressed” the plaintiff’s claims. 1. The plaintiff’s primary claim on appeal is that the judge erred in applying the “ministerial exception” to this case, because the challenged employment decisions do not implicate religious beliefs, procedures, or law. She asserts an entitlement to the opportunity to prove that any assertion of a legitimate motive on the defendants’ part is a pretext, and that she was constructively discharged solely because she is female. The plaintiff argues that courts should afford an aggrieved minister the same protections provided to plaintiffs in secular employment settings to investigate claims of illegal discrimination in the workplace. The plaintiff contends that the rule applied by the judge, which arbitrarily excludes employment discrimination claims by a minister against a church regardless of their basis, will lead to a situation where “any church and minister, no matter how outrageous and illegal the conduct, will be granted a license to flagrantly violate the discrimination laws of Massachusetts without repercussions.” It is not necessary that we respond to the plaintiff’s specific contentions regarding the “ministerial exception.” The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The principle that this language precludes jurisdiction of civil courts over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships is firmly established in Massachusetts case law. See Parish of the Advent v. Protestant Episcopal Diocese of Mass., 426 Mass. 268, 280 (1997); Fortin v. Roman Catholic Bishop of Worcester, 416 Mass. 781, 785, cert. denied, 511 U.S. 1142 (1994); Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 850, cert. denied, 502 U.S. 865 (1991); Wheeler v. Roman Catholic Archdiocese of Boston, 378 Mass. 58, 61, cert. denied, 444 U.S. 899 (1979). The facts alleged in the plaintiff’s complaint and supporting affidavit present a quintessential example of such a church dispute. The plaintiff’s resignation appears to have been motivated, essentially, by her frustration over the direction of her ministry and the perceived value placed on it by her superiors. A trial on this matter clearly would involve assessment of the church’s priorities of its ministries and require the defendants to defend the church’s policies regarding its ministers. Thus, jurisdiction is precluded in this case, regardless of whether we adopt the “ministerial exception.” It is true that the plaintiff’s claims do not, on their face, question the verity of religious doctrines or beliefs. It is hard to conceive, however, how a court could inquire into the reasons for the defendants’ decisions regarding the plaintiff’s ministry without intruding into matters of the internal management of the Diocese. Irrespective of whether the defendants’ treatment of the plaintiff and her ministry was based on legitimate or illegitimate grounds, the plaintiff’s claims, by their very nature, implicate the defendants’ First Amendment rights. To argue otherwise diminishes the importance of the constitutional separation of chinch and State. We reject the plaintiff’s contention that a balancing test is appropriate to determine to what extent judicial scrutiny of her claims would offend the defendants’ religious freedoms under either the establishment clause, see Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), or the free exercise clause, see Sherbert v. Verner, 374 U.S. 398, 407 (1963), of the First Amendment. The application of First Amendment principles, in circumstances such as these, involves no balancing test. If adjudication of the plaintiff’s claims would implicate matters of ecclesiastical relationships, the courts should not intrude. See Madsen v. Erwin, 395 Mass. 715, 722-723 (1985) (“the decision to fire [the plaintiff] can only be construed as a religious one, made by a Church as employer”); Alberts v. Devine, 395 Mass. 59, 72-73, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985) (“It is clear that the assessment of an individual’s qualifications to be a minister, and the appointment and retirement of ministers, are ecclesiastical matters entitled to constitutional protection against judicial or other State interference”); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir. 1989) (no jurisdiction over minister’s claim of wrongful termination, notwithstanding allegation that organization failed to follow own rules; “[b]y its very nature, the inquiry . . . plunges an inquisitor into a maelstrom of Church policy, administration, and governance”); Dowd v. Society of St. Columbans, 861 F.2d 761, 764 (1st Cir. 1988) (“actions involving] rules, policies, and decisions [] should be left to the exclusive religious jurisdiction of the church”). The plaintiff’s attempts to frame this action as a secular dispute pertaining to the defendants’ “unlawful acts in violation of their own company policies and procedures specifically enacted ... to prohibit discrimination of any type against its employees” is unavailing. That the Diocese may have acted in violation of antidiscrimination policies set forth in its own personnel handbook is irrelevant. We decline to venture into the realm of interpreting internal guidelines and procedures that have been adopted by the Episcopal Church. As discussed above, a church must be free to decide for itself what its obligations to its ministers are, without being subject to court interference. See Dowd v. Society of St. Columbans, supra at 764 (“The [Diocese’s] own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention”). 2. One final point merits discussion. The plaintiff’s counsel, at oral argument, suggested that the plaintiff’s claim involves prohibited conduct of a sexual nature. This basis for the plaintiff’s claim was not, apparently, presented to the judge, nor was it developed in the plaintiff’s brief submitted to this court. It is true that the plaintiff’s complaint states a claim of “gender harassment,” as well as for gender discrimination, against the Bishop and the Diocese. In her supporting affidavit, however, although the plaintiff stated that the Bishop’s predecessor treated her in an “uncomfortably ‘friendly’ ” manner and that he “put his arm around [her] several times, something he never did to men,” she also stated that he made no “overt sexual advances.” Importantly, she described his attitude toward her as merely “patronizing and condescending.” There is nothing in the record to support an inference of conduct that could properly be characterized as sexual harassment for purposes of G. L. c. 151B. This case does not present the question, therefore, considered by the United States Court of Appeals for the Ninth Circuit in Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1999), whether the First Amendment provides a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim. See id. at 949-950 (considering plaintiff’s claims of sexual harassment by church; allowing limited inquiry into whether Jesuit order exercised reasonable care to prevent and correct sexual harassment, and whether plaintiff failed to take advantage of opportunities to limit harm). The First Amendment, as applied to the States by the Fourteenth Amendment to the United States Constitution, requires courts of this Commonwealth “to ensure that individuals or organizations are not unjustly deprived of their right to exercise freely their religious beliefs.” Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 850 (1991). To the extent that this case involves a conflict between the legislative mandate of G. L. c. 15 IB to eliminate discrimination in the workplace and our constitutional mandate to preserve the separation of church and State, the constitutional directive must prevail. 