Paula O'donnell v. Donna Boggs, the Boston Globe Employees Credit Union, Brendan Hall, William Francis,…

The Hon. David H. Souter, Associate Justice (Ret.) of the *
Supreme Court of the United States, sitting by designation.
United States Court of Appeals
For the First Circuit
No. 09-1659
PAULA O'DONNELL,
Plaintiff, Appellant,
v.
DONNA BOGGS, THE BOSTON GLOBE EMPLOYEES CREDIT UNION,
BRENDAN HALL, WILLIAM FRANCIS, MARY LOU MEIGHAN, MARION DOUCETTE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter, Associate Justice, *
and Howard, Circuit Judge.
Scott E. Adams for appellant.
Elizabeth A. Houlding with whom Harvey Weiner and Peabody &
Arnold LLP were on brief for appellees.
July 8, 2010

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BOUDIN, Circuit Judge. Paula O'Donnell, a former
employee of the Boston Globe Employees Credit Union ("the Credit
Union"), appeals from the dismissal on summary judgment of her
Massachusetts state law claims alleging tortious interference with
contractual relations by her supervisor and others. On this
appeal, the central issue concerns preemption of state law claims
under Supreme Court precedent designed to protect the collective
bargaining process governed by federal labor law.
O'Donnell began working at the Credit Union as a teller
in 1974. Her employment was governed by a collective bargaining
agreement ("CBA") between the Credit Union and the Office and
Professional Employees International Union, Local 6, AFL-CIO
("Local 6"), of which she was a member. During the relevant
period, defendant Marion Doucette was Manager/CEO of the Credit
Union and was also a member of its board of directors ("the Board")
along with Donna Boggs, Brendan Hall, William Francis, and Mary Lou
Meighan.
According to O'Donnell, in 1998 as head teller she
reported fraud and embezzlement by Gene Farrell, then Manager/CEO
of the Credit Union, which "engendered hostility and antagonism
from certain Board members." Farrell was replaced later that year
by Doucette. Within the next year or so, O'Donnell was promoted to
bookkeeper and then systems manager, positions in which she had
some auditing and oversight functions.

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O'Donnell reported successively that Linda had bounced over 1
a hundred checks on her personal Credit Union account (which were
processed at Doucette's direction despite insufficient funds and
against Credit Union policy), deliberately overridden security
procedures on the accounting system to clear a personal check
despite insufficient funds, and manipulated the clearing account
and falsified financial records to fraudulently obtain funds.
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In November 2000, Doucette hired her daughter Linda as
bookkeeper. O'Donnell complained to Doucette and the Board that
Linda was not qualified and was being paid more than the CBA
schedule provided. O'Donnell says that then Doucette
began a course of retaliation, intimidation
and interference directed at Mrs. O'Donnell. .
. . [including] verbally harass[ing] and
intimidat[ing] Mrs. O'Donnell, obstruct[ing]
performance of her duties, and prevent[ing]
her from fully participating in managerial
tasks that would allow her to maintain or
advance her position in the Credit Union.
On O'Donnell's account, Doucette's behavior toward O'Donnell
worsened when O'Donnell reported serious misconduct by Linda, who 1
was finally terminated in February 2003.
When the most serious charges of wrongdoing by Linda were
reported to the state banking commission, O'Donnell claims Credit
Union Board members Francis and Boggs blamed her and "hostile[ly]
and antagonistic[ally] . . . retaliated by obstructing the
performance of her duties." O'Donnell discovered that she had been
locked out of a computer system and could no longer monitor Linda's
still-active Credit Union account; when she told the Board, Boggs
simply ordered her to clear certain checks submitted by Linda. By
August 2003, O'Donnell says Doucette had expanded her retaliatory

