Discrimination Cases

Chelsea D. Scott & another vs. Encore Images, Inc., & another. No. 10-P-1222. Essex. March 7, 2011. - October 18, 2011. Present: McHugh, Smith, & Carhart, JJ. Anti-Discrimination Law, Employment, Handicap, Termination of employment. Handicapped Persons. Employment, Discrimination, Termination. In a civil action claiming discrimination in employment on the basis of handicap, the judge did not err in granting summary judgment in favor of the defendant employer, where the plaintiff failed to demonstrate that he was a qualified handicapped person when he was terminated, in that, three months prior to the time the plaintiff claimed he would have been able to return to work, he accepted a lump-sum workers’ compensation settlement, which created a statutory presumption that he was unable to work, even with reasonable accommodation, for thirty months, and the record contained no rebuttal of that presumption; further, given that the record was clear that, at the time of the termination of his employment, the plaintiff was not capable of performing any of the essential requirements of his job, the employer was not required to give him another job or to give him an indefinite leave of absence. [665-668] In a civil action claiming that the defendant employer harassed and terminated the plaintiff wife because of her husband’s disability and in retaliation for confronting the employer about the harassment, even assuming that the wife had “associational” standing to pursue those claims, the judge properly granted summary judgment in favor of the employer, where the record did not support the wife’s claim that the employer’s actions created a hostile work environment, and where the wife had no reasonable expectation of proving that her termination constituted retaliation as a result of her husband’s protected activity. [668-670] Civil action commenced in the Superior Court Department on November 17, 2008. The case was heard by Mitchell H. Kaplan, J., on a motion for summary judgment. Sol J. Cohen for the plaintiffs. Joseph F. Hardcastle for the defendants. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. Tina Brelin-Penney. Laurel Mervis. McHugh, J. Chelsea D. Scott and Tina Brelin-Penney, husband and wife, appeal from a Superior Court judgment dismissing employment discrimination claims they brought against their former employer, Encore Images, Inc. (Encore), and Laurel Mervis. The claims stem from an injury Scott suffered while he was employed by Encore as a warehouse coordinator. The injury resulted in a disability, a workers’ compensation proceeding and, they claim, their discharge. Both plaintiffs filed claims with the Massachusetts Commission Against Discrimination (MCAD) asserting that they had been terminated in violation of G. L. c. 151B. Later, they filed claims in Superior Court where, after completion of customary preliminaries, Encore moved for summary judgment. A judge of that court allowed the motion in a comprehensive and thoughtful memorandum. Judgment of dismissal soon entered, and this appeal followed. We affirm. Background. It appears that Encore is a small manufacturer of toner ink cartridges for printers and facsimile machines, and provides in-house servicing and repairs for its customers. The company, which employs approximately fourteen people, is owned and operated by Paul and Laurel Mervis. Encore employed Scott as its warehouse coordinator. The position was described as involving “constant lifting of items of varying weights and sizes anywhere from a few ounces up to approx [fifty pounds]. The majority of job time is spent with the up and down, off and on part of a ‘warehouse coordinator’ position.” Scott’s other responsibilities included maintaining and managing the warehouse, shipping and receiving functions such as packaging and shipping orders to customers, and assisting clients and technicians with loading and unloading their cars. Scott worked in the warehouse, and Brelin-Penney worked as Encore’s bookkeeper. On September 11, 2006, Scott fell from a ladder in Encore’s warehouse and injured his left shoulder. Three days later, a representative from Quadrant Health Strategies, to which Scott had gone for medical care, wrote that Scott could “resume work with limits,” which included prohibitions on repetitive motion of his left arm, on reaching above his shoulders or below his knees, and on lifting, pushing, or pulling more than ten pounds. On September 27, 2006, Dr. Freedman of Quadrant Health Strategies changed those limits to prohibit Scott from pushing, pulling, or lifting anything over five pounds. As a result of the September 27 report, Encore hired an ergonomist to “job shadow” Scott in an effort to find techniques that would allow him to do his job despite the injury