Discrimination Cases

Robert L. Scott vs. Boston Housing Authority & another. No. 04-P-1442. Suffolk. May 11, 2005. - October 5, 2005. Present: Gelinas, Cypher, & Trainor, JJ. Practice, Civil, Appeal, Proceeding after rescript, Interest. Attorney’s fees. Anti-Discrimination Law, Damages, Attorney’s fees. Damages, Under anti-discrimination law, Interest, Attorney’s fees. Interest. Where the defendants in a civil action failed to file a cross appeal from the judge’s order on the plaintiff’s motion regarding the calculation of interest on the plaintiff’s damage award, they were not entitled to seek judgment more favorable than they had received in the trial court based on their contention that the judge’s order violated Mass.R.A.P. 28, as amended, 378 Mass. -925 (1979), a contention that was, at any rate, without merit. [695] In the circumstances of an action alleging age discrimination in employment based upon the defendant employer’s failure to renew the plaintiff’s employment contract, the judge correctly calculated prejudgment interest on the plaintiff’s damage award from the date the action was commenced in Superior Court, correctly ordered that prejudgment interest be added to the principal damage award for purposes of calculating postjudgment interest, and did not abuse his discretion in declining to compound the interest on the plaintiff’s damage award. [695-697] Civil action commenced in the Superior Court Department on September 26, 1988. Following review by this court, 56 Mass. App. Ct. 287 (2002), a motion for entry of judgment after rescript was considered by Peter M. Lauriat, J. Frederick T Golder for the plaintiff. Wilbur E. Commodore for the defendants. Robert A. Firth. Celinas, J. After we affirmed a judgment in favor of the plaintiff, Robert L. Scott, Scott v. Boston Hous. Authy., 56 Mass. App. Ct. 287 (2002), the defendants sought further appellate review, which was denied. See 438 Mass. 1108 (2003). Scott then moved in the Superior Court for (1) an award of prejudgment interest, to be calculated from the date on which the Boston Housing Authority (BHA) failed to renew his employment contract or, alternatively, from the date on which Scott filed his complaint with the Massachusetts Commission Against Discrimination (MCAD); (2) the compounding of any interest award; (3) the calculation of postjudgment interest on his judgment, to include the prejudgment interest; and (4) reasonable attorney’s fees following the appeal. The defendants opposed Scott’s motian, asserting that Scott had waived any interest-related claim by failing to raise the issue in his response to their initial appeal or, in the alternative, that any deviation from the Appeals Court’s re-script would violate Mass.R.A.P. 28, as amended, 378 Mass. 925 The judge allowed Scott’s motion in part, ordering that prejudgment interest, at the statutory rate of twelve percent, be included in the judgment from the date Scott’s complaint was filed in Superior Court. The judge added the prejudgment interest to the damage award and ruled that postjudgment interest, again at the statutory rate, should be added from the entry of final judgment until the judgment was satisfied. He also awarded attorney’s fees in the amount of $5,100, and costs of $68.65 for the expenses Scott incurred in opposing the defendants’ applicatian for further appellate review and for bringing the motion for interest. The judge denied Scott’s motion insofar as it sought (1) compounding of the interest and (2) an award from the date the BHA failed to renew Scott’s contract or-the date Scott filed his complaint with the MCAD. A “Final Judgment After Re-script” then issued, from which Scott now appeals in part. We affirm the decision of the Superior Court in all respects. Background. Scott was a contract employee of the BHA whose contract expired in August of 1987. The BHA failed to renew Scott’s employment contract. Scott alleged the failure to renew to be on account of his age, in violation of G. L. c. 151B. He filed a complaint with the MCAD in February of 1988, and on September 26, 1988, he filed the present action in the Superior Court. After three trials over ten years, a jury awarded Scott $173,000 in lost wages and benefits and $45,000 in emotional distress damages against the BHA, as well as $74,000 in lost wages and benefits and $19,500 in emotional distress damages against Robert A. Firth, Scott’s supervisor at the BHA. The jury doubled these awards. After the jury’s verdict, Scott sought an award of his attorney’s fees and