Breach of Contract Cases

FEYZ v MERCY MEMORIAL HOSPITAL Docket No. 246259. Submitted December 14, 2004, at Detroit. Decided January 13, 2005, at 9:00 a.m. Leave to appeal sought. Bruce B. Feyz, M.D., brought an action in the Monroe Circuit Court against Mercy Memorial Hospital, a private hospital, and members of its Executive Committee and staff, seeking injunctive relief and damages relating to his placement on indefinite probation by the defendants. The plaintiffs complaint included contract, tort, and statutory antidiscrimination claims. The court, Joseph A. Costello, Jr., J., granted summary disposition for the defendants, citing the doctrine of judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory immunity arising from the peer review committee referral of the plaintiff for psychological evaluation. The plaintiff appealed. The Court of Appeals held-. 1. The peer review statute, MCL 331.531(3)(b), generally grants a peer review committee of a hospital immunity for any act or communication within the committee’s scope as a review entity. There is no indication in the various civil rights acts specifically excluding a peer review committee. Similarly, there is no indication in the statute that would exclude a peer review committee from compliance with the various civil rights acts. The peer review statute is not absolute. At MCL 331.531(4), it specifically denies immunity for anyone acting with malice, that state of mind that is reckless of law and of the legal rights of others. Acting against statutory rights, such as civil rights, would represent a malicious act. 2. The trial court erred in using the doctrine of judicial nonreviewability of staffing decisions of private hospitals with regard to claims brought under statutes such as the Civil Rights Act. That doctrine does not preclude such claims. The principle of nonreviewability insulates a private hospital from attacks on its staffing decisions more than a public hospital is insulated, but not more than any other private employer. 3. A private hospital is capable of committing torts, and, when it does, it is a subject to be held hable as any other private corporation. The trial court improperly granted summary disposition against the plaintiffs count of invasion of privacy. 4. A private hospital is subject to the same breach of contract claims as any other private corporation. If the trial court determines that a breach of contract claim may be based on a corporation’s violation of its own bylaws, such a claim may be viable despite the nonreviewability doctrine. Affirmed in part, reversed in part, and remanded to the trial court for further proceedings. Murray, EJ., concurring in part and dissenting in part, agreed with the majority’s conclusion that the plaintiffs civil rights claims are subject to judicial review and that the peer review statute does not provide the hospital with immunity to statutory civil rights claims. However, he disagreed with the majority’s conclusion that case law does not preclude judicial review of contract and contract-related tort claims relating to a private hospital’s decision regarding a physician’s staff privileges, because the purpose of the statute granting immunity for the peer review committee would be defeated. The peer review immunity statute excepts decisions made with malice from immunity. The act of the peer review committee in sending the plaintiff to the Health Frofessional Recovery Frogram as a condition of remaining on staff, but with the committee’s full knowledge that he had no mental or physical limitations, would constitute malice in the decision-making process. Similarly, to the extent the plaintiff alleged a viable civil rights claim through other allegations, that statutory violation would also fall within the definition of malice in the decision-making process. The remaining tort and contract claims, to the extent they do not rely on the referral to the Health Frofessional Recovery Program, do not fall within the definition of malice and, so, are barred by the peer review statute, MCL 331.351. The tort claims that do allege improper referral are barred by the doctrine of nonreviewability. The trial court properly concluded that it could not review the plaintiffs contract and tort claims without intervening in the hospital’s decision and the peer review process. This Court should adhere to and support the rule that generally prohibits judicial review of the actions of a private hospital in disciplining a staff physician. 1. Hospitals — Peer Review Committee Immunity. The immunity afforded by the peer review statute does not extend to decisions made with malice, which would include violations of statutes such as civil rights acts (MCL 333.531). 2. Hospitals - Private Hospitals - Civil Liability. A private hospital is subject to the same potential civil liability of any private corporation that violates an employment statute, breaches a contract, or commits a tort. Jeffrey L. Herron for the plaintiff. Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery) for the defendants. Before: MURRAY, EJ., and SAWYER and SMOLENSKL, JJ. SAWYER, J. We are asked in this case to determine whether the doctrine that staffing decisions of private hospitals are not subject to judicial review precludes all such review, including claims brought under statutes such as the Civil Rights Act. We hold that the doctrine does not preclude such claims and reverse in part the trial court’s grant of summary disposition dismissing all the plaintiffs various claims against defendant. Plaintiff is a physician with staff privileges at defendant hospital. The individual defendants hold various administrative posts as the hospital. This action has its roots in a dispute between plaintiff and the hospital administration regarding various standing orders that plaintiff wrote with respect to his patients. Specifically, plaintiff directed the nursing staff, as part of the admissions process, to inquire of patients which medications they were taking at home and how they were taking those medications. Plaintiff explains that, in his experience, patients often do not take medications according to the instructions of the prescribing physician. He indicated that he believed he needed to know how the medications were actually being used by the patients, not merely how the patients were supposed to be taking the medications. The hospital administration reacted unfavorably to these standing orders. In fact, the nursing staff was directed to ignore the instructions. It was suggested to plaintiff that he raise the issue administratively, apparently with the end purpose of a uniform policy being adopted if merit was found in plaintiffs request. Although plaintiff pursued this route, it did not result in the adoption of a policy incorporating plaintiffs standing orders. The dispute was renewed. Ultimately, plaintiff was placed on indefinite probation, as well as a referral being made for a psychological examination of plaintiff (which plaintiff reports did not result in the diagnosis of a mental illness). Plaintiff thereafter instituted this action, filing multiple claims against defendants. The trial court granted summary disposition for the defendants, citing the doctrine of judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory immunity arising from the referral of a physician for medical evaluation. Specifically, the trial court opined as follows: Each of Plaintiffs claims arise out of activity involving a peer/professional review committee. Defendant asserts MCL 331.531 as a basis for immunity from liability. MCL 331.531 grants immunity to hospitals such as Defendant, which act within their scope as a review entity, as did the Defendants in this case. Plaintiff is correct that the immunity granted under the statute is “qualified” immunity, that is, immunity only where no malice has occurred, not “complete” immunity as asserted by the Defendants. However, no clear and convincing proof of malice can be found in Plaintiffs brief. Furthermore, according to both Regualos v. Community Hos, 364 N.W2d 723, 726 [140 Mich App 455 (1985)], and Hoffman v. Garden City Hospital — Osteopathic, 321 N.W2d 810 [115 Mich App 773 (1982)], decisions of governing bodies of private hospitals cannot be subjected to judicial review. Therefore, Summary Disposition should be granted pursuant to MCR 2.116(C)(8) upon the basis of the “Michigan Peer Review Statute” (MCL 331.531). It is clear that all causes of action in this case arise from the activity of the Defendants’ peer review board and thereby subjected to the said Peer Review Statute. Therefore, all other issues regarding Summary Disposition of this case need not be addressed. Because the trial court placed the greater emphasis on the peer review statute, we shall begin our analysis there. MCL 331.531 provides in pertinent part as follows: (1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider. (2) As used in this section, “review entity” means 1 of the following: (a) A duly appointed peer review committee of 1 of the following: (iii) A health facility or agency licensed under article 17 of the public health code, 1978 PA 368, MCL 333.20101 to 333.22260. (3) A person, organization, or entity is not civilly or criminally liable: (a) For providing information or data pursuant to subsection (1). (b) For an act or communication within its scope as a review entity. (c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3. (4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice. We turn first to plaintiffs allegations regarding violations of various civil rights acts. Plaintiffs complaint