Discrimination Cases

CARLIE BOWLING, Plaintiff v. MARGARET R. PARDEE MEMORIAL HOSPITAL, Defendant No. COA05-1497 (Filed 17 October 2006) 1. Appeal and Error— appealability — interlocutory order— substantial right Although plaintiff’s appeal from the trial court’s order dismissing his claim under the North Carolina Persons with Disabilities Protection Act is an appeal from an interlocutory order based on the fact that two claims remain at the trial level, plaintiff is entitled to immediate appeal based on a substantial right, because: (1) plaintiffs North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances; and (2) if the appeal is refused, two trials and possibly inconsistent verdicts could result. 2. Disabilities— North Carolina Persons with Disabilities Protection Act — Americans with Disabilities Act — Equal Employment Opportunity Commission claim commenced— concurrent jurisdiction not allowed The trial court did not err by dismissing plaintiffs claim under the North Carolina Persons with Disabilities Protection Act (NC Disabilities Act) pursuant to N.C.G.S. § 168A-ll(c) after plaintiff commenced an Equal Employment Opportunity Commission (EEOC) claim, because: (1) the General Assembly has disallowed concurrent jurisdiction over an NC Disabilities Act claim and an Americans with Disabilities Act claim that arises out of the same facts and circumstances; (2) plaintiffs claim was still being investigated at the EEOC at the time of his state court filing thus making it fall within the NC Disabilities Act’s language of “commenced federal administrative proceedings” and thereby removing it from the subject matter jurisdiction of the state court; and (3) the fact that defendant’s motion to dismiss was not heard until after the EEOC had issued plaintiff’s right-to-sue letter was immaterial since the court never had jurisdiction over the case at all based on the fact that it was initially filed after plaintiff had already commenced federal administrative proceedings such that federal jurisdiction had attached. 3. Constitutional Law— Open Courts provision — federal proceeding — surrender of state court remedy — not violation An employee allegedly terminated because of his disability who elected to commence a federal proceeding with the EEOC and thus voluntarily surrendered his right to a remedy in the state court under the N.C. Persons with Disabilities Protection Act pursuant to N.C.G.S. § 168A-ll(c) while the federal proceeding was pending was not denied access to the state courts in violation of the Open Courts provision of N.C. Const, art. I, § 18. Appeal by plaintiff from judgment entered 12 July 2005 by Judge Laura J. Bridges in Superior Court, Henderson County. Heard in the Court of Appeals 21 September 2006. Law Offices of Glen C. Shults, by Glen C. Shulls, for plaintiff-appellant. Ford & Harrison, LLP, by David H. Tyner and Wade E. Ballard, for defendant-appellee. WYNN, Judge. No state court shall have jurisdiction over an action filed under the North Carolina Persons with Disabilities Protection Act (North Carolina Disabilities Act), where the plaintiff has commenced federal administrative proceedings under the Americans with Disabilities Act (ADA). Plaintiff argues that because he only commenced discrimination proceedings under the ADA with the Equal Employment Opportunity Commission (EEOC), this provision does not bar his North Carolina Disabilities Act action. Since filing a claim with the EEOC commences “federal administrative proceedings,” we affirm the dismissal of Plaintiff’s state law claim. Plaintiff Carlie Bowling, a licensed pharmacist, began working for Defendant Margaret R. Pardee Memorial Hospital in January 2004. He suffers from migraine headaches and other physical impairments arising from service-related injuries sustained in a helicopter crash in the mid-1980s. In July 2004, Pardee Hospital placed Mr. Bowling on administrative leave because of “certain episodes relating to Plaintiff’s job performance that caused concern about patients’ safety.” Mr. Bowling was subsequently examined by the hospital’s medical director and then terminated on 12 August 2004, after he refused to resign. On 26 October 2004, Mr. Bowling filed a claim with the EEOC, alleging that Pardee Hospital had discriminated against him and terminated him because of his migraine headaches, in violation of the Americans with Disabilities Act (ADA). While the EEOC matter was pending, Mr. Bowling brought an action in state court on 25 January 2005, asserting state law claims under the North Carolina Disabilities Act, wrongful discharge in violation of public policy, and negligent infliction of emotional distress. Pardee Hospital responded by moving to dismiss on 27 April 2005. The EEOC issued a right-to-sue letter to Mr. Bowling on 11 May 2005. Following a hearing on Pardee Hospital’s motion to dismiss, the trial court dismissed Mr. Bowling’s claim under the North Carolina Disabilities Act and denied Pardee Hospital’s motion to dismiss Mr. Bowling’s claims of wrongful discharge in violation of public policy and negligent infliction of emotional distress. Before we address the merits of Mr. Bowling’s appeal from that order, we note that his appeal is interlocutory, as the trial court’s judgment is not “one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). Mr. Bowling has two claims remaining at the trial level, but he argues that the dismissal of his North Carolina Disabilities Act claim affects a substantial right under North Carolina General Statutes §§ 1-277 and 7A-27(d), thereby giving this Court jurisdiction to consider the interlocutory appeal. A “substantial right” is one “affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a [person] is entitled to have preserved and protected by law: a material right.” Oestreicher v. American Nat’l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976). Moreover, as previously held by this Court, “the right to avoid the possibility of two trials on the same issues is a substantial right that may support immediate appeal.” Alexander Hamilton Life Ins. Co. of Am. v. J & H Marsh & McClennan, Inc., 142 N.C. App. 699, 701, 543 S.E.2d 898, 900 (2001), disc. review denied, 357 N.C. 658, 590 S.E.2d 267 (2003); see also Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982). However, “[i]f there are no factual issues common to the claim determined and the claims remaining, ... no substantial right is affected.” Alexander Hamilton, 142 N.C. App. at 701, 543 S.E.2d at 900. Here, Mr. Bowling’s North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances, namely, his termination by Pardee Hospital. If we refuse his appeal, two trials and possibly inconsistent verdicts could result. We therefore address the merits of Mr. Bowling’s arguments that the trial court erred in dismissing his claim under the North Carolina Disabilities Act because (I) the statute does not require dismissal of a case when an individual files a claim with the EEOC; and (II) the dismissal violated the “Open Courts” clause of the North Carolina Constitution. I. Mr. Bowling first asks us to construe N.C. Gen. Stat. § 168A-ll(c) (2005) as not requiring dismissal of a state law claim when an EEOC claim is commenced. “The cardinal principle of statutory construction is that the intent of the legislature is controlling.” State ex rel. Utils. Comm’n v. Carolina Util. Customers Ass’n, Inc., 163 N.C. App. 46, 50, 592 S.E.2d 221, 224 (internal quotations and citation omitted), disc. review denied, 358 N.C. 739, 602 S.E.2d 682 (2004). Moreover, “[t]he first consideration in determining legislative intent is the words chosen by the legislature.” O & M Indus. v. Smith Eng’g Co., 360 N.C. 263, 267, 624 S.E.2d 345, 348 (2006). If the language of a statute is “clear and unambiguous, there is no room for judicial construction and the court must give the statute its plain and definite meaning.” In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978). The statute should also be read as a whole. “The words and phrases of a statute must be interpreted contextually, and read in a manner which effectuates the legislative purpose.” In re Appeal of Bass Income Fund, 115 N.C. App. 703, 705, 446 S.E.2d 594, 595 (1994) (internal citations and quotations omitted). The statute at issue in this case is the North Carolina Disabilities Act, which reads in pertinent part: No court shall have jurisdiction over an action filed under this Chapter where the plaintiff has commenced federal judicial or administrative proceedings . . . under the Americans with Disabilities Act of 1990, . . . involving or arising out the facts and circumstances involved in the alleged discriminatory practice under this Chapter. If such proceedings are commenced after a civil action has been commenced under this Chapter, the State court’s jurisdiction over the civil action shall end and the action shall be forthwith dismissed. N.C. Gen. Stat. § 168A-ll(c) (2005). Thus, the first part of the statute prevents this State’s courts from having jurisdiction over North Carolina Disabilities Act claims that are based on the same facts and circumstances of an action already “commenced” at either the federal administrative or judicial level; the second part then strips this State’s courts of such jurisdiction if the action is commenced at the federal level after a North Carolina Disabilities Act claim has already been initiated. Taken as a whole, then, the statute prohibits a plaintiff from commencing an action at the federal level, and then filing suit at the state level; or, alternatively, from filing suit at the state level and then commencing an action at the federal level. Using clear and concise language, the General Assembly has disallowed concurrent jurisdiction over a North Carolina Disabilities Act claim and an ADA claim that arise out of the same facts and circumstances. Under the ADA, a claimant must exhaust his administrative remedies by first filing a claim with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(l) (2004); see also Sheaffer v. County of Chatham, 337 F. Supp. 2d 709, 723 (M.D.N.C. 2004). Following review by the EEOC, if a right-to-sue letter is issued, the plaintiff has an additional ninety days to file suit in federal court under the ADA. 42 U.S.C. § 2000e-5(f)(l) (2004). The North Carolina Disabilities Act has a similar 180-day statute of limitations from when the plaintiff becomes aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice. N.C. Gen. Stat. § 168A-12 (2005). Here, Mr. Bowling was terminated on 12 August 2004 and filed a claim with the EEOC on 26 October 2004, within the ADA’s statute of limitations. While the EEOC was investigating his claim, Mr. Bowling also filed suit in state court on 25 January 2005, within the North Carolina Disabilities Act’s statute of limitations. However, because Mr. Bowling’s claim was still being investigated at the EEOC at the time of his state court filing, it fell within the North Carolina Disabilities Act’s language of “commenced federal. . . administrative