Discrimination Cases

SHANNON FATTA v. M & M PROPERTIES MANAGEMENT, INC. COA12-694 Filed 4 December 2012 1. Pretrial Proceedings — motion to strike — motion for sanctions The trial court did not err in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by granting defendant’s motion to strike and motion for sanctions against plaintiff. The trial court entered detailed and thorough findings of fact regarding the allegations made by plaintiff against defendant and against the trial judge, the facts as entered by the trial court were supported by the record, and the conclusions of law were fully supported by the findings of fact. 2. Pretrial Proceedings — motion for sanctions — improper purpose The trial court did not err in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by granting sanctions against plaintiff pursuant to Rule 11(a). There was sufficient evidence to support the trial court’s determination that plaintiff’s motion for sanctions was filed for an improper purpose. 3. Pretrial Proceedings — Rule 11 sanction — gatekeeper provision — no abuse of discretion The trial court did not abuse its discretion in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by entering the Rule 11 sanction of a “gatekeeper” provision against plaintiff. The trial court’s order explained the court’s reasons for entering the sanctions against plaintiff, the gatekeeper provision was narrowly tailored and limited in scope, and plaintiff was provided an opportunity to be heard and had notice that the trial court intended to impose a gatekeeper provision. Appeal by plaintiff from orders entered 4 January 2012 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 23 October 2012. Shannon Fatta pro se plaintiff-appellant. Fisher & Phillips, LLP, by Mason G. Alexander, for defendantappellee. BRYANT, Judge. Where the trial court did not err by granting defendant’s Rule 12(f) motion to strike and Rule 11 motion for sanctions against plaintiff, we affirm the orders of the trial court. Facts and Procedural History The case before us originates from an action commenced on 6 July 2010 by plaintiff Shannon Fatta against defendant M & M Properties Management, Inc. alleging several causes of action relating to the Retaliatory Employee Discrimination Act, and wrongful termination. On 10 March 2011, the trial court entered summary judgment in favor of defendant and dismissed plaintiff’s claims with prejudice. Thereafter, plaintiff filed a motion to reconsider and amend summary judgment pursuant to Rule 59(e) of the North Carolina Rules of Civil Procedure which was denied on 18 April 2011 following a hearing. On 20 April 2011, plaintiff appealed to our Court, and we affirmed the trial court’s summary judgment order in Fatta v. M & M Properties Management, Inc., ___ N.C. App. _, 727 S.E.2d 595 (2012) (“Fatta I”). On 13 July 2011, three months after plaintiff noted an appeal in this matter to our Court, plaintiff filed a motion for sanctions pursuant to Rules 11, 26(g), and 37(d) of the North Carolina Rules of Civil procedure against defendant and defendant’s counsel, Margaret M. Kingston (“Kingston”) of Fisher & Phillips LLP and a motion for relief from the 10 March 2011 summary judgment order entered in favor of defendant pursuant to Rules 60(b)(1), 60(b)(3), and 60(b)(6) (“Motion for Sanctions; Motion for Relief from Judgment”). Plaintiff alleged numerous discovery violations and other misconduct by defendant and Kingston. Plaintiff filed an amended “Motion for Sanctions; Motion for Relief from Judgment” on 26 September 2011. On 12 August 2011, defendant filed a motion to strike plaintiff’s “Motion for Sanctions; Motion for Relief from Judgment” and a motion for sanctions against plaintiff. Following a hearing held on 14 October 2011, the trial court made numerous findings of fact including the following: Plaintiff has attempted to create a discovery dispute. Plaintiff’s arguments about discovery violations are improper and lacking in a factual basis. The parties engaged in extensive discovery in this case, including correspondence between the parties about the adequacy of objections made to certain discovery responses. Plaintiff never filed a motion to compel or any other discovery motion. He raised his discovery arguments for the first time in his “Motion for Sanctions; Motion for Relief from Judgment”, after summary judgment was granted and his claims were dismissed. This Court does not have jurisdiction to review a potential discovery dispute between the parties. The Court entered an Order granting summary judgment to Defendant and dismissing Plaintiff’s claims in their entirety on March 10, 2011. Plaintiff has appealed that decision to the North Carolina Court of Appeals. Although Plaintiff’s discovery challenges are not proper, this Court will briefly address Plaintiff’s arguments that the discovery violations amounted to fraud under Rule 60. The Court finds no factual support for Plaintiff’s claim of discovery violations or misconduct regarding this allegation. In bringing these challenges at this late date and without legal or factual support, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. Also, Plaintiffs discovery allegations are frivolous and insufficient as a matter of law and should be stricken from the record pursuant to Rule 12(f) of the North Carolina Rules of Civil Procedure. The Court finds that these allegations are frivolous. Plaintiff has no facts or evidence to support these allegations. Plaintiff has no legal authority to support these allegations. Plaintiff relies upon his own affidavit, which contains conclusory and factually inaccurate assertions about the parties’ arguments at the summary judgment hearing and the undersigned’s decision following the hearing. Plaintiff made the unsupported assertion that two of Defendant’s summary judgment affiants, Jenny Meyer and Glenn McFarland, misrepresented facts in their affidavits in an effort to mislead the Court. The Court finds that this is an outrageous assertion without any facts in support. In addition, the Court finds that Ms. Meyer and Mr. McFarland have submitted additional affidavits under oath attesting to the accuracy of their prior affidavits. Plaintiff also made the unsupported assertion that Defendant and counsel for Defendant intentionally misrepresented facts and case law on his claims and committed fraud on the court. The Court finds no legal or factual basis for Plaintiffs allegations of fraud and Rule 11 violations in connection with this Court’s summary judgment ruling and subsequent ruling on Plaintiff’s Rule 59 motion. The Court finds