included counts alleging violations of the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq., the Americans With Disabilities Act, 42 USC 12101 et seq., the federal civil rights act, specifically 42 USC 1983 and 1985, and the Vocational Rehabilitation Act, specifically 29 USC 794. Even if the trial court is correct that all of plaintiffs claims arise out of the actions of a peer review committee, the peer review statute does not grant immunity for those actions that violate a civil rights act. We base this determination on two reasons. First, the peer review statute only grants immunity for “an act or communication within [the peer review committee’s] scope as a review entity.” MCL 331.531(3)(b). It is not within the scope of a peer review committee to violate someone’s civil rights. There is no indication in the various civil rights acts at issue here that peer review committees were excluded from the scope of those acts, nor is there any indication that the peer review statute intended to exclude peer review committees from compliance with the various civil rights acts. Indeed, the fact that immunity under the peer review statute is not absolute is reflected by the fact that § 4 denies immunity to a person, organization, or entity that acts with malice. Which brings us to the second reason, namely, that we view a violation of a civil rights act as being a malicious act. The following portion of the definition of “malice” from Black’s Law Dictionary (5th ed) is particularly apt in this situation: “Malice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.” The various civil rights acts adopted by the state Legislature and the United States Congress establish the legal rights of the citizens, including plaintiff. If defendants acted in disregard of those rights, doing so represents a malicious act and, therefore, is outside the scope of immunity granted by the peer review statute. We pause here to address an obvious flaw that permeates defendants’ brief on appeal and, to a lesser extent, the trial court’s opinion. That flaw is the argument raised that plaintiff is unable to factually support his claims. This is demonstrated by the following passage from defendants’ brief on appeal discussing the malice issue: “After reviewing the facts and record before it, the trial court then concluded that ‘no clear and convincing proof of malice can be found in Plaintiff’s brief.’ ” (Emphasis supplied by defendants.) But summary disposition was granted under MCR 2.116(C)(8) (failure to state a claim), not C(10) (no genuine issue of material fact). Furthermore, the trial court’s analysis was even more narrow in that it did not even determine if plaintiff had adequately pleaded violations of the various civil rights acts. Rather, the trial court limited its decision to whether plaintiff had adequately pleaded in avoidance of the immunity granted by the peer review statute and in avoidance of the doctrine of judicial nonreviewability of staffing decisions by private hospitals. Therefore, the question whether plaintiff can factually support his claims of civil rights violations is not before us, nor, for that matter, is the question whether plaintiff even adequately plead those causes of action. The only question before us in this appeal, with respect to the counts of the complaint that allege the statutory civil rights violations, is whether a claim of such a violation falls outside the scope of immunity granted by MCL 331.531. For the reasons stated above, we conclude that it does. Accordingly, the trial court erred in granting summary disposition under MCR 2.116(C)(8) with respect to counts I through IV of plaintiffs complaint on the basis of the immunity granted by MCL 331.531. Additionally, plaintiffs complaint contains allegations of invasion of privacy (count V), breach of fiduciary and public duties (count VI), and breach of contract (count VII). The invasion of privacy count is based on plaintiffs allegations that the hospital’s Executive Committee, acting on recommendations by the ad hoc investigating committee, referred plaintiff to the state’s Health Professional Recovery Program (HPRP). Plaintiff alleges that he cooperated with the referral, submitting to a psychiatric evaluation, which determined that there was no mental health or substance abuse disorder and no reason for plaintiff to participate in an HPRP program. Count VI (breach of fiduciary and public duties) is somewhat more tenuous. Plaintiff alleges that defendant hospital has a duty to its staff and the community at large to operate the hospital in the interest of public health care and in a manner that permits the staff to meet its professional obligations to patients. Plaintiff alleges that defendants violated these duties by suppressing dialogue and debate among the staff regarding patient care issues, by ignoring the hospital and medical staff bylaws, by improperly influencing members of hospital and staff committees, by intimidating plaintiff, by referring plaintiff to the HPRR by conspiring to prevent medical staff from documenting errors in medical care, by retaliating against plaintiff, and by taking disciplinary action against plaintiff. Count VII (breach of contract) specifically alleges that the medical staff bylaws constitute a contract and that defendants repeatedly breached that contract by ignoring unspecified procedural requirements of the bylaws and by committing other unspecified violations of the bylaws. Turning first to count V the referral to the HPRP by the Executive Committee would clearly come within the scope of a peer review committee’s actions and, although plaintiff alleges that the referral proved unnecessary, plaintiffs complaint raises no allegations in this count that would indicate that the referral was maliciously made. Therefore, our focus turns to plaintiffs argument that the Executive Committee does not constitute a peer review committee under the statute and, therefore, is not entitled to the immunity the statute affords. MCL 331.531(2) (a) does not define “review entity” with specificity or limitation. Indeed, the only restrictions imposed by the statute regarding what constitutes a “review entity” under the statute is that it must be a “duly appointed peer review committee” of one of the institutions listed in the statute. It is undisputed that the hospital is such an institution. Plaintiff, however, disputes that the Executive Committee has been “duly appointed” as a peer review committee. In response, defendants only argue that the ad hoc committee formed to investigate the allegations against plaintiff made by the hospital constitutes a “duly appointed review committee” under the medical staff bylaws. Paragraph 57 of plaintiffs complaint, however, alleges that it is the Executive Committee, not the ad hoc committee, which made the HPRP referral that is the basis for the allegations in count V The ad hoc committee’s status as a peer review committee grants that committee immunity, but that does not make the Executive Committee a peer review committee and, therefore, does not grant the Executive Committee immunity. We do note that summary disposition to the individual defendants with regard to count V would be appropriate to the extent that the only basis for their liability would be their participation in the ad hoc committee’s investigation and the recommendations made to the Executive Committee. Turning to count VI, we begin by noting that the allegations of duties and breaches of those duties are so vague and nebulous that we are skeptical that count VI could survive a motion under MCR 2.116(C)(8) that directly attacks whether it states a claim in its own right. But, as noted above, the trial court granted summary disposition on the narrow ground that the claim does not survive the grant of immunity under the peer review statute. In this respect, the allegations do not appear to allege liability based on the actions of the ad hoc committee, the only entity that defendant has identified as being a duly appointed peer review committee. Therefore, summary disposition based on the peer review statute was improper. Turning to count VII, in which, as in count VI, the allegations are extremely vague, we are once again skeptical that it could survive a motion for summary disposition if the motion were decided on broader grounds than that employed by the trial court. But the allegations in this count, such as they are, clearly implicated activity beyond that of the ad hoc committee. Accordingly, plaintiff states (or attempts to state) a cause of action that is broader than the activity that would come within the statutory grant of immunity. Therefore, while summary disposition of this count may ultimately prove appropriate, it is not appropriate on the ground given by the trial court with respect to the immunity granted by the peer review statute. Having concluded that, with the possible minor exception of claims against individual members of the ad hoc committee under count V of the complaint, summary disposition under the grant of immunity in the peer review statute was improper, we turn to the other basis cited by the trial court, the doctrine of nonreviewability of staffing decisions by private hospitals. Although, given the state of the law in this area, the trial court’s conclusions are understandable, a careful examination of the doctrine and its historical roots reveals that its applicability is not so broad as to prevent plaintiffs cause of action in this case. The doctrine that staffing decisions at private hospitals are not subject to judicial review has its roots in Michigan jurisprudence in the case of Hoffman v Garden

