Discrimination Cases

Carol A. Warfield vs. Beth Israel Deaconess Medical Center, Inc., & others. Suffolk. March 5, 2009. July 27, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Federal Arbitration Act. Massachusetts Arbitration Act. Anti-Discrimination Law, Arbitration, Employment. Contract, Arbitration. Employment, Discrimination. Practice, Civil, Interlocutory appeal. Public Policy. An employment contract containing an agreement by the employee to limit or waive any of the rights or remedies conferred by G. L. c. 15 IB is enforceable only if such an agreement is stated in clear and unmistakable terms. [394-401] In a civil action brought in Superior Court alleging gender-based employment discrimination and retaliation in violation of G. L. c. 151B, the judge properly denied the defendants’ motion to dismiss, brought on the ground that the plaintiff’s employment agreement (agreement) mandated arbitration of all her claims, where neither the arbitration clause, which provided for the arbitration of any dispute “arising out of or in connection with this [ajgreement or its negotiations,” nor any of the other provisions contained in the agreement reflected the parties’ clear intent to subject statutory discrimination claims to arbitration. [401-402] Cowin, J., dissenting. Common-law claims that were integrally connected to an employee’s claims under G. L. c. 151B were required to be tried in the same action, despite the fact that the common-law claims were covered by an arbitration clause contained in an employment agreement. [403-404] Civil action commenced in the Superior Court Department on March 7, 2008. Motions to dismiss and to compel arbitration were heard by Isaac Borenstein, J. The Supreme Judicial Court granted an application for direct appellate review. John F. Welsh (Jennifer Belli with him) for Beth Israel Deaconess Medical Center, Inc. Tracey E. Spruce for Harvard Medical Faculty Physicians at Beth Israel Deaconess Medical Center, Inc. Richard D. Glovsky for Josef E. Fischer. Ellen J. Zucker (Laura R. Studen with her) for the plaintiff. Ben Robbins, Martin J. Newhouse, & Jo Ann Shotwell Kaplan, for New England Legal Foundation & another, amici curiae, submitted a brief. Patricia A. Washienko, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief. Paul F. Levy; Harvard Medical Faculty Physicians at Beth Israel Deaconess Medical Center, Inc.; and Josef E. Fischer. Botsford, J. The plaintiff, Carol A. Warfield, the former chief of anesthesiology at Beth Israel Deaconess Medical Center, Inc. (BIDMC), filed this action in the Superior Court against her employers, alleging gender-based discrimination and retaliation in violation of G. L. c. 151B, and factually related common-law claims. BIDMC and the other defendants moved to dismiss Warfield’s complaint and compel arbitration on the ground that the employment agreement she signed soon after she became chief of anesthesiology mandated arbitration of all her claims. A judge in the Superior Court denied the motions, and the defendants filed this interlocutory appeal. We conclude that Warfield’s statutory discrimination claims do not fall within the scope of the arbitration clause contained in the employment agreement, and that she may proceed with her discrimination action in the Superior Court. Because her additional claims are wholly intertwined with her statutory discrimination claims, principles of judicial economy dictate that they be tried in the same action. 1. Facts. We recite only the facts relevant to the current dispute. Warfield, an anesthesiologist employed by Harvard Medical Faculty Physicians at Beth Israel Deaconess Medical Center, Inc. (HMFP), has been an anesthesiologist on the medical staff of BIDMC since 1980. On March 27, 2000, Warfield entered into an employment agreement with BIDMC and HMFP in which she agreed to serve in the capacity of anesthesiologist-in-chief for BIDMC (agreement). The agreement provides that Warfield’s duties as anesthesiologist-in-chief would commence on January 1, 2000, and sets forth, inter alia, her duties as chief, her compensation and benefits in that position, and circumstances in which she could be terminated for cause and without cause. The agreement further provides that Warfield remained an employee of HMFP, and that she was bound by the separate articles, bylaws, rules, guidelines, regulations, procedures, and standards of BIDMC, HMFP, and Harvard Medical School that were not part of the agreement. The agreement additionally provides that it supersedes “any and all previous discussions, understandings or agreements between the Physician, HMFP, and/or the Hospital relating to the subject matter hereof or any other employment or contracting relationship between Dr. Warfield and HMFP or the Hospital.” Section 17 of the agreement, titled Arbitration, provides: “Arbitration. Any claim, controversy or dispute arising out of or in connection with this Agreement or its negotiations shall be settled by arbitration. Each party hereto shall designate an independent arbitrator and these two[] arbitrators shall select a third independent arbitrator who shall be chairperson of the panel. The arbitrators shall then conduct the arbitration at a mutually acceptable site and a majority shall render a decision as to the matter in dispute, which decision shall be binding on the parties hereto. Each party shall bear the expense of its own arbitrator and an equal share of the expense of the third arbitrator. To the extent not otherwise hereinabove provided, the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The full rules of discovery shall apply to any such proceeding. “In no event, however, shall this Section 17 be deemed to preclude a party hereto from instituting legal action seeking relief in the nature of a restraining order, an injunction or the like in order to protect her or its rights pending the outcome of an arbitration hereunder. With respect to matters submitted to arbitration other than claims for payment of monies due, the parties shall continue to perform their obligations hereunder relative to said matters pending resolution of the dispute by arbitration.” Neither § 17 nor any other provision of the agreement made reference to employment discrimination statutes or claims. In the fall of 2001, BIDMC hired Dr. Josef Fischer to be chief of surgery. In January, 2002, Paul Levy was hired as the president and chief executive officer of BIDMC. Warfield alleges in her complaint that during the next several years, Fischer engaged in a relentless pattern of gender-based discriminatory treatment of her. She also alleges that she repeatedly complained to Levy about Fischer’s treatment, but that no or insufficient action was taken. On July 18, 2007, carrying out a decision made by Levy and BIDMC that Warfield characterizes as “discriminatory and retaliatory in its motivation and defaming in its effect,” Levy terminated Warfield’s appointment as anesthesiologist-in-chief, effective immediately. Warfield further alleges that, since her termination, BIDMC, Levy, and HMFP have “marginalize^]” her by collaborating to push her out of her job as a staff anesthesiologist at BIDMC, and to deny her benefits to which she would have had access, absent the alleged discriminatory and retaliatory treatment. Warfield commenced this action in the Superior Court on March 7, 2008. In her complaint, Warfield alleges claims of gender discrimination under G. L. c. 15IB, § 4 (1), against BIDMC, Levy, and Fischer; retaliation under G. L. c. 151B, § 4 (4), against all defendants; tortious interference with advantageous or contractual relations against BIDMC, Levy, and Fischer; and defamation against BIDMC, Levy, and Fischer. Her claims of tortious interference with contractual relations are entirely based on the same alleged conduct that gave rise to Warfield’s statutory discrimination complaints. Her claims of defamation are primarily based on the same conduct that gave rise to her statutory claims, although as discussed below, Warfield additionally alleges that the defendants continued to defame her even after her termination as anesthesiologist-in-chief. The defendants moved to dismiss the case and to compel arbitration of Warfield’s claims pursuant to G. L. c. 251, § 2. On September 15, 2008, a judge in the Superior Court denied the defendants’ motions. He concluded that the arbitration clause did not reach Warfield’s claims for gender discrimination and retaliation because the agreement did not govern her employment relationship with BIDMC and HMFP generally, but only the narrow topic of her duties as chief of anesthesiology, and the claims of discrimination fell outside this narrow topic. He also concluded that to the extent Warfield’s claims concerned her termination, they were not arbitrable because the agreement provided specifically that it ended on Warfield’s termination, and therefore the arbitration clause would no longer be in effect. The defendants appealed pursuant to G. L. c. 251, § 18 (a) (1), which grants a right of interlocutory appeal from orders denying an application to compel arbitration. We granted the defendants’ application for direct appellate review. We affirm the order of the Superior Court judge but for different reasons. 2. Discussion. By its express terms, the agreement is governed by Massachusetts law, and thus the Massachusetts Arbitration Act (MAA) applies to it. At the same time, the agreement comes within the scope of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA), because it concerns Warfield’s employment as anesthesiologist-in-chief, and the defendants, as hospital-based health care providers, are involved in interstate commerce. See Miller v. Cotter, 448 Mass. 671, 678 (2007). In all relevant respects, the language of the FAA and the MAA providing for enforcement of arbitration provisions are similar, and we have interpreted the cognate provisions in the same manner. Id. at 678-679. The FAA provides in relevant part: “A written provision in . . .a contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract ... or the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Because procedures to compel arbitration under the FAA apply only in Federal courts, we apply the MAA’s procedures. See St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 351-352 (2008). The MAA authorizes proceedings in the Superior Court to compel arbitration in accordance with the terms of an arbitration agreement, and permits an interlocutory appeal from orders denying an application to compel arbitration. See G. L. c. 251, §§ 2, 18. A defendant’s motion to compel arbitration is treated summarily. See Miller v. Cotter, 448 Mass, at 676; G. L. c. 251, § 2. We review the judge’s order de novo. See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844 (2007). It is settled that the FAA allows for the arbitration of Federal employment discrimination disputes, unless otherwise barred by law. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24-26 (1991); Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 19-20 (1st Cir. 1999). We have not had occasion to rule on whether employment discrimination claims arising under G. L. c. 15IB are arbitrable, but the parties here correctly assume their arbitrability. The dispute before us concerns only whether the parties have contractually agreed, in the agreement, to submit statutory claims of discrimination to arbitration. See Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347, 350 (1997), quoting Local 285, Serv. Employees Int’l Union v. Nonotuck (Mugnano-Bornstein) Resource Assocs., Inc., 64 F.3d 735, 738 (1st Cir. 1995) (“a party cannot be required to submit to arbitration any dispute which he has not agreed ... to submit”). We apply general principles of State contract law to determine whether a particular agreement requires arbitration of a claim. Mugnano-Bornstein, supra. See Brennan v. King, 139 F.3d 258, 264 (1st Cir. 1998), quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (“As with other issues involving the construction of individual employment contracts, in determining whether a contract requires arbitration, ‘courts generally . . . should apply ordinary state-law principles that govern the formation of contracts’ ”). See also Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 474-476, All (1989) (where contract covered by FAA but choice of law clause provided California law would govern, parties in effect incorporated California arbitration rules into contract; under those rules, arbitration properly stayed even though FAA would not have called for stay). The arbitration clause in the agreement provides that “[a]ny claim, controversy or dispute arising out of or in connection with this Agreement or its negotiations shall be settled by arbitration.” Federal as well as State law and policy favor arbitration. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (Federal); Miller v. Cotter, 448 Mass, at 676 (Commonwealth). This policy generally instructs us that where a contract has an arbitration clause that is “broad” in its reach, there is a rebuttable presumption that a contract dispute is covered by the clause, and doubts whether a particular dispute comes within the scope of the clause should be resolved in favor of arbitration. See Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666-667 (2002). See also Commonwealth v. Philip Morris Inc., 448 Mass, at 843-844. Cf. Local No. 1710, Int’l Ass’n of Fire Fighters v. Chicopee, 430 Mass. 417, 421-422 (1999). In a number of contexts, we have construed the phrase “arising out of” and similar phrases (e.g., “connected to” or “relating to”) in an arbitration clause as constituting “broad” language that invokes the FAA’s (and MAA’s) presumption in favor of arbitration. See, e.g., Commonwealth v. Philip Morris Inc., supra at 844-845 (settlement agreement between Commonwealth and tobacco companies providing for arbitration of disputes “arising out of” or “relating to” calculation of companies’ annual payments required arbitration of claim under agreement); Drywall Sys., Inc. v. ZVI Constr. Co., supra at 666 (construction subcontracts between general contractor and subcontractor providing for arbitration of claims “arising out of or relative to” subcontracts required arbitration of all parties’ construction project claims, including claim under G. L. c. 93A). However, this court has never been called on to interpret the scope of such language when used in an employment agreement’s arbitration clause where the employee raises claims of discrimination under G. L. c. 151B. Cf. Mugnano-Bornstein, 42 Mass. App. Ct. at 351-353. Our State law principles of contract interpretation make clear that considerations of public policy play an important role in the interpretation and enforcement of contracts. See Feeney v. Dell Inc., ante 192, 193 (2009) (Commonwealth’s strong public policy supporting ability of consumers to bring class actions as means of seeking remedy for unfair or deceptive commercial conduct rendered unenforceable sales contract arbitration provision barring class actions). See also, e.g., A.Z. v. B.Z., 431 Mass. 150, 160 (2000); Beacon Hill Civic Ass’n v. Ristorante Toscano, Inc., 422 Mass. 318, 320-322 (1996). The Commonwealth has an “overriding governmental policy proscribing various types of discrimination, set forth in G. L. c. 151B.” Massachusetts Bay Transp. Auth. v. Boston Carmen’s Union, Local 589, ante 19, 26, 29 (2009). Section 9 of G. L. c. 151B, the Commonwealth’s antidiscrimination law, states expressly that it is to “be construed liberally for the accomplishment of its purposes, and any law inconsistent with any provision of [c. 151B] shall not apply.” The statute not only establishes substantive rights, but also makes available to an aggrieved party comprehensive administrative as well as judicial avenues of redress for substantive statutory violations. Thurdin v. SEI Boston LLC, 452 Mass. 436, 441-442 (2008). See Ayash v. Dana Farber Cancer Inst., 443 Mass. 367, 391-392, cert, denied sub nom. Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005) (G. L. c. 151B is “comprehensive statute enacted to provide judicial and administrative remedies for destructive acts of discrimination in the workplace”). Consistent with the public policy against workplace discrimination reflected in G. L. c. 151B, we conclude that an employment contract containing an agreement by the employee to limit or waive any of the rights or remedies conferred by G. L. c. 15 IB is enforceable only if such an agreement is stated in clear and unmistakable terms. See Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 130-132 (2001) (plaintiff physician’s gender-based discrimination claims against defendant employer not subject to arbitration under arbitration clause in employment contract where terms of contract not sufficiently clear to constitute waiver of plaintiffs remedies under New Jersey antidiscrimination law). The interpretive rule we state here is not inconsistent with the presumption of arbitrability embedded in the FAA. That presumption signifies that “in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA] . . . due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. at 475-476. Accord Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24-25. But the purpose of the FAA was and is “to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. at 24. See Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-220 & n.6 (1985); St. Fleur v. WPI Cable Sys./Mutron, 450 Mass, at 349. The concern was to enforce private agreements to arbitrate according to their terms, not to encourage arbitration of contractual disputes for its own sake. See Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., supra at 474-475. See also Dean Witter Reynolds Inc. v. Byrd, supra at 221. Our interpretive rule states only that as a matter of the Commonwealth’s general law of contract, a private agreement that purports to waive or limit — whether in an arbitration clause or on some other contract provision — the employee’s otherwise available right to seek redress for employment discrimination through the remedial paths set out in G. L. c. 151B, must reflect that intent in unambiguous terms. In relation to an arbitration clause, the rule continues to uphold the language and generous spirit of the FAA and the Commonwealth’s own public policy in favor of arbitration agreements: parties to an employment contract are free to agree on arbitration of statutory discrimination claims, and the presumption of arbitrability is in effect. However, parties seeking to provide for arbitration of statutory discrimination claims must, at a minimum, state clearly and specifically that such claims are covered by the contract’s arbitration clause., A recent decision of the United States Supreme Court supports our view that an intent to arbitrate statutory empl

PAMELA C. GRANGER, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee No. COA08-992 (Filed 7 July 2009) 1. Administrative Law— standard of review — de novo The appropriate standard of review is de novo where a final agency decision rejects the decision of the administrative law judge. 2. Public Officers and Employees— termination of career state employee — unacceptable personal conduct The trial court did not err by affirming the final decision of the State Personnel Commission to dismiss petitioner career state employee on the basis of unacceptable personal conduct because: (1) petitioner admitted to using the “n” word in the workplace in reference to an African-American employee under the direct supervision of petitioner; (2) by uttering this epithet in • the workplace, where petitioner was overheard by one of her subordinates, petitioner undermined her authority and exposed respondent university to embarrassment and potential legal liability; (3) petitioner attempted to obstruct the investigation, which amounted to insubordination, petitioner stated she would not hire another black person, petitioner disposed of the African-American employee’s Black History notebook, and petitioner created a general sense of intimidation in the workplace; and (4) petitioner’s actions, when considered together, supported her dismissal under all four of the definitions of unacceptable personal conduct under 25 N.C.A.C. lJ.0614(i) including conduct for which no reasonable person should expect to receive prior warning, the willful violation of known or written work rules, conduct unbecoming a state employee that is detrimental to state service, or the abuse of a person over whom the employee has charge or to whom the employee has a responsibility. Appeal by Petitioner from order entered 21 April 2008 by Judge R. Allen Baddour, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 10 March 2009. Law Offices of Michael C. Byrne, PC, by Michael C. Byrne, for Petitioner-Appellant. Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for Respondent-Appellee. McGEE, Judge. Respondent dismissed Petitioner, a career employee, on 19 August 2005, on the basis of Petitioner’s unacceptable personal conduct. Isabelle Jones-Parker (Jones-Parker), an African-American and also an employee of Respondent, who was under the direct supervision of Petitioner, sent Respondent a letter in June 2005 arguing, inter alia, that Petitioner had subjected Jones-Parker to “racism, harassment and workplace hostility.” In response to Jones-Parker’s letter, Respondent appointed three investigators to investigate Petitioner’s allegations: Karen Silverberg, Assistant Dean for Human Resources for the UNC School of Medicine; Gena Carter, UNC Chapel Hill Human Resources Team Leader; and Joanna Carey Smith, a member of the UNC Chapel Hill Office of General Counsel (the investigators). In the course of their investigation, the investigators obtained statements from other employees under Petitioner’s direct supervision. One of those employees, Susan Huey (Huey) stated that she had overheard Petitioner refer to Jones-Parker as “that n-” as Petitioner was leaving Petitioner’s office. Petitioner, upon being informed of Huey’s statement, admitted she had used the epithet in reference to Parker-Jones, explaining that she knew it was inappropriate. Petitioner stated it had been an expression of her anger due to the investigation, and that she had only used the epithet once, while speaking to her sister on the phone, and had not meant for anyone in the office to overhear it. Another employee, Betty Satterfield (Satterfield), stated that Petitioner had told her Petitioner would never hire another-black person. Satterfield also reported she witnessed Petitioner taking a workbook belonging to Jones-Parker that contained work on Black History month that Jones-Parker was compiling for her church. Satterfield further stated that Petitioner informed her that Petitioner had instructed Petitioner’s boyfriend to dispose of the notebook. In addition, Satterfield stated that Petitioner continually spoke with her concerning the ongoing investigation, attempting to elicit information, and instructing Satterfield how to respond to questioning. Both Huey and Satterfield stated Petitioner created a hostile work environment by continually referring to Petitioner’s contacts with Respondent, and Petitioner’s ability to use those contacts to punish employees who crossed Petitioner. Petitioner admitted to using the racial slur against Jones-Parker, but denied the other allegations. The end result of the investigation was the dismissal of Petitioner. Petitioner completed Respondent’s internal grievance process without success, and filed a petition for a contested case with the Office of Administrative Hearings on 5 January 2006. Administrative Law Judge (ALJ) Beecher Gray heard the case on 20-21 September 2006, and on 22 December 2006, the ALJ filed his decision in which he concluded Petitioner was improperly dismissed. Respondent appealed to the State Personnel Commission. The State Personnel Commission overturned the ALJ’s decision by final decision entered 2 April 2007. Petitioner filed for judicial review, and the matter was heard by the trial court in Wake County Superior Court on 6 December 2007. By order entered 21 April 2008, the trial court affirmed the final