and the limitations the doctor imposed. The effort failed. By November 7, 2006, Scott’s prognosis worsened when Dr. Fehnel, an orthopedic surgeon, reported he needed surgery for a tom cartilage in his left rotator cuff. As a result, Dr. Fehnel stated that Scott was prohibited from any lifting and should do “desk work only.” A day later, Scott informed Laurel Mervis that because he needed surgery, he would not be able to return to work. He did not provide her with an anticipated return date and, in fact, never worked at Encore again. Scott had shoulder surgery on December 11, 2006. Postoperative orders prohibited him from using his left arm and required that he keep it in a sling for four weeks. The four weeks passed, but a January 17, 2007, medical report revealed that he continued to experience “quite a bit of pain” and that for at least six more weeks he was to lift nothing heavier than a cup of coffee. In that report, Dr. Fehnel observed that he “[would] not have [Scott] return to any warehouse lifting or anything, until he is at least 3, if not 4 months, from the time of his surgery.” Moreover, Dr. Fehnel stated that Scott would “remain out of work until [he] reassess [ed] him in mid to end February to assess his progress with therapy and potential modified work capacity in the future.” Notwithstanding a variety of different approaches to treatment, Scott’s condition did not improve over the ensuing months. Indeed, on April 26, 2007, Dr. Fehnel reported that Scott was experiencing so much pain that he required emergency room treatment. That report, the last one the record contains, also suggested for the first time that Scott’s disability might be permanent. On June 6, 2007, Scott reached a $45,000 lump-sum settlement with Encore’s workers’ compensation insurer for future weekly workers’ compensation benefits. The settlement was based on an average weekly wage of approximately $700. The Department of Industrial Accidents approved the settlement on July 2, 2007. See G. L. c. 152, § 48. A provisional worker, whom Encore had hired in January to fill Scott’s position until he returned, continued to work at Encore until August 7, 2007, and was subsequently replaced with a permanent employee. By mid-October, Scott’s health had improved to the point that he was ready to return to work, though by then he was involved in this litigation and did not inform Encore of his recovery. Instead, he enrolled in a six-week truck driver training program. He successfully completed the program and found employment as a tractor-trailer truck driver within a month thereafter. As for Brelin-Penney, she claims she and Laurel Mervis enjoyed a friendly relationship before Scott’s injury. Beginning in early 2007, she claims, Mervis began to harass her. The harassment consisted of asking her questions on more than five occasions between January and May about Scott’s progress and his anticipated return to work. Brelin-Penney characterizes Mervis’s tone as accusatory during these conversations, and claims that Mervis would pull Brelin-Penney’s employee file and make notes in it while they spoke. Brelin-Penney consistently told Mervis that Scott would return when his doctors cleared him to do so. The rift between Brelin-Penney and Mervis came to a head on May 17, 2007. On that date, Mervis had been speaking with a man named A1 Rizzo, who worked with Brelin-Penney’s son, Isaiah, in a nearby warehouse where Mervis had helped him get a job. During the conversation, Mervis mentioned that Isaiah was planning to return to college the following month, something Rizzo apparently did not know. She then mentioned the conversation to Brelin-Penney, asking her why Isaiah had not divulged his plans to his employer. That question outraged Brelin-Penney, who accused Mervis of trying to meddle in her family life and trying to get Isaiah fired. The exchange escalated until BrelinPenney, voice raised in anger, told Mervis that Isaiah thought she was “the rudest fucking person he’s ever met,” and left the office for home, loudly slamming the door behind her. Mervis, who has multiple sclerosis and whose physicians had advised her to avoid stressful situations, was extremely upset by the incident. Through a relative who acted as Encore’s lawyer, she informed Brelin-Penney that evening that she was not to return to work at Encore again. A letter from Encore informing Brelin-Penney that she had been terminated soon followed. Discussion. We review the allowance of a motion for summary judgment de novo, see Miller v. Cotter, 448 Mass. 671, 676 (2007), seeking 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). See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). a. Scott’s claim. To make out a prima facie case of employment discrimination based on a disability, Scott must show that he was a “qualified handicapped person” and that he was terminated from his job at Encore because of his handicap. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002). For purposes of summary judgment, Encore concedes that Scott was employed by Encore, that his shoulder injury amounted to a handicap as defined by G. L. c. 15IB, § 1(17), and that he was terminated from his position because of his handicap.* ** Accordingly, the only disputed issue is whether Scott was a “qualified handicapped person” when he was terminated. General Laws c. 151B, § 1(16), as inserted by St. 1983, c. 533, § 2, defines a “qualified handicapped person” as “a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” For two reasons, Scott did not meet that definition. First, on July 2, 2007, three months before Scott now claims that he would have been able to return to work, he accepted a $45,000 lump-sum workers’ compensation settlement. Acceptance of the settlement triggered the provisions of G. L. c. 152, § 48(4), as appearing in St. 1991, c. 398, § 75, which in material part state that: “the acceptance of any amount in return for the right to claim future weekly benefits shall create a presumption that the employee is physically incapable of returning to work with the employer where the alleged injury occurred. Such presumption shall continue for a period of one month for each fifteen hundred dollar amount included in the settlement for future weekly benefits. No re-employment rights shall inure to such employee under this chapter during any period of presumption of incapacity as herein provided.” Under the terms of the statute, then, Scott’s acceptance of the settlement created a presumption that he was unable to work, even with reasonable accommodation, for thirty months, or until January, 2010. See Safford vs. Wyman Gordon Co., U.S. Dist. Ct., No. 96-40185-NMG, slip op. at 6 (D. Mass Nov. 10, 1997). Although § 48(4) creates a presumption, the presumption is rebuttable. Here, though, the record contains no rebuttal. Indeed, Scott has not discussed, or even cited, the statute, and the record is devoid of any evidence that Scott ever received medical clearance to resume work as a warehouse coordinator. Instead, he underwent retraining and found another line of work. Even if one puts § 48(4) entirely to one side, Scott faces a second insurmountable problem. The record will not support his claim to be a qualified handicapped person, i.e., a person who could, with reasonable accommodation, perform the essential functions of his job. By April 26, 2007, almost eight months after the accident, the record is clear that he was not capable of performing any of the essential requirements of the job. Nevertheless, Encore had installed a placeholder and had kept the job open pending Scott’s recovery. At that point, only two accommodations were possible. One would have been to provide Scott with a different job. But the record contains no evidence that Encore had another job to give Scott and, even if it did, it was not required to do so. See, e.g., Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454; Tompson v. Department of Mental Health, 76 Mass. App. Ct. 586, 596 (2010). The other would have been to give him an indefinite leave of absence, another step Encore was not required to take. Russell, supra at 455-457. On this record, therefore, Scott was not a “qualified handicapped person” and Encore did not impermissibly discriminate against him when it discharged him from his employment. Consequently, the judge properly allowed Encore’s motion for summary judgment dismissing his claim. b. Brelin-Penney’s claim. Brelin-Penney claims that Encore harassed and terminated her because of Scott’s disability and in retaliation for confronting Laurel Mervis about the harassment. She does not claim that she, herself, is disabled or that she was terminated because of her own disability, but claims “associational standing” to pursue the claims just described. Encore resists Brelin-Penney’s claim by asserting that G. L. c. 15IB provides no basis for an “associational” claim like the one she proffers. It acknowledges that the MCAD, in three opinions issued over the past thirty years, has allowed such claims to proceed but states that, in doing so, the MCAD exceeded its authority. The language of the statute does not embrace such claims, Encore asserts, and it points to Macauley v. Massachusetts Commn. Against Discrimination, 379 Mass. 279, 280 (1979), for the proposition that the MCAD has no power to stretch the statute so as to encompass claims the Legislature did not include. This is a case of first impression for this court, but this is not the record on which to decide it, for even if Brelin-Penney has associational standing, her claim