TALLY EDDINGS, M.D., Plaintiff v. SOUTHERN ORTHOPAEDIC AND MUSCULOSKELETAL ASSOCIATES, P.A., Defendant No. COA03-1298 (Filed 21 December 2004) 1. Arbitration and Mediation— employment agreement— interstate commerce — Federal Arbitration Act The trial court did not err by concluding that the employment agreements and transactions between the parties involved interstate commerce and therefore require the application of the Federal Arbitration Act, because: (1) the trial court’s findings of fact are sufficient to support its conclusion; and (2) defendant employer provided evidence to demonstrate that it treats patients who live in other states, receives payments from insurance carriers outside of North Carolina, and receives goods and services from out-of-state vendors. 2. Arbitration and Mediation— employment agreement — compelling arbitration of entire dispute The trial court erred by failing to dismiss plaintiffs complaint and compel arbitration as to the entire dispute regarding the validity of an employment contract, because: (1) arbitration is the forum to which both plaintiff and defendant consented to hear any dispute surrounding the contract; and (2) claims such as rescission, no meeting of the minds, and quantum meruit directly challenge the validity of the contract, and therefore, such claims are within the jurisdiction of the arbitrator. Appeal by plaintiff and defendant from judgment filed 23 June 2003 by Judge Philip Ginn in Buncombe County Superior Court. Heard in the Court of Appeals 16 June 2004. Kelly & Rowe, P.A., by E. Glenn Kelly, for plaintiff-appellant. McGuire, Wood & Bissette, P.A., by T. Douglas Wilson, Jr., for defendant-appellant. BRYANT, Judge. On 16 November 1997, Tally Eddings, M.D. (Dr. Eddings or plaintiff) and Southern Orthopaedic and Musculoskeletal Associates, P.A. (SOMA) entered into a contract of employment. Ori 1 January 1998, Dr. Eddings and SOMA subsequently entered into a non-shareholder physician employment agreement which replaced the earlier contract of employment. Plaintiff signed both SOMA agreements which contained the following arbitration provision: (10) Dispute Resolution bv Arbitration. Any controversy, dispute, or disagreement arising out of or relating to the Agreement, including the breach thereof, shall be settled exclusively by binding arbitration, which shall be conducted in a location to be mutually agreed upon by the parties, or at the principal office of the corporation, in accordance with the [American] Health Lawyers Association Alternative Dispute Resolution Service Rules of Procedure for Arbitration, and which to the extent of the subject matter of the arbitration, shall be binding not only on all parties to this Agreement, but on any other entity controlled by, in control of, or under common control with the party to the extent that such affiliate joins in the arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any arbitrator so appointed shall have the express authority, but not the obligation, to award attorney’s fees and expenses to the prevailing party in any such proceeding. Dr. Eddings subsequently moved from Tennessee to Buncombe County, North Carolina. From 17 August 1998 until 4 January 2000 he worked as an orthopaedic surgeon for SOMA pursuant to the SOMA employment contract. The SOMA employment contract required a written six month notice of termination of employment by Dr. Eddings. Further, the agreement required Dr. Eddings to give preliminary notice of resignation twelve months prior to the effective date of termination. Dr. Eddings was also bound by a ‘covenant not to compete’ provision in his employment contract which prevented him from practicing orthopaedic medicine within a 50-mile radius of SOMA for five years after termination of employment. With insufficient notice, Dr. Eddings terminated his employment effective immediately in a 4 January 2000 letter of resignation to SOMA, citing employment concerns. Following his resignation from SOMA, Dr. Eddings began practicing with another orthopaedic practice in Asheville in violation of the ‘covenant not to compete’ provision of the employment contract. On 25 February 2000, SOMA requested arbitration through American Health Lawyers Association for plaintiff’s alleged breach of the employment contract. On 9 March 2000, plaintiff filed a complaint in the Superior Court of Buncombe County alleging fraud, breach of fiduciary duty, and various other claims for relief seeking (1) rescission of his employment contract with SOMA, (2) an injunction enjoining SOMA’s arbitration and (3) a declaratory judgment that no enforceable contract existed between plaintiff and SOMA. On 31 March 2000, plaintiff filed an amended complaint pursuant to Rule 15(a) of the North Carolina Rules of Civil Procedure, adding a tenth claim for relief seeking a declaratory judgment that plaintiff’s non-shareholder physician employment contract with defendant was against public policy, unconscionable, and unenforceable. On 28 March 2000, SOMA filed a motion to compel arbitration and dismiss the complaint, seeking to enforce the arbitration provision contained in plaintiffs employment agreement. On 31 March 2000, plaintiff filed a motion to stay the arbitration scheduled for 26 April 2000. On 30 July 2000, the trial court denied SOMA’s motion to compel arbitration and granted plaintiffs motion to stay arbitration. SOMA appealed the 30 July 2000 order staying arbitration to this Court. On appeal, this Court reversed the decision of the trial court, holding that (1) a valid agreement to arbitrate exists between Dr. Eddings and SOMA; (2) the arbitration provision is governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16 (1999) and applicable federal law; and (3) Dr. Eddings’ claims for rescission and declaratory relief based on fraud, unconscionability, and indefiniteness resulting in no meeting of the minds should be submitted to the arbitrator, pursuant to Prima Paint Corp. v. Flood & Conklin, 388 U.S. 395, 18 L. Ed. 2d 1270 (1967), because those claims were directed to the entire employment agreement and not just the arbitration provision itself. Eddings v. S. Orthopedic & Musculoskeletal Assocs., 147 N.C. App. 375, 555 S.E.2d 649 (2001) (hereinafter Eddings I). In a dissenting opinion in Eddings I, Judge Greene stated that while he agreed with the majority that under the FAA, the claims at issue should be referred to arbitration, the decision to apply the FAA was a matter for the trial court to initially determine. The North Carolina Supreme Court, agreeing with Judge Greene’s dissent, held that the trial court, not the Court of Appeals, must first determine whether or not the FAA was applicable. Eddings v. S. Orthopedic & Musculoskeletal Assocs., 356 N.C. 285, 569 S.E.2d 645 (2002) (per curiam). On remand, the Superior Court of Buncombe County issued an order on 23 June 2003 which allowed in part and denied in part defendant’s supplemental motion to compel arbitration. Further, some of plaintiff’s claims were ordered to arbitration, while some claims were reserved for the trial court. The trial court made the following conclusions of law: 1. The transaction and Agreements between the parties involve interstate commerce and are, therefore, controlled by the Federal Arbitration Act. 2. Plaintiff’s Prayers for Relief No. 1 (rescission of the contract), No. 2 (no meeting of the minds and unenforceable due to the vagueness and uncertainty), and No. 9 (quantum meruit) are not arbitrable .... 3. Plaintiffs Prayers for Relief No. 3 (actual and punitive damages for alleged fraud), No. 4 (G.S. 75-l.l[attorney fees]), No. 7 (covenant not to compete), No. 8 (unconscionable as against public policy and praying for rescission) and No. 10 (unconscionable as against public policy and praying for declaration as null and void), are arbitrable.... Also on remand, plaintiff was granted leave by the trial court to amend his complaint to add: (1) that the Rules of the American Health Lawyers Association Alternative Dispute Resolution Service violate constitutional rights by prohibiting the arbitrator’s award of “consequential, exemplary, incidental, punitive or special damages” and; (2) that plaintiff will be deprived of access to the courts with respect to his claims for declaratory relief because arbitrators may not grant such relief. On 22 July 2003 plaintiff and defendant respectively filed notices of appeal to this Court. On appeal plaintiff and defendant raise two issues: whether the trial court erred in: (I) concluding that the agreements and transactions between Eddings and SOMA involved interstate commerce and therefore require the application of the Federal Arbitration Act and (II) compelling arbitration as to some, but not all the disputed issues. I The first issue is whether the trial court erred in concluding that the agreements and transactions between Eddings and SOMA involved interstate commerce and therefore require the application of the Federal Arbitration Act. In Eddings I, this Court applied the FAA to reach the conclusion that a valid arbitration agreement existed between Eddings and SOMA and that the issues before the Court were covered by the language of the arbitration agreement and must be submitted to an arbitrator for resolution. Eddings v. S. Orthopedic & Musculoskeletal Assocs., 147 N.C. App. 375, 383, 555 S.E.2d 649, 654 (2001). In summary, we hold that a valid agreement to arbitrate exists between plaintiff and SOMA and that the grounds relied upon by the trial court in refusing to enforce this arbitration agreement are issues which are covered by the language of the parties’ agreement to arbitrate and must be submitted to an arbitrator.... Id. at 384, 555 S.E.2d at 655. The North Carolina Supreme Court in adopting the dissenting opinion in Eddings I did not specifically address the Court of Appeals’ conclusions as to the validity of the agreement or the scope of the dispute. These conclusions, however, were dependant upon a determination that the transaction involved interstate commerce and therefore the FAA applied. In Eddings I the dissenting opinion as adopted by the North Carolina Supreme Court stated: Before the FAA applies to a contract, the contract must either relate to a maritime transaction or evidence “a transaction involving commerce.” 