decision of the State Personnel Commission. Petitioner appeals. In Petitioner’s arguments, she contends the trial court erred in concluding (1) that one use of a racial slur under these circumstances constituted unacceptable personal conduct, and thus provided just cause for dismissal; (2) that Petitioner’s discussions with other employees about the investigation amounted to interference with that investigation, and thus insubordination; and (3) that Petitioner’s statement that she would not hire another black person, Petitioner’s discarding of Jones-Parker’s Black History notebook, and Petitioner’s creation of a “general sense of intimidation in the workplace” constituted unacceptable personal conduct, and thus just cause for dismissal. We disagree. We observe that . . . subsection l50B-51(c) requires a reviewing court to engage in independent “de novo” fact-finding in all contested cases . . . where the agency fails to adopt the ALJ’s initial decision. Subsection 150B-51(c) provides, in pertinent part: “In reviewing a final decision in a contested case in which an administrative law judge made a decision, in accordance with G.S. 150B-34(a), and the agency does not adopt the administrative law judge’s decision, the [trial] court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the [trial] court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency’s final decision.” N.C.G.S. § 150B-51(c) (2003) (emphasis added). N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 662-63, 599 S.E.2d 888, 897 (2004) (internal citations omitted). The [trial] court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record. The [trial] court reviewing a final decision under this subsection may adopt the administrative law judge’s decision; may adopt, reverse, or modify the agency’s decision; may remand the case to the agency for further explanations under G.S. 150B-36(bl), 150B-36(b2), or 150B-36(b3), or reverse or modify the final decision for the agency’s failure to provide the explanations; and may take any other action allowed by law. N.C. Gen. Stat. § 150B-51(c) (2008). “When this Court reviews appeals from superior court either affirming or reversing the decision of an administrative agency, our scope of review is twofold . ..: (1) whether the superior court applied the appropriate standard of review and, if so, (2) whether the superior court properly applied this standard.” Corbett v. N.C. Div. of Motor Vehicles, 190 N.C. App. 113, 118, 660 S.E.2d 233, 237 (2008). “In cases reviewed under G.S. 150B-51(c), the [trial] court’s findings of fact shall be upheld if supported by substantial evidence.” N.C. Gen. Stat. § 150B-52 (2008). “ ‘Substantial evidence is such “relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” ’ even if contradictory evidence may exist.” Cape Med. Transp., Inc. v. N.C. Dep’t of Health & Human Servs., 162 N.C. App. 14, 22, 590 S.E.2d 8, 14 (2004) (internal citations omitted); see also Rainey v. N.C. Dep’t of Pub. Instruction, 181 N.C. App. 666, 671, 640 S.E.2d 790, 794 (2007), rev. on other grounds by Rainey v. N.C. Dep’t of Pub. Instruction, 361 N.C. 679, 652 S.E.2d 251 (2007); Enoch v. Alamance County Dep’t of Soc. Servs., 164 N.C. App. 233, 250, 595 S.E.2d 744, 757 (2004). Because the case before us involves a situation where the final agency decision rejected the decision of the AU, the appropriate standard of review for the trial court was de novo. Carroll, 358 N.C. at 662-63, 599 S.E.2d at 897. The trial court stated the correct standard of review in its order. [R.p. 181] We must now decide whether the trial court properly applied that standard of review. Corbett, 190 N.C. App. at 118, 660 S.E.2d at 237. At the time of her dismissal, Petitioner was a career state employee as defined by Chapter 126 of the North Carolina General Statutes: the “State Personnel Act.” (a) Any employee, regardless of occupation, position or profession may be warned, demoted, suspended or dismissed by the appointing authority. Such actions may be taken against career employees as defined by the State Personnel Act, only for just cause. The provisions of this section apply only to employees who have attained career status. The degree and type of action taken shall be based upon the sound and considered judgment of the appointing authority in accordance with the provisions of this Rule. When just cause exists the only disciplinary actions provided for under this Section are: (1) Written warning; (2) Disciplinary suspension without pay; (3) Demotion; and (4) Dismissal. (b) There are two bases for the discipline or dismissal of employees under the statutory standard for “just cause” as set out in G.S. 126-35. These two bases are: (1) Discipline or dismissal imposed on the basis of unsatisfactory job performance, including grossly inefficient job performance. (2) Discipline or dismissal imposed on the basis of unacceptable personal conduct. (c) Either unsatisfactory or grossly inefficient job performance or unacceptable personal conduct as defined in 25 NGAG 1J. 0614 of this Section constitute just cause for discipline or dismissal. The categories are not mutually exclusive, as certain actions-by employees may fall into both categories, depending upon the facts of each case. No disciplinary action shall be invalid solely because the disciplinary action is labeled incorrectly. (d) The imposition of any disciplinary action shall comply with the procedural requirements of this Section. 25 N.C.A.C. 1J.0604 (2008) (emphasis added). Petitioner was dismissed based upon a finding of unacceptable personal conduct, which is defined in relevant part as: “conduct for which no reasonable person should expect to receive prior warning”; “the willful violation of known or written work rules”; “conduct unbecoming a state employee that is detrimental to state service”; or “the abuse of... person(s) over whom the employee has charge or to whom the employee has a responsibility].]” 25 N.C.A.C. lJ.0614(i) (2008). The trial court made the following relevant findings of fact: (1) Based on the investigation of Jones-Parker’s complaints, “other employees in the department expressed concerns and difficulties in dealing personally and professionally with Petitioner[.]” (2) Satterfield’s testimony was “credible and is consistent with other believable evidence in this case,” as was the testimony of Huey. (3) “Petitioner used a racial slur,-(hereinafter, the “n” word), in the workplace.” Petitioner admitted using this slur on one occasion. (4) Huey, a State employee under Petitioner’s direct supervision, overheard Petitioner use the “n” word. (5) Petitioner told Satterfield that Petitioner would “not hire another black person].]” Satterfield’s testimony is bolstered by Petitioner’s continued attempts to question and direct Satterfield during the investigation, indicating concern on Petitioner’s part with respect to what the content of Satterfield’s testimony would be. (6) “Petitioner discarded a Black History project notebook, which was a personal item belonging to Jones-Parker.” (7) Petitioner violated the investigators’ instructions to avoid speaking to anyone concerning the ongoing investigation, and this violation constituted an act of insubordination. (8) “Petitioner created a general sense of intimidation in the workplace.” (9) “Respondent has adopted and administers policies related to racial harassment, discrimination, unlawful workplace harassment, and violence in the workplace.” (10) “Respondent has a duty and responsibility to act in compliance with all state and federal laws, including workplace discrimination or harassment laws.” And, (11) Respondent acted appropriately in considering the acts of Petitioner in light of its interest in fostering a fair workplace free of intimidation based on race, ethnicity, or any other relevant factor, as well as in light of the perception of the public (the “public” being other employees in the department or university, or the people of the State of North Carolina), and its interpretation of possible legal actions based on any action of inaction on its own part. The trial court then made the following relevant conclusions of law: (1) Petitioner’s admitted use of the “n” word in reference to Jones-Parker “constitutes unacceptable personal conduct, for which no prior warning is required.” (2) “Petitioner’s discussions with other employees about their interviews with the investigation group amounted to interference with that investigation and such conduct amounts to insubordination.” (3) “Petitioner’s statement that she would not hire another black person, discarding of Jones-Parker’s personal Black History notebook, and creation of a general sense of intimidation in the workplace, when taken together, constitute unacceptable personal conduct, for which no prior warning is required.” (4) “The conclusions of law . . . above are individually, and therefore collectively, sufficient to constitute unacceptable personal conduct, and as such, permit Petitioner’s dismissal without any prior disciplinary action.” And, (5) “Respondent has satisfied its burden of establishing just cause for Petitioner’s dismissal.” Though contradictory evidence exists for some of the trial court’s findings of fact, we hold that substantial evidence — evidence a reasonable mind might accept as adequate to support a conclusion— exists to support the relevant findings of fact listed above. Cape Med. Transp., Inc., 162 N.C. App. at 22, 590 S.E.2d at 14. Petitioner admitted using the “n” word in the workplace in reference to Jones-Parker, which remark was overheard by Huey, one of the employees Petitioner supervised. Petitioner initially omitted her use of this racial slur in her interview with the investigators, then changed her statement twice after she was informed another employee had heard her use the racial slur. Huey made the following written statements: (1) That after a disagreement with Jones-Parker, Petitioner “came out of her office and said under her breath ‘that--’ and that one “could tell [Petitioner] didn’t care for black people, just by the way she treated them or others that came into the office.” (2) Petitioner told us on many occasions that she knew people on this campus and she could make our lives a living hell if we ever challenged her. She has always thrown around her power at the University[.] I was afraid to apply for another job ... I didn’t want it to get back to her. (3) Petitioner “was very rude and snippy to everyone, she didn’t like to be bothered with questions and that was known.” And, (4) “[f]or the past year or so the ethics in the office have [g]one downhill.” Petitioner denied knowing anything about the disappearance of Jones-Parker’s Black History notebook, but Satterfield stated that she saw Petitioner remove the notebook from the cubicle where Jones-Parker had left it, and take it into Petitioner’s office. Petitioner later told Satterfield that Petitioner had instructed Petitioner’s boyfriend to throw it away. Satterfield also made the following statements: (1) Petitioner instructed Satterfield to deny knowing anything about the notebodk when Satterfield spoke with investigators; (2) Petitioner repeatedly questioned Satterfield about the ongoing investigation and instructed Satterfield to withhold information potentially damaging to Petitioner; (3) Petitioner told Satterfield Petitioner would “never hire another black person in her office”; (4) Petitioner told Satterfield that if Jones-Parker “thought it was hostile before [Jones-Parker took a leave of absence], that [Jones-Parker] had no idea how hostile it could be”; (5) Petitioner indicated that she had many contacts in the university, and that she could use those contacts to “make it very difficult for someone to pursue other employment.” Petitioner also “bragged that she could get [Jones-Parker] fired. [Petitioner] then told [Satterfield] that [Petitioner] could get in trouble for having told [Satterfield] that information, and that [Satterfield] should not repeat it.” And, (6) Petitioner was “furious” that another employee would not divulge the content of her interview with