that these are outrageous allegations by Plaintiff. In raising these allegations in Plaintiff’s Motion, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. The undersigned presided over the pretrial conference, the summary judgment hearing, the hearing on Plaintiff’s Rule 59 motion, and the hearing on Defendant’s Motion to Strike and Motion for Sanctions in this matter. The undersigned has observed the conduct of the parties and reviewed the documents filed and submitted to the Court by the parties. Plaintiff’s suggestion that the undersigned was part of a fraudulent scheme with counsel for Defendant is outrageous. The Court finds that Plaintiff has filed and pursued his “Motion for Sanctions; Motion for Relief from Judgment” alleging fraud and Rule 11 violations against Defendant and counsel for Defendant without any factual or legal support. The Court finds Plaintiff’s Motion and the manner in which Plaintiff pursued his Motion has been intended to harass counsel for Defendant and to needlessly increase the cost of this litigation for Defendant.. . . The Court finds that Plaintiff has made some very serious allegations against Defendant and counsel for Defendant, and that these allegations of fraud and misconduct are not supported by any facts or law. Due to Plaintiff’s pursuit of this frivolous Motion, this Court finds that the sanction of a gatekeeper provision is necessary and appropriate. The Court finds that Plaintiff has exhibited conduct in this matter showing such a disregard for the rules of law and procedure which, if he were licensed as an attorney, would require and demand reporting him to the North Carolina State Bar questioning his fitness to practice. The Court finds that Plaintiffs baseless allegations, Motion, and materials in support of the Motion were filed and pursued for the improper purpose of harassing the opposing party and opposing party’s counsel, and costing the opposing party unnecessary time and expense in responding to these allegations and'filings. This Court has the inherent power to impose such special limitations as are reasonably necessary for the proper administration of justice, including the authority to regulate and discipline persons who appear before the Court to prevent impropriety and to provide an appropriate remedy to meet the circumstances of the case. The nature of Plaintiff’s conduct and the extraordinary circumstances of this matter require that the Court place special limitations on Plaintiff’s access to the Iredell County Superior Court and enter a gatekeeper order. The trial court then made the following pertinent conclusions of law: The Court lacks jurisdiction to hear a discovery dispute but has considered Plaintiff’s discovery allegations in connection with his Rule 60 allegations of fraud and Rule 11 allegations against Defendant and [Kingston]. The Court concludes that Plaintiff has shown no discovery violations. The Court further concludes that Plaintiff’s discovery allegations are frivolous and lacking in any factual and legal support. The Court concludes that Plaintiff has shown no Rule 11 violation, misrepresentation, or other alleged misconduct amounting to fraud or fraud on the Court by Defendant or [Kingston], The Court further concludes that there is no factual or legal support for any of the fraud, Rule 11, or other misconduct allegations against Defendant and [Kingston] and these allegations are frivolous. The Court concludes that Plaintiff’s “Motion for Sanctions;, Motion for Relief from Judgment” is frivolous and insufficient as a matter of law and should be stricken pursuant to Rule 12 of the North Carolina Rules of Civil Procedure. The Motion is not well grounded in fact or law and appears to have been filed in order to harass Defendant and [Kingston] and to needlessly increase the costs of this litigation. In signing and filing this Motion, Plaintiff has violated Rule 11[.] The Court concludes that, due to the very serious nature of the allegations in Plaintiffs Motion and which are unsupported by any facts or law, the sanction of a gatekeeper provision and the sanction of reasonable attorneys’ fees and costs incurred by Defendant in defending Plaintiff’s Motion are necessary and appropriate. Accordingly, in a 4 January 2012 order, the trial court granted defendant’s motion to strike and motion for sanctions against plaintiff. The trial court also entered a gatekeeping order and awarded attorney’s fees and costs to defendant. From these orders, plaintiff appeals. Plaintiff presents the following issues on appeal: (I) whether the trial court erred by allowing defendant’s motion to strike and motion for sanctions against plaintiff where the motion was improper pursuant to N.C. Gen. Stat. § 1A-1, Rule 7(b)(1); (II) whether the trial court erred by granting sanctions against plaintiff pursuant to N.C. Gen. Stat. § 1A-1, Rule 11(a); and, (III) whether the trial court abused its discretion by entering the sanction of a gatekeeper provision. / In his first argument, plaintiff contends the trial court erred by granting defendant’s motion to strike and motion for sanctions against plaintiff where defendant’s motions violated N.C.S.S. § 1A-1, Rule 7(b)(1). N.C.G.S. § 1A-1, Rule 7(b)(1) (2011) states the following: An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state with particularity the grounds therefor; and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. Id. (emphasis added). The comments to Rule 7(b)(1) states: The 2000 amendment conforms the North Carolina rule to federal Rule 7(b). The federal courts do not apply the particularity requirement as a procedural technicality to deny otherwise meritorious motions. Rather, the federal courts apply the rule to protect parties from prejudice, to assure that opposing parties can comprehend the basis for the motion and have a fair opportunity to respond. Id. cmt. Rule 11(a) of the North Carolina Rules of Civil Procedure reads that [t]he signature of . . . [a] party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. N.C.G.S. § 1A-1, Rule 11(a) (2011). Rule 12(f) states that “[u]pon motion made by a party . . . the judge may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.” N.C.G.S. § 1A-1, Rule 12© (2011). Here, defendant’s motion to strike and motion for sanctions against plaintiff stated the following: Plaintiff’s most recent Motions (“Motion for Sanctions; Motion for Relief from Judgment”) are frivolous and insufficient as a matter of law. The Motions are not well grounded in fact or law. Also, Plaintiff’s intent in filing these Motions is to harass counsel for Defendant