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and intimidating conduct, including "daily verbal abuse, almost
weekly acts of physical violence . . . and weekly interference with
the performance of Mrs. O'Donnell's duties," which "resulted in
both actual physical, emotional and professional injury" to
O'Donnell.
As a result, O'Donnell says that upon prudent medical
advice, she stopped working on August 15, 2003, citing stress-
related reasons. In late November 2003, the Credit Union requested
that she provide a doctor's report, but she did not do so. She
exhausted her sick leave and vacation time by December 2003, asked
for further leave, and was refused because the Board concluded that
Doucette had not committed any wrongful conduct that would warrant
O'Donnell's leave of absence and, additionally, because O'Donnell
had provided no medical evidence to show her need for the leave.
After a further warning that O'Donnell must return to
work or face termination, O'Donnell was terminated. Local 6 filed
a grievance on her behalf, claiming unjust termination in violation
of the CBA; but it eventually withdrew the grievance, stating that
the case lacked merit and that the Credit Union had not violated
the CBA. O'Donnell then charged Local 6 with inadequate
representation, but a regional director of the National Labor
Relations Board dismissed the charge and O'Donnell's internal
administrative appeal failed.
In the meantime, in April 2005, O'Donnell filed a lawsuit
in Massachusetts Superior Court, alleging two counts of tortious

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interference of contractual relations--one against her supervisor
Doucette, and one against Board members Boggs, Hall, Francis, and
Meighan. The defendants removed the case to federal district
court, arguing that section 301 of the Labor Management Relations
Act ("LMRA"), 29 U.S.C. § 185(a) (2006), preempted O'Donnell's
state law tort claims; and they thereafter moved for summary
judgment on the same ground.
There followed a second complaint by O'Donnell in federal
court, which added another claim and was consolidated with the
first; the district court permitted O'Donnell to file an amended
complaint in the consolidated case that added yet another claim;
and magistrate judge recommendations were issued on the first
complaint and the amended one.
In the end the district court agreed that the tortious
interference claims were preempted and their dismissal alone is
challenged by O'Donnell on this appeal. Several other claims made
by O'Donnell were dismissed on other grounds but O'Donnell has not
challenged those dispositions. The district court's preemption
ruling is primarily a legal issue subject to de novo review.
Southex Exhibitions, Inc. v. R.I. Builders Ass'n, 279 F.3d 94, 98
(1st Cir. 2002).
On its face, section 301 merely confers federal court
jurisdiction over "[s]uits for violation of contracts between an
employer and a labor organization representing employees in an
industry affecting commerce," 29 U.S.C. § 185(a), but the Supreme

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Court has deemed such contracts creatures of federal law, whatever
the intent of the parties, Textile Workers v. Lincoln Mills, 353
U.S. 448, 451 (1957); and the Court treats section 301 as a warrant
both for removing to federal court state law claims preempted by
section 301 and then dismissing them. Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 220-21 (1985); Avco Corp. v. Aero Lodge No.
735, Int'l Ass'n of Machinists, 390 U.S. 557, 559-60 (1968).
The phrase "complete preemption" is often used in
describing this state of affairs, Beneficial Nat'l Bank v.
Anderson, 539 U.S. 1, 8 (2003), and it applies most readily to
state-law contract claims purporting to enforce CBAs covered by
section 301, Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95,
101-03 & n.9 (1962). But the doctrine extends beyond this point to
other claims, including purported state law tort claims, whose
enforcement interferes with federal labor law and policy. Allis-
Chalmers, 471 U.S. at 210-13. 220. "Just how far beyond has never
been precisely settled." Martin v. Shaw's Supermarkets, Inc., 105
F.3d 40, 42 (1st Cir. 1997).
Pertinent to the present appeal, the Supreme Court has
declared that state law claims are preempted under section 301 if
they "require construing the collective-bargaining agreement"
because of the congressional interest in uniform interpretation of
collective bargaining agreements. Lingle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399, 407 (1988). No Supreme Court decision
has addressed directly preemption of tortious interference claims