investigators, and Petitioner told Satterfield if Satterfield “found out what was going on that [Satterfield] had better tell [Petitioner].” Respondent has policies prohibiting racial harassment or harassment in the workplace. Respondent has a duty to enforce these policies, and to further its stated goal of promoting an “environment of' tolerance and mutual respect that must prevail if the University is to fulfill its purposes.” As stated by the Fourth Circuit in Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. Md. 2001): Far more than a “mere offensive utterancé,” the word “[-]” is pure anathema to African-Americans. “Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘[-]’ by a supervisor in the presence of his subordinates.” Id. We agree with the Fourth Circuit’s analysis. By uttering this epithet in the workplace, where Petitioner was overheard by one of her subordinates, Petitioner undermined her authority and exposed Respondent to embarrassment and potential legal liability. Further, Petitioner had attempted to obstruct the investigation, which amounted to insubordination; Petitioner stated she would not hire another black person, Petitioner took and disposed of Jones-Parker’s Black History notebook, and she created a “general sense of intimidation in the workplace.” When considered together, we hold the trial court did not err in finding that Petitioner’s actions constituted unacceptable personal conduct for which dismissal was proper. Arguably, Petitioner’s actions, when considered together, support her dismissal under all four of the following definitions of unacceptable personal conduct: (1) “conduct for which no reasonable person should expect to receive prior warning”; (2) “the willful violation of known or written work rules”; (3) “conduct unbecoming a state employee that is detrimental to state service”; or (4) “the abuse of ... a person(s) over whom the employee has charge or to whom the em

Massachusetts Bay Transportation Authority vs. Boston Carmen’s Union, Local 589, Amalgamated Transit Union (and a companion case). Suffolk. March 3, 2009. June 4, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Employment, Handicap, Seniority. Contract, Collective bargaining contract. Public Employment, Collective bargaining. Employment, Discrimination. Arbitration, Arbitrable question, Collective bargaining, Judicial review. Massachusetts Bay Transportation Authority. Public Policy. An arbitrator did not exceed her powers under G. L. c. 150C, § 11 (a) (3), by hearing a grievance filed by a union against the Massachusetts Bay Transportation Authority (MBTA), in which the union alleged a violation of a collective bargaining agreement (agreement) arising from the MBTA’s grant of retroactive seniority and the corresponding hourly wage to a handicapped employee as part of a settlement agreement in a failure-to-hire employment discrimination matter, as matters such as seniority and wages were among those that both the Legislature and the agreement had identified as proper subjects of collective bargaining, and did not fall within the MBTA’s inherent management rights [23-25]; however, the well-defined and dominant public policy against handicap discrimination, as set forth in G. L. c. 151B, required that the arbitrator’s award in favor of the union be vacated, as the most meaningful remedy for such discrimination in hiring was retroactive seniority, even in the absence of an adjudication of discrimination, where, as here, the MBTA satisfied its burden of showing a substantial and reliable basis to believe that illegal discrimination had occurred, a showing that the union failed to rebut [25-30]. An arbitrator correctly concluded that a dispute arising from the actions of the Massachusetts Bay Transportation Authority (MBTA) in unilaterally eliminating a “spare inspector” list (from which certain bus drivers were given opportunities to work temporarily in a higher job classification based on seniority) and creating a new list without union consent was arbitrable [34-35]; further, a Superior Court judge correctly confirmed the arbitrator’s award, which ruled that the MBTA had violated the terms of the union’s collective bargaining agreement, where, although there was no suggestion of bad faith on the part of the MBTA, there was no factual basis to support the MBTA’s concern that the list might be based on a discriminatory practice [35-36], Civil actions commenced in the Superior Court Department on February 27 and July 31, 2006. After consolidation, the cases were heard by Diane M. Kott-myer, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Mary Jo Harris (Philip G. Boyle with her) for the plaintiff. Douglas Taylor for the defendant. Spina, J. The Massachusetts Bay Transportation Authority (MBTA) appeals from judgments of the Superior Court confirming two separate awards by the same arbitrator in cases that were consolidated by virtue of a common issue, namely, whether an arbitrator’s decision must be vacated on the ground that it violates public policy, where the arbitrator found against an employer who acted to remediate its own perceived illegal discrimination, but contrary to the terms of a collective bargaining agreement. In the first case (Wick), the MBTA settled a handicap discrimination case (refusal to hire) without consent of the Boston Carmen’s Union, Local 589, Amalgamated Transit Union (union), after a finding of probable cause by an investigating commissioner of the Massachusetts Commission Against Discrimination (MCAD). The settlement included a payment to William Wick, the claimant, in the amount of $16,000, a grant to Wick of seniority under the collective bargaining agreement that was retroactive to the date he was first offered the job, and the grant of a rate of pay under the collective bargaining agreement at the top of the progressive pay scale based on months of service. The arbitrator concluded that the grant of retroactive seniority and the corresponding hourly wage violated the collective bargaining agreement, and because there had been no finding of discrimination by the MCAD, the settlement was a “private” agreement that must yield to the collective bargaining agreement. She found against the MBTA, and the Superior Court judge confirmed the decision of the arbitrator. We conclude that a presumption of legitimacy arose from the settlement agreement that the union did not rebut by showing that the settlement was an attempt to subvert the collective bargaining agreement, and that because retroactive seniority is a presumptive remedy for discrimination in hiring, public policy requires the arbitrator’s award be vacated. In the second case, the MBTA, concerned that its “spare inspector” list (from which certain bus operators were given opportunities to work temporarily in a higher job classification based on seniority) might be based on a discriminatory practice, unilaterally eliminated the list and created a new list without union consent. Although there was no suggestion of bad faith, the arbitrator found there was no factual basis to support the MBTA’s concern of discrimination, and concluded the MBTA violated the collective bargaining agreement. We affirm the judgment in that case. I The Case of William Wick The facts are not in dispute. In 1999, William Wick applied to the MBTA for a position as rail repairer. On December 18, 1999, he was offered a position on condition that he pass a physical examination. Wick wears hearing aids, but the test was conducted without allowing him to use his hearing aids. On February 19, 2000, the MBTA notified Wick that he failed the hearing test and it withdrew the offer of employment. Wick filed a complaint with the MCAD in which he alleged discrimination (refusal to hire) based on his handicap, in violation of G. L. c. 151B, § 4 (16). In particular he alleged that he should have been accommodated by the reasonable measure of allowing him to wear his hearing aids at work. On January 13, 2001, an investigating commissioner with the MCAD found probable cause and scheduled a settlement conference. The matter did not settle and the case proceeded. On June 24, 2004, the MBTA and Wick entered into a settlement agreement whereby, in exchange for a general release, the MBTA would employ Wick as a rail repairer at the top hourly rate with seniority retroactive to December 18, 1999, the date of the MBTA’s initial offer of employment. The MBTA also agreed to pay him $16,000. The MBTA made no admission of discrimination. Wick commenced work as a rail repairer on July 1, 2004. The union had not been informed of the settlement negotiations and did not approve the settlement. The union filed a grievance on behalf of an employee who lost a bid for a posted vacancy on the day shift to Wick, asserting that the employee had greater seniority than Wick. The union claimed that in the absence of a finding of discrimination or its consent, the MBTA did not have the right unilaterally to set wages and seniority of new employees, and Wick in particular, contrary to the terms of the collective bargaining agreement. Section 516 of the collective bargaining agreement provides that seniority ratings would be established when an employee first enters a classification, e.g., rail repairer, and that employees newly entering a classification would start at the bottom of the list. Section 601 of the collective bargaining agreement establishes a progressive pay scale based on months of actual service. The MBTA rejected the grievance and the union proceeded to arbitration under the terms of the collective bargaining agreement. The union sought an order prohibiting the MBTA generally from negotiating with any individual or group to establish terms and conditions of employment without the consent of the union, even in the context of a civil rights complaint against the MBTA. The union further sought readjustment of Wick’s seniority to August, 2004, when he actually entered the department and was classified as a rail repairer, so that he would not have seniority rights greater than employees who actually worked longer than Wick. It also sought retroactive pay adjustments for fellow bargaining unit members subject to wage progression under the collective bargaining agreement between August, 2004, and August, 2006, amounting to the difference between their actual pay and the pay they would have received if their hourly rate had been at the top rate for rail repairers. The MBTA argued before the arbitrator that the grievance is not arbitrable because the MBTA has unfettered discretion under G. L. c. 161 A, § 25, to set terms and conditions of compensation and seniority for new employees. Alternatively, the MBTA argued that it did not violate the collective bargaining agreement by hiring Wick under the terms of the settlement agreement because, under § 102 of the agreement, the MBTA has “the exclusive right ... to manage its business in the light of experience, good business judgment and changing conditions.” The MBTA asserted it thus had the right to end the litigation and settle with Wick in a way that minimized its losses and made him “whole” for an alleged discriminatory failure to hire him in December, 1999, namely, give him the seniority status and the rate of pay that he would have attained had he been hired at that time. The MBTA further argued that public policy against discrimination, set forth in G. L. c. 15IB, required this result. The arbitrator concluded that the case was arbitrable because the dispute involved issues of seniority and wages, which are not management prerogatives. She also rejected the MBTA’s public policy argument, ruling that absent an adjudication of discrimination the MBTA was obligated to set Wick’s compensation and seniority conformably with the terms of the collective bargaining agreement as of the date he actually commenced work. She reasoned that because Wick’s discrimination complaint was settled by private agreement he must be regarded as having no greater rights than any other individuals that the MBTA might have hired; and that when the MBTA settled Wick’s case it could have compensated