proceedings,” thereby removing it from the subject matter jurisdiction of the state court. The fact that Pardee Hospital’s motion to dismiss was not heard until 27 June 2005, after the EEOC has issued Mr. Bowling a right-to-sue letter, is immaterial; the court never had jurisdiction over the case at all because it was initially filed after Mr. Bowling had already “commenced federal . . . administrative proceedings,” such that federal jurisdiction was attached. In addition, Mr. Bowling had an additional ninety days after the right-to-sue letter to file suit in federal court. The clear meaning of the language of N.C. Gen. Stat. § 168A-ll(c) does not allow a plaintiff to file simultaneous federal and state claims, then see which one has a better chance of being successful. A plaintiff must either choose a. single forum at the outset and proceed accordingly, or ensure that one claim or the other is completely concluded within the statute of limitations so that he may move forward with the other. In light of the provisions of the ADA, the short statute of limitations prescribed for the North Carolina Disabilities Act by our General Assembly suggests its intent to allow a plaintiff a remedy at either the state or federal levels, but not both. Accordingly, we hold that N.C. Gen. Stat. § 168A-ll(c) requires dismissal of a state law claim when an EEOC claim is commenced. II. Along these lines, we find Mr. Bowling’s argument that the Open Courts clause of the. North Carolina Constitution requires that he have recourse to the state courts for his North Carolina Disability Act claim to be without merit. The Open Courts clause provides that, “All courts shall be open; every person for an injury done to him in his lands, goods, person, or reputation shall have remedy by due course of law . . .’’N.C. Const, art. I, § 18. Nevertheless, as our Supreme Court has noted in the past, “[t]he legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.” Lamb v. Wedgewood South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983). This Court has likewise held that a statute does not violate the Open Courts clause if it “does not deny litigants access to North Carolina courts, but merely postpones litigation here pending the resolution of the same matter in another sovereign court.” Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 358, 435 S.E.2d 571, 574 (1993) (internal quotations and citation omitted). In the instant case, Mr. Bowling was not denied access to nor barred from the North Carolina courts. Rather, he elected to commence federal administrative proceedings, thereby voluntarily surrendering his right to a remedy in state court, so long as those federal proceedings were pending. The North Carolina courts were open to Mr. Bowling; he chose not to avail himself of them for his North Carolina Disabilities Act claim. In conclusion, we affirm the trial court’s dismissal of Mr. Bowling’s claim under the North Carolina Disabilities Act. Affirmed. Judges McGEE and MCCULLOUGH concur. . N.C. Gen. Stat. § 168A-ll(c) (2005). . 42 U.S.C. §§ 12101 et seq. (2004).

THOMAS BOBBITT, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent No. COA05-1548 (Filed 17 October 2006) 1. Appeal and Error— appellate rules violations — omissions not so egregious to invoke dismissal Respondent university’s motion to dismiss petitioner state employee’s appeal from the denial of his claim for termination from employment without just cause due to discrimination, based on a failure to comply with N.C. R. App. P. 10(c), is denied because: (1) petitioner’s brief contains appropriate record references for each of his arguments; and (2) although defendant did not technically follow the rules by failing to list specific page numbers where exceptions can be found in the record and did not set out these exceptions in the brief, these omissions are not so egregious as to invoke dismissal. 2. Public Officers and Employees— career state employee— termination from employment without just cause due to discrimination — exhausting internal grievance procedure not required — waiver A de novo review revealed that the trial court’s order affirming the State Personnel Commission’s holding that it did not have jurisdiction to hear petitioner career state employee’s claim for termination from employment by respondent university without just cause due to discrimination is reversed, and the case is remanded to the Commission to decide the merits of petitioner’s claim, because: (1) petitioner’s allegations allow him to appeal directly to the Commission under N.C.G.S. § 126-36(a) without exhausting respondent’s internal grievance procedure since he sufficiently asserted his dismissal was based upon age or race discrimination; (2) the petition properly invoked jurisdiction before the Office of Administrative Hearings and the Commission on alleged race and age discrimination despite the fact that his counsel proceeded and prevailed before the ALJ on a just cause argument at the hearing; and (3) respondent’s failure to move to dismiss on jurisdictional grounds, once petitioner announced he was proceeding only on just cause, waived any required exhaustion of internal grievance procedures. Judge Wynn concurring in the result. Appeal by petitioner from order entered 1 August 2005 by Judge J.B. Allen in Wake County Superior Court. Heard in the Court of Appeals 12 September 2006. Barry Nakell, for petitioner-appellant. Attorney General Roy Cooper, by Assistant Attorney General Q. Shanté Martin, for respondent-appellee. TYSON, Judge. Thomas Bobbitt (“petitioner”) appeals from order entered affirming the decision of the State Personnel Commission (the “Commission”) to dismiss for lack of jurisdiction his petition for termination from employment without just cause due to discrimination. We reverse and remand. I. Background Petitioner was employed by North Carolina State University (“respondent”) for more than fifteen years. Petitioner’s employment was terminated on 21 November 2001. Prior to termination, petitioner was employed as a floor maintenance assistant at Reynolds Coliseum, an indoor athletic facility located on respondent’s campus. On 5 November 2001, petitioner reported to work at 4:54 p.m. and performed routine services in preparation for a basketball game scheduled that evening. During the game, petitioner was stationed at the south end goal and was instructed to sweep the floor and keep it free from debris. Petitioner took a restroom break at approximately 8:30 p.m. during the game’s half-time intermission. Petitioner testified the restroom was crowded. Petitioner relieved himself into the urinal, washed his hands, and returned to his duty station. Petitioner did not take another restroom break until approximately 1:30 a.m. Petitioner testified he used the toilet and he was alone in the restroom at the time. On 5 November 2001, employees of LPSC Cleaning Services arrived at Reynolds Coliseum to perform its contract cleaning services after the basketball game ended. One member of the cleaning crew, Jerry Williams, reported to Larry Bell of LPSC Cleaning Services that he had observed petitioner urinating on the floor in the men’s restroom. On 6 November 2001, Larry Bell reported this allegation to William Boweles, Coliseum Supervisor and Maintenance Coordinator. William Boweles reported the matter to his supervisor, Barry Joyce, petitioner’s supervisor and Director of Indoor Athletic. Facilities. An investigation into Jerry Williams’s allegations commenced. Petitioner repeatedly denied he urinated on the bathroom floor. By letter dated 21 November 2001, Barry Joyce dismissed petitioner from employment effective 23 November 2001 for “improper personal conduct.” The letter stated: In accordance with the [University’s Grievance Procedure, you have 15 work days from receipt of this letter to appeal your dismissal to the Division of Human Resources. If alleging discrimination, you may choose not to utilize the university’s grievance procedure and appeal directly to the State Personnel Commission within 30 calendar days from receipt of this letter. Six days later on 27 November 2001, petitioner filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings (“OAH”). Petitioner’s petition asserted “discharge without just cause” and that his discharge was based on age and race discrimination. On 16 April 2002, the administrative law judge (“ALJ”) granted respondent’s motion for summary judgment on certain claims, but denied respondent’s motion regarding petitioner’s claims for an allegedly excessive workload based on alleged racial discrimination and/or related retaliation. Petitioner’s petition was heard in the OAH on 28 August 2002. Petitioner’s counsel gave an opening statement in which he summarized the two issues in this case as termination without just cause and workplace harassment. Respondent’s counsel stated during opening statements that those are “the two basic issues in this case.” Later during the hearing, petitioner’s counsel announced petitioner would be proceeding on the issue of termination without just cause. Respondent did not move to dismiss petitioner’s remaining discrimination claims for abandonment or lack of jurisdiction at any time during the hearing before the ALJ. The AU in his recommended decision found and concluded, “[t]he evidence in the case and at the hearing leads to no other conclusion but that it is more likely than not that the [petitioner] did not commit the offense.” The AU issued a recommended decision to the Commission to overturn petitioner’s dismissal from and re-instate his state employment. The AU ruled Barry Joyce, petitioner’s supervisor, incorrectly shifted the burden of proof to petitioner when he stated that he had no reason not to believe Jerry Williams’s allegations. In his recommended decision, the AU also concluded, “[t]he [OAH] has jurisdiction over the parties and over [petitioner’s] ‘just cause’ claim.” The Commission took no additional evidence, declined to adopt the AU’s findings of fact and conclusions of law, and addressed only whether it had jurisdiction over petitioner’s just cause claim. The Commission ordered petitioner’s petition be dismissed for lack of jurisdiction. The Commission explained its decision as follows: [N] either OAH nor the State Personnel Commission has any claim before it other than [petitioner’s] just cause claim. Nothing in the Decision of the Temporary Administrative Law Judge shows that he considered the issue of whether the Office of Administrative Hearings has subject matter jurisdiction over a just cause claim which has not been exhausted internally through agency procedures. Because subject matter jurisdiction is non-waivable, and cannot be conferred by stipulation or consent of the parties, the Commission has had to consider this threshold issue. The Commission stated that because petitioner had not exhausted available administrative remedies through respondent’s internal grievance procedure, his petition did not invoke the jurisdiction of either the OAH or the Commission. Petitioner filed a Petition for Judicial Review in the Wake County Superior Court, which affirmed the decision and order of the Commission. Petitioner appeals. II. Respondent’s Motion to Dismiss Respondent filed a motion to dismiss petitioner’s appeal with this Court. Respondent argues petitioner’s appeal should be dismissed due to petitioner’s failure to comply with Rule 10(c) of the North Carolina Rules of Appellate Procedure. Rule 10(c) states in part, “[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.” N.C.R. App. P. 10(c)(1) (2006). Petitioner’s brief contains appropriate record references for each of his arguments. Those record references refer to the order appealed from. In Symons Corp. v. Insurance Co. of North America, we held, “[although defendant in this case did not technically follow the rules by failing to list specific page numbers where exceptions could be found in the record and did not set out these exceptions in the brief, we do not find these omissions so egregious as to invoke dismissal.” 