Warfield v. Beth Israel Deaconess Med.

910 N.E.2d 317

454 Mass. 390

Carol A. WARFIELD v. BETH ISRAEL DEACONESS MEDICAL CENTER, INC., & others.¹

SJC-10375

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 2009.

Decided July 27, 2009.

John F. Welsh (Jennifer Belli with him) for Beth Israel Deaconess Medical Center, Inc.

Tracey E. Spruce, Andover, for Harvard Medical Faculty Physicians at Beth Israel Deaconess Medical Center, Inc.

Richard D. Glovsky, Boston, for Josef E. Fischer.

Ellen J. Zucker, Boston (Laura R. Studen with her) for the plaintiff.

Ben Robbins, Martin J. Newhouse, & Jo Ann Shotwell Kaplan, Boston, for New

England Legal Foundation & another, amici curiae, submitted a brief.

Patricia A. Washienko, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

The plaintiff, Carol A. Warfield, the former chief of anesthesiology at Beth Israel Deaconess Medical Center, Inc. (BIDMC), filed this action in the Superior Court against her employers, alleging gender-based discrimination and retaliation in violation of G.L. c. 151B, and factually related common-law claims. The BIDMC and the other defendants moved to dismiss Warfield's complaint and compel arbitration on the ground that the employment agreement she signed soon after she became chief of anesthesiology mandated arbitration of all her claims. A judge in the Superior Court denied the motions, and the defendants filed this interlocutory appeal. We conclude that Warfield's statutory discrimination claims do not fall within the scope of the arbitration clause contained in the employment agreement, and that she may proceed with her discrimination action in the Superior Court. Because her additional claims are wholly intertwined with her statutory discrimination claims, principles of judicial economy dictate that they be tried in the same action.²

1. Facts. We recite only the facts relevant to the current dispute. Warfield, an anesthesiologist employed by Harvard Medical Faculty Physicians at Beth Israel Deaconess Medical Center, Inc. (HMFP), has been an anesthesiologist on the medical staff of BIDMC since 1980. On March 27, 2000, Warfield entered into an employment agreement with BIDMC and HMFP in which she agreed to serve in the capacity of anesthesiologist-in-chief for BIDMC (agreement).³ The agreement provides that Warfield's duties as anesthesiologist-in-chief would commence on January 1, 2000, and sets forth, inter alia, her duties as chief, her compensation and benefits in that position, and circumstances in which she could be terminated for cause and without cause. The agreement further provides that Warfield remained an employee of HMFP,⁴ and that she was bound by the separate articles, bylaws, rules, guidelines, regulations, procedures, and standards of BIDMC, HMFP, and Harvard Medical School that were not part of the agreement. The agreement additionally provides that it supersedes "any and all previous discussions, understandings or agreements between the Physician, HMFP, and/or the Hospital relating to the subject matter hereof or any other employment or contracting relationship between Dr. Warfield and HMFP or the Hospital."

Section 17 of the agreement, titled Arbitration, provides:

"Arbitration. Any claim, controversy or dispute arising out of or in connection with this Agreement or its negotiations shall be settled by arbitration. Each party hereto shall designate an independent arbitrator and these two[⁵] arbitrators shall select a third independent arbitrator who shall be chairperson of the panel. The arbitrators shall then conduct the arbitration at a mutually acceptable site and a majority shall render a decision as to the matter in dispute, which decision shall be binding on the parties hereto. Each party shall bear the expense of its own arbitrator and an equal share of the expense of the third arbitrator. To the extent not otherwise hereinabove provided, the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The full rules of discovery shall apply to any such proceeding.

"In no event, however, shall this Section 17 be deemed to preclude a party hereto from instituting legal action seeking relief in the nature of a restraining order, an injunction or the like in order to protect her or its rights pending the outcome of an arbitration hereunder. With respect to matters submitted to arbitration other than claims for payment of monies due, the parties shall continue to perform their obligations hereunder relative to said matters pending resolution of the dispute by arbitration."

Neither § 17 nor any other provision of the agreement made reference to employment discrimination statutes or claims.