and to cause needless increase in the cost of litigation. In signing and filing these Motions, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. In addition, Plaintiff’s Motions contain irrelevant and outrageous assertions that should be stricken pursuant to Rule 12© of the North Carolina Rules of Civil Procedure. Plaintiff argues that defendant’s motion “does not point to what is frivolous or what is insufficient as a matter of law[,]” “does not provide how Plaintiff filing for sanctions or relief from judgment constitutes harassment or other improper purposes[,]” and that “[t]here is no indication of what is irrelevant, what is outrageous, or why something is even considered outrageous.” While we disagree with plaintiff’s characterizations, we note that our task is to review the trial court’s decision to grant or deny a motion to strike and motion for sanctions. (Rule 12© motions are reviewed for abuse of discretion. See Reese v. Brooklyn Vill, LLC,_N.C. App._,_, 707 S.E.2d 249, 260 (2011); Rule 11(a) motions are reviewed de novo. “The appropriateness of a particular sanction is reviewed for abuse of discretion.” Bledsoe v. Johnson, 357 N.C. 133, 138, 579 S.E.2d 379, 381-82 (2003) (citation omitted)). Defendant’s motion for sanctions cited Rule 11 and specified that plaintiff’s motion for sanctions was “frivolous and insufficient as a matter of law.” In its consideration of the allegations, the trial court found that plaintiff had “attempted to create a discovery dispute” and that plaintiff brought his “challenges at this late date and without legal or factual support.” The trial court found that plaintiff had relied on his own affidavit “which contains conclusory and factually inaccurate assertions” surrounding the summary judgment hearing at which the trial judge (the Honorable Christopher M. Collier) had presided. Based upon the motions and other evidence of record, the trial court concluded that plaintiff’s improper purpose in filing these motions was to harass the opposing party and its counsel, and to cause the opposing party unnecessary time and expense in responding to plaintiff’s allegations, a needless increase in the cost of litigation. Defendant’s motion to strike cited Rule 12© and specified that plaintiff’s motions “contained] irrelevant and outrageous assertions[.]” The trial court found that plaintiff’s allegations were “baseless” and concluded that plaintiff’s conduct demonstrated a “disregard for the rules of law and procedure[.]” In addition, defendant’s motion for sanctions and motion to strike specifically stated the relief requested: “[t]hat the Court strike from the record Plaintiff’s ‘Motion for Sanctions; Motion for Relief from Judgment’ ”; “[t]hat the Court enter • an Order determining that Plaintiff’s Motions are not well grounded in law or in fact and are intended to harass Defendant and counsel for Defendant;” and “[t]hat Defendant recover all costs and reasonable attorneys’ fees incurred in the defense of Plaintiff’s frivolous Motions[.]” See Lane v. Winn-Dixie Charlotte, Inc., 169 N.C. App. 180, 609 S.E.2d 456 (2005) (holding that the defendant’s Rule 12(b)(4) and 12(b)(5) motion to dismiss was stated with sufficient particularly as to the grounds alleged and sufficiently set forth the relief sought, as required by Rule 7(b)(1)). The trial court entered detailed and thorough findings of fact regarding the very serious and troubling allegations made by plaintiff against defendant and against the trial judge. The facts as entered by the trial court are supported by the record. Further, the conclusions of law are fully supported by the findings of fact. Accordingly, we hold that the trial court did not err in granting defendant’s motions. Plaintiff’s argument is overruled. II Next, plaintiff argues that the trial court erred in granting sanctions against plaintiff pursuant to Rule 11(a). “This Court exercises de novo review of the question of whether to impose Rule 11 sanctions.” Dodd v. Steele, 114 N.C. App. 632, 635, 442 S.E.2d 363, 365 (1994). “There are three parts to a Rule 11 analysis: (1) factual sufficiency, (2) legal sufficiency, and (3) improper purpose. A violation of any one of these requirements mandates the imposition of sanctions under Rule 11.” Battle v. Sabates, 198 N.C. App. 407, 425, 681 S.E.2d 788, 800 (2009) (citation omitted) (emphasis added). “When reviewing the decision of a trial court to impose sanctions under Rule 11, an appellate court must determine whether the findings of fact of the trial court are supported by sufficient evidence, whether the conclusions of law are supported by the findings of fact, and whether the conclusions of law support the judgment.” Johns v. Johns, 195 N.C. App. 201, 206, 672 S.E.2d 34, 38 (2009) (citation omitted). Because we hold that the record supports that plaintiff violated the improper purpose prong, we find it unnecessary to address the other prongs. See Brown v. Hurley, 124 N.C. App. 377, 382, 477 S.E.2d 234, 238 (1996) (“Even if a complaint is well-grounded in fact and in law, it may nonetheless violate the improper purpose prong of Rule 11.”). Under Rule 11, an objective standard is used to determine whether a paper has been interposed for an improper purpose, with the burden on the movant to prove such improper purpose. Because an objective standard is employed, an improper purpose may be inferred from the alleged offender’s objective behavior. In assessing that behavior, we look at the totality of the circumstances. Johns, 195 N.C. at 212, 672 S.E.2d at 42 (citations and quotations omitted). “An improper purpose is ‘any purpose other than one to vindicate rights ... or to put claims of right to a proper test.” Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2