3. We treat the judgment that was entered as a judgment under Mass. R. Civ. P. 12 (b) (1) and, so treated, the judgment is affirmed. So ordered. Although the issue is not raised by either party, we note that the judge properly converted the defendant’s motion under Mass. R. Civ. R 12 (b) (6), 365 Mass. 754 (1974), as one pursuant to Mass. R. Civ. R 12 (b) (1), 365 Mass. 754 (1974). The judge, however, could have decided the motion on the ground of the complaint’s failure to state a claim on which relief can be granted. See Mathias v. Beatrice Foods Co., 23 Mass. App. Ct. 915, 916 n.4 (1986). See also Madsen v. Erwin, 395 Mass. 715, 717 (1985) (jurisdiction preclusion based on First Amendment protection raised in context of motion to dismiss under rule 12 [b] [6]); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1576 (1st Cir. 1989) (same issue raised in context of motion to dismiss under Fed. R. Civ. P. 12 [b] [6]). The important point is that consideration of matters outside of the pleadings generally compels a judge to treat a motion to dismiss under rule 12 (b) (6) as a motion for summary judgment. See Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106, 109 (1995). Such is not the case when deciding a motion to dismiss under rule 12 (b) (1). See id. Cf. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 555 (1999) (authorized in certain circumstances). This difference is not merely technical — under a rule 12 (b) (1) motion, a plaintiff bears the burden of proving jurisdictional facts, see New Hampshire Ins. Guar. Ass’n v. Markem Corp., 424 Mass. 344, 346 (1997); Brown v. Tobyne,

Tri-County Youth Programs, Inc. vs. Acting Deputy Director of the Division of Employment and Training & another. No. 99-P-625. Hampden. November 13, 2000. April 9, 2002. Present: Brown, Greenberg, & Celinas, JJ. Administrative Law, Judicial review, Agency’s interpretation of statute, Substantial evidence, Standard of proof. Employment Security, Eligibility for benefits, Burden of proof, Findings. Discussion of the standards of review applicable to findings and decisions of the board of review of the division of employment and training as established in G. L. c. 151 A, § 42, the employment security statute. [407-408] This court concluded that the findings of the board of review of the division of employment and training were neither inconsistent with the board’s conclusion that a female employee in a residence for emotionally troubled adolescents had been subject to sexual harassment, creating a hostile, humiliating, or sexually offensive work environment, nor unsupported by substantial evidence. [408-410] In a proceeding before the board of review of the division of employment and training, a female employee in a residence for emotionally troubled adolescents, who was assigned to work in the same residential facility that housed an adolescent who had previously sexually assaulted her, sustained her burden of proof under G. L. c. 151A, § 25(e), by showing that she left work with good cause attributable to her employer (i.e., sexual harassment), and was not required, in such circumstances, to demonstrate that she took reasonable steps to preserve her employment. [410-412] There was no merit to an employer’s argument that it was not only a foreseeable risk but clearly a reasonable probability that a female employee hired to work with emotionally troubled adolescents would be sexually assaulted by one of the adolescents and that the employee’s assuming the risk of sexual assault diminished the ability of the board of review of the division of employment and training to deal with the employee’s contention that she terminated her employment voluntarily, but for good cause, due to sexual harassment and the resultant creation of an intimidating, humiliating, and sexually offensive work environment within the meaning of G. L. c. 151 A, § 25(e), when she was assigned to work in the same residential facility that housed an adolescent who had previously sexually assaulted her. [412-415] Civil action commenced in the Springfield Division of the District Court Department on June 22, 1998. The case was heard by Dennis J. Brennan, J. Robert L. Quinan, Jr., Assistant Attorney General, for Acting Deputy Director of the Division of Employment & Training. Albert R. Mason (Kathleen A. Moore-Kocot with him) for the plaintiff. Denise Y. Lawrie. Celinas, J. Tri-County Youth Programs, Inc. (Tri-County), appeals from a decision of the District Court affirming the decision of the board of review of the division of employment and training (board) to grant unemployment benefits to Denise Y. Lawrie (Lawrie). The board, in overturning a decision of the review examiner, concluded that Lawrie terminated her employment at Tri-County voluntarily, but for good cause, “due to sexual harassment and the resultant creation of an intimidating, humiliating and sexually offensive work environment,” within the meaning of G. L. c. 151 A, § 25(e). We affirm. Facts. We offer a brief summary of the facts, based upon the undisputed findings of the review examiner, adopted in full by the board, supplementing from that source where context requires. Lawrie was hired iii 1996 as a shift manager in a residence for emotionally troubled adolescents operated by TriCounty in Northampton. On November 22, 1997, in connection with her duties, Lawrie took two Tri-County clients on a shopping trip. While driving a company van, Lawrie was sexually assaulted by one of the clients, a fourteen year old male. Lawrie promptly reported the assault to her superiors. Without objection, but with no assistance from Tri-County, Lawrie reported the assault to police and pressed charges. Lawrie’s assailant was arrested and placed into the custody of the Department of Youth Services (DYS). On December 4, 1997, Lawrie’s supervisor informed her that her assailant would probably be returned to Lawrie’s work site, with a “stay-away” order in place. On December 10, 1997, Lawrie’s assailant admitted delinquency to sexual assault, was adjudicated delinquent, and was placed on two years’ probation. The court also ordered the juvenile to stay away from Lawrie and to have no contact with her. Later that day, with the assent of Tri-County, DYS returned the juvenile to the same residential facility where Lawrie worked. After discussion with her superiors, Lawrie resigned her position, effective January 7, 1998, giving as the reason her dissatisfaction with her employer’s handling of the sexual assault incident. On December 15, 1997, at a meeting with her supervisor, Lawrie was informed that Tri-County had decided to make her resignation effective immediately. Lawrie made application for unemployment benefits, which were granted. TriCounty appealed, and a review examiner denied the benefits; Lawrie applied to the board» for a review of the examiner’s decision. The board, concluding that the examiner’s decision was based on an error of law, modified the examiner’s decision and awarded Lawrie benefits for the week ending December 27, 1997, and for subsequent weeks. Tri-County then petitioned the District Court to vacate the board’s decision. From a judgment affirming the board’s decision, Tri-County appeals to this court. Standards of review. The standards of review applicable to findings and decisions of the board are established in the employment security statute, G. L. c. 151 A, § 42; pursuant to the statute, the State Administrative Procedure Act, G. L. c. 30A, § 14, controls. Where our review is governed by the Act, we are required to give “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G. L. c. 30A, § 14(7), as amended by St. 1973, c. 1114, § 3. See Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. 