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E.g., Magerer v. John Sexton & Co., 912 F.2d 525, 530-31 (1st 2
Cir. 1990); Steinbach v. Dillon Cos., 253 F.3d 538, 540-41 (10th
Cir. 2001); Oberkramer v. IBEW-NECA Serv. Ctr., Inc., 151 F.3d 752,
756 (8th Cir. 1998); Int'l Union, United Mine Workers v. Covenant
Coal Corp., 977 F.2d 895, 899 (4th Cir. 1992); see also Kimbro v.
Pepsico, Inc., 215 F.3d 723, 727 (7th Cir. 2000). Cf. Local 926,
Int'l Union of Operating Eng'rs v. Jones, 460 U.S. 669 (1983)
(considering preemption of such a claim under the National Labor
Relations Act, 29 U.S.C. § 151 et seq.).
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under section 301, but many federal courts of appeals have done so,
and a number including our own have found certain such claims
preempted under section 301 where deciding them would require the
court to interpret a CBA.2
Whether a given claim is completely preempted depends
importantly on the elements of that claim under state law and the
content of the applicable CBA. DeCoe v. Gen. Motors Corp., 32 F.3d
212, 216-18 (6th Cir. 1994); Covenant Coal, 977 F.2d at 899.
Massachusetts imposes liability for intentional interference with
contractual relations on two different bases: interference by the
defendant with a third party's performance of its contract with the
plaintiff, and interference by the defendant with the plaintiff's
performance of its contractual obligations with the third party.
Shafir v. Steele, 727 N.E.2d 1140, 1143-44 (Mass. 2000). See
generally Restatement (Second) of Torts §§ 766, 766A (1979).
The elements of tortious interference with contractual
relations, common to both theories of the tort under Massachusetts
law, are as follows:
[T]he plaintiff must prove that (1) he had a
contract with a third party; (2) the defendant

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If the contract is for employment and the defendant is the 3
plaintiff's supervisor or a corporate official of her employer
acting within the scope of his or her employment or corporate
responsibilities, the plaintiff must show "actual malice,"
Blackstone v. Cashman, 860 N.E.2d 7, 13-14 (Mass. 2007), but
gradations of motive under state law do not control the preemption
issue in this case which involves the relationship of the claim to
the CBA.
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knowingly interfered with that contract [by
inhibiting the third party's or the
plaintiff's performance thereof, depending on
the theory]; (3) the defendant's interference,
in addition to being intentional, was improper
in motive or means; and (4) the plaintiff was
harmed by the defendant's actions.
Harrison v. NetCentric Corp., 744 N.E.2d 622, 632 (Mass. 2001).
What is special about O'Donnell's claim in this case is
that the defendants accused of interfering with O'Donnell's
contractual rights with her employer--her supervisor Doucette and
several members of the Board--are agents of the employer itself.
The problems of separating unlawful interference from management's
lawful control of its employees are obvious and Massachusetts law
imposes special restrictions on tortious interference claims by
employees against agents of the employer.3
Invoking both theories available under Massachusetts law,
O'Donnell alleged in her complaint as amended that Doucette and the
Board members knowingly acted in such a manner as "to induce the
Credit Union to terminate [O'Donnell's] employment relationship"
and "to cause O'Donnell injury and prevent her from fully
performing her required duties for the Credit Union." She referred

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See Magerer, 912 F.2d at 530-31; Oberkramer, 151 F.3d at 756; 4
Covenant Coal, 977 F.2d at 899; see also Holschen v. Int'l Union of
Painters, No. 09-1122, 2010 WL 842089, at *4 (8th Cir. 2010).
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to both theories in her opposition to the defendant's final motion
for summary judgment.
O'Donnell's claim based on what she calls the "second
distinct period of tortious interference"--the Board's decision to
terminate her employment--is clearly preempted. No court or jury
could decide whether the Board's termination of O'Donnell was
improper without interpreting the CBA's terms, including articles
XV and XX concerning leaves of absence and permissible discharges.4
As the Eighth Circuit explained in Holschen, 2010 WL 842089, at *4,
any expectancy of employment interfered with "cannot be contrary to
the terms of the contract on which the expectancy depends."
On appeal, O'Donnell claims the district court did not
adequately separate out and examine the "first discrete period" of
alleged tortious interference--namely, the claimed harassment and
retaliation by Doucette (and perhaps on one or more occasions by
individual Board members) that led up to O'Donnell's August 15,
2003, abandonment of work. The parties dispute whether O'Donnell
preserved this line of argument in the district court, but
O'Donnell did invoke such conduct as interference. Anyway, claims
based on that first period are also preempted even if examined
independently.