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989). In Adams v. Kelly Springfield Tire Co., this Court also declined to dismiss an appeal for an identical rule violation. 123 N.C. App. 681, 682, 474 S.E.2d 793, 794 (1996). Respondent’s motion to dismiss petitioner’s appeal is denied. HI. Issues Petitioner argues he: (1) properly filed his petition asserting respondent terminated his employment without just cause directly to the OAH and the Commission pursuant to N.C. Gen. Stat.. § 125-36(a) and (2) is estopped from raising lack of subject matter jurisdiction. A. Standard of Review “Since we are reviewing a ‘review proceeding’ in the superior court and petitioners are appealing pursuant to N.C. Gen. Stat. § 7A-27, we will apply N.C. Gen. Stat. § 150B-52.” Lincoln v. N.C. Dep’t of Health & Human Servs., 172 N.C. App. 567, 569, 616 S.E.2d 622, 624 (2005). N.C. Gen. Stat. § 150B-52 (2005) states: A party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court as provided in G.S. 7A-27. The scope of review to be applied by the appellate court under this section is the same as it is for other civil cases. This Court has clearly stated the standard of review applicable to appeals of administrative claims from the superior court. The proper standard of review by the trial court depends upon the particular issues presented by the appeal. If appellant argues the agency’s decision was based on an error of law, then de novo review is required. If appellant questions whether the agency’s decision was supported by the evidence or whether it was arbitrary or capricious, then the reviewing court must apply the whole record test. The reviewing court must determine whether the evidence is substantial to justify the agency’s decision. A reviewing court may not substitute its judgment for the agency’s, even if a different conclusion may result under a whole record review. As to appellate review of a superior court order regarding an agency decision, the appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. As distinguished from the any competent evidence test and a de novo review, the whole record test gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence. Carillon Assisted Living, LLC v. N.C. Dep’t of Health & Human Servs., 175 N.C. App. 265, 270, 623 S.E.2d 629, 633 (internal citations and quotations omitted), disc. rev. denied, 360 N.C. 531, 633 S.E.2d 675 (2006). Here, the issues under review concern jurisdiction and the trial court’s conclusion to affirm the Commission’s ruling that it lacked jurisdiction over petitioner’s claim. “A trial court’s conclusions of law . . . are reviewable de novo.” Lincoln, 172 N.C. App. at 570, 616 S.E.2d at 624. Whether jurisdiction was properly invoked is a question of law. In re J.B., 164 N.C. App. 394, 398, 595 S.E.2d 794, 797 (2004). B. Subject Matter Jurisdiction Petitioner argues he correctly filed his petition directly with the OAH because he alleged termination from employment without just cause due to discrimination. Petitioner argues his allegations allow him to appeal directly to the Commission, pursuant to N.C. Gen. Stat. § 126-36(a) without exhausting respondent’s internal grievance procedure. We agree. The allegations are determined from the face of the petition for a contested case hearing. See, e.g., Lee v. N.C. Dep’t of Transp., 175 N.C. App. 698, 701-02, 625 S.E.2d 567, 570, (2006). The allegations of jurisdiction must be liberally construed. Winbush v. Winston-Salem State Univ., 165 N.C. App. 520, 522-23, 598 S.E.2d 619, 621-22 (2004) (petition alleging that the employee was “relieved of [his] athletic duties and privileges” was sufficient to allege demotion and invoke jurisdiction of the OAH and the Commission). C. Career State Employee A career state employee is defined as “a [s]tate employee who is in a permanent position,” and who “has been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months.” N.C. Gen. Stat. § 126-1.1 (2005). Neither party contests the ALJ’s conclusion that petitioner was a career state employee. Our de novo review “is limited to questions so presented in the several briefs.” N.C.R. App. P. 28(a) (2006). A career state employee who has a grievance arising out of or due to their employment and “who does not allege unlawful harassment or discrimination” must “first discuss the problem or grievance with the employee’s supervisor and follow the grievance procedure established by the employee’s department or agency.” N.C. Gen. Stat. § 126-34 (2005). The employee may seek review directly to the Commission “if he is not satisfied with the final decision of the head of the department, or if he is unable, within a reasonable period of time, to obtain a final decision by the head of the department.” N.C. Gen. Stat. § 126-35(a) (2005). A state employee “who has reason to believe” that his dismissal based upon age or race discrimination may appeal directly to the Commission. N.C. Gen. Stat. § 126-36(a) (2005). Our Supreme Court has stated that the petitioners who allege discrimination need not exhaust internal grievances. [E]mployees whose grievances arise out of their employment, other than those who allege discrimination, must have complied with N.C.G.S. § 126-34, which requires all permanent state employees having such a grievance arising out of or due to their employment first to discuss their problem or grievance with their supervisor, then to follow the grievance procedure established by their department or agency. Batten v. N.C. Dept. of Correction, 326 N.C. 338, 343, 389 S.E.2d 35, 38-39 (1990) (emphasis supplied), overruled in part on other grounds by, Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 574-75, 447 S.E.2d 768, 772 (1994); see North Carolina Department of Correction v. Earl Gibson, 308 N.C. 131, 301 S.E.2d 78 (1983). “A State employee is provided with the statutory right to appeal certain claims directly to the SPC ... without first... exhausting his employer’s internal grievance procedures ... an employee may appeal a claim of discrimination directly to the SPC.” Lee, 175 N.C. App. at 701, 625 S.E.2d at 570. Respondent argues that, “[t]his Court’s holding in Nailing is directly on point . . . the case law [is] indisputable.” Respondent quotes the following language from Nailing v. TJNC-CH.: In the present case, it is undisputed that petitioner did not follow Defendant’s grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. §§ 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner’s appeal from her dismissal under N.C. Gen. Stat. § 126-35 for lack of “just cause.” 117 N.C. App. 318, 326, 451 S.E.2d 351, 356 (1994), disc. rev. denied, 339 N.C. 614, 454 S.E.2d 255 (1995). Respondent’s cited quote from Nailing excludes relevant and controlling language. The full quote reads: In the present case, it is undisputed that petitioner did not follow [Respondent’s] grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. §§ 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner’s appeal from her dismissal under N.C. Gen. Stat. § 126-35 for lack of “just cause” that does not allege discrimination. Id. (emphasis supplied). In Nailing, the claim was “a series of disciplinary warnings . . . were unjust and retaliatory.” Id. The petitioner did not allege her just cause discharge claim resulted from discrimination. Here, petitioner’s petition for a contested case hearing asserts his termination was based upon “discharge without just cause.” The petition states, “[t]he following occurred due to discrimination and/or retaliation for opposition to alleged discrimination.” Petitioner checked the lines indicating he was denied “employment” and “promotion.” Petitioner checked the line indicating “termination” was forced upon him. Petitioner also checked the line next to the word “other,” and wrote “due to a lie by an outside contractor.” Petitioner also alleged race and age discrimination by checking the appropriate lines labeled “race” and “age.” Petitioner argues he has “reason to believe” his termination was based on race and age discrimination and properly filed his claim directly before the Commission. Reviewed in the light most favorable to petitioner, and taking petitioner’s allegations in his petition as true, petitioner’s allegations sufficiently assert discrimination to allow him to petition directly to the Commission without first exhausting internal grievances. Petitioner’s petition properly invoked jurisdiction before the OAH and the Commission on alleged race and age discrimination despite the fact that his counsel proceeded and prevailed before the AU on a just cause argument at the hearing. See Campbell v. N.C. Dep’t of Transp., 155 N.C. App. 652, 660, 575 S.E.2d 54, 60 (“Jurisdiction rests on the allegations of the petitioner.”), disc. rev. denied, 357 N.C. 62, 579 S.E.2d 386 (2003). N.C. Gen. Stat. § 126-36 allows direct appeal to the Commission so long as the petitioner has a “reason to believe” his termination was based on race or age discrimination. A review of N.C. Gen. Stat. § 126 and the petitioner’s petition reveals no other requirements. Petitioner’s claims in contested case no. 2196 were largely dismissed after respondent moved for and was granted summary judgment on 16 April 2002. However, petitioner’s allegations under contested case no. 2197, the petition on which termination without just cause due to discrimination was asserted, were not dismissed. Petitioner’s counsel gave an opening statement to the ALJ summarizing the two issues in this case as termination without just cause and workplace harassment. Respondent’s counsel before the ALJ acknowledged those to be the “two basic issues in this case.” In respondent’s opening statement, defense counsel advised the AU, “I do invite the Court to keep the issue narrow, and we also have a stipulation that because we’ve converted this morning to a just cause, that my witnesses can be heard first.” (Emphasis supplied). After respondent’s evidence, petitioner’s counsel announced, “[w]e will proceed only on the issue of just cause.” Respondent’s failure to move to dismiss on jurisdictional grounds, once petitioner announced he was proceeding only on just cause, waived any required