593, 595 (1974). We review the record “to determine whether the board applied correct legal principles in reaching its decision.” Guarino v. Director of the Div. of Employment Sec., 393 Mass. 89, 92 (1984). We look “to discover whether [the decision] contains sufficient findings to demonstrate that correct legal principles were applied, and [we] must review the record to determine whether those findings are supported by substantial evidence.” Ibid., citing Lycurgus v. Director of the Div. of Employment Sec., 391 Mass. 623, 626-627 (1984). “[I]f an agency’s finding of fact is supported by ‘such evidence as a reasonable mind might accept as adequate to support a conclusion,’ it will not be disturbed by a reviewing court.” Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. at 595, quoting from G. L. c. 30A, § 1(6), as inserted by St. 1954, c. 681, § 1. As to interpretation of statutes governing the agency, we defer to the agency’s interpretation and application of the statute within which it operates. See Hotchkiss v. State Racing Commn., 45 Mass. App. Ct. 684, 691-692 (1998). Where the agency’s rules are concerned, the agency’s interpretation is entitled to great weight, unless those interpretations are “arbitrary, unreasonable or inconsistent with the plain terms of the rule itself.” Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478 (1976). However, pure questions of law are “subject to de nova judicial review.” Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. at 595. See G. L. c. 30A, § 14(7)(c). Sufficiency of the evidence. Tri-County does not dispute that the findings of fact adopted by the board are supported by substantial evidence. Rather, it argues that the board (in adopting without change the findings of the examiner, but reaching the opposite conclusion from those findings) did not have sufficient evidence with which to conclude Lawrie had resigned due to sexual harassment under G. L. c. 151 A, § 25(e), and therefore she had not satisfied the burden of showing that she left with good cause attributable to the employer. Applying the standards set forth in Guarino v. Director of the Div. of Employment Sec., 393 Mass. at 92, discussed earlier, we conclude that the board’s findings were neither inconsistent with the board’s conclusion that Lawrie had been subject to sexual harassment, creating a hostile, humiliating, or sexually offensive work environment, nor unsupported by substantial evidence. More specifically, the conclusion that Lawrie left due to sexual harassment, and the examiner’s (and the board’s) finding that she “left her job because of dissatisfaction with the employer’s handling of [the] sexual assault incident,” are not inconsistent. The board specifically found that Lawrie had been sexually assaulted by her employer’s client, and that this client had been criminally prosecuted and ordered to stay away from Lawrie. From these specific material subsidiary findings, the board could draw the reasonable inference that Lawrie was subject to an “intimidating, hostile, humiliating and sexually offensive work environment” when her assailant returned to the same facility where she worked and that Tri-County made “no . . . effort” to stop the creation of such an environment. In so doing, Tri-County ran afoul of G. L. c. 151 A, § 25(e), fourth and fifth pars, (see note 2, supra). This conclusion accords with the finding that Lawrie left her employment because she was dissatisfied with the way her employer handled the sexual assault, and it supports the further determination that her resignation was involuntary, with good cause attributable to Tri-County. The board’s conclusion in this regard was also consistent with the finding that Lawrie would not have had “any problems in performing her job duties” even if her assailant was returned to the facility wherein she worked. It is not inconsistent for an employee to be able to perform job duties but still be working within a hostile, humiliating, and sexually offensive environment. Further, Tri-County’s argument, that Lawrie failed to raise the sexual harassment issue with the initial examiner, or with the board, is contradicted by the record. Lawrie’s application for further review and her counsel’s oral argument to the examiner, that Tri-County’s stance in taking back the offending client without “anything in the works” for a transfer for Lawrie, were sufficient, in our view, to raise the issue that TriCounty had created a work environment that was sexually hostile. Burden of proof. We reject Tri-County’s argument that Lawrie failed to sustain her burden of proof. Generally, it is the employee’s burden, under G. L. c. 151A, § 25(e) (see note 2, supra), to show that the employee left work involuntarily with good cause attributable to the employer, and that “he or she took reasonable steps to preserve his or her employment . . . , unless the circumstances indicate that such efforts would be futile or result in retaliation.” 430 Code Mass. Regs. § 4.04(5)(c)(3)(b) (1997). In cases involving allegations of sexual harassment, however, the claimant need not show that she took all or even “reasonable steps” to preserve her employment. The requirement is expressly excluded by G. L. c. 151 A, § 25(e), fourth par. (see note 2, supra), and 430 Code Mass. Regs. § 4.04(5)(c)(3) (see note 3, supra). Contrast Guarino v. Director of Div. of Employment Security, 393 Mass. at 93-94 (in case of harassment due to union activities, claimant for unemployment benefits must make reasonable attempts to correct that situation). Hence, while the board explained that “the findings suggest [Lawrie] may not have taken all necessary measures to preserve her employment prior to resigning,” under the statute and regulation Lawrie was not required to show that she had taken such measures. It appears Lawrie would have sustained her burden even under the more stringent requirement. As noted, in its decision, the board concluded that Tri-County was aware of the existence of the harassment, and that, given the seriousness of the offense, it should have taken affirmative steps to transfer Lawrie permanently to another job site, but no such effort was made. The board further concluded that, given the extent of its “control over the non-employee’s [client’s] conduct,” see 430 Code Mass. Regs. § 4.04(5)(c)(l)(b) (note 3, supra), Tri-County was unreasonable in expecting Lawrie to work in the same residential facility that housed the person who assaulted her. Implicit here is the board’s determination that nothing in the facts found by the examiner required that Tri-County accept the return of the client, or that he be housed in the same unit where Lawrie worked. To the extent that it could have refused the client’s return, or have housed him in a different facility, TriCounty had control over the client’s conduct. Tri-County further contends in this context that the board erred because it did not consider the fact that, when the client returned, he was subject to a court order to stay away from Lawrie. This argument is unavailing; in coming to its decision the board adopted the examiner’s findings of fact, which contained several references to the client’s return subject to a stay away order. Merentially, all facts found by the examiner and adopted by the board were considered by it in reaching its decision. We see nothing here that would cause us to conclude that the board acted in a manner that was arbitrary or capricious. While recognizing that the factual findings reflected some possible effort on TriCounty’s part to offer Lawrie a transfer to a location where clients were female, we could not conclude that, on the record before it, the board’s determination — that Tri-County’s efforts in this regard were insufficient — was arbitrary or capricious. Risk inherent in employment. We address Tri-County’s further argument that we are under obligation to consider “the absolute fact that [Lawrie] was hired to work with youths at risk, kids [who] were emotionally disturbed, victims of severe physical and sexual abuse and adolescent sex