9 U.S.C. §2 (2000). Whether a contract “evidenced ‘a transaction involving commerce’ within the meaning of §2 of the [FAA]” is a question of fact which an appellate court should not initially decide. Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Comm’n, 387 F.2d 768, 772 (3d Cir. 1967). Id. at 385, 555 S.E.2d at 656. On remand, the trial court made the following findings of fact pertinent to evidencing interstate commerce and supporting the determination that the FAA applied to this controversy: 2. Plaintiff traveled from . . . Tennessee to . . . North Carolina to interview with . . . [and accept] the offer of' employment with [SOMA]. . . . 3. SOMA treats patients that reside in a number of different states .... 4. While employed by SOMA, Dr. Eddings personally treated patients that reside in a number of different states .... 5. A large portion of SOMA’s physician fees are paid on behalf of SOMA’s patients by medical insurance companies, including out-of-state and multi-state insurance carriers ... located in a number of different states .... 6. During the time that Dr. Eddings was employed by SOMA, he personally treated patients for whom SOMA received fee payments for out-of-state and multi-state insurance carriers. These insurance carriers are located in a number of different states.... 7. SOMA purchases supplies and services ... from a variety of vendors located within and without the state of North Carolina .... 8. Dr. Eddings provided services and generated revenue that facilitated SOMA’s various interstate activities .... 9. The American Health Lawyers Association Alternative Dispute Resolution Service (AHLAADRS) is the organization specified by the parties’ contracts as the organization to arbitrate ‘any dispute, controversy, or disagreement arising out of or relating to this Agreement, including the breach thereof. . . .’ Section 6.06 of the AHLAADRS rules states that there is no claim available for and the arbitrator ‘may not award consequential, exemplary, incidental, punitive or special damages . . . ,’ while at the same time section 1.05 provides that the provisions within the rules and any exceptions thereto are subject to the applicable law, and if there is a difference in interpretation among the parties, the arbitrator shall interpret and apply the rules. The trial court’s findings of fact are sufficient to support its conclusion that the agreements and transactions between Dr. Eddings and SOMA involve interstate commerce, and therefore the FAA applied. See also, Whitley v. Carolina Neurological Assocs., P.A., No. 1:01-CV-00105, 2002 WL 1009721, at *2 (M.D.N.C. Feb. 6, 2002) (the transaction in fact involves interstate commerce when a doctor from Louisiana moved to North Carolina and through the medical practice treats patients from other states, accepts payments from out-of-state and multi-state insurance carriers, and receives goods from out-of-state vendors); Jones v. Tenet Health Network, Inc., U.S. Dist. LEXIS 5037, 6 Am. Disabilities Cas. (BNA) 1307(1997) (motion to stay discrimination action pending arbitration was granted in employer’s favor pursuant to agreement to arbitrate when (1) employer was engaged in interstate commerce, (2) employee freely consented to agree to arbitrate, (3) employee did not lack the capacity to consent to arbitration, and (4) employee failed to show such agreement to arbitrate was for an unlawful purpose); Crawford v. West Jersey Health Sys., 847 F. Supp. 1232, 1240, 1994 U.S. Dist. LEXIS 4181, at *21 (D.N.J. 1994) (employer’s motion to stay the wrongful discharge action was granted in part, pending arbitration of doctor’s employment agreement, and denied in part as to the doctor’s motion for leave to amend the complaint). SOMA’s contract with Dr. Eddings involved interstate commerce. SOMA has provided evidence to demonstrate that it treats patients who live in other states, receives payments from insurance carriers outside North Carolina, and receives goods and services from out-of-state vendors. Therefore, the trial court did not err in determining Dr. Eddings and SOMA were engaged in interstate commerce and the FAA applied. II The next issue is whether the trial court erred by failing to dismiss plaintiff’s complaint and compel arbitration as to the entire dispute. It is well settled under the FAA that a trial court has jurisdiction to stay arbitration proceedings pursuant to contract only upon grounds that “relate specifically to the arbitration clause and not just to the contract as a whole.” Snowden v. Checkpoint Check Cashing, 290 F.3d 631, 636 (4th Cir.) (quoting Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 938 (4th Cir. 1999)), cert. denied, 537 U.S. 1087, 154 L. Ed. 2d 631 (2002). Where a party challenges the enforceability or validity of the contract containing the arbitration clause as a whole, it is within the exclusive jurisdiction of the arbitrator to determine those claims. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 18 L. Ed. 2d 1270, 1277 (1967) (holding pursuant to the FAA arbitration clauses are severable from the contracts in which they are included and thus, a broad arbitration clause encompasses arbitration of claims that the contract itself is not enforceable)); See also Keel v. Private Bus., Inc., 163 N.C. App. 703, 708, 594 S.E.2d 796, 798 (2004). “The trial court’s conclusion as to whether a particular dispute is subject to arbitration is a conclusion of law, reviewable de novo by the appellate court.” Raspet v. Buck, 147 N.C. App. 133, 136, 554 S.E.2d 676, 678 (2001), citing PaineWebber Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir. 1990). Our Court has adopted the PaineWebber analysis with respect to whether a dispute is subject to arbitration. The determination of whether a dispute is subject to arbitration involves a two pronged analysis; the court must ascertain both (1) whether the parties had a valid agreement to arbitrate, and (2) whether the specific dispute falls within the substantive scope of that agreement. Raspet, 147 N.C. App. at 137, 554 S.E.2d at 678. The first prong of the analysis is satisfied as the parties clearly have an agreement to arbitrate pursuant to the SOMA employment contract. As to the second prong, we must determine whether the claims fall within the scope of the agreement. In reviewing plaintiffs complaint, the trial court compelled to arbitration the following claims: actual and punitive damages for alleged fraud; attorney’s fees; covenant not to compete; the .contract was unconscionable as against public policy and praying for rescission; the contract was unconscionable as against public policy and praying for declaration as null and void. Plaintiff argues that because the trial court compelled to arbitration these disputes, he will be deprived of substantial rights such as due process because an arbitrator, rather than a court of law will adjudicate this dispute. However, in the agreement between plaintiff and defendant, both parties mutually consented to arbitration. Agreeing to arbitration does not, by itself, prejudice plaintiff or prevent plaintiff from being heard in the appropriate forum. In this case, arbitration is the forum to which both plaintiff and defendant consented to hear any dispute surrounding the contract. As stated in the parties’ agreement: “Any controversy, dispute, or disagreement arising out of or relating to the Agreement . . . shall be settled exclusively by binding arbitration . . . .” (emphasis added). To that end, there is no indication as to how the arbitrator will resolve the substantive issues in controversy or whether the remedies that plaintiff seeks apply. Despite the agreement to arbitrate, however, the trial court did not compel to arbitration plaintiff’s prayers for relief: rescission of the contract; no meeting of the minds; and quantum meruit. Clearly the agreement to arbitrate the instant case is a broad one. Accordingly, based on Prima Paint, claims such as rescission, no meeting of the minds, and quantum meruit directly challenge the validity of the contract.' Therefore such claims are within the jurisdiction of the arbitrator. This does not diminish the superior court’s jurisdiction as to any claims unresolved through arbitration. See Adams v. Nelson, 313 N.C. 442, 446, 329 S.E.2d 322, 324 (1985) (holding an “agreement to arbitrate does not cut off a party’s access to the courts and further [holding] that the court that compels arbitration does not lose jurisdiction.”); See also Henderson v. Herman, 104 N.C. App. 482, 409 S.E.2d 739 (1991). Based on the trial court’s determination that the agreement and transactions between plaintiff and defendant involve interstate commerce, failure to send all issues in controversy to arbitration was error. Therefore the decision of the trial court as to those claims not sent to arbitration must be reversed. We affirm in part and reverse in part. Judges TYSON and STEELMAN concur.