fails. To make out a prima facie case for retaliation based on Scott’s disability, BrelinPenney has the burden to show that Scott engaged in a protected activity, here the filing of a workers’ compensation claim; that Encore was aware of the protected activity; that Encore engaged in an adverse employment action against Brelin-Penney; and that but for Scott’s actions, Encore would not have taken the adverse action. See MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (1996); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997); Mole v. University of Mass., 442 Mass. 582, 591-592 (2004). Encore does not contest that it knew that Scott filed a workers’ compensation claim, nor does it contest that the filing of the claim is protected activity. Accordingly, the only disputed issues are whether Brelin-Penney suffered any adverse employment action and, if so, whether the adverse action constituted retaliation as a result of Scott’s protected activity. Brelin-Penney claims that Encore’s adverse action consisted of two elements: Laurel Mervis’s harassment, which created a hostile work environment, and Brelin-Penney’s termination. A hostile work environment however, may only serve as the basis for a retaliation charge if it is “objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. Boca Raton, 524 U.S. 775, 787 (1998). In considering the totality of the circumstances, including the severity, frequency, and threatening nature of the alleged harassment and whether it interfered with Brelin-Penney’s work performance, id. at 787-788, this record does not support Brelin-Penney’s claim that Mervis’s actions created a hostile work environment. Brelin-Penney’s harassment claim arises out of the more than five instances between January and May, 2007, on which Mervis asked her questions in an accusatory tone about Scott’s progress and his anticipated return to work, often making notes in her employment file as they spoke. These interchanges cannot be characterized as “severe or pervasive harassment that materially altered the conditions of [Brelin-Penney’s] employment.” Noviello v. Boston, 398 F.3d 76, 92 (1st Cir. 2005). BrelinPenney testified that at no time did Mervis threaten her or her job. In addition, there are no allegations that Brelin-Penney’s work performance was hampered during this period. In December, 2006, she received an “above average” performance review from Mervis which was accompanied with a salary increase. Moreover, through the spring of 2007, well after Scott’s workers’ compensation claim had been filed, Mervis, consistent with her friendly relationship with Brelin-Penney, continued giving her gifts and financial assistance. As for Brelin-Penney’s discharge, though it is undisputed that termination from employment is an adverse employment action, this claim fails as well because she has no reasonable expectation of proving causation, an essential element of a viable retaliation claim. Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 705 (1992). In rebuttal to Brelin-Penney’s claim that she was fired because of Scott’s actions, Encore presented evidence that Brelin-Penney was fired because of the way she conducted herself and the language she used during the argument she had with Mervis about Mervis’s conversation with A1 Rizzo. Upon Encore’s submission of a reason for her lawful termination, the burden shifted back to Brelin-Penney to show that Encore’s reasons were pretextual. Mole, 442 Mass. at 591-592. However, Brelin-Penney does not deny her part in the argument, does not deny Mervis’s pre-existing condition, and does not deny the impact Brelin-Penney’s conduct had on Mervis. Her claim fails as a matter of law. Judgment affirmed. No claim is made that they failed to exhaust their administrative remedies before filing their complaint in Supei Court. This is a generous reading of the record, which contains no medical evidence that Scott was ever capable of returning to his warehouse coordinator position. Indeed, Brelin-Penney testified in her deposition that she did not know if Scott’s physicians had ever cleared him for return to work at Encore. In his deposition, Scott twice said he “guessed” he was able to return to work at Encore in the fall of 2007. That is all the record contains regarding his ability to return. In her brief, Brelin-Penney also asserts that, at some point, Mervis told two other Encore employees, in essence, that Scott was only remaining out of work so that he could get a “huge” workers’ compensation settlement. BrelinPenney’s deposition testimony is hearsay to which Encore objects here, and to which it objected in the Superior Court. The motion judge did not mention the statements in his comprehensive recitation of the facts, thus impliedly sustaining the objection. We likewise ignore these hearsay statements. See Madsen v. Erwin, 395 Mass. 715, 721 (1985); Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 338 (2003). Brelin-Penney and Scott claim that during Brelin-Penney’s May 17