offenders,” and that the conduct she experienced was not only a foreseeable risk of the job, but “clearly a reasonable probability given the client population served.” Tri-County’s argument suggests that Lawrie’s assuming the risk of sexual assault mitigated the effect of 430 Code Mass. Regs. § 4.04(5)(c)(l)(b) and § 4.04(5)(d) (see note 3, supra), diminishing the board’s ability to apply these regulations to her situation. Tri-County never advanced this argument before either the board or the District Court, and “a party is not entitled to raise an argument on appeal that was not raised before the administrative agency.” Boston Neighborhood-Taxi Assn. v. Department of Pub. Utils., 410 Mass. 686, 693 (1991). We consider the issue, however, as it may recur and has broader policy implications. See Attorney Gen. v. Brown, 400 Mass. 826, 828 & n.4 (1987); Commonwealth v. Oakes, 407 Mass. 92, 94 n.4 (1990); Catlin v. Board of Registration of Architects, 414 Mass. 1, 7 n.7 (1992); Foley v. Commonwealth, 429 Mass. 496, 497-498 (1999). Tri-County’s argument must fail, as it leads to the untenable conclusion that possible criminal sexual assault is the price that an employee must pay to maintain employment, and that, if the employee is unprepared to accept the “reasonable probability” of such occurrences on the job, then leaving after such an incident means leaving without good cause. The section of the employment security law dealing with sexual harassment, G. L. c. 151 A, § 25(e), fourth par. (see note 2, supra), suggests no such limitation on an employee’s eligibility for benefits when the employee leaves for reasons of sexual harassment. Further, 430 Code Mass. Regs. § 4.04(5)(a)(2)(a) (see note 3, supra), by explicit language, defines sexual harassment in part as being subject to sexual conduct as “a term or condition of employment.” While an employee may accept employment knowing of the possibility of the risk of sexual assault, leaving employment because of sexual assault cannot be made a basis for denial of benefits under the employment security act, if the employer does not take appropriate measures to ameliorate the situation. As the board determined, the possibility of sexual assault in the workplace places a heavy burden on the employer to take steps to create a situation favorable to the employee, and in the absence of such effort benefits will be payable. In the face of the statutory language and the thrust of the regulations, we cannot say that the board’s determination in this regard was arbitrary, capricious, or unreasonable. We note as well that the Legislature has, as a matter of social policy, abandoned the concept of assumption of the risk in negligence cases. Thus, if Lawrie had decided, upon contracting for employment, to retain the right to bring an action against the employer based on common law principles, rather than to accept coverage under the Worker’s Compensation Act, G. L. c. 152, § 66, would “proscribe[ ] voluntary or contractual assumption of the risk as a defense” in any suit brought by her as “an employee in connection with a work-related injury.” Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606, 609 (1989). See Brown v. Leighton, 385 Mass. 757, 760 (1982). More generally, in 1973, the Legislature amended the comparative negligence statute, G. L. c. 231, § 85, as appearing in St. 1973, c. 1123, abolishing assumption of the risk as a defense in negligence actions. See Forte v. Muzi Motors, Inc., 5 Mass. App. Ct. 700, 704 n.7 (1977). For those public employees especially susceptible to assaults, such as police, correction officers, or employees of State mental hospitals, there is a special statutory provision to compensate them for suffering such assaults in addition to their receipt of workers’ compensation. See G. L. c. 30, § 58; Chambers v. Lemuel Shattuck Hosp., 41 Mass. App. Ct. 211, 211-212 (1996); Moog v. Commonwealth, 42 Mass. App. Ct. 925, 925-926 (1997). While these employees could be said to “assume the risk” of working in such less-then-desirable conditions day after day, by explicit reference to such risks in their contracts of employment, they do not, by statute, assume the risk in the sense that they receive no compensation for foreseeable injury in the line of duty. Further, the public sector employer could still be held liable for failing to do all that is possible to make the working conditions as safe as possible against sexual assaults in accordance with G. L. c. 151 A, § 25(e). Those employed in the private sector, although fulfilling duties similar in nature to some described above, are not entitled to the additional compensation provided by G. L. c. 30, § 58. It does not follow, however, that they should suffer the risk of loss of unemployment benefits occasioned by the type of employment they accept. From the record, Tri-County’s argument in this regard faces an additional acclivity. Tri-County has in place a detailed protocol for the “Risk Management and Treatment of Adolescent Sex Offenders,” precisely to exert appropriate control over the behavior of clients like the assailant. This protocol states, “We believe the specialized assessment and treatment performed by those who are trained in working with adolescent sex offenders is 0¿c] the first step to be taken if sexual assault and its consequences are to be addressed properly. We assume a responsibility to protect the safety and well-being of other clients, many of whom are victims, and Tri-County staff from the possibility of victimization of those who have been identified as sexu

LORRAINE K. DOYLE, Plaintiff v. ASHEVILLE ORTHOPAEDIC ASSOCIATES, P.A., Defendant No. COA01-159 (Filed 28 December 2001) Employer and Employee— employment contract — termination provision — constructive discharge The trial court erred in a breach of contract action by allowing recovery for plaintiff doctor for constructive discharge from employment based on the termination provision of plaintiff’s employment contract, because: (1) the jury found that neither party breached the employment contract, and the evidence does not show that defendant employer deliberately made plaintiff’s working conditions intolerable; (2) plaintiff does not allege in her complaint that she was constructively terminated based on intolerable working conditions, nor does she set forth any instances that would support stating that she was terminated based on intolerable working conditions; and (3) there is no evidence that the alleged conditions were deliberately created in an attempt to force plaintiff to terminate her employment. Appeal by defendant from judgment entered 11 April 2000 and order entered 11 May 2000 by Judge James U. Downs in Superior Court, Buncombe County. Heard in the Court of Appeals 5 December 2001. Adams Hendon Carson Crow & Saenger, P.A., by George W. Saenger and Joy Gragg, for plaintiff-appellee. McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for defendant-appellant. WYNN, Judge. In this appeal Asheville Orthopaedic Associates, P.A., argues that the trial court erred in submitting issues to the jury and allowing recovery to Dr. Lorraine K. Doyle for constructive discharge from employment. Asheville Orthopaedics correctly points out that North Carolina has not explicitly recognized constructive discharge in the context of employment as an independent basis for recovery. Indeed, in Wagoner v. Elkin City Schools’ Board of Education this Court held: Assuming that plaintiff was wrongfully constructively discharged, she is nonetheless not entitled to assert the tort of wrongful discharge because the tort of wrongful discharge arises only in the context of employees at will. See Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989); Sides, 74 N.C. App. 331, 328 S.E.2d 818. Breach of contract is the proper claim for a wrongful discharged employee who is employed for a definite term or an employee subject to discharge only for “just cause.” 