Michael S. O’Brien vs. Massachusetts Institute of Technology & others. No. 11-P-45. September 25, 2012. Handicapped Persons. Anti-Discrimination Law, Handicap, Termination of employment. Employment, Discrimination, Termination, Retaliation. A Superior Court judge awarded summary judgment in favor of Michael S. O’Brien’s former employer, the Massachusetts Institute of Technology (MIT), on his handicap discrimination and retaliation claims. The judge ruled that O’Brien’s claims failed because he had no reasonable expectation of establishing essential elements of his case. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). On count 1 (handicap discrimination), the judge ruled that O’Brien could not establish that he is a handicapped person within the meaning of G. L. c. 15 IB (the statute), and that even if he could establish his handicapped status, he would not be able to meet his burden of showing that the reasons given for his discharge were a pretext. On count 2 (retaliation), the judge found that O’Brien could not establish that he experienced adverse employment actions prior to his discharge, and that the discharge itself was too remote from the protected activity (a complaint to the United States Department of Labor) to establish a causal connection. Jack R. Stark and Donald J. O’Mara. O’Brien appeals, claiming that he presented sufficient evidence to send his case to a jury. With respect to O’Brien’s discrimination and retaliation claims against MIT, and viewing the record in the light most favorable to O’Brien, see Lyons v. Nutt, 436 Mass. 244, 245 (2002), we agree. This is not to say that MIT in fact discriminated or retaliated against O’Brien. That is a question for the jury on which we express no opinion. We hold only that the evidence is sufficient to raise genuine issues of material fact that preclude the award of summary judgment on counts 1 and 2. 1. Background. O’Brien worked at MIT’s central utility plant (CUP) as a second-class engineer for approximately ten years, starting in 1997. Given the nature of the GUP’s operations, engineers are expected to work overtime. Throughout his employment, O’Brien suffered from pain in his back and legs. He underwent two surgeries: in 2003, he had surgery on both legs, and in November, 2004, he had spinal surgery. Neither surgery was successful, and O’Brien continued to experience pain. In February, 2005, after his second surgery, O’Brien provided MIT with a letter from his surgeon explaining that because of continued pain, O’Brien’s ability to work overtime was limited. O’Brien subsequently tried repeatedly to obtain sick leave under the Family and Medical Leave Act (FMLA) and an accommodation that would excuse him from working overtime. These requests were accompanied by doctors’ notes stating, inter alla, that O’Brien had chronic leg pain “that disrupts his sleep”; that he “likely [would] miss work 1-2 days per month”; that he had a neurological condition made worse by working long hours and that it was “important for his long term health that he not be required to work overtime”; and that he had lower extremity neuropathic pain, spinal stenosis, and lumbar radiculopathy, with “[bjuming pain [in] both lower legs that worsens after prolonged standing hence limiting time on feet.” MIT rejected each request, generally stating that the medical documentation submitted “did not describe circumstances that would entitle [him] to leave under FMLA,” and requesting that he submit additional forms and documentation. In September, 2006, while O’Brien’s request that he not work overtime was pending, one of his supervisors, Jack Stark, commented to another manager that he could not wait until the day he could fire O’Brien. In November, 2006, after O’Brien’s request for an accommodation was formally denied, he filed a complaint with the United States Department of Labor (department). On April 11, 2007, as a result of negotiations with the department, MIT provisionally approved FMLA leave “due to a serious medical condition.” In December, 2006, while O’Brien’s complaint with the department was pending, another supervisor, Donald O’Mara, sent an internal electronic mail message (e-mail) strongly opposing an accommodation for O’Brien on the ground that it would set a precedent. The e-mail stated, “I have no interest whatever in accommodating [O’Brien] at all.” As we have noted, O’Brien first informed MIT that his medical condition affected his ability to work overtime in the beginning of 2005. Prior to that time, during his first eight years of employment, the only disciplinary action involving O’Brien was a single warning he received in January, 2002, for improperly closing a damper. However, following his first request to be excused from working overtime until his employment was terminated in September, 2007, O’Brien received a number of verbal and written warnings and was suspended for a variety of infractions, including insubordination, failing to complete assignments, leaving his post without proper coverage, and abuse of MIT’s sick leave policy. A fellow worker, John Spinosa, submitted an affidavit stating that O’Mara and Stark “appeared to have two different sets of standards for performance in the CUP. One set of standards for . . . O’Brien and the other set of standards ... for the rest of the workforce,” and that he had “personally observed much of this discriminatory treatment.” As to the termination of O’Brien’s employment, there is no dispute as to the following. On September 8, 2007, O’Brien was assigned to work a twelve-hour shift, from 6:00 a.m. to 6:00 p.m. At some point in the early afternoon, he was asked to start CUP chiller number one. During the “slow-roll” start-up process, O’Brien left the CUP to retrieve his truck in a nearby lot, bringing it back to the parking lot next to the CUP. He then washed the truck and a kayak attached to the truck’s roof, drove the truck to a parking garage, and returned to the CUP. At the end of his shift, O’Brien left for a scheduled two-week vacation. Upon his return, O’Brien was informed by letter that his employment was terminated for “unacceptable” conduct in connection with having abandoned his post and for other disciplinary concerns. Spinosa’s affidavit stated that it was common practice to leave the chiller during the slow-roll process because the equipment did not need constant monitoring at that point, and that he was not aware of any discipline imposed on any other engineer for that behavior during his twenty-five years at CUP. 2. Discussion. a. Count 1 — handicap discrimination, i. Handicap status. To establish that he is handicapped within the meaning of G. L. c. 15IB, O’Brien must show that (1) his “condition, actual or perceived, constitutes a mental or physical ‘impairment’[;]... [2] the life activity curtailed constitutes a ‘major’ life activity as defined in G. L. c. 151B, § 1(20), and its accompanying regulations^] . . . and [3] ‘the impairment substantially limit[s] the major life activity’ ” (citations omitted). New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 (2003). There is sufficient evidence on each prong to preclude summary judgment. First, there clearly is evidence that O’Brien’s chronic pain constitutes a physical impairment. Second, there is evidence in the record demonstrating that this impairment limits at least two major life activities, sleep and work. Third, a jury could conclude that these major life