Wick for its mistake in ways other than granting him rights under the collective bargaining agreement to which he was not entitled. The Superior Court judge agreed with the arbitrator’s analysis, determined that the award did not violate public policy, and confirmed the award. Discussion. The MBTA first contends that, because it has the exclusive and inherent management right to “appoint[] and employ . . . employees and to determine the standards therefor” under G. L. c. 161A, § 25, this matter is not arbitrable. See G. L. c. 150C, § 11 (a) (3) (arbitrator’s award may be vacated if she “exceeded [her] powers or rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law”); School Comm. of Hanover v. Curry, 369 Mass. 683 (1976). The union acknowledges in section 102 of the collective bargaining agreement that the MBTA has the exclusive right to manage its own business. The union does not dispute that under G. L. c. 161A, § 25, the MBTA may employ whom it pleases, or that it may set employment standards. Cf. School Comm. of Holbrook v. Holbrook Educ. Ass’n, 395 Mass. 651, 652, 655 (1985) (“G. L. c. 71, § 38 . . . provides school committees with exclusive authority to determine the qualifications of teachers”). Rather, the union argues that seniority and wages are matters for collective bargaining, they are covered in the collective bargaining agreement, and the MBTA unilaterally may not set the wages and seniority of new employees. There are two distinct issues before us. The first is whether the arbitrator “exceeded [her] powers” under G. L. c. 150C, § 11 (a) (3), by intruding on a nondelegable authority of the MBTA. See School Comm. of Southbridge v. Brown, 375 Mass. 502, 505-506 (1978). The second is whether arbitration of this dispute was contemplated by the collective bargaining agreement. Id. at 504. These are questions for a court to decide. Id. at 504, 506. We answer the first question in the negative, and the second in the affirmative. “[W]ages, salaries, hours, working conditions, the assignment of work schedules and work locations on the basis of seniority” are matters that the Legislature has identified as proper subjects of collective bargaining between the MBTA and the union. G. L. c. 161A, § 25. By implication, these matters do not fall within the MBTA’s inherent management rights. See School Comm. of Braintree v. Raymond, 369 Mass. 686, 690-691 (1976); Lynn v. Council 93, Am. Fed’n of State, County, & Mun. Employees, Local 193, 51 Mass. App. Ct. 905, 906 (2001). The first question was not beyond the powers of the arbitrator. Section 516 of the collective bargaining agreement expressly states: “Seniority shall be measured . . . upon first entering a classification . . . [and shall] start at the bottom of the respective lists.” In addition, the progressive pay schedule in § 601 of the collective bargaining agreement requires employees to be paid initially at the lowest level of pay agreed on, with specified pay increases to be received based on the number of months actually worked. Section 100 of the collective bargaining agreement provides for arbitration of disputes over matters covered by that agreement, which includes disputes over seniority and wages. The second question was not beyond the powers of the arbitrator. Whether the MBTA conferred seniority status on Wick and agreed to pay him a starting hourly rate contrary to the terms of the collective bargaining agreement is distinct from the question of employment standards, and it constitutes a classic labor dispute that is arbitrable. See School Comm. of Holbrook v. Holbrook Educ. Ass’n, supra at 657. The arbitrator next ruled that the MBTA violated the terms of the collective bargaining agreement when it gave Wick seniority retroactive to the date of its initial offer of employment, together with a corresponding hourly rate of pay, without the consent of the union. “[W]e are strictly bound by the arbitrator’s factual findings and conclusions of law, even if they are in error.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758 (2003). The MBTA argues that the arbitrator’s award must be vacated because it violates public policy. Specifically, the MBTA argues that the award requires the MBTA to continue the effects of a likely discriminatory practice in violation of G. L. c. 15 IB, § 4 (16), which proscribes handicap discrimination in employment. Although arbitration, particularly of labor disputes, is strongly favored in the Commonwealth as a matter of public policy, see School Comm. of Pittsfield v. United Educators of Pittsfield, supra at 758, an arbitral award must be vacated on proof of one of the grounds enumerated in G. L. c. 150C, § 11. Id. Section 11 (a) (3) requires the Superior Court to vacate the award of an arbitrator that “exceeded [her] powers or. . . requires a person to commit an act or engage in conduct prohibited by state or federal law.” An award that violates public policy is such an award. See Massachusetts Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, 420 Mass. 13, 16 (1995). “[T]he question of public policy is ultimately one for resolution by the courts.” Id. at 16 n.5, quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766 (1983) (W.R. Grace). Before an arbitral award may be vacated as violating public policy, the policy must be shown to be “well defined and dominant, and is to be ascertained ‘by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” W.R. Grace, supra, quoting Muschany v. United States, 324 U.S. 49, 66 (1945). That analysis has been adopted in our Commonwealth. See Massachusetts Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, supra. The public policy in this case is “well defined and dominant.” It is the overriding governmental policy proscribing various types of discrimination, set forth in G. L. c. 15IB. General Laws c. 151B, § 9, states: “This chapter shall be construed liberally for the accomplishment of its purposes, and any law inconsistent with any provision of this chapter shall not apply . . .” (emphasis added). The specific antidiscriminatory policy involved in this case is set forth in G. L. c. 151B, § 4 (16), which states: “It shall be an unlawful practice: . . . (16) For any employer ... to dismiss from employment or refuse to hire ... or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” The most meaningful remedy for discrimination in hiring is retroactive seniority. It is designed to make the injured person whole, or put him in nearly the same position he would have enjoyed if he had not been rejected from employment for discriminatory reasons. “Without an award of seniority dating from the time when he was discriminatorily refused employment, an individual. . . will never obtain his rightful place in the hierarchy of seniority according to which . . . various employment benefits are distributed.” Franks v. Bowman Transp. Co., 424 U.S. 747, 767-768 (1976). See id. at 763-766. Retroactive seniority is presumptively awarded in Title VII cases. Id. at 775 n.34, 779 n.41. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399 (1982) (District Court may award retroactive seniority to discriminated class members in Title VII suit over objection of “innocent” union not been found guilty of discrimination). There is no reason to treat cases under G. L. c. 15 IB differently, and neither the union, the arbitrator, nor the judge suggested otherwise. The MBTA contends that the grant of retroactive seniority and the corresponding hourly wage in the settlement agreement was necessary to make Wick whole. The union acknowledges that a court or the MCAD could have ordered retroactive seniority as a remedy, but only if there had been a finding that the MBTA discriminated against Wick. See G. L. c. 151B, § 5, second par. (MCAD may order “such affirmative action ... as, in the judgment of the [MCAD], will effectuate the purposes of this chapter”); Heraty vs. Atlas Oil Co., MCAD No. 86-BEM-0123 (1994); Moreau vs. Haverhill, MCAD No. 88-BEM-0966 (1993). Cf. Franks v. Bowman Transp. Co., supra at 762-770 (retroactive seniority available remedy under § 706[g] of Title VII of Civil Rights Act of 1964). The focus of the union’s argument, and the centerpiece of the decisions of the arbitrator and the Superior Court judge, is the absence of an adjudication of discrimination, without which, they maintain, the public policy exception does not apply. Although neither a finding nor an admission of discrimination was made here, the union has cited no case that holds either must be made before the terms of a collective bargaining agreement must yield. Nor has it cited any authority for its claim that settlement of an individual complaint, as here, requires the approval of the tribunal before whom the discrimination complaint is pending as a precondition to overriding the terms of a collective bargaining agreement. An adjudication of discrimination and a tribunal’s order for retroactive seniority may indeed be outcome de

CHEN v WAYNE STATE UNIVERSITY Docket Nos. 283420 and 283575. Submitted May 12, 2009, at Detroit. Decided June 2, 2009, at 9:10 a.m. Dr. Kuo-Chun Chen brought an action in the Wayne Circuit Court against Wayne State University, seeking damages and other relief related to his treatment while working as a professor and to the University’s handling of his personal property and a patent. The plaintiff specifically alleged that he was discriminated against because of his national origin, age, and a disability and that he was retaliated against for protesting the discrimination. He also pleaded a claim and delivery count seeking the return of his personal property, a count alleging violation of the Freedom of Information Act, MCL 15.231 et seq., and a count alleging breach of contract. The plaintiff stipulated the dismissal of the counts for breach of contract and claim and delivery, and the court, Robert L. Ziolkowski, J., dismissed those claims without prejudice. The plaintiff then filed those claims in the Court of Claims. At some point, the case in the Court of Claims was consolidated with the case in the circuit court and Judge Ziolkowski heard both cases. The plaintiff was permitted to amend his complaints, but he did not state a claim based on the Freedom of Information Act. The Court of Claims then dismissed the claims of breach of contract and claim and delivery, but allowed the plaintiff to amend the complaint in the Court of Claims action to add as defendants the current chairperson and two former chairpersons of the University’s department of biological sciences and to allege gross negligence against the individuals and negligence against the University with regard to the handling of the plaintiffs property. The Court of Claims then dismissed the negligence claims against the individual defendants and, on May 16, 2006, entered an order dismissing the negligence claim against the University. The order stated that the order resolved the last pending claim in the Court of Claims and closed the case. Judge Ziolkowski dismissed the circuit court claims on March 15,2007, and denied reconsideration of that order on May 3, 2007, and May 8, 2007. The Court of Appeals dismissed the plaintiffs appeals in both cases for lack of jurisdiction because they were not timely filed. Unpublished orders of the Court of Appeals, entered August 30, 2007 (Docket Nos. 278332,278333). The plaintiff applied for leave to appeal both cases, and the Court of Appeals granted leave to appeal both the circuit court order (Docket No. 283420) and the Court of Claims order (Docket No. 283575) in unpublished orders entered August 20, 2008. The appeals were consolidated. The Court of Appeals held: 1. The consolidation of the two cases at the trial court level did not merge the two cases and both retained their separate identities. Therefore, the time to appeal each individual case is determined by reference to the final judgment or order in each case. The application for leave to appeal the Court of Claims case was not filed within one year of the May 16, 2006, final order in that case, as required by the version of MCR 7.205(F)(3)(a) in effect at the time the application was granted. Therefore, the Court of Appeals did not have the discretion to grant the application. The appeal in Docket No. 283575 must be dismissed for lack of jurisdiction. The application for leave to appeal the circuit court case, Docket No. 283420, was timely filed. 