In the fall of 2001, BIDMC hired Dr. Josef Fischer to be chief of surgery. In January, 2002, Paul Levy was hired as the president and chief executive officer of BIDMC.

Warfield alleges in her complaint that during the next several years, Fischer engaged in a relentless pattern of gender-based discriminatory treatment of her. She also alleges that she repeatedly complained to Levy about Fischer's treatment, but that no or insufficient action was taken. On July 18, 2007, carrying out a decision made by Levy and BIDMC that Warfield characterizes as "discriminatory and retaliatory in its motivation and defaming in its effect," Levy terminated Warfield's appointment as anesthesiologist-in-chief, effective immediately. Warfield further alleges that, since her termination, BIDMC, Levy, and HMFP have "marginalize[d]" her by collaborating to push her out of her job as a staff anesthesiologist at BIDMC, and to deny her benefits to which she would have had access, absent the alleged discriminatory and retaliatory treatment.

Warfield commenced this action in the Superior Court on March 7, 2008.⁶ In her complaint, Warfield alleges claims of gender discrimination under G.L. c. 151B, § 4(1), against BIDMC, Levy, and Fischer; retaliation under G.L. c. 151B, § 4(4), against all defendants; tortious interference with advantageous or contractual relations against BIDMC, Levy, and Fischer; and defamation against BIDMC, Levy, and Fischer. Her claims of tortious interference with contractual relations are entirely based on the same alleged conduct that gave rise to Warfield's statutory discrimination complaints. Her claims of defamation are primarily based on the same conduct that gave rise to her statutory claims, although as discussed below, Warfield additionally alleges that the defendants continued to defame her even after her termination as anesthesiologist-in-chief.

The defendants moved to dismiss the case and to compel arbitration of Warfield's claims pursuant to G.L. c. 251, § 2.⁷ On September 15, 2008, a judge in the Superior Court denied the defendants' motions. He concluded that the arbitration clause did not reach Warfield's claims for gender discrimination and retaliation because the agreement did not govern her employment relationship with BIDMC and HMFP generally, but only the narrow topic of her duties as chief of anesthesiology, and the claims of discrimination fell outside this narrow topic. He also concluded that to the extent Warfield's claims concerned her termination, they were not arbitrable because the agreement provided specifically that it ended on Warfield's termination, and therefore the arbitration clause would no longer be in effect.

The defendants appealed pursuant to G.L. c. 251, § 18 (a) (1), which grants a right of interlocutory appeal from orders denying an application to compel arbitration. We granted the defendants' application for direct appellate review. We affirm the order of the Superior Court judge but for different reasons.

2. Discussion. By its express terms, the agreement is governed by Massachusetts law, and thus the Massachusetts Arbitration Act (MAA) applies to it. At the same time, the agreement comes within the scope of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA), because it concerns Warfield's employment as anesthesiologist-in-chief, and the defendants, as hospital-based health care providers, are involved in interstate commerce. See Miller v. Cotter, 448 Mass. 671, 678, 863 N.E.2d 537 (2007). In all relevant respects, the language of the FAA and the MAA providing for enforcement of arbitration provisions are similar, and we have interpreted the cognate provisions in the same manner. Id. at 678-679, 863 N.E.2d 537. The FAA provides in relevant part:

"A written provision in . . . a contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract . . . or the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."

9 U.S.C. § 2.⁸

Because procedures to compel arbitration under the FAA apply only in Federal courts, we apply the MAA's procedures. See St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 351-352, 879 N.E.2d 27 (2008). The MAA authorizes proceedings in the Superior Court to compel arbitration in accordance with the terms of an arbitration agreement, and permits an interlocutory appeal from orders denying an application to compel arbitration. See G.L. c. 251, §§ 2, 18. A defendant's motion to compel arbitration is treated summarily.⁹ See Miller v. Cotter, 448 Mass. at 676, 863 N.E.2d 537; G.L. c. 251, § 2. We review the judge's order de novo. See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844, 864 N.E.2d 505 (2007).

It is settled that the FAA allows for the arbitration of Federal employment discrimination disputes, unless otherwise barred by law. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24-26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Rosenberg v....