DR. YAN-MIN WANG, Petitioner v. UNC-CH SCHOOL OF MEDICINE and DR. WILLIAM SNIDER, Respondents No. COA10-1021 (Filed 4 October 2011) 1. Public Officers and Employees — Whistleblower Act — EPA non-faculty employee A de novo review revealed that the trial court did not err when it concluded that the Whistleblower Act applied to petitioner, an EPA non-faculty employee. 2. Public Officers and Employees — Whistleblower Act — sufficiency of findings of fact Although the trial court properly determined that petitioner was entitled to the protections of the Whistleblower Act, it erred by proceeding to determine that petitioner had been subjected to impermissible employment-related retaliation instead of remanding this issue to the Board of Governors (BOG) for appropriate findings of fact. The case was remanded to the superior court for further remand to the BOG. 3. Public Officers and Employees — doctor—failure to show gender, age, and national origin discrimination The trial court erred by reversing the Board of Governors’ (BOG) finding that a doctor had not discriminated against petitioner on the basis of her gender, age, and national origin. However, a remand was not necessary because there was competent, material, and substantial evidence in the record to support the BOG’s decision. 4. Constitutional Law — due process — equal protection The trial court erred by concluding that petitioner established the existence of valid due process or equal protection claims. Judge ELMORE concurring in part, concurring in result in part, and dissenting in part in separate opinion. Appeal by respondents from order entered 14 May 2010 by Judge Abraham Penn Jones in Orange County Superior Court. Heard in the Court of Appeals 9 February 2011. Alan McSurely for petitioner. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govertfor respondents. ERVIN, Judge. Respondents UNC-Chapel Hill School of Medicine and Dr. William Snider appeal an order reversing a decision of the Board of Governors of the University of North Carolina to the effect that Petitioner Dr. Yan-Min Wang had not been treated in an impermissible and unlawful manner in connection with her employment and ordering UNC-Chapel Hill to reinstate Petitioner to a position she previously held with the university, to pay Petitioner’s attorney’s fees, and to revise its grievance procedures. On appeal, Respondents argue that the trial court misapplied the whole record test in evaluating the BOG’s decision, erred reviewing the constitutional and other legal issues raised by Petitioner, and erred by reversing the BOG’s decision. After careful consideration of Respondents’ challenges to the trial court’s order in light of the record and the applicable law, we affirm the trial court’s order in part and reverse and remand the trial court’s order in part. I. Factual Background A. Substantive Facts On 1 August 2004, Dr. William Snider, the director of the Neuroscience Center at the UNC-Chapel Hill School of Medicine, appointed Petitioner to a part-time position as a research scientist. Dr. Snider leads a team that conducts experiments on the nerve processes of genetically modified mice. The funding necessary to support this work comes from grants provided by the National Institutes of Health and private foundations. Petitioner was initially appointed for a one year term, with her employment contingent upon the continued availability of the necessary funding and subject to the need for compliance with the University’s Employment Policies for EPA Non-Faculty Employees. In an e-mail sent prior to Petitioner’s appointment, Dr. Snider stated that, “if things go well” and the needed funding became available, Petitioner might obtain a full-time appointment as a non-tenure track research assistant professor in the future. On 27 April 2005, Dr. Snider submitted an application for a “reentry” grant from the NIH to fund Petitioner’s position as a full-time research assistant professor. On 1 August 2005, while the grant application was still pending, Petitioner was appointed to a second one-year term as a part-time research scientist. After her reappointment, Petitioner worked for Dr. Snider on a separate funding proposal involving the provision of support for Dr. Snider’s work using a line of experimental mice. As part of that process, Petitioner conducted preliminary genotyping tests on the mice used in the lab’s experiments for the purpose of confirming that the mice-in question were isletl-Cre positive as had been reported in the funding proposal. As a result of the tests that she