Boston Public Health Commission vs. Massachusetts Commission Against Discrimination & another. No. 05-P-939. Suffolk. May 15, 2006. September 20, 2006. Present: Beck, Rapoza, & Cypher, JJ. Massachusetts Commission Against Discrimination. Anti-Discrimination Law, Race, Damages. Employment, Discrimination. Administrative Law, Substantial evidence. Damages, Under anti-discrimination law, Back pay, Emotional distress. Substantial evidence supported the findings of the Massachusetts Commission Against Discrimination that an employer, after terminating a black employee, filled her position with a white person with lesser qualifications [407-408], and that the black employee’s termination was motivated not by the reasons asserted by the employer [408-409], but by a discriminatory animus [409-410]. Although the Massachusetts Commission Against Discrimination (commission) acted within its discretion in awarding six years of back pay damages to a prevailing employee in a discrimination action [410], the evidence did not justify the amount awarded by the commission as emotional distress damages, and this court remanded the case to the Superior Court for a redetermination of that award [410-413], Civil action commenced in the Superior Court Department on June 21, 2004. The case was heard by Jeffrey A. Locke, J., on a motion for judgment on the pleadings. Fatema Fazendeiro for the plaintiff. Frank J. Teague for Marilyn Lewis. William F. Green for Massachusetts Commission Against Discrimination. Marilyn Lewis. Beck, J. Marilyn Lewis, a black woman with training in accounting and business administration, was terminated from her job as assistant fiscal director of the Trustees of Health and Hospitals of the City of Boston (TH&H) with one day’s notice. The alleged reasons for her discharge were corporate restructuring and an impending merger. A Superior Court judge affirmed a final administrative decision of the Massachusetts Commission Against Discrimination (MCAD), ruling that the termination was the product of unlawful racial discrimination in violation of G. L. c. 151B, § 4. The MCAD award to Lewis included $107,551 for back pay and $100,000 for emotional distress. The Boston Public Health Commission (BPHC), successor in interest to TH&H, appeals. Factual background. Before her employment at TH&H, Lewis had worked for two years as a staff accountant and a senior accountant at the large accounting firm of KPMG Peat Marwick LLP, and for more than two years as a supervisor and audit manager for the public accounting firm of DePisa & Co. She passed the certified public accountant (CPA) examination, completed her experience requirements, and was certified as a CPA by the Massachusetts Board of Public Accountancy in 1991. She also had a degree in business administration and accounting from Suffolk University. In September, 1993, TH&H hired Lewis as its grants administration manager. Her duties included overseeing the financial and accounting components of more than eighty grants, and supervising six accountants. She also maintained the general ledger and payroll accounts, and developed policies for grant accountants to meet funding deadlines. Lewis received a favorable performance evaluation from her supervisor after working at TH&H for four months. She received a merit-based annual salary increase of $2,180 after six months. On February 22, 1995, Lewis was promoted to the position of assistant fiscal director at TH&H. Her new responsibilities included generating monthly financial reports, maintaining the general ledger, and overseeing accounts payable and receivable and monthly budget reports. Lewis worked up to eighty hours each week and sometimes on holidays. In April, 1995, TH&H hired Joseph Brown as its fiscal director. Although Brown was Lewis’s immediate supervisor, he did not give her performance evaluations. Indeed, he had no real contact with her after their initial meeting. A few months after TH&H hired Brown, Lewis’s free parking space was revoked. On January 23, 1996, Brown summoned Lewis to his office and handed her a letter terminating her employment at the close of the next business day. The termination took place in front of the director of human resources at TH&H. The letter explained Lewis’s termination as a programmatic restructuring of the corporate accounting department that involved the elimination of her position. Brown subsequently admitted that the restructuring had been his idea. Lewis did not receive any written evidence of the restructuring. TH&H also suggested that the impending merger between Boston City Hospital and University Hospital necessitated the termination of Lewis’s position. Lewis was the only senior manager who lost her job because of the alleged restructuring. Michael Gaudreau, a white employee, was terminated at the same time as Lewis. Lewis supervised Gaudreau and performed all of his duties when he was absent. However, Gaudreau did not perform any of Lewis’s duties in her absence. He was not a CPA, did not have a master’s degree in business administration (MBA), and did not have prior experience at a public accounting firm. Eight days after Lewis’s termination, TH&H posted an internal job notice for the position of controller in the corporate accounting department. Lewis was not notified of the new position, even after the posting expired and Brown contacted a placement agency to solicit applicants. The duties of the controller generally were a consolidation of Lewis’s former duties and Gaudreau’s former duties. Lewis had performed all of the listed duties satisfactorily during her employment at TH&H. In May, 1996, Brown hired Lawrence Burke, a white male, for the position of controller. Brown had weekly one-hour meetings with Burke. Burke had an MBA, but was not a CPA. Although he had worked as a controller of a private corporation for ten years, he had no experience working in the public sector, no experience in grants administration, and no knowledge of the software system used by TH&H for its grants administration accounting. Burke maintained his position after the merger and became an employee of the Boston Medical Center. Following her termination, Lewis was unemployed for two months. She then worked as a contractor for one of her former employers for six months while discussing her future employment options with professionals in the field. Lewis ultimately decided to start her own accounting business, in large part because her sudden termination caused her to fear working for another organization. Lewis testified that she was shocked by her unexpected and immediate termination. She was “devastat[ed], embarrass[ed],” and distressed as a result of Brown’s actions. Racial discrimination. Lewis’s racial discrimination claim is based on alleged violations of G. L. c. 151B, § 4, as amended by St. 1989, c. 516, § 4, which, in relevant part, makes it unlawful “[f]or an employer, by himself or his agent, because of the race ... of any individual to . . . discharge from employment such individual. . . unless based upon a bona fide occupational qualification.” Specifically, Lewis asserts that BPHC discriminated against her by discharging her from her position as assistant fiscal director because of her race. Claims of racial discrimination based on a disparate treatment theory under G. L. c. 151B are evaluated under a familiar three-stage order of proof when a plaintiff uses indirect evidence to prove unlawful discrimination. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-446 (1995). In the first stage, a plaintiff must prove the four elements of a prima facie case of race discrimination: (1) membership in a protected group; (2) performance of her job at a satisfactory level; (3) termination from employment; and (4) either the employer’s continued efforts to fill the position or the employer’s hiring of a member of an unprotected group with the same or lesser qualifications than the plaintiff. Id. at 441. BPHC challenges the MCAD’s finding regarding the fourth element, namely, that TH&H filled Lewis’s position by hiring Burke. “We will affirm a decision and order of the MCAD unless the findings and conclusions are unsupported by substantial evidence or based on an error of law.” Salem v. Massachusetts Commit. Against Discrimination, 44 Mass. App. Ct. 627, 640-641 (1998) (footnote omitted). We conclude that the MCAD’s determination that Lewis satisfied her prima facie case met the required standard. The record indicates that Lewis was qualified to perform all of the duties listed in the job posting for the position of controller. Several of the responsibilities for controller were identical to those Lewis performed as assistant fiscal director. Other responsibilities were those of Gaudreau. Lewis, however, was Gaudreau’s supervisor, and performed these tasks in his absence. Lewis therefore was qualified to perform the controller’s duties. Thus, the record supports the MCAD’s finding that the controller position was essentially the same position as Lewis’s position. The record also shows that Lewis was replaced by a white person with lesser qualifications. Although Burke had ten years of employment experience as a controller in a private company, he had no experience in the public sector, was not a CPA, and was unfamiliar with the software used by TH&H. Burke’s experience as a controller in other organizations was not significant because there were no responsibilities for controller beyond those that Lewis had proved capable of performing. Nor did Burke have experience with grant administration, which was one of the listed duties for the controller position. BPHC also argues that there was insufficient evidence to support a finding of pretext at the third stage of the order of proof. BPHC asserted two reasons for terminating Lewis’s employment: a restructuring of the corporate accounting department and the impending merger. Lewis provided sufficient evidence to support a finding that these reasons were not the real reasons for terminating her employment. TH&H posted a job listing for controller, a job that was essentially the same position as Lewis’s, eight days after Lewis’s termination. The alleged reorganization did not result in the termination of any other senior manager. Moreover, the controller position survived the merger of the hospitals. Other indirect evidence also supports the finding of discriminatory animus. While Brown met weekly with Burke, he never met with, reviewed, supervised, or evaluated Lewis. Brown never provided documentation of any reorganization that required the elimination of Lewis’s position. Burke was a white male who was less qualified than Lewis for the controller position, but TH&H never contacted Lewis about applying for the position. Even though Burke’s position was essentially the same as the one Lewis previously had held, the position was not eliminated by the reorganization. BPHC relies heavily on Weber v. Community Teamwork, Inc., 434 Mass. 761, 778 (2001), for the proposition that Lewis did not meet her burden of proving discriminatory animus. Weber, however, is distinguishable. The Supreme Judicial Court remanded in Weber because the trial judge did not make specific findings regarding whether the plaintiff had proved discriminatory animus and causation (two of the required elements for any claim of unlawful discrimination). Id. at 775-776. Here, in contrast, the MCAD made findings that Lewis had proved discriminatory animus through indirect evidence and found that the animus caused her termination. While there were no findings in Weber distinguishing the plaintiff’s termination from the contemporaneous termination of a male employee, here the MCAD made detailed findings explaining why Gaud-reau’s termination was distinguishable from Lewis’s. See id. at 778. Furthermore, the record in Weber contained testimony citing specific examples of the plaintiff’s inadequate work performance, which provided an evidentiary basis for the employer’s articulated reason for firing her. Id. at 773-774. In contrast, there is nothing in the record before us supporting either of BPHC’s reasons for Lewis’s termination. Because the record reveals sufficient evidence that Lewis’s termination reflected TH&H’s discriminatory animus, the MCAD did not err in deciding that Lewis was entitled to recover for illegal discrimination under G. L. c. 151B. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 444-445; Lipchitz v. Raytheon Co., 434 Mass. 493, 504 (2001). Back pay award. BPHC further argues that the award of $107,551 in back pay damages to Lewis was unsupported by substantial evidence and not in accordance with law because an award of back pay for six years was excessive. Back pay is calculated from the date of termination until the date of the MCAD hearing, see Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 496-497 & n.25 (2000), subject to the plaintiffs duty to mitigate, see Conway v. Electro Switch Corp., 402 Mass. 385, 388-389 (1988). It was well within the MCAD’s discretion to award back pay damages to Lewis, calculated from the date of her termination to the date of the MCAD hearing. See id. at 387-388. It was not error to conclude that Lewis’s self-employment satisfied her duty to mitigate damages. The record revealed that Lewis was hesitant to work for any employer after being fired in a sudden and discriminatory manner and that she began her own business in good faith. See Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir. 1988); Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 696 (2d Cir. 1998). See also National Labor Relations Bd. v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). Emotional distress damages. BPHC also challenges the MCAD award of $100,000 in damages for emotional distress. “Emotional distress damage awards, when made, should be fair and reasonable, and proportionate to the distress suffered.” Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 576 (2004). A finding of discrimination, by itself, is insufficient as a matter of law to infer emotional distress. See ibid.; DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1, 7 (2006). To be compensable, emotional distress must be proved by substantial evidence of a causal connection between the plaintiff’s emotional distress and the employer’s unlawful act. Stonehill College, supra. Evidence of a physical manifestation of the emotional distress, or expert testimony, is useful but not essential to support an award of emotional distress damages. Ibid. In determining an award, “[s]ome factors that should be considered include (1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the [plaintiff] has suffered and reasonably expects to suffer; and (4) whether the [plaintiff] has attempted to mitigate the harm.” Ibid. Applying these factors, we hold that there was. evidence in the record to support the MCAD determination that damages for emotional distress were warranted. However, we conclude that the facts in this case do not justify the $100,000 awarded. We therefore remand to the Superior Court for further findings and rulings consistent with this opinion. See ibid. Three recent Massachusetts appellate decisions since Stone-hill College guide our determination of the reasonableness of the emotional distress award in this case. In the first case, Smith v. Bell Atl., 63 Mass. App. Ct. 702, 710 (2005), we affirmed the portion of the jury award, in the amount of $207,000, for emotional distress suffered during the plaintiff’s employment. Ibid. The record reflected that the plaintiff considered her work as her “whole life”; that she felt “frustrated and inadequate” for the last six years of her employment because of “her repeated, unsuccessful efforts to obtain what she needed [as a handicapped person] to perform her job at home”; and that “she suffered from anxiety and diminished self-esteem.” Id. at 724. Moreover, although she did not present expert testimony, she supported her testimony with correspondence and records from the employer’s medical department. Ibid. The second case is School Comm, of Norton v. Massachusetts Commn. Against Discrimination, 63 Mass. App. Ct. 839 (2005). In that case, we affirmed an MCAD emotional distress award in the amount of $50,000 where the plaintiff presented evidence that she “loved her job,” that the firing was “devastating and humiliating,” and that her firing caused her to “suffer from panic attacks and lose her appetite, her hair, and twenty percent of her body weight” (i.e., she lost twenty pounds). Id. at 849. The plaintiff also saw a psychologist until her medical insurance benefits ran out. Ibid. The final case is the recent Supreme Judicial Court decision in DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1. In that case, the plaintiff retired at age sixty-five because he believed that his employer’s mandatory retirement age was sixty-five years old. Id. at 4. Approximately two years later, he was notified that the actual age of mandatory retirement earlier had been increased to seventy. Ibid. After filing a complaint for unlawful age discrimination, he regained employment with the employer, but was reassigned after one day to a position that was more dangerous and physically demanding than his prior position. Id. at 4-5. He then amended his complaint to include a claim for retaliation, and the MCAD found that his reassignment constituted unlawful retaliation. Id. at 5. When testifying about his emotional distress, DeRoche described his work as “his whole life.” Id. at 7-8. His wife testified that he “ ‘dreaded’ the approach of his sixty-fifth birthday and was ‘shattered’ that he had to give up his job”; his daughter described him as “despondent,” “devastated,” and “very depressed” in the days leading to retirement, and “broken-hearted” when he found that he never was told that the mandatory retirement age was seventy and not sixty-five. Id. at 8. When asked about the employer’s retaliatory behavior, DeRoche testified that he “couldn’t understand the line of reasoning” for being reassigned to a more dangerous and physically demanding position. Ibid. Although the court affirmed the finding of unlawful retaliation, it struck the $50,000 award for emotional distress because the evidence did not support the MCAD determination that the plaintiff’s emotional injuries were causally connected to the finding of retaliation against the employer. Id. at 8-9. The court reasoned that the evidence presented related to the plaintiff’s distressed emotional state in the months preceding his retirement and in reaction to being informed of the mistaken timing of his retirement, but was not connected to his reassignment to a more dangerous position, i.e., the retaliatory action. Id. at 9. His testimony that he “couldn’t understand” his reassignment was insufficient to justify an award for emotional distress. Ibid. Moreover, the court noted that the plaintiff testified that he never sought medical treatment for symptoms related to emotional distress and he did not experience any physical manifestations of distress. Id. at 8-9. Here, the record reveals that Lewis was entitled to an award of damages for emotional distress. There was substantial evidence that she suffered emotional injuries, causally connected to the finding of unlawful discrimination. Brown called her into his office and gave her one day’s notice of her termination. Lewis testified that she was devastated, as well as embarrassed because she had to pack up her belongings in front of her coworkers. After learning that her position had been re-posted only eight days after her termination, she was shocked, and her termination caused instability at home with her hu

Iris Bray vs. Community Newspaper Company, Inc., & others. No. 05-P-854. Essex. March 15, 2006. August 3, 2006. Present: Greenberg, Duffly, & Katzmann, JJ. Anti-Discrimination Law, Age, Employment, Prima facie case, Burden of proof. Employment, Discrimination. Unlawful Interference. Malice. Practice, Civil, Summary judgment. A Superior Court judge erred in granting summary judgment in favor of the defendant in an action alleging employment discrimination and intentional interference with contractual relations, where the materials submitted by the plaintiff raised genuine issues of material fact as to both counts of the complaint. [43-48] Civil action commenced in the Superior Court Department on February 14, 2003. The case was heard by David A. Lowy, J., on a motion for summary judgment. Jeffrey R. Mazer for the plaintiff. Judith A. Miller for the defendants. Robert Tisi, Ellin Carroll, and Michael Moses. Greenberg, J. At age sixty, after ten years of continuous at-will employment with the defendant Community Newspaper Company, Inc. (company), the plaintiff resigned her position as an advertising sales person. In her complaint in the Superior Court, she alleged that the defendants, starting in September, 1999, took at least seven distinct adverse actions against her because of her age, in violation of G. L. c. 151B, § 4(1B), which caused her to resign from the job on February 16, 2000 (Count I). She also alleged that the individual defendants intentionally interfered with her employment with the company (Count Ü). The defendants filed a motion for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). A judge of the Superior Court allowed the defendants’ motion, and the plaintiff filed this appeal. In an appeal from summary judgment, “[o]ur reading of the summary judgment materials is in a light most favorable to the nonmoving party, here the plaintiff.” Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996), citing Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 438 (1995). Based upon the submitted materials and with inferences favorable to the plaintiff, Hub Assocs., Inc. v. Goode, 357 Mass. 449, 451 (1970), we conclude that the plaintiff raises genuine issues of material fact as to both counts of the complaint. Where, as here, “intent is at the core of a controversy, summary judgment seldom lies.” Madden v. Estin, 28 Mass. App. Ct. 392, 395 (1990). See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005). We therefore reverse the judgment. In analyzing discrimination claims brought under G. L. c. 151B, we look to the familiar three-stage analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) (McDonnell Douglas). See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-137 & n.5 (1976). For recent articulations of the standard by the Supreme Judicial Court, see Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116-118 (2000); Knight v. Avon Prod., Inc., 438 Mass. 413, 420 n.4 (2003); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 39-41. See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 6 & n.8 (1998). “In stage one, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. In stage two, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its actions. Finally, in stage three, the burden shifts back to the plaintiff to show that the employer’s articulated reason is not the true reason, but rather a pretext.” Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 660-661 (1997) (citations omitted). “[I]f successful in stage three, ‘the plaintiff is entitled to recover for illegal discrimination under G. L. c. 151B.’ ” Id. at 661, quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 444-445 (footnote omitted). 1. Prima facie case. The defendants argue that the plaintiff failed to establish a prima facie case because she suffered no adverse employment action or real, objective harm. See MacCormack v. Boston Edison Co., 423 Mass. 652, 663 (1996) (“subjective feelings of disappointment and disillusionment” do not constitute an adverse employment action). The cases upon which the defendants rely for this proposition involve instances where courts have recognized that an employer’s need for wide latitude in setting the conditions of employment supersedes the affected employee’s sensibilities concerning a particular decision. For example, in Knight v. Avon Prod., Inc., 438 Mass. at 421-422, an older employee was given the sales district in which she wanted to work, and thus, putting a younger person in her prior sales district did not amount to an adverse employment action. See also Lewis v. Gillette, 22 F.3d 22 (1st Cir. 1994) (holding that no adverse employment action was established merely because the affected employee reported being watched and stared at by fellow employees in the workplace). Standing on a different footing, however, are the allegations in the plaintiff’s complaint and deposition testimony. The plaintiff’s deposition testimony was to the effect that the general atmosphere at work did not favor older workers. She claims to have suffered through a number of events, beginning in September, 1999, and continuing through February, 2000, that could constitute an “adverse employment action” based upon her age. Besides changing her sales territory with such frequency that it made it difficult for her to generate sales, the defendant Robert Tisi, the company’s sales manager, would delay the issuance of credits to advertisers the plaintiff solicited who were legitimately entitled to them. In addition to criticizing the plaintiff for her lack of professionalism in handling a telephone complaint from a vexatious customer, Tisi issued to the plaintiff a written warning that she alleges contained unfounded allegations that she had mismanaged her Melrose territory, none of which had appeared in any of her prior performance evaluations. Moreover, it appears from the summary judgment materials that the criticism regarding mismanagement of the Melrose territory was unfounded, because at the time Tisi wrote a memorandum on the subject, the plaintiff had been working there for a period of only three months and the sales figures for that period indicated that she had achieved 133 percent of her sales target for that territory, an increase from that achieved by her predecessor in the same territory. Despite these positive results, in January, 2000, she was removed from the Melrose territory and assigned elsewhere. The Melrose territory was assigned to another salesperson who was significantly younger than the defendant and who also received a $3,000 pay increase. It serves no purpose to outline other alleged adverse actions which subsequently led to the plaintiffs resignation, except to say that, if believed, a trier of fact could conclude that these events were to her “material disadvantage,” and not merely “subjective feelings of disappointment and disillusionment.” MacCormack v. Boston Edison Co., 423 Mass. at 662-663. The burden is also on the plaintiff at stage one of the McDonnell Douglas formulation to establish a discriminatory animus. See, e.g., Scotti v. Arrow Electronics, Inc., 37 Mass. App. Ct. 954, 955 (1994); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 40-41. In opposition to the defendants’ motion for summary judgment, the plaintiff furnished the motion judge with an affidavit of Douglas Booth, one of her supervisors at the Danvers office. Booth states that there was an “unspoken policy” at the company for managers to cut costs as much as possible, and that one of the ways to accomplish this was to “eliminate older workers who were generally more experienced and who commanded higher salaries.” He corroborated the plaintiff s deposition testimony concerning this practice and Tisi’s preference to work with younger, attractive women. He stated that one way of accomplishing the cost cutting “was to set artificially high sales goals for older workers and if they were then unable to meet those goals, they could be, and in some cases were[,] terminated and younger workers brought in at lower salaries.” Combined with the defendant’s deposition testimony of other disparate treatment of similarly situated younger employees, see Scotti v. Arrow Electronics, Inc., 37 Mass. App. Ct. at 955 (noting that although much of the evidence presented by the plaintiff was insufficient to survive summary judgment, there was at least a “toehold” which warranted further proceedings), a discriminatory animus can be readily inferred. There was also other evidence that persons similarly situated were treated differently. The assignment of a younger salesperson with less experience than the plaintiff to the Melrose territory, together with a salary increase, and a corresponding decrease in the defendant’s salary are illustrative. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129. In contrast to other employees during this same period, the plaintiff was required to provide a doctor’s note when too sick to work. She received a reprimand for alleged inappropriate dress while others similarly clad were not so reprimanded. Last, there was a telephone call made by Tisi himself to the plaintiff who was sick at home, in which he said, “You’re not sick, you’re just upset.” Although the defendants proffer various neutral explanations for these events, there exists a genuine issue of material fact warranting a tidal on these issues. The plaintiff does not dispute that the defendants have articulated some neutral nondiscriminatory explanations for the adverse actions that led to her resignation. We need not embark on an exegesis of the specific rationales contained in the defendants’ summary judgment materials, except to say that the defendants did meet their burden under stage two of the McDonnell Douglas test. However, our reading of the summary judgment materials in a light most favorable to the plaintiff indicates that there exists a genuine issue of material fact whether the proffered reasons were a pretext. The Booth affidavit satisfies the plaintiff’s burden. That submission, of course, does not mean that a trier of fact would be required to find for the plaintiff, only that for summary judgment purposes, it suffices. Abramian v. President & Fellows of Harvard College, 432 Mass. at 117. In addition to the prima facie evidence to which we have referred, which “remains as evidence in the case,” Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 413 (1998), to demonstrate pretext the plaintiff offered evidence that she was satisfactorily performing her position throughout the ten years of her employment as evidenced by her performance reviews and a 1999 performance award. Although the defendants’ summary judgment materials showed that the plaintiff received a disciplinary warning in December, 1999, the defendants did not submit any evidence that her performance in managing her territory was worse than the performance of other employees and did not assert that employees other than Tisi had registered complaints about her professional conduct. 2. Intentional interference with contractual relations. The motion judge granted summary judgment on this claim because of his ruling that the plaintiff had “no reasonable expectation of establishing a prima facie case of discrimination.” This meant that “her proffered showing of intentional interference by way of improper motive or means also fails.” He also ruled that the evidence did not “support an inference that the individual defendants acted with actual malice.” However, under our analysis, the plaintiff did establish a prima facie case of discrimination, and the Booth affidavit points to improper motive or means. All of the defendants knew that the plaintiff had a reasonable expectancy of continued employment and, so far as appears from her materials, interfered with her employment relationship by subjecting her to a pattern of discrimination based on her age. Their actions constitute improper motive and are not privileged. “[A] defendant may escape liability if the interference [is] privileged as part of his employment responsibilities.” Williams v. B & K Med. Sys., Inc., 49 Mass. App. Ct. 563, 574 (2000), quoting from Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 273 (1977). Supervisors do not, however, “have blanket authority to interfere with the contractual relations of their employees.” Draghetti v. Chmielewski, 416 Mass. 808, 817 (1994). When the conduct is based on improper motive, no privilege exists. Ibid. Discrimination constitutes an improper means or motive for purposes of an interference claim, and constitutes actual malice that, if proved, would defeat the defendants’ conditional privilege. Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001). The plaintiff has therefore also presented sufficient evidence to survive summary judgment on this claim. Judgment reversed. On February 14, 2003, the plaintiff filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging age and gender discrimination. After an investigation, the MCAD found probable cause to credit her allegations of age discrimination and lack of probable cause to support her claims of gender discrimination and constructive discharge.