113 N.C. App. 579, 588, 440 S.E.2d 119, 125, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). However, Dr. Doyle responds that she did not claim damages arising under the independent action of constructive discharge based on a violation of public policy which applies to employees at will. Rather, Dr. Doyle asserts that her claim arises under her employment contract with Asheville Orthopaedic. She points out that her employment contract provided for damages to be paid to her in the event that Asheville Orthopaedic terminated her involuntarily. She alleges that despite the fact that she resigned from her employment, her resignation was procured by Asheville Orthopaedic’s conduct which amounted to constructive discharge. Dr. Doyle is a board certified orthopaedic surgeon, who after signing an employment contract with Asheville Orthopaedics started working on 3 October 1988. The employment contract provided that Dr. Doyle would receive basic compensation in the amount of $80,000 during her first contract year, the same basic compensation of $80,000 plus one-half of her productivity during her second contract year, and compensation based on her productivity during her third and subsequent contract years, with her compensation based on productivity to “be calculated in the same manner as is applicable to all other physician employees of the Employer.” Regarding termination, the employment contract under paragraph 12 a. provided that: The Employee may terminate this Contract only after having given a preliminary written notice to terminate twelve (12) months before the effective termination date, followed by a final written resignation six (6) months before said termination date. Subject to paragraph 12 c., the Employer may terminate this Contract only after having given written notice at least six (6) months before the effective termination date. The Employer will not terminate this Agreement unless such action has' been approved by a majority vote of all members of the Board of Directors who are then actively practicing medicine for the Employer. The Contract of Employment further provided that: Upon termination pursuant to paragraph 12 a., Employee shall be paid only: (i) the Basic Benefits set forth herein, reduced by 1/25 for each year of service with the Employer less than twenty-five (25) years; and (ii) his Basic Compensation without any further Productivity Compensation. At a meeting on 11 October 1995, the Board of Directors for Asheville Orthopaedics considered Dr. Doyle’s deficit, how she could repay that deficit and the viability of her continuing in the practice. After the meeting, Linda Stein Murphy, the business manager, informed Dr. Doyle that the Board of Directors had decided that it could not go on paying someone who was not producing. Later that same day, Ms. Murphy met with two of the partner doctors, who decided that Dr. Doyle would not receive a paycheck or disability payment; Medical Mutual would be called about the cost of tail coverage for Dr. Doyle, which is the amount required to be paid to cover a doctor who leaves a practice in the event that any claims arise subsequent to the doctor’s departure; Dr. Doyle should cancel some of her vacation and not attend a professional meeting in February; and the credit card limit for all of the physicians would be reduced from $5,000 to $500. The next day, Ms. Murphy met with Dr. Doyle and told her that she would not receive any pay. After discussing with Ms. Murphy whether there would be a problem if she left at the end of December, Dr. Doyle sent a letter dated 30 November 1995 stating that she intended to withdraw from the partnership and her last day would be 31 December 1995. Following a trial, the jury considered and decided on the following issues: 1. Did the defendant breach the employment agreement? ANSWER: NO 2. What answer of damages is the plaintiff entitled to recover from the defendant? ANSWER: _ 3. Did the defendant constructively terminate the employment of the plaintiff? ANSWER: YES 4. What amount of damages, if any is the plaintiff entitled to recover from the defendant? ANSWER: $14,752 5. Did the plaintiff breach the employment contract? ANSWER: NO 6. What amount of damages is the defendant entitled to recover from the plaintiff? ANSWER: _ Accordingly, the trial court entered judgment on the jury’s finding of constructive discharge in the amount of $14,447.30, plus prejudgment interest from 1 January 1996 and court costs. On appeal, Dr. Doyle disavows that she seeks relief under a claim of constructive discharge in violation of public policy which arises only in the context of employees at will. She asserts instead that her claim of constructive discharge arose in the context of deciding whether she was entitled to termination payments under the contract. We recognize the viability of her claim in the context of interpreting whether constructive termination by her employer triggered the termination payment provision of the employment contract. In general, evidence establishing constructive discharge “must demonstrate that the employer deliberately made working conditions intolerable and thereby forced [the plaintiff ] to quit.” Graham v. Hardee’s Food System, Inc., 121 N.C. App. 382, 385, 465 S.E.2d 558 (1996) (citing E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir. 1992)). “Deliberateness exists only if the actions complained of ‘were intended by the employer as an effort to force the employee to quit.’ ” Id. (Citations omitted). In this case, the jury found that neither Asheville Orthopaedics nor Dr. Doyle breached the employment contract. Thus, to show that her employer constructively discharged her and thereby triggered the payment provision of the employment contract, Dr. Doyle must point to evidence, other than that showing a breach of contract, which demonstrates that Asheville Orthopaedics deliberately made her working conditions intolerable. The record shows that Dr. Doyle’s evidence of constructive discharge consisted of her allegations that she received limited referrals of hand patients from Asheville Orthopaedics’ other physicians. However, the record also shows that Dr. Doyle did receive some hand patient referrals and was offered to serve as back-up on call. Dr. Doyle also points to Asheville Orthopaedics’ adoption of a different compensation formula in November 1994 which allocated overhead in a detrimental impact on her income. However, this change occurred during a period when Asheville Orthopaedics experienced a financial crunch and considered ways to hold costs down and encourage production. Additionally, Dr. Doyle, aboard member, voted on the modified compensation formula. Also, the record shows that Asheville Orthopaedics approved Dr. Doyle as a shareholder and in later years elected her to serve in various offices including secretary, treasurer and vice-president. This evidence falls short of showing that Asheville Orthopaedics deliberately made Dr. Doyle’s working conditions intolerable. Moreover, we note that in her Complaint, Dr. Doyle does not allege that she was constructively terminated because of intolerable working conditions nor does she set forth any instances that would support stating that she was terminated because of intolerable working conditions. After a careful review of the record, we can find no evidence that the alleged conditions were deliberately created in an attempt to force Dr. Doyle to terminate her employment. In the absence of facts, other than those showing a breach of contract, to support Dr. Doyle’s claim for páyment under the termination provision of her employment contract that she was constructively discharged, we must reverse the judgment. Reversed. Judges WALKER and THOMAS concur.