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O'Donnell's argument is that the actions of Doucette (and
perhaps other Board members) were sufficiently hostile and
disruptive that they made her unable to carry out her own duties,
caused her need for medical leave, and made it impossible for her
to return to work in accordance with her contractual obligations
after her leave was exhausted. This claim might fit the latter of
the two theories of tortious interference under Massachusetts law
set forth above, subject to the further requirement under state law
to show malice. See note 3, above.
The question remains whether such a claim would require
interpreting the CBA, and the answer is not straightforward. On
the one hand, O'Donnell has alleged as facts classic abusive
treatment by Doucette motivated purely by personal resentment for
the unmasking of misconduct by Doucette's daughter. Hawaiian
Airlines v. Norris, 512 U.S. 246, 261 (1994) (preemption not
triggered by "purely factual questions . . . [that] do not require
a court to interpret any term of a collective bargaining agreement"
(internal quotation marks omitted)). On the other hand, the claim
asserted is that the conduct involved improper interference by a
supervisor and Board members with an employee's performance of her
duties. It is not easy to see how one could avoid considering the
collective bargaining agreement.
Specifically, recognizing that the gravamen of the claim
is "interference" with the contract, Doucette and any Board member

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Steinbach, 253 F.3d at 540-42 (finding a plaintiff's claim 5
that her supervisor's harassment interfered with her performance of
her employment duties preempted because it required interpretation
of a CBA's management rights clause); Magerer, 912 F.2d at 530-31;
cf. Bartholomew v. AGL Res., Inc., 361 F.3d 1333, 1340 (11th Cir.
2004).
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might be expected to defend various of the acts charged, to the
extent their commission is admitted, as justified by supervisory
and Board responsibilities authorized by the contract. Reproofs
that O'Donnell regards as harassment would, from Doucette's point
of view, be the censuring of an overzealous employee, and
relevantly limiting O'Donnell's computer access might be defended
as a proper response to O'Donnell's own prior behavior.
The CBA has a standard, broad management rights clause
which reserves for the Credit Union "all management rights, powers,
authority and functions" and "the sole and exclusive right to
manage its business in every respect and to take any other action
which the Credit Union deems desirable to the conduct of its
business." This clause seemingly bears on Doucette's authority and
that of any Board member acting individually, and a number of
cases, including one of our own, rely on such clauses as the basis
for complete preemption of employee claims of interference with
contractual relations.5
O'Donnell's claim cannot be resolved without deciding,
at a minimum, whether Doucette's and the Board members' conduct
constituted--in the language of the management rights clause--
"action which the Credit Union deems desirable to the conduct of

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Hawaiian Airlines, 512 U.S. at 260-63 (whistleblower 6
protection claims under federal and state law for reporting
aviation safety issues); Livadas v. Bradshaw, 512 U.S. 107, 121-25,
135 (1994)(state law requiring prompt payment of wages); Lingle,
486 U.S. at 407-13 (claim under state law barring retaliation for
filing worker's compensation claim).
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its business." This is so even if Doucette (or, less plausibly,
the other defendants) had personal motives. O'Donnell and the
defendants disagree about whether the clause encompasses that
conduct; thus there is a "real interpretive dispute" implicating
the CBA. Martin, 105 F.3d at 42.
The Supreme Court has carved out and protected from
complete preemption certain types of claims which it has variously
characterized; but the common denominator is that they depend on an
obligation, usually rooted in public policy, that goes beyond the
interests of the individual claimant. So far as they concern 6
interference with contractual obligations, the tort claims in this
case are not of that character. O'Donnell did make a different
claim based on a whistleblower statute, but it was dismissed on
other grounds and that dismissal has not been appealed.
Finally, although not part of our analysis, we note that
O'Donnell's wrongful discharge claim was the subject of a grievance
by the union, which included its assertion that "one of the root
causes for Paula's absences was on the job stress from a
relationship between Paula and Marion Doucette." The union
ultimately decided the grievance lacked merit, but at least this is

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not the more troubling case in which there is a preempted claim
without the availability of a remedy under the CBA.
Affirmed.

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