activities are substantially limited by O’Brien’s impairment. The question whether an impairment substantially limits an individual’s ability to sleep as compared to the ability of the average person in the general population “requires an individual, case-by-case assessment.” Shedlock v. Department of Correction, 442 Mass. 844, 852 (2004). In his deposition, O’Brien testified that there were weeks when he would sleep only “one or two hours a night, three or four hours a night for a week or two . . . depending] on how many days in a row [he] had to work, what shifts [he] had to work.” He would sometimes go for days with only four hours of broken sleep. Also, O’Brien’s doctor noted that O’Brien “continues to have leg pain that disrupts his sleep” and he “will likely have exacerbations that require missing work intermittently.” If the jury were to credit this evidence, they could conclude that O’Brien’s ability to sleep is substantially limited in comparison to the average person. See ibid. A limitation on work is “substantially limiting]” for purposes of G. L. c. 151B when the impairment “prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 639 (2004). Given the evidence in the record, and the broad range of jobs in the Commonwealth that require overtime, the question whether O’Brien is substantially limited in his ability to work is, again, one for the jury.»» ii. Pretext. Next, we consider whether MIT has proffered legitimate nondiscriminatory reasons for terminating O’Brien, and, if so, whether O’Brien could meet his burden of establishing that the reasons given were a pretext. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997). It may, in fact, be true that O’Brien was terminated for leaving his post during the slow roll of chiller number one. Here, however, there is direct evidence of serious resistance by MIT to O’Brien’s request to be excused from working overtime due to his medical condition, and to his applications for leave under the FMLA and for reasonable accommodation. O’Mara’s internal e-mail and Stark’s comment about wanting to fire O’Brien raise a jury question whether MIT’s proffered reason is in fact why O’Brien was terminated or whether, instead, it is a pretext, and O’Brien was terminated either because of his handicap or in retaliation for engaging in protected conduct, namely, filing a complaint with the department. Seth Stoffregen for the plaintiff. Scott A. Roberts for the defendants. Evidence in the summary judgment record would also support a finding that, beginning about the time he first sought accommodation due to his medical condition, O’Brien was singled out for disciplinary action. In addition to O’Brien’s deposition testimony, the Spinosa affidavit avers that there was one set of rules for O’Brien and another set of rules for everyone else. b. Count 2 — retaliation. This claim is premised on the treatment O’Brien received after he filed his complaint with the department. He alleges that harassment by his supervisors, resulting in numerous verbal and written warnings, as well as his termination in September, 2007, were “adverse action[s]” entitling him to recovery. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004), quoting from Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) (retaliation claim requires plaintiff to show that “he engaged in protected conduct, that he suffered some adverse action, and that ‘a causal connection existed between the protected conduct and the adverse action’ ”). There is no question that O’Brien’s filing of the department complaint constituted protected conduct. Because a reasonable juror could conclude that the verbal and written warnings, as well as O’Brien’s termination, were all “adverse actions” that, if shown to have been retaliatory, would entitle him to recover under the statute, MIT is not entitled to summary judgment. Under the retaliation provision of the statute, “adverse actions consist of a defendant’s action ‘to discharge, expel or otherwise discriminate against’ the plaintiff.” Mole v. University of Mass., supra at 592 n.14. Any such action that “materially disadvantage^] ” a plaintiff is an adverse employment action for purposes of a retaliation claim. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-708 (2011). Here, the less serious infractions ultimately were included among the reasons for imposition of the sanction of termination (see note 4, supra) and, therefore, could be construed as having materially disadvantaged O’Brien. See Nye v. Roberts, 145 Fed. Appx. 1, 6 (4th Cir. 2005). 3. Conclusion. The judgment is reversed as to counts one and two against MIT. In all other respects, the judgment is affirmed. So ordered. We affirm the grant of summary judgment on O’Brien’s additional claim of tortious interference against Stark and O’Mara. As the motion judge found, this claim fails because they were supervisory employees whose actions were governed by a collective bargaining agreement (CBA), and the claim is therefore preempted by the Federal Labor Management Relations Act. See 29 U.S.C. §§ 141 et seq. (1994); Magerer v. John Sexton & Co., 912 F.2d 525, 530-531 (1st Cir. 1990). To the extent O’Brien argues that the claim is not preempted because his allegations of improper motive and means (discriminatory and retaliatory animus) involve actions outside the CBA, the argument is not sufficiently developed, and we do not reach it. The frequency of reprimands escalated in August, 2007, when O’Mara reprimanded O’Brien three times in as many weeks, for infractions ranging from failing to wear his fire retardant suit to leaving the CUP without informing O’Mara. The letter of termination set forth a history of prior disciplinary actions and noted that O’Brien had been “counseled” on three occasions during the preceding month of August for improper conduct. (See note 3, supra.) O’Brien’s union pursued a grievance challenging the termination under the CBA. The matter proceeded to arbitration, and the arbitrator upheld O’Brien’s termination. We review an order granting summary judgment de nova to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). MIT did not argue, and the motion judge did not reach the question, whether O’Brien could make out the second element of his prima facie case, establishing that he is a qualified handicapped person. See, e.g., Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822 & n.11 (1997). We do not address the question. We observe that some Federal courts have found that, as a matter of law, inability to work more than a forty-hour week is not a “substantial limitation” on the