Carol Perkins vs. Commonwealth & others. No. 98-P-1988. Worcester. October 5, 2000. July 31, 2001. Present: Laurence, Dreben, & Celinas, JJ. Negligence, Employer. Workers’ Compensation Act, Exclusivity provision, To whom act applies. Common Law. Employment, Constructive discharge, Termination. Public Employment, Police. Public Policy. Anti-Discrimination Law, Employment. A claim by a cadet at the State police academy alleging negligence — premised upon allegations that academy personnel exacerbated an existing medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication — was precluded by the exclusivity provisions of the workers’ compensation act, where, if the claims were sustained at trial, the harm caused by the defendants’ conduct would be compensable under G. L. c. 152, § 1(7A), as such conduct was at least a major cause of her disability or need for treatment [176-177]; further, there was no merit to the cadet’s contention that her negligence claims were not barred because of the so-called “dual persona” doctrine [177-178], A claim by a cadet at the State police academy that academy personnel, by allowing her to be hazed, constructively discharged her in violation of public policy, namely G. L. c. 269, § 17, was precluded by the workers’ compensation act, where there was no Legislative directive or enunciated public policy that prevented the academy, a quasi military training institution, from discharging a cadet who could not tolerate the rigors and discipline required of other recruits or from discharging a cadet without any cause at all. [178-181] A claim by a cadet at the State police academy that an employee of the academy refused to allow her to obtain sufficient water during training, and violated the Massachusetts Civil Rights Act by hazing and depriving her of a safe work environment and appropriate medical care was barred, where the cadet was unable to clearly identify any secured right with which the academy employee interfered. [181-182] Civil action commenced in the Superior Court Department on May 5, 1995. The case was heard by James P. Donohue, J., on motions for summary judgment. Gary H. Goldberg for the plaintiff. Brian Rogal (Sheila E. McCravy with him) for Johanna Lawlor & others. Howard R. Meshnick, Assistant Attorney General, for the 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 and three employees of the Academy, 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, § 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, § 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 provisions of the workers’ compensation act (act). 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. 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, § 1(7A), 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 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 § 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 plaintiff’s 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, 1007-1008 (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. 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. 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, § 17, is such a policy. That statute, set out fully in the margin, 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. King v. Driscoll, 418 Mass. 576, 582 (1994). 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. 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 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, § 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 plaintiff’s 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, § 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, 42 U.S.C.] § 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). Moreover, “penal statutes [G. L. c. 269, § 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, § 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, §§ 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 § 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 Loffredo 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. Executive Office of Public Safety, Massachusetts Criminal Justice Training Council, and Department of State Police. Leslie Bodor, Johanna Lawlor, and Lorraine Cambria. The parties, and hence we, proceed on the premise that cadets at the Academy are employees covered by the workers’ compensation act. No party argues that G. L. c. 152, § 69, applies to exclude the plaintiff. The first sentence of G. L. c. 152, § 24, as amended by St. 1991, c. 398, § 43, provides in relevant part: “An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury that is compensable under this chapter, to recover damages for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right. ...” “To be compensable [under the workers’ compensation act], injury must arise . . . from an identifiable condition that is not common . . . to all or a great many occupations.” Zerofski’s Case, 385 Mass. 590, 594-595 (1982). General Laws c. 152, § 1(7A), provides: “If a compensable injury . . . combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.” Apparently, where physical or mental harm is incidental and not an indispensable ingredient of the contract claim, damages for such harms may be recovered. Green v. Wyman-Gordon Co., 422 Mass. at 560-561. General Laws c. 269, § 17, provides: “Whoever is a principal organizer or participant in the crime of hazing, as defined herein, shall be punished by a fine of not more than three thousand dollars or by imprisonment in a house of correction for not more than one year, or both such fine and imprisonment. “The term ‘hazing’ as used in this section and in sections eighteen and nineteen, shall mean 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. Such conduct shall include whipping, beating, branding, forced calisthenics, exposure to the weather, forced consumption of any food, liquor, beverage, drug or other substance, or any other brutal treatment or forced physical activity which is likely to adversely affect the physical health or safety of any such student or other person, or which subjects such student or other person to extreme mental stress, including extended deprivation of sleep or rest or extended isolation. “Notwithstanding any other provisions of this section to the contrary, consent shall not be available as a defense to any prosecution under this action.” For an enumeration of cases where the public policy exception made redress available to an at-will terminated employee and a list of cases where termination did not warrant recovery, see Upton v. JWP Businessland, 425 Mass. at 757-758. On page two of an undated publication of the Department of State Police contained in the record appendix, issued under the names of William F. Weld, Governor, Thomas C. Rapone, Secretary, and Charles P. Henderson, Colonel, and entitled Massachusetts State Police, Academy Handbook, the following is stated: “To prepare recruits for this function, military drill and civil disturbance training are essential components of the State Police Academy recruit training program. Recruits learn to recognize rank, follow orders, practice facing movements, and become familiar with formations and techniques for responding to civil disturbances. In addition, recruits leam to keep their emotions in check and perform under pressure. “The academy atmosphere is purposefully designed to develop these capabilities, build esprit de corps, and assist the recruit in making the challenging transition from civilian to disciplined Trooper. During the early phases of training, recruit behavior is tightly controlled and strictly directed to instill military discipline.” “[T]he Legislature intended to provide a remedy under G. L. c. 12, § 11I, coextensive with 42 U.S.C. § 1983 . . . , except that the Federal statute requires State action whereas its State counterpart does not.” Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-823 (1985).