Sheriff of Bristol County vs. Labor Relations Commission & another. No. 03-P-694. Suffolk. June 2, 2004. December 10, 2004. Present: Duffly, Dreben, & Green, JJ. Labor Relations Commission. Labor, Unfair labor practice. Sheriff. Correction Officer. There was no merit to the claim in an appeal from a decision of the labor relations commission that it lacked jurisdiction to issue an order to produce information sufficient for a union to perform its duties as representative of a public employee. [667-668] This court concluded that the labor relations commission (commission) acted within its discretion in ordering the plaintiff employer to produce information sufficient for an investigated employee’s union to determine whether the restriction of that employee’s duties (which had an impact on her overtime opportunities) was warranted, where the commission properly balanced the union’s need for information and the employer’s concerns regarding safeguarding effective law enforcement, and where the question whether the relevant documents were public records as determined under G. L. c. 4, § 7, Twenty-sixth (J), did not control whether the union was entitled to the material [668-671]; further, while the commission did not abuse its discretion in implicitly ruling that an in camera examination of the requested materials was not required [671-672], the plaintiff employer and the employee’s union were permitted to seek a clarification from the commission of its order, in light of a particular statement in that order [672], Appeal from a decision of the Labor Relations Commission. Robert M. Novack (.Ronald J. Lowenstein with him) for the plaintiff. Matthew E. Dwyer for the intervener. Massachusetts Correction Officers Federated Union, intervener. Dreben, J. After a correction officer, Jane Doe, informed her union of her belief that she was under investigation by her employer, the sheriff of Bristol County (sheriff), and that restrictions were placed on her duties and her rights to overtime under the collective bargaining agreement were being violated, the union requested information from the sheriff pertaining to any investigation of Doe. Receiving no answer to its inquiries, the union, on April 24, 1997, filed a charge of prohibited practice with the Labor Relations Commission (commission). Upon investigation, the commission issued its own complaint and, after reviewing the record, determined that the sheriff had failed to bargain in good faith by failing to provide the union with requested information that was relevant and reasonably necessary for the union to perform its duty as the employees’ exclusive representative, in violation of G. L. c. 150E, § 10(a)(5) and 10(a)(1). The commission, as set forth in relevant part in the margin, ordered the sheriff to produce information sufficient for the union to determine whether the restrictions on Doe’s duties that impacted her overtime opportunities were warranted. The sheriff appeals, claiming (1) that the commission lacked jurisdiction to issue such an order during a pending criminal investigation, and that only a court has such equity powers; and (2) that the materials ordered fell within the exemption provided by G. L. c. 4, § 7, Twenty-sixth (f), and the commission, contrary to the decision in Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. 852, 858 (1995), improperly used a balancing test in ordering disclosure. In the alternative, the sheriff urges that “the case should be remanded to the . . . [cjommission to make an in camera finding as to whether the information requested, if released, presents a reasonable likelihood that such disclosure would prejudice effective law enforcement.” We affirm the decision, but permit either the sheriff or the union to seek clarification from the commission. 1. The sheriffs claim of lack of jurisdiction is without merit. The sheriff cites no authority supporting it, and the argument does not meet the requirements of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, G. L. c. 150E, § 11, authorizes the commission to hear complaints of practices prohibited under § 10, and if the commission finds a prohibited practice, it is authorized to issue affirmative orders. Nothing in G. L. c. 150E, G. L. c. 30A (the general statute governing practice in administrative agencies), or the public records law (G. L. c. 66, § 10, and G. L. c. 4, § 7, Twenty-sixth) limits the commission’s jurisdiction to issue such orders. See Boston Police Superior Officers Fedn. v. Boston, 414 Mass. 458, 461 n.5 (1993), which substantially upheld an order of the commission requiring the production by subpoena of similar documents. 2. In determining whether the order was within the commission’s discretion, or whether the commission used the wrong criteria in its order, we turn to the findings of the commission; they are not disputed by the sheriff. Doe, after hearing rumors from certain female inmates, including a rumor that she had sexually molested a female inmate, was placed on restricted duty on August 30, 1996, a restriction that barred her from having contact with female inmates. The restrictions subsequently increased, and by December, 1996, Doe was placed in positions having no inmate contact. Not only were her duties restricted, but as a consequence, her opportunities for overtime were limited by the sheriff and eventually eliminated. Despite requests by the union in September, 1996, and January, 1997, for information on an investigation of Doe, no information was forthcoming. In September, 1997, union representatives met with the sheriff and asked about the investigation; they were told to wait a few weeks and that the matter would be concluded shortly, at which time they would receive information. By November, 1999, the date of the last evidentiary hearing held by the commission, the union still had not been informed of the description of Doe’s misconduct, if any. Applying its relevancy standard, the commission found “that the requested information is relevant and reasonably necessary for the Union to police and enforce the overtime selection procedure ... of the parties’ contract and to assess whether to file and pursue a grievance on [Doe’s] behalf.” Given that finding, the commission ruled, in accord with its decisions, that the burden shifted to the employer to establish that it has “legitimate and substantial” concerns about disclosure and that it “has made reasonable efforts to provide the union with as much of the requested information as possible, consistent with [the employer’s] expressed concerns.” Board of Trustees, Univ. of Mass. (Amherst), 8 M.L.C. 1139, 1144 (1981). See Boston Sch. Comm., 13 M.L.C. 1290, 1294 (1986). Citing the concerns stated in Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976), and Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. at 858, as well as its concerns with the particular case, the sheriff argued that its internal affairs investigators are law enforcement officials and that disclosure would jeopardize effective law enforcement. Weighing both the interests of the union and the sheriff, the commission determined: “Even assuming that: 1) investigators within the Sheriff’s office of internal affairs are law enforcement personnel or investigatory officials within the meaning of G.L.c. 4, Section 7, cl. 26(f); 2) the investigation of [Doe] is criminal in nature and is ongoing[]; and, [3] the [Doe] investigatory materials are necessarily compiled out of the public view, we determine that, if certain information is provided to the Union in a manner consistent with the protections in Boston Police Superior Officers Federation v. City of Boston, 414 Mass. 458, 461, fn. 5 (1993), the Union’s need for information about the [Doe] investigation outweighs the Sheriff’s expressed concerns. The release of certain information to the Union consistent with the judicially-approved protections harmonizes all applicable statutory schemes by enforcing the employer’s obligation to bargain in good faith under the Law, and by protecting the public interest in effective law enforcement under the investigatory materials exemption of the public records law. See, City of Boston, 22 MLC 1698 (1996) (Employee’s internal affairs division file given to Union counsel to defend employee in a disciplinary proceeding.)” Although in its appellate brief the sheriff challenges the commission’s finding as to the union’s need for the sought-after information, the record amply supports the commission’s finding that without information as to the investigation, the union cannot determine whether Doe’s restrictions, which affected her overtime, were violations of the collective bargaining agreement. Moreover, the sheriff did not challenge before the commission the relevancy of the material. Citing to Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. at 858, the sheriff claims that the commission improperly used a balancing test in determining whether the union was entitled to the material. The court in Globe Newspaper Co., supra, specifically held that, unlike the privacy exemption in the statute (G. L. c. 4, § 7, Twenty-sixth [b]), which requires a balancing between any claimed invasion of privacy and the interest of the public in disclosure, “[application of the investigatory exemption [Twenty-sixth (/)]... does not contemplate [such a] test” in determining whether a record is public and hence subject to disclosure. However, whether the material is a public record or not does not answer the question of the union’s right of access to information in the hands of the sheriff’s internal