2. The plaintiff was required to show that he suffered an adverse employment action in order to establish his discrimination and retaliation claims under the Civil Rights Act, MCL 37.2202(1) and 37.2701. An adverse employment action must be materially adverse to the employee, that is, it must be more than a mere inconvenience or minor alteration of job responsibilities. Materially adverse employment actions are akin to the termination of employment, a demotion shown by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. There must be an objective basis for demonstrating that the employment action is adverse because a plaintiffs subjective impressions are not controlling. 3. There was no objective evidence presented to show that the alleged refusal to assign the plaintiff a new lab constituted an adverse employment action. 4. The plaintiff failed to present any evidence that a department chairperson’s threat to revoke the plaintiffs tenure resulted in a materially adverse change in the terms or conditions of his employment. The threat did not rise to the level of an adverse employment action. 5. There was no evidence that the changes that occurred to the plaintiffs teaching duties amounted to an adverse employment action. 6. There was no evidence that a department chairperson’s actions or omissions with regard to not restoring the plaintiffs regular graduate faculty status or allowing the plaintiff to supervise a graduate student had any effect on the plaintiffs employment. 7. The plaintiff abandoned on appeal his claims regarding merit increases and other miscellaneous adverse actions. 8. The circuit court did not err in granting summary disposition in favor of the University with regard to the claims based on discrimination and retaliation. The order in Docket No. 283420 must be affirmed. Appeal in Docket No. 283575 dismissed and order appealed in Docket No. 283420 affirmed. 1. Actions — Consolidation op Actions — Appeal op Consolidated Actions. Where two cases involve claims that could not have been brought as separate counts in a single complaint, but are nevertheless consolidated for administrative convenience, the consolidated cases are not merged and both cases retain their separate identities; a circuit court case and a Court of Claims case that are joined for trial are not merged and both cases retain their separate identities, and the time to appeal each case must be determined by reference to the final judgment or order for each case (MCL 600.6421). 2. Civil Rights — Employment Discrimination — Adverse Employment Actions. A plaintiff who brings a discrimination or retaliation claim against an employer under § 102 or § 701 of the Civil Rights Act must establish that he or she suffered an adverse employment action; what might constitute an adverse employment action in one employment context might not be actionable in another; an employment action must be materially adverse to the employee, not a mere inconvenience or minor alteration of job responsibilities in order to be actionable; there must be an objective basis for demonstrating that an employment action was adverse because an employee’s subjective impressions are not controlling (MCL 37.2202, 37.2701). Eisner & Mirer, EC. (by Jeanne Mirer and Eugene Eisner), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Donna J. Donati and Megan P. Norris), for the defendants. Before: BORRELLO, EJ., and MURPHY and M. J. KELLY, JJ. PER CURIAM. In these consolidated appeals, plaintiff Dr. Kuo-Chun Chen appeals by leave granted the trial court’s orders granting summary disposition in favor of defendant Wayne State University (the University). In Docket No. 283420, Chen argues that the trial court, which was sitting as the circuit court, erred when it dismissed under MCR 2.116(0(10) Chen’s claims of age and national origin discrimination and retaliation. In Docket No. 283575, Chen argues that the trial court, which was sitting as the Court of Claims, erred when it refused to permit him to amend his complaint to add new parties and new theories of recovery. We conclude that we lack jurisdiction to hear Chen’s claims of error in Docket No. 283575 and that the trial court did not err when it dismissed Chen’s claims in Docket No. 283420. For these reasons, we dismiss the appeal in Docket No. 283575 and affirm in Docket No. 283420. I. FACTS AND PROCEDURAL HISTORY A. BASIC FACTS This case has its origins in the progression of Chen’s career at the University over a period of more than 25 years. Chen is a citizen of the United States, but was born in China and speaks English with a Chinese accent. The University hired Chen as an associate professor for its department of biological sciences in 1968. Chen’s field of study is genetics. He became a tenured associate professor in 1971. Before joining the University’s faculty, Chen began the development of a device, which he called the Microwave Guide Exposure System (the Microwave Device), with his former roommate at graduate school. Chen completed the Microwave Device with the help of others after he joined the University. He assigned his patent rights to the University, which obtained a patent for it in 1982. The University released the patent to Chen in 1995. Chen apparently did not have any serious difficulties at the University until after Dr. Albert Siegel became the department’s chairperson in 1972. Dr. John Taylor, who joined the department’s faculty in the same year as Chen, testified that Chen apparently did not like Siegel. Taylor said that Siegel treated Chen as though he were a “pseudo molecular biologist” and believed that Chen’s courses were “out-of-date or just plain wrong.” Indeed, Taylor stated that Siegel and some other faculty members had their graduate students leave Chen’s courses. In a memo written some years after Siegel’s chairmanship, Taylor stated that Siegel tried to “change [Chen], then isolated him and then gave up.” Siegel testified that the problems he had with Chen were related to Chen’s ability to get things done on his own. Siegel explained that other professors who had inadequate space worked hard at improving their space, “got their research programs well funded and started right in working and attracting graduate students and did the best they could under the circumstances.” Siegel stated that the problem with Chen was that he “was not of that nature. He didn’t try to help himself.” Chen testified at his deposition that Taylor was apparently jealous of Chen’s achievements and status and alleged that Taylor used his position to impede Chen’s efforts at the University. Specifically, Chen noted that Taylor was apparently bothered by the fact that the University hired Chen as an associate professor whereas the University hired Taylor as an assistant professor. Although Chen started as an associate professor, Taylor eventually surpassed Chen and became a full professor. In addition, in 1974, Taylor replaced Siegel as the department’s chairperson. Taylor testified that he was not jealous of Chen and that he and Chen were originally friends. He stated that they spent a significant amount of time together when they first joined the University. Taylor also stated that he supported Chen by acting as an intermediary in the acquisition of devices for Chen’s lab. Taylor testified that, after he became the department’s chairperson, he met with Chen and recognized that Chen had inadequate lab space. Taylor stated that he tried to help Chen by moving him to a better lab and also tried to obtain funds to modernize Chen’s lab. However, he was unable to help Chen because Chen’s “tastes were always better than what I could afford” and Chen would not compromise. Taylor stated that he eventually gave up trying to help Chen. Chen also testified that Taylor was biased against him because of his Chinese national origin, which was shown by the fact that Taylor referred to him as being “Chinese Mafia.” Taylor admitted that he had used the phrase “Chinese Mafia,” but said that he did not direct it at Chen. Taylor explained that Chen had asked him for assistance in a business matter involving his brother-in-law, who lived in Taiwan. Taylor stated that he referred Chen to a friend who was Chinese for help with the business matter. Taylor said that his friend called him and indicated that Taylor and Chen might want to avoid dealings with Chen’s brother-in-law. After that, Taylor stated that he would use the phrase “Chinese Mafia” in connection with discussions concerning Chen’s brother-in-law. Dr. David Adamany, who was the University’s president, testified that Taylor was a productive researcher and that he was appointed to chair the department in an effort to strengthen the department’s research program. Adamany stated that faculty members who were not active researchers resisted Taylor’s efforts. He stated that the relations between Taylor and those faculty members eventually deteriorated to the point that the department was no longer able to make progress on improving research. Dr. Robert Arking testified that he was a full professor in the department and that he had served on various committees. He stated that Taylor had favorites on the faculty and that Chen was not one of them. Arking said that the faculty committee eventually asked Taylor to step down as chairperson because of issues with hiring, the budget, and faculty relations. About 1980, Chen requested a promotion to full professor. Chen testified that Taylor handled the request and deliberately refused to submit Chen’s request to the faculty. Chen admitted that there was an advisory committee that considered his request, but stated that Taylor controlled this committee. Arking testified that it was possible to get promoted without the support of the chairperson, but that it would be more difficult. Taylor stated that the committee considered Chen’s promotion to full professor in 1980 and 1981 and decided not to recommend promotion to the faculty in both years. Taylor stated that he did not oppose Chen’s promotion. Chen testified that he also had a condition that caused an irregular heartbeat. According to Chen, starting in about 1980, the stress of his job triggered problems with his condition. Chen stated that this condition sometimes interrupted his work and that he even collapsed once during class and had to be rushed to the hospital. Chen testified that Taylor was aware of his condition. He ultimately had the condition surgically corrected in 1991. In 1987, Siegel again briefly served as the chairperson for the department. During that time, Siegel wrote a memo to Chen noting that Chen had made a conscious decision to stop researching and advising Chen that, for that reason, he would have to teach more classes. Siegel testified that after he assigned Chen more classes, there was a constant stream of complaints by undergraduate students concerning the students’ ability to understand Chen. On the basis of these complaints, Siegel recommended that Chen seek help at the University’s English Language Institute, but Chen refused. Siegel stated that Chen did not acknowledge a problem and blamed the students. Dr. Stanley Gangwere replaced Siegel as the department’s chairperson later in 1987. Gangwere testified that Taylor was a controversial chairperson and, for that reason, he tried to “separate” himself “from any association” with Taylor’s policies. Chen testified that Taylor appeared to have a good relationship with Gang-were. Chen further testified that, from the beginning, Gangwere refused to support him and Chen opined that this must have been the result of Taylor’s influence over Gangwere. Gangwere stated that Taylor did not advise him and that he had official and unofficial complaints about Chen by students concerning their ability to understand Chen’s English. In 1988, the University began a renovation and