Donald M. Rubin vs. Household Commercial Financial Services, Inc. No. 98-P-342. Hampden. October 7, 1999. - May 3, 2001. Present: Porada, Dreben, & Beck, JJ. Contract, Employment. Employment, Constructive discharge. Discussion of Massachusetts and out-of-State cases considering the elements required for proof of constructive discharge. [439-445] In an action by the chief executive officer of a corporation against the entity that had provided financing for the corporation, seeking damages for interference with contract and breach of fiduciary duty on the basis that the financing entity’s actions had resulted in his constructive termination from employment, there was no error in the judge’s ultimate finding that, because the situation in which the chief executive officer found himself was not so difficult that a reasonable person in his position would have found it to be intolerable, the corporation did not constructively discharge him. [446-448] Civil action commenced in the Superior Court Department on November 9, 1993. The case was heard by John F. Moriarty, J. Bonita L. Stone (Kevin C. Maynard with her) for the defendant. Charles V. Ryan for the plaintiff. Beck, J. On July 22, 1988, the plaintiff, Donald M. Rubin, became president and chief executive officer of National Felt Company, Inc. (National Felt), pursuant to a written five-year contract. Three years later, on August 16, 1991, he sent a letter to National Felt claiming that the company had constructively discharged him. Rubin also sent a letter that day to Eli S. Jacobs, chairman of the National Felt board of directors, and Karen Gordon Mills, a member of the board and close associate of Jacobs. The letter asserted that the recipients had “stripped him] of [his] powers and responsibilities as President and Chief Executive Officer of National Felt Company, Inc. . . . constituting] a constructive discharge ... in direct violation of [his] rights and responsibilities as set forth in [the] employment contract.” He characterized the actions of the individuals as “part of a classic freeze out maneuver . . . constituting] a violation of the fiduciary duty [they owed to him] as a minority stockholder of [National Felt].” After sending the letters, Rubin cleaned out his desk, left his office, and never returned. Rubin subsequently settled his claims against National Felt and the Jacobs parties. What remains is his complaint against Household Commercial Financial Services, Inc. (Household), the entity that financed Jacobs’s purchase of the assets of the company which became National Felt. The complaint sought damages for interference with contract and breach of fiduciary duty. After a seven-day jury-waived trial, a Superior court judge ruled for the defendant Household on both counts. We affirm. Facts. The particulars of the sale and subsequent operations of National Felt are set out in considerable detail in the Superior Court judge’s findings and rulings. Our condensed version follows,- “giv[ing] due weight to the findings of the [trial] judge which will be not be reversed unless clearly erroneous . . . .” Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 255 (1977). See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). Rubin began working for the predecessor to National Felt in 1965. The original company was a Massachusetts corporation with its principal place of business in Easthampton, owned and operated by Israel Goldberg and his sons. It manufactured a variety of nonwoven synthetic and wool felt products, including cowboy hats and Mickey Mouse hats for Disney as well as novelty hats for many other customers. It was a successful enterprise. Beginning in 1970, Rubin was general manager of the nonwoven fabrics division. As the judge found and the plaintiff’s brief acknowledges, “although [Rubin] developed considerable expertise in the production and marketing aspects of the company’s business, he had no experience in financial matters,” to the extent that he never saw a balance sheet or income statement for the division he headed. The Goldbergs had handled all the finances. On July 22, 1988, the Goldbergs sold most of the company’s assets for $34,750,000 to an acquisition company controlled by the E.S. Jacobs Company. Eli S. Jacobs, the principal figure behind E.S. Jacobs Co., was an investment banker and entrepreneur who owned real estate and a number of businesses. Upon completion of the asset sale, he established National Felt as the new company. The defendant Household financed a major part of Jacobs’s purchase of the Goldbergs’ company through various arrangements including a “revolving” loan, a “term” loan, and a “junior subordinated” loan, totaling $32 million. It also committed to provide National Felt with working capital up to $11 million. Household’s total commitment at the outset was thus $43 million. The equity capital of the new company consisted of one million shares at two dollars per share, distributed as follows: Jacobs, sixty-two percent; Household, eighteen percent; Rubin, fifteen percent; and five percent divided among four other National Felt employees. The sum of these transactions was a highly leveraged buyout. The debt to equity ratio was more than twenty to one. Two days before the closing, the three-member board of directors of the new company — Jacobs, Karen Gordon Mills (managing director of E.S. Jacobs Co.), and Roland Knight (another Jacobs employee) — met by telephone conference call. They elected Jacobs chairman of the board; Robert A. Crisafulli, “the financial man” for E.S. Jacobs Co., treasurer; Rubin, secretary; and Knight, assistant secretary. As part of these transactions, Rubin negotiated a written employment contract. The terms of the agreement, as negotiated with Mills, called for Rubin to serve for five years as president and chief executive officer (CEO) “reporting] only to the Board of Directors of [National Felt] . . . [and] vested with all powers incident or necessary to the office of Chief Executive, in accordance with policies established by, and subject to the authority of, the Board of Directors.” Rubin’s base salary was $200,000 per year, with an annual bonus, disability, medical, and life insurance, retirement benefits, four weeks paid vacation, a Cadillac automobile or the substantial equivalent, and reimbursement for all car related expenses. The agreement was subject to termination by reason of death, disability, or for cause. In recognition of Rubin’s lack of financial training and experience, Mills conducted a search for a chief financial officer (CFO) and recommended two candidates to Rubin. Rubin chose one of the candidates, who then in effect reported directly to the board of directors through Mills. As CEO, Rubin was in charge of all aspects of National Felt’s activities except the financial area. The new company carried on essentially the same business as the old company. Rubin devoted his efforts to production and marketing. National Felt did well in its first year of operation under Rubin’s leadership. It had 4,000 products, purchased materials from 2,000 suppliers, and had 2,000 customers. In the spring of 1989, Rubin proposed to expand the synthetic nonwoven division’s capacity by purchasing a nearby building and installing new, state of the art, computerized equipment. (The division had been operating at full capacity.) In June, 1989, Household agreed to increase the company’s line of credit by the $8 million necessary to finance the expansion project. In the fall of 1989, National Felt’s situation began to deteriorate. A number of factors combined — the onset of the 1989 business recession, strong competition from Asia, the loss of the company’s principal supplier, which went out of business, and increased costs of other supplies. The expansion project ran fifty per cent over budget because of increased costs of machinery and equipment and delay in completing the project. The company’s net sales fell, as did its pre-tax income. In the winter of 1990 to 1991, it became apparent that Rubin needed some assistance to turn the company around. By April, 1991, the company’s cash flow was inadequate to meet the combination of its interest payments to Household and its operating expenses. It had already defaulted on a number of its contractual obligations to Household, and its fine of credit was nearly exhausted. Mills had several discussions with Rubin about bringing in additional management personnel to help run the company. In May, there were meetings and conversations between the Jacobs principals and Household. Rubin’s future role in the company was among the subjects discussed. Mills and a business consultant whom Rubin had contacted at Mills’s suggestian thought Rubin was important, even “critical,” to the company’s recovery because of his knowledge of the manufacturing process and his relationships with the company’s major customers. A Household participant thought he would have to be replaced or “moved upstairs” as chairman of the board with no responsibilities. In late spring or early summer of 1991, Mills met with Rubin and introduced him to Peter Kurzina of Argus Management Company (Argus), a “crisis management” firm of “turnaround consultants.” (Apparently the plaintiff disliked Kurzina almost from the beginning.) On July 11, 1991, the CFO of National Felt notified Household that the company would be unable to comply with a scheduled reduction on its revolving loan that the agreement, as amended, required. Household responded that it would not waive the default. As a result of Household’s letter, Mills, acting on behalf of Jacobs, engaged Argus to take control of the financial and operating sides of National Felt as of July 25, 1991. By the end of the 1991 fiscal year, the company’s liabilities exceeded its assets by $1.6 million. In their fiscal 1991 audited financial statement, the independent auditors expressed “substantial doubt about [National Felt’s] ability to continue as a going concern.” On July 22, 1991 (three years to the day after the initial purchase), National Felt’s treasurer and two representatives of Argus visited Rubin and told him that Argus would be taking over the following Thursday. They said they would be in town that day and asked him to introduce them to the key employees of the company at that time. After confirming that Mills had indeed engaged Argus, the plaintiff wrote a memorandum entitled “Priorities for Argus Management Corporation,” which he faxed to Mills. Mills