ability to work for purposes of the Americans with Disabilities Act (ADA). See Boitnott v. Corning, Inc., 669 F.3d 172 (4th Cir. 2012). However, these cases were decided under a construction of the ADA’s “substantial limitation” language that was subsequently rejected by Congress in the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). In any event, G. L. c. 151B, not the ADA, applies in this case. See, e.g., Dahill v. Police Dept. of Boston, 434 Mass. 233, 240-243 (2001). With respect to the major life activities of thinking and concentrating, O’Brien stated in his affidavit, “I’ve endured numerous days and countless nights of private torture and tears and my ability to concentrate is often impacted.” In light of our conclusions about sleep and work, we need not decide if this is sufficient to raise a genuine issue of material fact whether these major life activities are substantially impaired. Should the evidence at trial be sufficient to support such a conclusion, the judge will be free to instruct the jury on the point.

Temple Emanuel of Newton vs. Massachusetts Commission Against Discrimination. Suffolk. May 8, 2012. September 19, 2012. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Anti-Discrimination Law, Age, Religious beliefs. Religion. Constitutional Law, Freedom of religion. Massachusetts Commission Against Discrimination. Jurisdiction, Administrative matter. Administrative Imw, Primary jurisdiction, Exhaustion of remedies, Judicial review. Employment, Discrimination. Review of authorities pertaining to the “ministerial exception” grounded in the First Amendment to the United States Constitution, precluding the application of antidiscrimination laws to the employment relationship between a religious institution and its ministers. [476-478] This court concluded that, in a civil action, a Superior Court judge should have abstained from ordering the dismissal of an age discrimination complaint filed with the Massachusetts Commission Against Discrimination (commission) for lack of subject matter jurisdiction until the commission had reached a final decision in its adjudicatory proceeding, where there was no statutory authority for judicial review of the denial, by an investigating commissioner, of the employer’s motion to dismiss the complaint before the commission, in that the denial had occurred during the investigatory stage of the commission proceedings, before any finding had been made as to probable cause and before any public hearing had been conducted [478-479]; and where no reason existed to suspend the requirement of exhaustion of the administrative remedy, in that resort to the administrative remedy was not futile; in that, while the case raised important public questions, the resolution of those questions would not affect people beyond the parties to the case; in that pursuit of the administrative remedy would not result in irreparable harm; and in that, although the case reduced to a constitutional question, it was not a question that is peculiarly within judicial competence [479-484]. The “ministerial exception” grounded in the First Amendment to the United States Constitution barred an age discrimination complaint filed with the Massachusetts Commission Against Discrimination (commission) by a part-time teacher at a religious school after she had not been rehired by the religious school, where ordering a religious group to hire or retain a religious teacher that the religious group did not want to employ, or ordering damages for refusing to do so, would infringe the free exercise of religion or cause excessive entanglement between the State and the religious group. [484-487] Civil action commenced in the Superior Court Department on May 11, 2009. The case was heard by Nancy S. Holtz, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Catherine C. Ziehl for the defendant. Thomas J. Carey, Jr. (Michael L. Chinitz with him) for the plaintiff. Gants, J. This case presents two issues. The first is whether a judge in the Superior Court erred in ordering the dismissal of an age discrimination complaint filed with the Massachusetts Commission Against Discrimination (commission) for lack of subject matter jurisdiction before a final decision had been reached by the commission. The second is whether the “ministerial exception” required by the First Amendment to the United States Constitution prohibits a court or administrative agency from applying our State antidiscrimination laws to the decision of a Jewish temple not to rehire a teacher in its Sunday and after-school religious school. We conclude that the judge erred in deciding whether the “ministerial exception” barred the discrimination claim before the commission had entered a final decision on the claim. We nonetheless affirm the dismissal of the complaint because, relying solely on facts not in dispute, we conclude that the ministerial exception bars the claim of discrimination. Background. Temple Emanuel of Newton (Temple), a Conservative Jewish congregation of over 1,100 families, operates the synagogue-based Rabbi Albert I. Gordon Religious School (religious school). The religious school is an after-school and Sunday program for children in kindergarten through seventh grade. Gaye Hilsenrath was a part-time teacher at the religious school for over twenty-four years. Like all teachers at the religious school, Hilsenrath was employed on a part-time basis pursuant to a yearly letter of appointment. During the 2006-2007 school year the religious school employed approximately twenty part-time teachers, including Hilsenrath. In 2007 the Temple began to review and change the religious school in response to declining enrollment and dissatisfaction with the religious school among the congregation. Under its new staffing model, the religious school reduced the number of teachers from approximately twenty to twelve, each of whom would teach all subjects in kindergarten through fifth grade. In January, 2008, the Temple notified the teachers who were then employed by the religious school that they could apply for one of the twelve teaching positions for the 2008-2009 year. Ten of the twenty teachers then on staff, including Hilsenrath, applied for teaching positions. Hilsenrath was not offered a position. On August 4, 2008, Hilsenrath filed a complaint against the Temple with the commission. In the complaint she alleged that she had been subjected to harassment and discrimination on the basis of her age, and that she was not rehired by the religious school because of her age. A commission investigator advised the Temple by letter