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.
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 stressrelated 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. AllisChalmers, 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
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
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
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
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
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.