performed, Petitioner concluded that the mice were not all isletl-Cre positive, a finding that she reported to Dr. Snider. Although the evidence concerning the extent to which there actually were any genotyping problems in the laboratory and what, if any, steps needed to be taken to identify and solve any genotyping problems was conflicting, the record indicates that, in early December 2005, Petitioner and Dr. Snider exchanged a series of e-mails in which they disputed the appropriateness of the tone that each had used in commrmicating with other during various conversations concerning the genotyping issue and the specifics of what each had said to the other during these conversations. On 12 December 2005, Dr. Snider learned that the NIH grant had been approved. In January 2006, Dr. Snider sent e-mails to Petitioner stressing the importance that the level of collegiality that she displayed while interacting with others would play in his decision concerning whether to reappoint Petitioner to another term of employment. On 31 January 2006, Dr. Snider informed Petitioner that he had decided not to recommend her for a research faculty appointment due to concerns about her tendency to make “intemperate comments” and engage in “harsh interactions.” However, Dr. Snider told Petitioner that, if she could “interact productively around the science,” he would set up a “mentoring committee” that would monitor Petitioner’s progress and advise him “if and when it is appropriate to make the research faculty appointment.” In February 2006, Petitioner met with Denise Vandervort, a human relations facilitator, for the purpose of expressing her concerns about Dr. Snider’s decision to refrain from recommending her for appointment to a full-time position. After discussing the matter with Petitioner and Dr. Snider, Ms. Vandervort and Dr. Snider “agreed that any further interactions between [Dr. Snider and Petitioner] should take place in the presence of a third party” and created a mentoring committee for the purpose of assisting in the resolution of the various issues that surrounded Petitioner’s employment. On 24 March 2006, the mentoring committee presented Petitioner with a “memorandum of understanding” detailing the terms under which she would be allowed to continue to work at the Center. However, Petitioner did not sign the MOU because she did not agree with its terms. On 31 March 2006, Petitioner met with Karen Silverburg, the Associate Dean of Human Resources, for the primary purpose of discussing her contention that Dr. Snider had “promised” to promote her to a full-time position. Although Plaintiff asserts in her brief before this Court that she “mentioned” problems with the mouse colony during this meeting, the record contains no indication that issues concerning laboratory procedures were addressed at that time. In late March and early April, 2006, Petitioner wrote a letter (referred to as the “Dear Dr.” letter) in which she complained about Dr. Snider’s “broken promises” to hire her as a full-time researcher. In addition, the “Dear Dr.” letter included a paragraph discussing Petitioner’s concerns about mouse genotyping in Dr. Snider’s lab. Petitioner e-mailed or gave this letter to Dr. James Anderson and Dr. Colin Hall, the chairs of the two departments in which Dr. Snider had an appointment; Associate Dean Karen Silverberg; Dr. Albert Collier, the University’s Scientific Integrity Officer; Wayne Blair and Dr. Laurie Mesibov, the University’s ombudsmen; and Dr. Anthony-Sam Lamantia, a professor in the Neurosciences Center and one of Dr. Snyder’s colleagues. According to applicable University policies, Drs. Anderson, Hall, Collier and Mesibov and Mr. Blair were faculty members or administrators to whom a complaint could appropriately be directed. However, Petitioner should not, under established University policy, have sent the “Dear Dr.” letter to Dr. Lamantia. After learning that Petitioner had sent a copy of the “Dear Dr.” letter to Dr. Lamantia, Dr. Snider decided that he could not work with Petitioner any longer. As a result, on 13 April 2006, Dr. Snider rejected the funding from the NIH grant which would have been used to employ Petitioner in a full-time position, instructed Petitioner to work at an off-campus site for the remainder of her contract, and notified Petitioner that she would not be reappointed. B. Procedural History On 23 April 2006, Petitioner filed a grievance with the EPA Non-Faculty Grievance Committee in which she alleged that Dr. Snider had failed to renew her appointment in retaliation for her decision to report his “broken promises” to promote her to a full-time position and the problems with mouse genotyping in his lab. On 1 June 2006, the Grievance Committee reported to Chancellor James Moeser that it