FEYZ v MERCY MEMORIAL HOSPITAL Docket No. 128059. Argued May 2, 2006 (Calendar No. 5). Decided July 24, 2006. Bruce B. Feyz, M.D., brought an action in the Monroe Circuit Court against Mercy Memorial Hospital, a private hospital, and members of its staff, seeking injunctive relief and damages relating to his placement on indefinite probation by the defendants. The plaintiffs complaint included civil rights, contract, and tort claims. The court, Joseph A. Costello, Jr., J., granted summary disposition for the defendants, citing the doctrine of judicial nonintervention in the staffing decisions of private hospitals, as well as statutory immunity arising from the peer review committee referral of the plaintiff for psychological evaluation. The plaintiff appealed. The Court of Appeals, Sawyer and Smolenski, JJ. (Murray, PJ., concurring in part and dissenting in part), affirmed in part, reversed in part, and remanded the matter to the trial court for further proceedings. 264 Mich App 699 (2005). The Court of Appeals concluded that peer review immunity does not apply to statutory civil rights claims, that an alleged civil rights violation was not within the scope of peer review, and that an alleged civil rights violation was “a malicious act.” The Court also held that the nonintervention doctrine did not prevent the plaintiff from pursuing his civil rights claims, nor did the doctrine generally preclude the plaintiffs contract and tort claims. Finally, the Court held that a private hospital’s staffing decisions are subject to the same level of judicial review as would apply to the actions of any other private entity. The Supreme Court granted the defendants’ application for leave to appeal. 474 Mich 957 (2005). In an opinion by Justice Young, joined by Chief Justice Taylor and Justices Corrigan and Markman, the Supreme Court held-. 1. The doctrine of judicial nonintervention cannot supplement or supplant the statutory immunify granted by the Legislature through the peer review immunity statute. There is no basis to justify the application of a nonintervention doctrine to general staffing decisions of a private hospital. 2. The statutorily prescribed scope of judicial review over the peer review process is narrow. The Legislature codified limited judicial review of the peer review process, permitting judicial review only when peer review participants act with malice. 3. Malice, for purposes of MCL 331.531(4), can be established when a person supplying information or data to a peer review entity does so with knowledge of its falsity or with reckless disregard of its truth or falsity. A review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data that it communicates or upon which it acts. 4. A hospital is not a protected review entity under the peer review immunity statute. The immunity granted by the peer review immunity statute extends only to the communications made, and the participants who make them, in the peer review process, as well as to the communicative acts taken by a statutorily protected peer review entity acting within its scope, not to the hospital that makes the ultimate decision on staffing credential questions. Justice Cavanagh, joined by Justices Weaver and Kelly, concurring in part and dissenting in part, agreed that no justification exists in this state for recognizing the judicial nonintervention doctrine and that the doctrine should not be applied to a private hospital’s general staffing decisions, but dissented from the majority’s definition of “malice” as used in MCL 331.531. “Malice” should not be defined under the principles of “actual malice” used in defamation law. Rather, the term should be defined to mean the “intent, without justification or excuse, to commit a wrongful act” or “reckless disregard of the law or of a person’s legal rights.” To define the term otherwise ignores the statutory language. The trial court should be directed on remand to apply the appropriate legal definition of “malice.” Court of Appeals judgment vacated; case remanded to the trial court for further proceedings. 1. Hospitals — Staffing Decisions — Judicial Nonintervention Doctrine. The doctrine of judicial nonintervention, which suggests that the staffing decisions of a private hospital are generally beyond the scope of judicial review, is inconsistent with the statutory peer review process established by MCL 331.531 and is repudiated. 2. Hospitals — Peer Review Immunity — Exceptions — Malice. Malice, for purposes of the statutory hospital peer review process, exists when a person supplying information or data to a peer review entity does so with knowledge of its falsity or with reckless disregard of its truth or falsity; a peer review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of the information or data that it communicates or upon which it acts (MCL 331.531[4]). 3. Hospitals — Peer Review Immunity — Peer Review Entities. A hospital is not a protected review entity under the peer review immunity statute; the immunity granted by the peer review immunity statute extends only to the communications made, and the participants who make them, in the peer review process, as well as to the communicative acts taken by a statutorily protected peer review entity acting within its scope, not to the hospital that makes the ultimate decision on staffing credential questions. Jeffrey L. Herron for the plaintiff. Kitch Drutchas Wagner Valitutti & Sherbrook (by Susan Healy Zitterman and Karen B. Berkery) for the defendants. Amici Curiae: Clark Hill PLC (by Robert L. Weyhing and Paul C. Smith) for Michigan Osteopathic Association. Kerr, Russell and Weber, PLC (by Joanne Geha Swanson and Daniel J. Schulte), for Michigan State Medical Society. Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Ron D. Robinson, Assistant Attorney General, for the Michigan Civil Rights Commission and the Michigan Department of Civil Rights. Hall, Render, Killian, Heath & Lyman, PLLC (by Michael J. Philbrick), for Michigan Health & Hospital Association. YOUNG, J. Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. This lawsuit arises from an internecine dispute over nursing orders for patient intake at the defendant hospital. Plaintiffs insistence on requiring the nursing staff to use his special standing orders instead of defendant hospital’s standing orders eventually led to a conflict with defendant hospital and a peer review of plaintiffs professional practices as well as disciplinary action. Plaintiffs challenge of the peer review conducted by some of the defendants and the resulting disciplinary action taken against him requires that we consider the scope of immunity provided for peer review. In order to promote effective patient care in hospitals, the Legislature enacted MCL 331.531, commonly referred to as Michigan’s peer review immunity statute. The purpose of statutory peer review immunity is to foster the free exchange of information in investigations of hospital practices and practitioners, and thereby reduce patient mortality and improve patient care within hospitals. The Legislature obviously intended to protect peer review participants from liability for participation in this communicative and evaluative process. In order to create an environment in which such candid explorations of the quality of hospital patient care can occur, among other protections, the Legislature prohibited the discovery of communications made within the peer review process and granted immunity from liability to all who participate in peer review without “malice.” The primary question posed in this appeal is the scope of judicial review of peer review permitted under MCL 331.531. A secondary question is whether the judicially created “doctrine of nonintervention” — a doctrine suggesting that staffing decisions of private hospitals are generally beyond the scope of judicial review — is compatible with the peer review immunity statute. Finally, we must also construe the undefined peer review statutory term “malice.” Because the peer review immunity statute establishes qualified immunity from liability for peer review communication and participants who provide such communications, we conclude that there is no justification for recognizing the nonintervention doctrine that the lower courts in this state have applied in considering claims arising from peer review. We therefore hold that this doctrine cannot supplement or supplant the statutory immunity granted by our Legislature. Furthermore, there is no basis, statutory or otherwise, to justify the application of a nonintervention doctrine to general staffing decisions of a private hospital. We also hold that, consistent with the objects of the peer review immunity statute, malice should be defined as set forth by the Court of Appeals in Veldhuis v Allan. Thus, we hold that malice can be established when a “person supplying information or data [to a peer review entity] does so with knowledge of its falsity or with reckless disregard of its truth or falsity. Similarly, a review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data which it communicates or upon which it acts.” Accordingly, we vacate the judgment of the Court of Appeals and remand this case to the Monroe Circuit Court for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. Plaintiff was dissatisfied with defendant hospital’s standard nursing policy requiring nurses to document patients’ prescribed medications and dosages by either copying the label on their prescription containers or copying a list of medications carried by patients. As a consequence, plaintiff created his own specialized orders directing the