construction project. To accommodate the renovations, the department temporarily rearranged the lab and office assignments for the faculty. Gangwere asked Chen to vacate his current lab and office so that Taylor could occupy it along with some adjacent space that Chen had requested earlier. Gangwere temporarily assigned Chen space in the natural sciences building. Because the new lab space was smaller, Gangwere gave Chen, as he did every professor, the option of placing some of his property in storage for the duration of the renovation. Chen elected to have his Microwave Device placed into storage. Chen disliked the new lab and refused to use it. He indicated that the lab was too small and had large vent fans that made it unacceptable for use as a lab. Arking testified that Chen’s new lab was very small, but had adequate utilities and could be used for research. Gang-were testified that almost every professor lost space during the renovation period. Indeed, Dr. Dwight Freeman testified that he too was moved during the renovation and that he was moved into an old dealership from the 1920s that was “abysmal.” The University hired Dr. E Dennis Smith to replace Gangwere as the department’s chairperson in 1989. Chen stated that Smith did not show much interest in him and, from this, he concluded that the previous chairpersons — Taylor, Siegel, and Gangwere — must have influenced Smith to form a negative opinion about him. Chen testified that Smith brought in new professors without regard to their ability to teach specific courses because it was hoped that these teachers would bring in grant money. However, when these professors failed to obtain the expected grant money, Smith assigned some of Chen’s teaching responsibilities to these professors. Chen said that Smith criticized Chen’s accent and indicated that he had received student complaints. Chen stated that he thought Smith wanted to take his tenure away and get rid of him. Smith testified that he had numerous student complaints about Chen’s ability to communicate. As a result, Smith decided to sit in on one of Chen’s classes. Smith wrote a memo describing his review of the class. In the memo, Smith stated that Chen appeared to know the material well but the students appeared to have trouble following the lecture. Smith also noted frustration on the part of students who attempted to pose questions to Chen. Smith testified that he advised Chen to get help from the language institute and suggested using more visual aids in teaching the course. In 1991, the University finished its construction of its biological sciences building. Smith assigned Chen office and lab space, but Chen refused to use either room. Chen claimed that the office was contaminated from the use of radioactive isotopes in the rooms. However, Chen did not investigate whether the rooms were unusable and did not ask to have them decontaminated. Instead, Chen continued to use the office temporarily assigned to him during the renovations. Smith testified that the room at issue likely was not radioactive, but had only been used for some sort of radiometric counter. He also stated that, had Chen brought up the issue with him, he would have followed up on the problem. Smith said that he thought that Chen had just given up on research. Smith also testified that he was aware that Chen refused to move and had continued to use his old office. Chen later obtained permission from Linda Van Thiel to use another office in the same building that housed his current office. Van Thiel testified that Chen wanted the office for additional space. The office was part of a suite of offices in Room 309. She stated that the agreement was informal and that she never got permission or told anyone about the arrangement. She also testified that she informed Chen that if a particular funding request came through, the space would be renovated into a computer lab. She said that she informed Chen when the funding finally came through. In July 1994, Dr. Jack Lilien replaced Smith as the chairperson. Shortly after the change, Chen sent Lilien a letter notifying Lilien that he felt he was not in a position to do research and requesting help. Chen later had a meeting with Lilien. Chen testified that he told Lilien about his past unfair treatment by previous chairpersons and told him that he did not have an office or space for research. Chen said that he initially got along well with Lilien. Lilien testifie

Chi-Sang Poon vs. Massachusetts Institute of Technology & another. No. 06-P-1993. Middlesex. March 11, 2008. May 6, 2009. Present: Duffly, Vuono, & Sikora, JJ. Anti-Discrimination Law, Employment, Race. Employment, Discrimination, Retaliation. Practice, Civil, Summary judgment. Discussion of the standard of review applicable to the allowance of a motion for summary judgment in a civil action alleging employment discrimination. [194-195] In a civil action alleging racial discrimination in employment, the employee failed to show any reasonable prospect of proof at trial that the reasons given for the employer’s decision not to promote him were a pretext, and failed to generate a genuine issue of material fact of pretext [195-199]; further, the employee had no reasonable expectation of proof that any of the identified incidents after he filed a letter of complaint qualified as retaliation [199-201], Civil action commenced in the Superior Court Department on July 9, 2004. The case was heard by Nonnie S. Bumes, J., on a motion for summary judgment. Jonathan Shapiro for the plaintiff. Jeffrey Swope (Robert G. Young with him) for the defendants. Martha L. Gray. Sikora, J. This appeal requires review of a summary judgment disposition of claims of employment discrimination and retaliation brought under G. L. c. 15IB, § 4. The plaintiff employee Chi-Sang Poon, Ph.D. (Dr. Poon), is a scientist concentrating in the field of bioengineering. The defendant Massachusetts Institute of Technology (MIT) has been his employer for almost twenty years and the defendant Martha L. Gray, Ph.D. (Professor Gray), a member of the university faculty, has been a supervisor of Dr. Poon’s work for the past twelve years. Background. 1. Procedural history. In November, 2001, Dr. Poon lodged his original charges with the Massachusetts Commission Against Discrimination (MCAD). He alleged that MIT and Professor Gray had effectively denied him promotion from the position of principal research scientist (PRS) to the position of senior research scientist (SRS) in 1993, 1997, and 2001, by reason of his race (Asian) and national origin (Chinese), and that the defendants had subsequently retaliated against him for his complaints of discriminatory treatment in May and November, 2001. After investigation, the MCAD in May, 2004, found the claim of discriminatory nonpromotion in 1993 to be untimely and the claims of similar treatment in 1997 and 2001 and of retaliation after May, 2001, to lack the support of probable cause. It dismissed them. In July, 2004, Dr. Poon brought the present action in the Superior Court upon the same claims of discrimination (count one) and retaliation (count two) in violation of G. L. c. 15IB, § 4. Extensive discovery results and verified information had accumulated in the MCAD and continued to accrue in the Superior Court in the form of answers to interrogatories, the production of documents, deposition testimony, and affidavit statements and exhibits. At the conclusion of discovery, MIT and Professor Gray moved for full summary judgment. They supported the motion with an itemized statement of undisputed facts and legal elements in accordance with Superior Court Rule 9A(b)(5). Pursuant to that rule, Dr. Poon responded to the defendants’ statements of facts and legal elements. After consideration of the voluminous record, memoranda of law, and oral argument, in September of 2006, a judge of the Superior Court concluded in a thirty-four page memorandum of decision that the claim of discrimination in 1993 had become time barred and that the factual materials relating to the claims of discrimination in 1997 and 2001, and to the claim of retaliation after May, 2001, did not permit any reasonable expectation of proof at trial. She entered full summary judgment. Dr. Poon has appealed from the portion of the judgment disposing of the claims rooted in the events of 1997 onward. 2. Facts. The following information emerges from the summary judgment record as undisputed. Dr. Poon was bom and raised in Hong Kong. He earned a bachelor’s and a master’s degree in electrical sciences from universities in that city and then a Ph.D. in systems science and bioengineering from the University of California, Los Angeles. From 1981 until 1988, he held junior faculty positions at North Dakota State University and began research in bioengineering subjects, particularly cardiovascular and respiratory functions. In 1988, he came to MIT as a visiting scientist in the Harvard-MIT Division of Health Sciences and Technology (HST). HST is a multidisciplinary division, and not an academic department, of those universities. It engages in bioengineering research strengthened by the human and technological resources available from the schools of general science, engineering, and medicine at each institution. Two codirectors serve as its chief officers. It enjoys access to approximately 200 faculty professors. HST maintains a staff of ten nonfaculty, nontenure track, MIT-employed research scientists. Those individuals fall into three ranks arranged in ascending order and title as research scientist (RS), principal research scientist (PRS), and senior research scientist (SRS). These ranks appear available across a number of MIT departments, divisions, and units, and not merely in the HST. In 1989, Dr. Poon received appointment as a PRS. Under MIT’s published policies and procedures, both SRS and PRS appointees enjoy indefinite duration but remain subject to quadrennial review and to periodic review by an appropriate supervisor (one of the two codirectors of HST) for determination of the continuance of the appointment in light of the quality of the individual’s work and the need for his or her services. At all relevant times, the published qualifications for the rank of PRS have been the demonstrated ability “to generate and develop concepts independently and to conduct independent research” and the capacity for “unique scholarly or other technical contributions to research projects.” The published qualifications for the higher rank of SRS have included the following. “Individuals holding [an SRS] appointment conduct independent investigations, with the ability to direct the work of others. They possess a demonstrated research competence equal to that of a tenured faculty member. Appointment or promotion to this rank is evidence of wide external and internal recognition of independent contribution to research in the individual’s field. Such contributions may be illustrated by traditional scholarly recognition, excellence in the leadership of technical projects, or other significant research impact.” In effect, MIT policies and procedures require from the SRS both the ability for independent research and the capacity for direction and leadership of other scientists. a. Events of 1997. In February of 1997, Professor Gray, as codirector of HST, received a document entitled “Guidelines for the Review of Principal Research Scientists and Research Scientists” (guidelines) from the MIT vice-president and dean of research. The guidelines became effective on March 1, 1997, and required a four-year review of the performance of each PRS individual by a committee of three (two faculty and one researcher) appointed by an HST director. The committee was to evaluate the quality, funding, and future of the PRS’s research and educational contributions, and to submit a report to the HST codirectors. It was to solicit at least seven letters of assessment from recognized experts in the individual’s field at MIT; and six or more letters from comparable experts outside MIT. The HST head would, in turn, generate a recommendation about the PRS upward to the