had found “no basis to determine that Dr. Snider has engaged in unfair or retaliatory treatment toward the grievant or to other employees.” Petitioner appealed the Grievance Committee’s decision to the Chancellor, who rejected her appeal on 22 August 2006. At that point, Petitioner appealed to the Board of Trustees. On 20 December 2006, the BOT’s Grievance Panel remanded Petitioner’s grievance to the Grievance Committee in order to permit that body to make detailed factual findings concerning Petitioner’s grievance on the basis of a de novo review of the record and recommended that Petitioner be permitted to submit a new grievance. On 25 February 2007, Petitioner submitted a new statement of her grievances in which she asserted four claims: 1.) On April 13, 2006, Dr. Snider gave me a signed letter informing me that I was to [work off campus for the rest of my appointment.] This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006 .. . concerning] matters governed by . . . University policy and [the Whistleblower Act.] 2.) On April 13, 2006 in the same letter Dr. Snider informed me that my contract would not be renewed and that my reentry grant would be returned to NIH. This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006... concerning] matters governed by . . . University policy and [the Whistleblower Act.] 3.) During the entire period of my employment in his lab, Dr. Snider discriminated against me on the basis of my age (48), sex (female), and national origin (Chinese). After identifying the issues that it needed to address in order to resolve Petitioner’s grievance, the Grievance Committee reviewed documentary evidence, interviewed witnesses and conducted a hearing at which Petitioner and Dr. Snider presented their respective contentions. On 21 May 2007, the Grievance Committee issued a report concluding that it could not “find in favor of any of Dr. Wang’s claims.” On 4 June 2007, Petitioner appealed the Grievance Committee’s decision to the Chancellor. On 10 October 2007, Chancellor Moeser rejected Petitioner’s appeal. Petitioner appealed the Chancellor’s determination to the BOT, which rejected Petitioner’s appeal by means of a letter dated 26 February 2008. Petitioner appealed the BOT’s decision to the BOG on 11 July 2008. On 8 January 2009, the BOG’s Committee on Personnel and Tenure submitted a report addressing Petitioner’s allegations. The report was adopted by the BOG as its decision on the following day. In its decision, the BOG considered Petitioner’s arguments on a de novo basis. In response to Petitioner’s contention that she had been subjected to impermissible discrimination stemming from her age, sex, and national origin, the BOG concluded that, “based upon all of the evidence in the record and the legal precedents,” Petitioner had “failed to carry her burden of demonstrating that she was discriminated against.” Moreover, the BOG concluded that, given her status as an EPA Non-Faculty employee, Petitioner was not protected by the Whistleblower Act and that Petitioner was not entitled to relief on First Amendment grounds. In addition, the BOG stated that: Although we conclude that Dr. Wang does not have an appeal to this Board for retaliation under the whistleblower statute or the First Amendment, we note that the Record on Appeal does not show retaliation by Dr. Snider under either basis. It shows two people who simply could not get along, and a supervisor who finally reached the breaking point and ended the relationship. Finally, the BOG concluded that: in this appeal, Dr. Wang did not meet her burden of proving discrimination or retaliation. She did not show that discrimination or retaliation were the reasons she was not reappointed, the grant application was withdrawn, and/or she was barred from the lab. .. . Therefore, the Committee recommends that the Chancellor’s decision not to reappoint should be affirmed. On 9 February 2009, Petitioner filed a petition seeking judicial review of the BOG’s decision in the Orange County Superior Court. In her petition, Petitioner asserted that the BOG had erred in a number of respects, including allegations that: 1. The BOG erred by ruling that, as an EPA Non-Faculty employee, Petitioner was not protected by the Whistleblower Act. 2. The BOG erred by rejecting Petitioner’s claim to the protection of the First Amendment and analogous provisions of the North Carolina Constitution. 3. The BOG erred in its reliance on and interpretation of case law and its analysis of salaries paid to other employees in connection with its consideration of Petitioner’s discrimination claims[.] 4. The BOG erred by denying Petitioner’s request for copies of CD recordings of the witness interviews conducted in connection with the Grievance Committee’s investigation. 