nursing staff to obtain very specific information from plaintiffs incoming patients about their prescription drug use. Plaintiffs orders directed the nursing staff, as part of the admissions process for his patients, to assume a far more aggressive investigative role regarding patient medication. Defendants disapproved plaintiffs standing orders, and instructed the nursing staff to ignore them. In several cases where the nurses disregarded plaintiffs special orders and followed defendant hospital’s nursing directives, plaintiff prepared “incident reports” referring such cases to peer review committees for investigation of “potential medical errors.” Further, plaintiff began making notations in patient records that his disregarded orders were intended to “[p]revent serious medication errors in the past.” Defendants initiated peer review proceedings against plaintiff based on plaintiffs failure to complete medical records and his insistence that the nursing staff follow his standing orders rather than comply with hospital policy. An ad hoc investigatory committee reviewed plaintiffs conduct and released its findings to the executive committee of defendant medical staff. Relying on the ad hoc committee’s report, the executive committee referred plaintiff to the Health Professionals Recovery Program (HPRP) for a psychiatric examination. Plaintiff was placed on temporary probation. Plaintiff alleges that he ceased writing his standard orders because, in compromise, defendant hospital gave plaintiff use of the pharmacy consult service to implement plaintiffs special orders. It appears that plaintiffs orders regarding patient medication overburdened the staff of the pharmacy consult service, so the hospital eventually discontinued this arrangement. Thereafter, plaintiff resumed placing his specialized orders in patients’ medical charts. As a consequence, defendants took further action and placed plaintiff on indefinite probation. Plaintiff continues to practice medicine and retains privileges at defendant hospital, but is restricted from using defendant hospital’s pharmacy consult service or insisting on compliance with his special orders. Plaintiff filed a complaint alleging violations of the Persons with Disabilities Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973,* and 42 USC 1983 and 1985; invasion of privacy; breach of fiduciary and public duties; and breach of contract. The trial court granted summary disposition to defendants, concluding that all of defendants’ actions arose out of the peer review process and therefore defendants were immune from liability under MCL 331.531. The court, as an alternative basis for granting summary disposition, relied on the doctrine of judicial nonintervention, which provides that courts will not review private hospitals’ staffing decisions. The Court of Appeals, in a split decision, partially reversed the trial court’s award of summary disposition in favor of defendants, concluding that peer review immunity did not apply to statutory civil rights claims. The majority concluded that an alleged civil rights violation was not within the scope of peer review and that an alleged civil rights violation was “a malicious act.” Furthermore, the majority held that the nonintervention doctrine did not prevent plaintiff from pursuing his civil rights claims, nor did the doctrine generally preclude plaintiffs contract and tort claims. The majority held that the doctrine stands for the limited proposition that a private hospital’s staffing decisions are not subject to constitutional due process challenges. The majority concluded that the nonintervention doctrine did not create any greater insulation from judicial scrutiny than that enjoyed by any other private entity. In other words, the majority held that a private hospital’s staffing decisions are subject to the same level of judicial review as would apply to the actions of any other private entity. The Court of Appeals dissent agreed that an unlawful act of discrimination constituted malice, but disagreed that an unlawful discriminatory act was per se outside the scope of a peer review committee. The dissent would have affirmed the trial court’s dismissal of plaintiffs tort and contract counts. The dissent also concluded that the majority improperly limited the scope of the nonintervention doctrine. The dissent opined that the nonintervention doctrine precluded judicial review of contract and contract-related tort claims arising from hospital staffing decisions with regard to all defendants. This Court granted defendants’ application for leave to appeal. STANDARD OF REVIEW The trial court granted defendants summary disposition under MCR 2.116(C)(8). A trial court’s grant of summary disposition is reviewed de novo. A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the allegations of the pleadings alone. When a challenge to a complaint is made, the motion tests whether the complaint states a claim as a matter of law, and the motion should be granted if no factual development could possibly justify recovery. Questions of statutory interpretation, such as the proper construction of the peer review immunity statute, are reviewed de novo. Our role is to give effect to the intent of the Legislature, as expressed by the language of the statute. We apply clear and unambiguous statutes as written, under the assumption that the Legislature intended the meaning of the words it has used in the statute. In defining statutory words, we must consider the “plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” While words are construed according to their plain and ordinary meaning, words that have acquired a peculiar and appropriate meaning in the law are construed according to that peculiar and appropriate meaning. ANALYSIS In Michigan, the Legislature has commanded hospitals to establish peer review committees to review “professional practices” in order to “redue[e] morbidity and mortality and improv[e] the care provided in the hospital for patients.” That review must “include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.” In turn, hospitals use peer review evaluations when making staffing decisions. A. THE JUDICIAL NONINTERVENTION DOCTRINE AND THE SCOPE OF JUDICIAL REVIEW OF PEER REVIEW The judicial nonintervention doctrine is a judicially created common-law doctrine providing that courts will not intervene in a private hospital’s staffing decisions. The concerns that gave rise to this doctrine are twofold. The doctrine is premised, in part, on the distinction between public and private hospitals. While public hospitals are state actors impheating adherence to constitutional requirements, such as affording due process to physicians, private hospitals are not similarly constrained because they are not state actors. Therefore, it was posited that a private hospital’s staffing decisions merit less judicial scrutiny. The doctrine is also founded on the belief that courts are ill-equipped to review hospital staffing decisions because courts lack the specialized knowledge and skills required to adjudicate hospital staffing disputes. The judicial nonintervention doctrine, therefore, is a prudential doctrine not grounded in statutoiy or constitutional provisions that courts have invoked to resist adjudicating claims involving hospital staffing decisions and the decision-making process. In Shulman v Washington Hosp Ctr, a seminal case describing the doctrine, the United States District Court for the District of Columbia explained its foundational premises as follows: Judicial tribunals are not equipped to review the action of hospital authorities in selecting or refusing to appoint members of medical staffs, declining to renew appointments previously made, or excluding physicians or surgeons from hospital facilities. The authorities of a hospital necessarily and naturally endeavor to their utmost to serve in the best possible manner the sick and the afflicted who knock at their door. Not all professional men, be they physicians, lawyers, or members of other professions, are of identical ability, competence, or experience, or of equal reliability, character, and standards of ethics. The mere fact that a person is admitted or licensed to practice his profession does not justify any inference beyond the conclusion that he has met the minimum requirements and possesses the minimum qualifications for that purpose. Necessarily hospitals endeavor to secure the most competent and experienced staff for their patients. Without regard to the absence of any legal liability, the hospital in admitting a physician or surgeon to its facilities extends a moral imprimatur to him in the eyes of the public. Moreover not all professional men have a personality that enables them to work in harmony with others, and to inspire confidence in their fellows and in patients. These factors are of importance and here, too, there is room for selection. In matters such as these the courts are not in a position to substitute their judgment for that of professional groups. Relying on Shulman, the Michigan Court of Appeals adopted the doctrine of judicial nonintervention in Hoffman v Garden City Hosp. The plaintiff in Hoffman sued a private hospital for denying him staff privileges, claiming, in part, that the hospital’s decision to deny privileges was “arbitrary, capricious and unreasonable... ,” The defendant prevailed in the trial court on its motion for summary disposition. On appeal, the plaintiff urged the Court of Appeals to adopt the position that a private hospital holds a fiduciary duty to make its staffing decisions reasonably and for the pu