telephoned the plaintiff to make clear that Argus was not working for him and “that he would have to cooperate or there would be dire consequences.” Argus assumed management of National Felt on July 25 as planned. Thomas Brew, the Argus employee in charge, visited Rubin and told him they needed his help and asked for his cooperation. The judge found that “[t]he Argus team did not intend to relieve [Rubin] of his title or his job, and they needed his help in dealing with customers and in purchasing raw materials.” Moreover, Argus’s role was to be temporary. Brew told Rubin they thought it would take more than a year to turn the company around, but that they did not anticipate taking over the company on a permanent basis, and hoped to return the business to its owners in a financially sound condition. Rubin introduced the Argus personnel to the National Felt employees as requested, “but he very much resented having been asked to do so.” One of the first actions Argus took was to discharge National Felt’s CFO. Four days later, Kurzina sent a memorandum to a “distribution list” of the company’s employees who had been authorized to make purchases on behalf of the company. The memorandum announced that nothing was to be purchased without Argus’s approval. Rubin was not included on the distribution list but was designated to receive a copy. The judge found that the memorandum was not intended to apply to Rubin. In fact it was anticipated that, because of his knowledge of the fibers that were the raw materials for a large portion of the company’s products, the purchase of such materials would continue to be under Rubin’s control. On July 31, Household notified E.S. Jacobs Co. through Mills that it was not willing to continue to fund National Felt’s losses without an agreement to reorganize National Felt’s capital structure. That letter drew an angry response from Mills. Brew, who had taken the title of CFO, then wrote a conciliatory letter to Household and gave Rubin a copy of Mills’s letter as well as his own. Rubin was distressed when he discovered that he had not been informed of several prior letters or a meeting mentioned in the Mills and Brew letters. There followed a meeting in Chicago, the headquarters of Household, at which Mills introduced the Argus team to Household officials. Rubin was not invited. At this meeting, Argus expressed its intent to retain Rubin in his current position; Household seemed receptive. On his return, Brew gave Rubin a full report of the meeting. Unhappy with the position in which he found himself, Rubin consulted a lawyer. After subsequently discussing his situation with Mills and another person at E.S. Jacobs Co., Rubin requested a buy-out of the two years remaining on his contract and a buy-back of his stock. (He had borrowed the $300,000 to buy his 150,000 shares.) Mills rejected his proposal. In mid-August, Rubin lost his long-standing authority to give credits to customers who wanted to return merchandise. There followed the letters described in the first paragraph of this opinion and Rubin’s departure from National Felt. Throughout most of the events described above, Household had hoped to persuade Jacobs to make a new contribution of equity capital. Unsuccessful in these efforts, Household restructured National Felt’s debt on its own. In the end, Argus was unable to turn the company around. Legal analysis. The first count of Rubin’s amended complaint claims that Household unlawfully induced National Felt to “break its contract with Rubin and to remove his authority as Chief Executive Officer . . . resulting in his constructive termination [from] his employment.” His second count charges that Household “orchestrated the management changes which resulted in the divestiture from Rubin of the powers incident or necessary to the position of Chief Executive Officer. His constructive termination . . . resulted in the corporate ‘freeze-out’ of Rubin from his rightful position with [National Felt] in a breach of the fiduciary duty owed to Rubin by Household” as a fellow shareholder of National Felt. The judge applied the doctrine of intentional interference with contract to the first claim. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811 (1990), which established “improper motive” and “improper means” as alternative elements of the tort. Passing the question of whether the board of directors’ engagement of Argus constituted a breach of its employment contract with Rubin, the judge found that there was no evidence of improper motive on the part of Household. He then considered whether the means Household used in inducing National Felt to employ a turnaround company constituted a breach of Household’s fiduciary duty to Rubin. After a detailed analysis, which included the finding that Rubin “had effectively abdicated his authority over the financial aspects of the company’s business to [the CFO and Mills],” the judge found no breach of fiduciary duty. Disposing of the second count of the complaint, the judge concluded that there was neither a breach of fiduciary duty nor a constructive discharge. Rubin asserts in his brief that a finding that National Felt constructively discharged him is “vital” to both of his claims against Household. We agree. We therefore turn to an examination of the issue of constructive discharge. Constructive discharge. In determining that there was no constructive discharge, the judge relied on GTE Prods. Corp. v. Stewart, 421 Mass. 22 (1995). He found that “[ujnder all the circumstances that existed in this case, the situation in which Rubin found himself when Argus took over was not so difficult that a reasonable person in his position would have found it to be intolerable. He was [therefore] not justified in quitting when he did.” In GTE Products, Stewart, the employee who claimed that he had been constructively discharged, was a lawyer serving at will as general counsel to GTE’s lighting business. After he began urging company officials to take costly safety measures to protect consumers, his immediate supervisor suddenly lowered his “promotability rating” and communicated the company’s dissatisfaction with Stewart’s recent conduct. Id. at 25. Stewart asserted that the change in his standing at work constituted a constructive discharge in violation of public policy. The Supreme Judicial Court, observing that “[it had] not had occasion to address what an employee must prove to establish a constructive discharge . . . [turned to cases] decided by Federal and State appellate courts.” Id. at 34. The court defined constructive discharge as occurring when “the employer’s conduct effectively forces an employee to resign,” ibid., quoting from Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1244 (1994). “[T]he trier of fact must be satisfied that the new working conditions would have been 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. at 34, quoting from the “frequently cited” decision in Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977). “The test is met if, based on an objective assessment of the conditions under which the employee has asserted he was expected to work, it could be found they were so difficult as to be intolerable” (emphasis original). GTE Prods. Corp. v. Stewart, 421 Mass. at 34. “In order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” Id. at 34-35, quoting from Turner v. Anheuser-Busch, Inc., 7 Cal. 4th at 1247. Applying the test, the court decided Stewart was not constructively discharged. Rubin claims that GTE Products is not on point because Stewart was an at will employee, whereas Rubin had a written contract. He relies instead on two earlier Massachusetts cases, Miller v. Winshall, 9 Mass. App. Ct. 312 (1980), and Kravetz v. Merchants Distribs., Inc., 387 Mass. 457 (1982), both of which he brought to the judge’s attention in his trial brief. In Miller v. Winshall, Miller “was employed, pursuant to a written agreement, as president and chief executive officer of [a] corporation.” 9 Mass. App. Ct. at 317. “[H]e was removed from this office at a board of directors meeting at which another person was elected president. . . [and] was offered ‘continuing employment’ in a subsidiary position at no change in salary . . . [whereupon he] resigned.” Ibid. In affirming the master’s “mixed fact and law general finding [that Miller was terminated],” id. at 317-318, we observed that “[i]f an employee, especially an executive employee, is engaged to fill a particular position, any material reduction in rank constitutes a breach of the employment agreement and is tantamount to discharge, unless the employment contract, by its terms, contemplates a change in the rank and nature of the job.” Id. at 318 (citing Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 263 [1977] [applying New York law]; Rudman v. Cowles Communications, Inc., 30 N.Y.2d 1, 10 [1972]; 4 Corbin, Contracts § 958 [1951]; and Annot., Reduction in Rank or Authority or Change of Duties as Breach of Employment Contract, 63 A.L.R.3d 539 [1975]). We concluded that Miller’s discharge as president “accomplished effectively the termination of [his] employment by the [corporation.” Miller v. Winshall, 9 Mass. App. Ct.