that it was required within twenty-one days to submit a formal written answer to the complaint, described as a position statement, with a full description of its defenses, signed under the pains and penalties of perjury. The investigator also provided the Temple with interrogatories and document requests that required the Temple to answer, among other questions, whether Hilsenrath was terminated from employment and to provide the reasons for her “separation from employment.” The Temple filed a motion with the commission to dismiss the complaint for lack of subject matter jurisdiction based on the First Amendment, and a separate motion to stay the filing of the position statement and responses to the commission’s discovery requests until the motion to dismiss was decided. On January 30, 2009, the investigating commissioner denied the Temple’s motion to dismiss without prejudice and without a statement of reasons. The Temple appealed from the denial to the full commission. On April 10, 2009, the investigating commissioner denied the appeal, again without a statement of reasons. On April 27, 2009, the investigating commissioner denied the Temple’s motion to stay, and the commission ordered the Temple to file its position statement in response to the complaint within twenty-one days. On May 11, 2009, the Temple filed a complaint against the commission in the Superior Court seeking a judgment declaring that the First Amendment prohibits the commission from exercising subject matter jurisdiction over the claims in the complaint, and an order directing the commission to dismiss the complaint. The Temple also moved for a preliminary injunction prohibiting the commission from exercising subject matter jurisdiction over the complaint, and staying administrative proceedings pending final adjudication of the declaratory judgment action. The commission moved to dismiss the Temple’s complaint. A judge in the Superior Court denied the commission’s motion to dismiss and entered judgment in favor of the Temple. The judge recognized that “G. L. c. 151B confers upon [the commission] the authority to investigate and act upon complaints of discrimination without judicial interference unless and until [the commission] has made a final decision in an adjudicatory proceeding.” But the judge determined that, in “extraordinary circumstances,” where the exhaustion of administrative remedies would prove futile, where the only question is one of law, and where irreparable harm would result if judicial action were delayed, a judge in the Superior Court may enter a declaratory judgment while an administrative proceeding is pending and before an agency’s final decision. The judge concluded that this was one of those rare cases where these extraordinary circumstances were present. The judge found that exhaustion of administrative remedies would be futile because “there can be no doubt that [the commission] has made a final determination . . . that it has [subject matter] jurisdiction,” and “intends to delve into the decision making thoughts and processes of the leadership of the Temple.” The judge also found that the question of subject matter jurisdiction was one of law. Finally, the judge found that irreparable harm would arise from delay because the commission’s attempt to conduct discovery and subject the Temple to the full adjudicatory process would itself be a constitutional violation if the employment decision were protected by the ministerial exception. The judge concluded that the employment decision here was protected by the ministerial exception because “Hilsenrath’s role as teacher at the religious school simply cannot be extracted from the school’s overall religious mission and integration” into the synagogue. The commission appealed, and we transferred the case on our own motion. Discussion. 1. Ministerial exception. The First Amendment provides, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” When judgment was issued in this case, the United States Courts of Appeals “uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment,” that precludes the application of Federal antidiscrimination law under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006), to the employment relationship between a religious institution and its ministers, but the Supreme Court of the United States had yet to consider the issue. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 705 & n.2 (2012) (Hosanna-Tabor) (collecting cases). This court, too, recognized that the First Amendment precludes application of State antidiscrimination law to employment decisions made by religious institutions regarding their ministers. Where an Episcopal priest had filed suit under G. L. c. 15IB claiming discrimination on the basis of gender, we affirmed that the case should be dismissed for lack of subject matter jurisdiction. Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577, 583 (2002). We noted that the principle that the First Amendment “precludes jurisdiction of civil courts over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships is firmly established in Massachusetts case law.” Id. at 579, and cases cited. We concluded that a dispute over a priest’s discharge from employment is “a quintessential example” of a church dispute that a court could not examine “without intruding into matters of the internal management of the Diocese.” Id. at 579, 580. We held that, where there is a “conflict between the legislative mandate of G. L. c. 151B to eliminate discrimination in the workplace and our constitutional mandate to preserve the separation of church and State, the constitutional directive must prevail.” Id. at 583. See Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 711-712 (2004). Earlier this year, the Supreme Court agreed that there is a ministerial exception that bars an employment discrimination suit brought on behalf of a minister. Hosanna-Tabor, supra at 706, 710. The Court reasoned: “The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.” Id. at 706. The Court also ruled that an award of money damages against the church for employment discrimination would be barred by the ministerial exception, because it “would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination.” Id. at 709. Resolving a conflict among some of the circuit courts of the United States Court of Appeals, the Court ruled that the ministerial exception “operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.” Id. at 709-710 n.4. To the extent that we had held under the First Amendment that courts are without subject matter jurisdiction to decide employment disputes involving a minister and a church, the Court’s decision in Hosanna-Tabor overruled that holding. Contrast Hosanna-Tabor, supra, with Callahan v. First Congregational Church of Haverhill, supra at 711-712; Williams v. Episcopal Diocese of Mass., supra at 577, 583. Because the parties and the judge did not have the benefit of the Supreme Court’s decision in Hosanna-Tabor, all assumed that the ministerial exception raised a question of subject matter jurisdiction, not an affirmative defense. 