affairs division (IAD). This was made clear in Boston Police Superior Officers Fedn. v. Boston, 414 Mass. at 459, 466-467, a case charging the city with a prohibited practice for denying promotion to the police officer who was president of the union in retaliation for his union activities. The city, as does the sheriff here, claimed that the LAD logs and cards should not be produced because the information was exempted from disclosure under G. L. c. 4, § 7, Twenty-sixth (f). Id. at 465. The Supreme Judicial Court, id. at 465-466, rejected that argument and quoted from Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 691 (1972) (“All police records . . . whether or not they are public records, are subject to being summoned before a proper tribunal in accordance with established rules of law”). The court, id. at 466, also cited to Town of Weymouth, 16 M.L.C. 1168, 1171 (1989). See Commonwealth v. Wanis, 426 Mass. 639, 643 (1998). While Boston Police Superior Officers Fedn. v. Boston, supra, dealt with the power of the commission to issue subpoenas, we see no reason why a different rule should apply to the disclosure of similar material under a remedial order issued after a litigated prohibited practice case. Thus, whether documents are public records as determined under G. L. c. 4, § 7, Twenty-sixth (f), does not control whether the union is entitled to the material, although the section provides guidance as to public policy considerations. The commission weighed those policies in balancing the union’s need with the considerations put forth by the sheriff, and was not in error in using its traditional balancing test which adopted the approach of Detroit Edison Co. v. National Labor Relations Bd., 440 U.S. 301, 317-320 (1979). See Board of Trustees, Univ. of Mass. (Amherst), 8 M.L.C. at 1144. The sheriff urges, in the alternative, a remand to the commission for an in camera examination of the materials. However, the order, see note 3, supra, does not require disclosure of witnesses or their statements and requires only disclosure of the nature of the alleged misconduct and dates that will show when the investigation began and whether it is still continuing. See Rafuse v. Stryker, 61 Mass. App. Ct. 595, 600-601 (2004), indicating that the length of an investigation is relevant to disclosure, and a lengthy investigation may lessen problems of disclosure under G. L. c. 4, § 7, Twenty-sixth (f). The commission’s implicit ruling that its order limiting disclosure does not call for an inspection in camera was not an abuse of discretion. Contrast Boston v. Labor Relations Commn., 61 Mass. App. Ct. 397, 402-403 (2004) (in camera review required of an evaluation [of a supervisor] which could harm the city in its efforts to counsel and improve job performance). We make one additional comment. In the commission’s memorandum in support of its motion for summary disposition, filed in lieu of a brief on appeal, counsel states that its order “which was modeled on the order in the Boston Police Superior Officers Case, [414 Mass. 461 n.5 & 467 n.10,] should be construed in the same manner as not requiring disclosure to [Doe]. Under those circumstances, the purported risk that the integrity of [the] internal affairs investigation will be compromised is greatly reduced, if not eliminated, and the Court should reject the Sheriff’s contention to the contrary.” In view of that statement, the sheriff and the union are permitted, if either or both are so inclined, to seek within thirty days of the issuance of the rescript, a clarification from the commission of its order. The union, which was expressly permitted under the commission’s decision to “assert that the information is inadequate ... in a separate compliance proceeding,” may choose to argue against such a restriction. We do not limit the commission’s discretion if there is a request for clarification. Decision of Labor Relations Commission affirmed. A pseudonym. The commission’s complaint contained a second count alleging that the sheriff failed to bargain in good faith by unilaterally changing the criteria for assigning overtime. The commission concluded that the allegations of count two were supported and ordered that the employee be made whole for loss of overtime. The sheriff does not appeal from the order on this count. “(a) Upon request of the Union, provide the Union’s counsel with information, subject to the following conditions, about the [Doe] investigation sufficient for the Union to determine if the imposition and scope of [Doe’s] restricted duty, that impacts directly [Doe’s] overtime opportunities under the parties’ agreement, was warranted and continues to be warranted. The information provided must include the date the investigation opened, a detailed description of the alleged misconduct under investigation, and the date(s) investigators interviewed witnesses and/or took other action on the investigation. If there exists a summary sheet created contemporaneously with the Sheriffs action in the investigation that contains this information, provide this summary sheet after deleting all information identifying any person other than [Doe], The summary sheet must also be redacted to comply with the requirements of the criminal offender record information act and the rape shield law. If no summary sheet exists, or if the summary sheet does not contain the date the investigation opened, a detailed description of the alleged misconduct under investigation, and the date(s) investigators interviewed witnesses and/or took other action on this investigation, provide the Union with all investigatory file documents that contain this information, with all other information, like the substance of the witness statement, deleted. Further, these documents must be redacted to comply with the requirements of the criminal offender information act and the rape shield law. “(i.) The Union’s counsel (including all persons to whom the attorney-client privilege would be applicable) shall not disclose the information provided by the Sheriff to anyone but his/her client; “(ii.) The Union’s counsel, the Union, and all of its representatives, are not to use the information for any purpose other than to assess whether to file and process a grievance on [Doe’s] behalf or directly related proceedings.” Clause Twenty-sixth (/) exempts from the definition of public records that are subject to inspection pursuant to G. L. c. 66, § 10: “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” G. L. c. 4, § 7, Twenty-sixth (/), inserted by St. 1973, c. 1050, § 1. Contrary to the sheriff’s claim, that case ordered summary sheets of open investigations of the internal affairs division (IAD) of the Boston police department. The commission described this standard as liberal, similar to the standard for determining relevance in civil litigation discovery proceedings. Before making its finding, the commission noted that the union asserted that, at the time of its first request in September, 1996, the information was relevant and reasonably necessary for the union to determine whether Doe’s reassignment and subsequent workplace isolation violated the collective bargaining agreement. At the time of its second request, in January, 1997, the information was relevant and reasonably necessary to determine why she had been bypassed for overtime assignments. Cf. Worcester County Sheriff’s Of fice, 30 M.L.C. 58, 59 (2003) (in determining unfair labor practice, relevance of requested information must be determined by circumstances existing at the time of the request). The exemption aims at “the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Globe Newspaper Co. v. Boston, 419 Mass. at 859, quoting from Bougas v. Chief of Police of Lexington, 371 Mass. at 62. In support of an interlocutory appeal to the commission from the deferral of its motion to dismiss, the sheriff attached an affidavit of a captain in the sheriff’s IAD dated January 15, 1999, stating, inter alla, that in October, 1996, the sheriff received information that Doe had been engaged in sexual misconduct and other offenses, some of them criminal in nature. In the captain’s opinion, disclosing the material “would seriously compromise the investigation of [Doe] and others .... The subject. . . could take action to destroy evidence, intimidate, harm or bribe witnesses or otherwise tamper with evidence .... Disclosure . . . could also potentially jeopardize the safety of witnesses . . . especially . . . in a correctional setting where inmates who cooperated . . . could be . . . harmed by other inmates who view them as informants or by [Doe’s] fellow employees in an attempt to protect her.” Assumption numbers one and two are contested by the union, but in the view we take of the case we need not determine their validity. In Town of Weymouth, supra, the commission held that the public records question was irrelevant to the power of the commission to subpoena documents. The “[c]ommission’s subpoena power does not request the release of information pursuant to G.L. c.66, § 10, and therefore the Town’s reliance upon the definitions contained in G.L. c.4, § 7 is inapposite.” Id. at n.6. We hesitate to construe the order as precluding disclosure to Doe as suggested by counsel for the commission on appeal. Not only was the order not so restricted, but in the Boston Police Superior Officers Fedn. case, the permitted disclosure to “client” included the president of the federation who was the officer who was the subject of the prohibited practice —• retaliation for union activity. See 414 Mass. at 467 n.10.