5. The BOG erred in its analysis of Petitioner’s retaliation and discrimination claims by failing to subject the record evidence to “a pretext or mixed motive analysis.” 6. The applicable grievance procedures, on their face and as applied to Petitioner, “violated Petitioner’s Constitutional rights under Article I of the North Carolina Constitution, particularly Sections 18 and 19, which provide for timely hearings and guaranteeing that the state will provide equal protection and the law of the land to all citizens, which includes the right to a fair, impartial hearing.” In addition, Petitioner asserted that the BOG’s decision was arbitrary and capricious and rested upon a misapplication of the applicable law. Petitioner’s petition came on for hearing before the trial court at the 25 January 2010 civil session of Orange County Superior Court. On 14 May 2010, the trial court entered an order reversing the BOG and ruling that: 1. Petitioner, an EPA Non-Faculty employee, was protected by the Whistleblower Act. 2. Dr. Wang’s distribution of the “Dear Dr.” letter was protected activity, and was “a substantial or motivating factor” in Dr. Snider’s decision not to renew her contract. 3. The BOG “arbitrarily and capriciously mis-stated and misapplied the appropriate law” to the evidence concerning Petitioner’s claims under the Whistleblower Act by failing to “subject the evidence to the pretext and mixed motive analyses.” 4. The BOG violated Petitioner’s rights under the North Carolina Constitution by failing to provide her with transcripts of its interviews with witnesses. 5. The applicable grievance procedures, which afford more procedural rights to career State employees who challenge the existence of just cause for an adverse employment action than to EPA Non-Faculty employees who file a grievance alleging discrimination or retaliation, violated Petitioner’s rights to due process and equal protection. Based upon these determinations, the trial court ordered the UNC School of Medicine to “reinstate, Petitioner in a comparable position with retroactive pay and benefits that she would now be entitled to as if she had been employed since the University banned her from her workplace!,] • • • reimburse her reasonable attorney’s fees and costs[,] . . . bring the University’s unconstitutional Grievance Procedure into compliance consistent with this Decision and Order, and . . . make available to all parties ... all testimonial evidence adduced in any grievance!.]” Respondents noted an appeal to this Court from the trial court’s order. II. Legal Analysis A. Standard of Review According to N.C. Gen. Stat. § 150B-43, “[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision.” N.C. Gen. Stat. § 150B-51(b) authorizes a trial court to reverse or modify an agency’s decision if the petitioner’s substantial rights have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence admissible under [N.C. Gen. Stat. §§] 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or (6) Arbitrary, capricious, or an abuse of discretion. “On judicial review of an administrative agency’s final decision, the substantive nature of each assignment of error dictates the standard of review.” N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004). The first four grounds are “law-based” inquiries warranting de novo review. The latter two grounds are “fact-based” inquiries warranting review under the whole-record test. Under de novo review, a court “considers the matter anew[] and freely substitutes its own judgment for the agency’s.” Under the whole-record test, a court “examines all the record evidence ... to determine whether there is substantial evidence to justify the agency’s decision.” Trayford v. N.C. Psychology Bd., 174 N.C. App. 118, 121, 619 S.E.2d 862, 863-64 (2005) (quoting Carroll, 358 N.C. at 659-60, 599 S.E.2d at 894-95), aff’d, 360 N.C. 396, 627 S.E.2d 462 (2006). “As to appellate review of a superior court order regarding an agency decision, ‘the appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” ACT-UP Triangle v. Commission for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). In reviewing “an agency decision, the trial court should state the standard of review it applied to resolve each issue.” Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 130, 560 S.E.2d 374, 380 (2002) (citing In re Appeal of Willis, 129 N.C. App. 499, 502, 500 S.E.2d 723, 726 (1998)). B. Whistleblower Act 1. Applicability N.C. Gen. Stat. Chapter 126, Article 14, §§ 126-84-88, which is commonly known as the “Whistleblower Act,” protects State employees who report serious misconduct to their superiors or other appropriate authorities. The determination of whether EPA Non-Faculty employees such as Petitioner are protected by the Whistleblower Act requires inte