2. Judicial abstention. We consider first whether the judge erred in granting the relief sought before the commission had made a final decision in its adjudicatory proceeding. To resolve this issue, we briefly explore the adjudicatory process within the commission that leads to a final decision. Once a complaint is filed with the commission, the chair of the commission designates one of the commissioners as an investigating commissioner to investigate the complaint with the assistance of commission staff. 804 Code Mass. Regs. § 1.13(2) (1999). After the completion of the investigation, the investigating commissioner determines whether or not there is probable cause to believe “the respondent committed an unlawful practice.” 804 Code Mass. Regs. § 1.15(7)(a) (1999). Where probable cause is found, after being notified by the parties that discovery is complete, the investigating commissioner issues an order of certification to hold a public hearing, identifying each issue to be considered at a public hearing, which may include subject matter jurisdiction as well as the merits of the discrimination claims. 804 Code Mass. Regs. § 1.20(1), (3)(a) (2004). The public hearing is conducted by a commissioner (other than the investigating commissioner), a hearing officer, or the full commission. 804 Code Mass. Regs. § 1.21(1) (1999). After the hearing, the hearing commissioner, hearing officer, or commission issues a written decision with necessary findings of fact and conclusions of law, resolving the issues certified by the investigating commissioner. 804 Code Mass. Regs. § 1.21(18) (1999). Any party aggrieved by the decision of the hearing commissioner or hearing officer may request review by the full commission. 804 Code Mass. Regs. § 1.23(1)(a) (1999). The full commission may affirm the decision, remand it for further proceedings, or set aside or modify the decision. 804 Code Mass. Regs. § 1.23(1)(h) (1999). Among the issues that may be addressed by the full commission are whether the decision is “[i]n violation of constitutional provisions” or “[i]n excess of the statutory authority or jurisdiction of the Commission.” Id. A complainant, respondent, or other person aggrieved by a final decision of the commission may obtain judicial review in the Superior Court. G. L. c. 151B, § 6. See G. L. c. 30A, § 14. For the purpose of judicial review, “the Decision of the Full Commission . . . shall constitute the Final Order of the Commission.” 804 Code Mass. Regs. § 1.24(1) (1999). Here, the Temple’s motion to dismiss the commission complaint was denied during the investigatory stage of the commission proceedings, before any finding had been made as to probable cause, and before any public hearing had been conducted. Therefore, there was no statutory authority for judicial review of the denial of the motion to dismiss by the investigating commissioner. Only in extraordinary cases may a court take jurisdiction of a matter that is pending before an administrative agency. “Exceptions to the exhaustion requirement have been made when the administrative remedy is inadequate.” Hingham v. Department of Hous. & Community Dev., 451 Mass. 501, 509 (2008). Factors we have considered in determining whether to suspend the exhaustion requirement include: whether resort to the administrative remedy would be futile, Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141 (1975); whether the case raises important public questions whose resolution will affect people beyond the parties to the case, East Chop Tennis Club v. Massachusetts Comm’n Against Discrimination, 364 Mass. 444, 450 (1973); whether pursuing the administrative remedy will result in irreparable harm to either party, Everett v. Local 1656, Int'l Ass’n of Firefighters, 411 Mass. 361, 368 (1991); and whether there is a question of law “peculiarly within judicial competence,” id. We address each of these factors. First, the record before the judge did not permit a finding that the exhaustion of administrative remedies would be futile. Only the investigating commissioner had denied the motion to dismiss based on the ministerial exception. The question whether the ministerial exception barred the age discrimination claim here, whether because of subject matter jurisdiction or as a successful affirmative defense, had yet to be decided by a hearing commissioner or a hearing officer, or by the full commission, which would issue the final decision, and there could be no assurance as to how the commission ultimately would rule on this issue. Furthermore, exhaustion of administrative remedies is generally only considered futile “where the power and authority of the agency themselves are in question, and not where the exercise of that agency’s discretion is challenged.” Ciszewski v. Industrial Acc. Bd., supra. Because the ministerial exception would not divest the commission of jurisdiction over Hilsenrath’s complaint, see Hosanna-Tabor, supra at 709-710 n.4, the Temple’s challenge is to the commission’s evaluation of an affirmative defense rather than its authority to adjudicate the complaint. Second, although the case raises important legal questions about the ministerial exception, the resolution of such claims is fact intensive and a decision in Hilsenrath’s case will, at most, only resolve disputes as to the application of the ministerial exception to teachers in Sunday and after-school religious schools. Compare East Chop Tennis Club v. Massachusetts Comm’n against Discrimination, supra (legal determination whether private club is place of public accommodation subject to discrimination laws is fact intensive and “would only resolve the specific dispute between the club and the commission”) with ACE Prop. & Cas. Ins. Co. v. Commissioner of Revenue, 437 Mass. 241, 243 (2002) (resolution of legal question raised would affect “other taxpayers, who are asserting the identical preemption argument in applications for abatement and appeals to the board”). Third, the judge’s finding that irreparable harm would result if she abstained from taking action until a final decision had been rende