DAVID B. MILLER, Plaintiff v. BARBER-SCOTIA COLLEGE, Defendant No. COA03-292 (Filed 7 December 2004) 1. Civil Rights— dismissed college professor — burden of proof not carried The trial court erred by not dismissing a claim for racial discrimination under 42 U.S.C. § 1981 by a college professor who was dismissed after a dispute with the administration over changing a grade. Plaintiff did not meet his burden of showing that defendant’s stated reason for its action was a pretext. 2. Civil Rights— dismissed college professor — punitive damages — aggravated conduct — evidence insufficient Assuming, that the trial court properly denied defendant’s motions to dismiss (which it did not) in a claim of racial discrimination by a dismissed college professor, the trial court erred by not granting defendant’s motions for a directed verdict and a j.n.o.v. on punitive damages. The jury made no finding of aggravated conduct and plaintiff’s testimony standing alone is not sufficient, as its probative value is slight and it did not address whether defendant knew that its purported actions were illegal. Judge Hudson concurring in part and dissenting in part. Appeal by defendant from judgment entered 20 March 2001 by Judge Donna H. Johnson in Cabarrus County District Court. Heard in the Court of Appeals 20 November 2003. U. Wilfred Nwauwa for plaintiff-appellee. Plummer, Belo & Russell, PA, by Vernon A. Russell, for defendant-appellant. STEELMAN, Judge. Defendant, Barber-Scotia College, appeals a trial court order denying its motions for directed verdict and judgment notwithstanding the verdict. For the reasons discussed herein, we vacate the judgment of the trial court and reach only defendant’s first two assignments of error. Plaintiff, David B. Miller, was a professor at defendant Barber-Scotia College, teaching sociology, criminal justice, and anthropology. In February 1997, plaintiff requested that defendant’s registrar change a grade of Mr. Jones, a student, who had taken a course taught by plaintiff. Once a final grade for a student has been submitted by a professor to defendant, it can only be changed in accordance with a specific policy adopted by defendant. This policy allows for a grade to be changed in only four situations: (1) an incorrectly computed grade; (2) an incorrect transcription of a grade; (3) an unintentional omission of some component of a student’s work; and (4) a successful grade appeal. Any request for a grade change must be in writing and must state the reason for the grade change. The grade change form must be approved by the professor’s division chairperson and then by the dean for academic affairs before it is forwarded to the registrar of the college. Plaintiff initially submitted a grade change request for Mr. Jones which did not state a reason for the grade change. This request was rejected by Mr. James Ramsey, dean of academic affairs for defendant. Plaintiff submitted the grade change request for Mr. Jones a second time without stating a reason for the requested change. Again, Mr. Ramsey denied the request. Mr. Jones’s grade change request was submitted a third time. A reason was stated on the third request but was not one of the four situations set forth in defendant’s grade change policy. This last grade change request was approved by plaintiff’s division chairperson and immediate supervisor, Dr. Babafemi Elufiede, but was again rejected by Mr. Ramsey. The record does not indicate whether Dr. Elufiede approved the first two grade change requests. Following a meeting with plaintiff to discuss the rejected grade change requests for Mr. Jones, Mr. Ramsey sent a memo to defendant’s president recommending that plaintiff be given a one year terminal contract based upon his disregard of college policies on changing grades. This memo was dated 22 April 1997. On 23 April 1997 defendant tendered an employment contract to plaintiff for the next school year. The contract contained a provision stating that it was a “terminal contract” which would not be renewed by defendant. Plaintiff filed a complaint against defendant alleging breach of contract and racial discrimination under 42 U.S.C. § 1981 (2004). Plaintiff alleged that his contract was not renewed because of his race (white). At trial, a jury returned a verdict finding that defendant discriminated against plaintiff based upon his race and awarded plaintiff $68,495.00 in compensatory damages plus interest and $7,500.00 in punitive damages. The jury found that there was no contract of employment between plaintiff and defendant beyond the 1997-1998 school year. Defendant appeals. We note that due to a failure of the courtroom recording system, there is no transcript of the trial proceedings. This case is therefore reviewed based upon the parties’ summation of the evidence contained in the record on appeal. In its first assignment of error, defendant argues that the trial court erred by failing to dismiss plaintiffs claim for racial discrimination under 42 U.S.C. § 1981 at the close of plaintiffs evidence and at the close of all the evidence, and by denying its motion for judgment notwithstanding the verdict. We agree. The standard of review for the denial of motions for directed verdict and judgment notwithstanding the verdict is identical. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000). Therefore, we consider these arguments together. The evidence must be viewed in the light most favorable to the nonmovant, giving him the benefit of every reasonable inference, in determining whether the evidence was sufficient to go to the jury. Hawley v. Cash, 155 N.C. App. 580, 582, 574 S.E.2d 684, 686 (2002). A “directed verdict is mandated where the facts and the law will reasonably support only one conclusion.” McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 112 L. Ed. 2d 866, 111 S. Ct. 807 (1991). “To defeat an employer’s motion for [judgment as a matter of law] as to liability in a discrimination suit, the plaintiff must present substantial evidence to support as a reasonable probability, rather than as a mere possibility, that her employer discriminated against her because of a protected characteristic.” DeJarnette v. Corning, Inc., 133 F.3d 293, 298 (4th Cir. 1998). “While we are compelled to accord the utmost respect to jury verdicts and tread gingerly in reviewing them, we are not a rubber stamp convened merely to endorse the conclusions of the jury, but rather have a duty to reverse the [jury’s verdict] if the evidence cannot support it.” Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996). Plaintiff’s claim of racial discrimination was based solely upon the theory of disparate treatment. In order to prevail against a motion for a directed verdict, or a judgment notwithstanding the verdict, plaintiff must meet its burden of persuasion as initially established in the Title VII context by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677 (1973). DeJarnette v. Corning, Inc., 133 F.3d 293 (4th Cir., 1998). The test is the same under Title VII and 42 U.S.C. § 1981. Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir., 2004). In order to satisfy his burden under the McDonnell Douglas test ■ “plaintiff must first establish a prima facie case of discrimination, the defendant may respond by producing evidence that it acted with a legitimate, nondiscriminatory reason, and then the plaintiff may adduce evidence showing that the defendant’s proffered reason was mere pretext and that race was the real reason for the defendant’s less favorable treatment of the plaintiff.” Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir., 2004) (citation omitted). Assuming arguendo that plaintiff proved a prima facie case of racial discrimination, defendant then had a burden of production under the McDonnell Douglas line of cases to show a legitimate, nondiscriminatory reason for the adverse action against the employee. Williams, 372 F.3d 662, 668. If the employer satisfies its burden, the “presumption of discrimination raised by the prima facie case is rebutted and drops from the case.” Williams, 372 F.3d at 669. The “sole remaining issue for our consideration becomes whether [plaintiff] can prove by a preponderance of the evidence” that defendant’s stated reason for its action was a pretext to hide racial discrimination. Id.; Mereish v. Walker, 359 F.3d 330, 336 (4th Cir., 2004). Appellant can meet its burden of proving pretext “either by showing that [defendant’s] explanation is ‘unworthy of credence’ or by offering other forms of circumstantial evidence sufficiently probative of . . . discrimination.” Id. “ ‘The ultimate question is whether the employer intentionally discriminated, and proof that the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that [plaintiff’s] proffered reason ... is correct.’ It is not enough to disbelieve the defendants here; the fact-finder must believe [plaintiff’s] explanation of intentional race discrimination.” Love-Lane, 355 F.3d at 788. A plaintiff’s own assertions of discrimination are insufficient to overcome an employer’s legitimate, nondiscriminatory reason for discharge. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir., 1989). This is because “It is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.” King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir., 2003), cert denied, 157 L. Ed. 2d 742, 124 S. Ct. 922 (U.S. 2003) (quoting Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)). “At the end, the burden remains on [plaintiff] to demonstrate that the reasons offered by [defendant] are a pretext for discrimination, or stated differently, that the [defendant’s] reason is unworthy of credence to the extent that it will permit the trier of fact to infer the ultimate fact of intentional discrimination.” Dugan v. Albemarle County Sch. Bd., 293 F.3d 716, 723 (4th Cir., 2002) (citation omitted). In the instant case, defendant met its burden by proffering a legitimate, nondiscriminatory reason for plaintiffs discharge, namely that plaintiff failed to follow College policy when requesting the grade changes for Mr. Jones and did not meet the college’s legitimate expectations by failing to understand the potential damage to students and the College for giving unearned grades. The record includes a memorandum from Mr. Ramsey to Dr. Sammie Potts, president of the College, describing plaintiff’s conduct, action taken thus far, and future recommendations. In the memorandum, Ramsey indicated that plaintiff “disregarded College Policy as stated in the College Catalog on numerous occasions relative to the changing of grades.” Mr. Ramsey further noted: “In discussions with [plaintiff], it is my feeling that he does not understand the [damage] that is being done to students who receive unearned grades and he does not understand the potential damages to the institution.” Dr. Potts agreed with Mr. Ramsey’s recommendation, and subsequently offered plaintiff the terminal contract. While Mr. Ramsey had only been in employment with the College for a short time prior to plaintiff’s termination, he was hired out of retirement as Academic Dean to strengthen the academic integrity of the College and to effectuate changes in college policy. Therefore, it was proper for Mr. Ramsey to observe and conclude that plaintiff did not conform to the legitimate academic expectations of the College. Because defendant met its burden of production in articulating a non-discriminatory reason for its actions, the presumption of discrimination created by plaintiff’s prima facie case dissolved and plaintiff was required to meet his burden of persuasion that defendant’s proffered reason was mere pretext. Williams, 372 F.3d at 669. Plaintiff offered his own allegations that Mr. Ramsey acted with discriminatory intent (stating that he felt he was fired because of his race). This evidence, coming as it does from plaintiff, is “close to irrelevant.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir., 2000). The only other evidence presented by plaintiff pertinent to the issue was the testimony of plaintiff’s immediate supervisor, Dr. Elufiede. Dr. Elufiede, who is black, testified that if plaintiff violated defendant’s policies by recommending the grade change then he also violated it by approving the request. Plaintiff submitted a grade change request form for Mr. Jones on three separate occasions. Mr. Ramsey declined to approve each of the requests. It is unclear from the record whether Dr. Elufiede approved the first two grade change requests. However, it is clear that Dr. Elufiede approved the third grade change request and forwarded it to Mr. Ramsey, his direct supervisor. Dr. Elufiede was not given a terminal contract. Plaintiff and Dr. Elufiede were not similarly situated, and thus •any disparate treatment between Dr. Elufiede and plaintiff does not tend to prove discrimination by defendant. See Disher v. Weaver, 308 F. Supp. 2d 614, 620 (M.D.N.C., 2004). Foremost, Dr. Elufiede was plaintiff’s immediate supervisor. He was the chair of the social sciences department, and plaintiff was only a professor in that department. They did not share the same immediate supervisor, did not have the same job responsibilities or job description, and did not have equivalent experience. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir., 2002). Furthermore, it was not Dr. Elufiede who initiated the grade change requests on three separate occasions without valid reasons. Rather, he merely reviewed and approved one of them as plaintiff’s supervisor. The conduct with respect to the grade change request by plaintiff and Dr. Elufiede was not substantially similar. These differences in Dr. Elufiede’s and plaintiff’s job duties and conduct are such that any difference in the treatment of the two does not support an assertion of discrimination. This circumstantial evidence is simply too weak and speculative to establish that defendant’s stated legitimate reasons for offering plaintiff a terminal contract were pretextual. Thus, defendant was entitled to a directed verdict dismissing plaintiff’s claim for discrimination. Reeves, 530 U.S. at 148-49, 147 L. Ed. 2d at 120. In its second assignment of error, defendant argues that the trial court erred in denying its motion to dismiss plaintiff’s claims for punitive damages. We agree. Plaintiff’s claim for punitive damages was based solely upon the alleged racial discrimination by defendant. As discussed above, this claim should have been dismissed by the trial court and as a result we hold that the plaintiff’s claim for punitive damages, too, should have been dismissed. Further, assuming arguendo that the trial court properly denied defendant’s motions on the issue of liability, we hold that the trial court erred in failing to grant defendant’s motions for directed verdict and judgment notwithstanding the verdict with respect to the issue of punitive damages. After determining that defendant had discriminated against plaintiff, the jury awarded plaintiff $7,500.00 in punitive damages. In order for a plaintiff to sustain an award of punitive damages pursuant to § 1981 he must prove some aggravating conduct beyond that needed to sustain a claim of discrimination under the statute. Smith v. Wade, 461 U.S. 30, 51, 75 L. Ed. 2d 632, 648 (1983); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir., 2000); Rowlett v. Anheuser-Busch, 832 F.2d 194 (1st Cir. 1987); Caperci v. Huntoon, 397 F.2d 799, 801 (1st Cir., 1968) (federal common law applies); Tillman v. Wheaton-Haven Recreation Ass’n, 367 F. Supp. 860, 864 (D. Md., 1973). “[M]ere proof of a violation of the statute is not enough to recover punitive damages. There must also be proof that the defendant, in violating the letter of section 1981, exhibited oppression, malice, gross negligence, willful or wanton misconduct, or reckless disregard of the plaintiff’s civil rights.” James D. Ghiardi et al., Punitive Damages L. & Prac. § 15.07 (1999). In the case of Kolstad v. ADA, 527 U.S. 526, 144 L. Ed. 2d 494 (1999), the United States Supreme Court analyzed what aggravated conduct plaintiff must prove under Title VII to entitle it to punitive damages pursuant to 42 U.S.C. § 1981a (2004). The Fourth Circuit has determined that the Kolstad test is applicable to cases brought under 42 U.S.C. § 1981 as well as those brought under Title VII. Lowery, 206 F.3d at 441 (“Thus, any case law construing the punitive damages standard set forth in § 1981a, for example Kolstad, is equally applicable to clarify the common law punitive damages standard with respect to a § 1981 claim.”). Following Kolstad, the Lowery Court held that in order to recover punitive damages under 42 U.S.C. § 1981, the plaintiff must prove that defendant “ ‘engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to [plaintiff’s] federally protected rights,’ 42 U.S.C. § 1981a(b)(l),” Lowery, 206 F.3d at 441. In order for plaintiff to prove this aggravated conduct, he must not only prove that defendant discriminated, but that it discriminated “ ‘in the face of a perceived risk that its actions will violate federal law.’ ” Id. at 442 (quoting Kolstad, 527 U.S. at 536). The jury in the instant case made no finding of aggravated conduct on the part of defendant. Our review of the record fails to uncover any evidence, beyond two sentences summarizing plaintiff’s personal feelings on the matter (“Mr. Miller thinks that he was single [sic] out for dismissal because of his race (white). He feels the only explanation for his dismissal is that Mr. Ramsey (black) had innate feelings toward whites.”), that would support a finding of the required aggravated conduct. Plaintiff fails in meeting his burden because, even assuming arguendo that plaintiff has proved discrimination, he has not offered any evidence that defendant acted with the knowledge that its conduct was in violation of federal law. Plaintiffs testimony standing alone is not sufficient, as its probative weight is slight (see King v. Rumsfeld, 328 F.3d 145, 150 (4th Cir., 2003); Gairola v. Virginia Dep’t of General Services, 753 F.2d 1281, 1288 n.4 (4th Cir., 1985)), and it does not address the issue of defendant’s knowledge that its purported actions were illegal. Thus, even assuming argu-endo that plaintiff proved his case of discrimination under 42 U.S.C. § 1981, having offered no evidence of aggravated conduct, defendant’s motion for directed verdict on the issue of punitive damages should have been granted. VACATED AND REMANDED. Judge TYSON concurs. Judge HUDSON dissents in part, concurs in part. HUDSON, Judge, concurring in part and dissenting in part. Defendant appeals from the denial of a motion for judgment not withstanding the verdict (JNOV), following a jury verdict in plaintiff’s favor. Because I believe the majority has misapplied the legal precedents and imposed burdens on plaintiff that the law does not require, I dissent with respect to the primary claim of employment discrimination. I concur, however, with the disposition of the issue of punitive damages. “In considering a motion for JNOV, the trial court is to consider all evidence in the light most favorable to the party opposing the motion; the nonmovant is to be given the benefit of every reasonable inference that legitimately may be drawn from the evidence; and contradictions must be resolved in the nonmovant’s favor.” Tomika Invs., Inc. v. Macedonia True Vine Pent. Holiness Ch. of God, 136 N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000). The standard of review for the denial of a JNOV is whether the evidence was sufficient to go to the jury. Id. “The hurdle is high for the moving party as the motion should be d