Massachusetts Retaliatory Discharge Statute Protects Employee’s Right to Sue Employer in Tort

A provision of the Massachusetts Workers’ Compensation Act (Act), Mass. Gen. Laws ch. 152, § 75B(2), and not the common law, affords an employee who was injured on the job and incurred a loss of earning capacity from the injury the right to pursue a third-party action against any person responsible for his or her injury after collecting benefits under the act. Accordingly, it was error for a state trial court to dismiss an employee’s civil action against her employer that alleged retaliatory termination under § 75B(2); she was exercising a right afforded by the act [Bermudez v. Dielectrics, Inc., 94 Mass. App. Ct. 491 (Nov. 16, 2018)].


Plaintiff worked for a temporary employment agency and was placed at Defendant’s manufacturing facility. She sustained work-related injuries when was when one of the defendant’s employees, Ramos, negligently operated a forklift, causing several large metal sheets to fall on the plaintiff’s right foot. She sought and received workers’ compensation benefits from the employment agency and returned to work at Defendant’s facility after approximately eight weeks of recuperation. Three months later, Defendant hired Plaintiff as a full-time employee.

Eighteen months later, Plaintiff filed a third-party action for negligence and respondent superior against Defendant and Ramos. Two months later, Defendant terminated plaintiff’s employment. In a notice given to Plaintiff at the time of her termination, Defendant indicated that “when [Plaintiff] sued [Defendant] after being compensated for your injury by workers’ compensation, we had little choice but to conclude that you don’t believe in the company and don’t have its best interests in mind.”

Procedural Status of the Case

Plaintiff subsequently filed an action against Defendant for retaliatory termination in violation of Mass. Gen. Laws ch. 152, § 75B(2). A first judge ruled that Defendant was not an “employer” as that term was used in the statute and, therefore, could not be sued for retaliation under § 75B(2). The first judge allowed Plaintiff to file an amended complaint. She did so, again alleging a violation of Mass. Gen. Laws ch. 152, § 75B(2), but adding a claim for wrongful termination in violation of public policy. After Defendant moved to dismiss the amended complaint, Plaintiff voluntarily dismissed her public policy claim and a second judge (motion judge) again dismissed her claim for retaliatory termination under § 75B(2). Plaintiff appealed.

Is Suing an Employer a “Right Afforded” by the Comp Act?

The appellate court reviewed the operative statute, and noted its specific language:

No employer or duly authorized agent of an employer shall discharge, refuse to hire or in any other manner discriminate against an employee because the employee has exercised a right afforded by this chapter [Mass. Gen. Laws ch. 152, § 75B(2)].

The issue, therefore, depended upon whether a third-party negligence claim qualified as a right that is “afforded” by Chapter 152. Defendant argued that the right to sue a tortfeasor for personal injury cannot be afforded by the act because it was created by common law. The appellate court disagreed.

The court said that while the word “afford” was not defined in Chapter 152, there were several dictionary definitions that provided insight. Using those definitions, the court observed that the Act had not created, or brought into existence, the right to sue a third party in tort; the Act did, however, afford the right to do so by specifically allowing an employee to initiate a third-party action in addition to receiving benefits through workers’ compensation.

1971 Amendment Eliminated Election of Remedies Concept

The court continued that had there been no 1971 amendment to Mass. Gen. Laws ch. 152, § 15, Plaintiff likely would not have been able to sue Defendant because she had already collected workers compensation from the employment agency and that would have been considered an election of remedies barring a later tort suit. The court stressed, however, that the 1971 amendment eliminated the election of remedies concept from the Act. The court concluded that Plaintiff had exercised a right afforded by the act when she filed her third-party action against Defendant and its employee. Her amended complaint set forth sufficient facts that Defendant’s termination of her employment was in retaliation for the third-party negligence suit. The dismissal of her amended complaint must, therefore, be vacated.


A careful reading of the decision leads me to conclude that the court’s holding is not as broad as might appear at first blush. That is to say, the court here did not hold that an injured worker who has received workers’ compensation benefits may sue the employer in a third-party action. Rather, the holding seems limited to a finding that if the employee files such a third-party action, he or she may not be fired for doing so.

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