vice-president of research, and would provide the PRS with a formal written assessment of standing and of the probability for advancement. During the period of January 31 into April, 1997, Professor Gray drafted documents in preparation for an assessment of Dr. Poon’s performance, including a request that he furnish a statement of career goals, a list of individuals within and beyond MIT capable of evaluation of him, and copies of five of his most recent and significant papers. On April 8, she forwarded a memorandum to the members of the HST personnel committee placing the subject of Dr. Poon’s four-year evaluation under the new guidelines on the agenda of an April 11 meeting. At that meeting the members addressed the subject of evaluation of Dr. Poon and a second HST member. The record of the agenda indicates without elaboration that they did not vote to go forward with the evaluation of Dr. Poon. By deposition Professor Gray testified that the personnel committee discontinued the evaluation because the members anticipated negative assessment letters potentially harmful to Dr. Poon’s long-term career prospects. By answers to interrogatories, Professor Gray reported that such “letters likely would not have reflected well upon his interpersonal abilities and therefore could have undermined his future academic career.” She did not inform him of the aborted evaluation. Professor Gray regarded the 1997 process as an exercise of personnel review. None of the documents from Professor Gray to Dr. Poon used the word promotion. Dr. Poon viewed it as an application for promotion to SRS rank. By deposition he testified that, several months after the submission of his papers, Professor Gray had told him that she had been too busy to complete the process. b. Events of 2001. In May of 2001, Dr. Poon wrote to Professor Gray to request prompt consideration of his promotion to SRS. On July 12, 2001, Professor Gray informed him by letter that an internal review by the HST personnel committee in 1997 “did not result in a sufficient mandate to warrant proceeding with consideration of your promotion,” but that the committee would now be willing to entertain his candidacy for promotion. Dr. Poon submitted updated materials of his performance. At a meeting on November 27, 2001, the committee adopted a policy statement of qualifications for SRS rank, including the following language. “With regard to the individual’s role in the Division [the HST unit], a candidate should be well-integrated into the fabric of the Division and should play a vital, leadership role in the overall program. In fact, the Institute policy states that the individual should have ‘the ability to direct the work of others.’ It was the sense of the meeting that HST Senior Research Scientist appointments should be awarded only to individuals who bring major programmatic leadership that advances the collegial, interdisciplinary goals of the Division. Again, it was pointed out that the numeric limitation by the Institute is meant to recognize world-class scientific stature as well as leadership; i.e., such appointments are to be given only to stellar individuals whom the Division would like to keep.” The committee then considered the application of Dr. Poon as “measured against [the] policy,” received the recommendations of the two HST codirectors against promotion, and after further discussion “unanimously supported the position that there is not compelling basis to move the appointment forward.” The committee did not place a record of this action in Dr. Poon’s personnel file or inform him of it at that time. c. Events related to the claim of retaliation. In the course of his letter of May 9, 2001, to Professor Gray requesting promotion to SRS rank, Dr. Poon suggested that his “Asian descent” was causing, or contributing to the cause of, his lack of promotion. Professor Gray rejected the suggestion in her letter of July 12, 2001. Dr. Poon attributes four subsequent events to retaliation against his allegations of discrimination. On July 13, 2001, Professor Gray informed him of a plan to move his office to an alternate building with a resulting loss of space and a reassignment of his secretary. When Dr. Poon objected and suggested the action to be retaliatory, Professor Gray responded that the plan had formed before his complaint and had sought to satisfy his desire for office space closer to his laboratory space. She withdrew the changes. In August, 2001, Dr. Poon requested MIT to appeal from the denial by the National Science Foundation (NSF) of a grant application submitted by him earlier that year. He prepared a letter of appeal to a superior officer at NSF and requested HST’s endorsement of it. After discussion of the NSF process, Dr. Poon closed with the following paragraph. “We cannot speculate on the motive behind the program director’s [the NSF official originally denying the grant] mishandling, which could stem from anything such as a possible conflict of interest or racial discrimination. Neither should we be held responsible for his highly improper behavior, or the reporting of it to the NSF administration — which would have to be the last resort by us for fear of reprisal. Indeed, denial of our appeal would only make us a victim once again.” The HST codirector (acting in Professor Gray’s place during vacation) emphatically denied approval of it. “As you may know, an appeal to the NSF Deputy Director .. . must be approved up the chain of command at MIT all the way to the president’s office. In my opinion the letter you have written is inflammatory and confrontational, and is not in the best interests of you, HST, or the Institute. It should not be sent further.” Shortly afterward, both the vice-president and dean of research and the university provost denied approval. The provost called upon Dr. Poon to present to him “any evidence to support such a serious charge” as “racial discrimination” at NSF. No such evidence appears in the record. In November, 2001, Dr. Poon was investigating a possible appointment at Harvard University and Massachusetts General Hospital. He requested that, in the event of the appointment, he retain his office and laboratory space at MIT. He reported his belief that another HST scientist (who was not Asian) had a primary appointment at Harvard and office and laboratory space at MIT. After consultation with another researcher about space, the codirector of HST (not Professor Gray) concluded that space constraints at MIT could not permit Dr. Poon’s continued allocation if he were to move his primary appointment elsewhere. The offer of a new appointment never materialized. Finally, in December of 2004, the same HST codirector met with Dr. Poon as part of a performance review for that year. The evaluation centered upon two subjects. He rated Dr. Poon’s achievement of funding for research projects as “good” and as a source of satisfaction of HST. At the same time the codirector characterized the required supervision and mentoring of graduate students in his laboratory as “disappointing” and “sub-par.” The review cited conflicts with two such students and a resulting confrontation with an HST colleague. It concluded that this supervisory performance and “the pattern of contentious interpersonal interactions with your professional peers and colleagues” prevented “a fully favorable performance review.” The codirector recommended Dr. Poon for a three percent merit-based salary increase rather than a maximum four percent. d. Interpersonal relations. In support of its motion for summary judgment and in accordance with Superior Court Rule 9A(b)(5), MIT submitted multiple allegations, with supporting record references, of interpersonal conflicts between Dr. Poon and colleagues, administrators, and students. It characterized the alleged facts as material because they supported legitimate grounds for actions which Dr. Poon characterized as discriminatory refusal of promotion or retaliation. In the following particulars, Dr. Poon’s rule 9A(b)(5) responses left intact or admitted certain information of personal friction or conflict. He acknowledged that during his career at HST he had experienced multiple disagreements with faculty and staff at MIT inside and outside HST. Several scientists and at least one graduate student had left his laboratory as a result of disputes with him. In 2001, a research scientist resigned from HST as the result of a dispute with him. Dr. Poon accused Professor Gray and the HST personnel department with discrimination and harassment toward him and the personnel administrator with “sabotage” by reason of their support of the research scientist. Dr. Poon had engaged in certain verbally abusive and hostile conflicts with HST administrators. In 1997, HST designated Dr. Poon as the principal investigator of two funding proposals intended to create a neuro-engineering initiative. The proposals did not progress. In 1999, HST had then designated an MIT faculty member as an alternate principal investigator to undertake a new grant application for the neuroengineering initiative. Finally, the voluminous summary judgment record contains no specific derogation of Dr. Poon’s individual research skills as a PRS. Nor does it contain any deprecation of his Asian identity by any member of the HST or MIT community. Discussion. 1. Standard of review. From the same record as the motion judge, the reviewing court examines the allowance of summary judgment de novo. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997) (the record is open to independent consideration on appeal; the appellate court may make its own compilation from the record to decide the ultimate questions of the correctness of summary judgment). We assess the factual information in the light most favorable to the nonmoving or opposing party (Dr. Poon) and then determine whether the record resolves the material questions of fact and the issues of law in favor of the movant. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Correllas v. Viveiros, 410 Mass. 314, 316-317 (1991). Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 (2005). The “most favorable” light does not exclude adverse facts. It illuminates both positive and negative information. See Sullivan v. Liberty Mut. Ins. Co., supra at 35-37 (taking account of concerns about the employee’s “responsiveness to clients,” “collegiality,” and “human relations skills”). In a typical posture presented here, the defendant moving parties, MIT and Professor Gray, shoulder the burden of demonstrating the absence of genuine issues of discrimination and retaliation even though they would not bear that burden at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Matthews v. Ocean Spray Cranberries, Inc., supra at 127. They may do so by showing that Dr. Poon has no reasonable expectation of proving an essential element of his prima facie claims at trial. Ibid. Earlier Massachusetts employment discrimination decisions cautioned against disposition by summary judgment because those disputes hinge on questions of mentality and credibility traditionally committed to the first-hand observation of witnesses by a trier of fact. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-440 (1995), and cases cited. See Matthews v. Ocean Spray Cranberries, Inc., supra; Sullivan v. Liberty Mut. Ins. Co., supra at 39. However, a substantial exception has evolved for the category of cases in which a defendant employer demonstrates that the employee’s “evidence of intent, motive, or state of mind is insufficient to support a judgment in the plaintiff’s favor.” Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440, and cases cited. See Matthews v. Ocean Spray Cranberries, Inc., supra at 127 (affirming summary judgment against the allegation of discriminatory motive); Sullivan v. Liberty Mut. Ins. Co., supra (same); Romero v. UHS of Westwood Pembroke, Inc., 72 Mass. App. Ct. 539, 545-548 (2008) (same); and Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447-450 (1996) (same). In appropriate circumstances summary judgment can filter out groundless accusations by disgruntled or ter