costs, and the court awarded him $121,875 in attorney’s fees and $3,560.74 in costs. Final judgment entered in the Superior Court on July 3, 1998, and the defendants appealed. We affirmed the final judgment in all respects, and awarded Scott an additional $14,683 in attorney’s fees and $200 in costs. Scott’s subsequent motion as to interest, fees, and costs, which forms the basis for the present appeal, then ensued. Discussion. On appeal, the defendants urge that we vacate the final judgment after rescript, asserting, as they did below, that Scott’s failure to object in Superior Court, or to appeal the form of final judgment — which did not provide for any interest on the damages award — precludes him from seeking interest subsequent to the defendants’ original appeal from the judgment on the jury verdict. The defendants further contend that the allowance of Scott’s motion awarding interest modifies the original Appeals Court rescript, in violation of Mass.R.A.P. 28, which directs the clerk to prepare, sign, and enter judgment in accordance with the rescript. As the defendants failed to file a cross appeal, we will not consider their arguments in this regard. Although a party who fails to appeal is entitled to defend a judgment on any ground asserted below, such a party is not entitled as of right to more favorable treatment than was given in the judgment of the court below. Boston Edison Co. v. Boston Redev. Authy., 374 Mass. 37, 43 & n.5 (1977). We have on occasion ordered judgment more favorable than was received below to a nonappealing party, see O’Connor v. City Manager of Medford, 7 Mass. App. Ct. 615, 616-618 (1979), but nothing in the facts presented here compels such action. In any event, any review of the defendants’ arguments in this regard would lead to the conclusion that they are without merit. In his appeal, Scott contends that the BHA’s failure to renew his employment contract based on his age, in violation of G. L. c. 151B, requires that prejudgment interest be calculated from August 28, 1987, the date of the BHA’s failure to renew or, alternatively, from February 5, 1988, the date he filed his complaint with the MCAD. This argument lacks merit. General Laws c. 231, § 6B, as amended through St. 1982, c. 183, § 2, provides that “[i]n any action in which a verdict is rendered ... for pecuniary damages for personal injuries to the plaintiff . . . there shall be added by the clerk of the court to the amount of damages interest thereon . . . from the date of commencement of the action . . . .” General Laws c. 231, § 6C, as amended through St. 1993, c. 110, § 224, provides that “[i]n all actions based on contractual obligations . . . interest shall be added by the clerk of the court to the amount of damages . . . from the date of the breach or demand” if such date is established. With respect to awards for employment discrimination, prejudgment interest on a damage award is calculated from the date when the action is commenced in the Superior Court, not the filing of a complaint with the MCAD, see Smith v. Bell Atl., 63 Mass. App. Ct. 702, 725-726 (2005), unless the MCAD itself determines, in its discretion, to add prejudgment interest to any damage award that it might make. See Conway v. Electro Switch Corp., 402 Mass. 385, 390-391 (1988) (an award of prejudgment interest by MCAD is not made pursuant to G. L. c. 231, § 6B, but, rather, rests on the commission’s broad authority to fashion appropriate remedies). Here, the MCAD made no such award. Moreover, the wrongful conduct here was the BHA’s failure to renew Scott’s contract, which was not a breach of any contractual obligation. Scott’s original employment agreement was fully performed, and the BHA was under no contractual obligation to renew his employment. The judge correctly determined that prejudgment interest here is to be calculated from September 26, 1988, the date on which Scott commenced his action in Superior Court. Further, the judge correctly ordered prejudgment interest to be added to the principal damage award for purposes of calculating postjudgment interest. See Reporters’ Notes to Mass.R.Civ.P. 54(f), Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 858 (Lexis 2004); Boston Edison Co. v. Tritsch, 370 Mass. 260, 266 (1976). Scott also urges that we find error in the failure of the judge to compound the interest on his award of damages. Whether to compound interest is within the sound discretion of the judge. See, e.g., Sarrouf v. New England Patriots Football Club, Inc., 397 Mass. 542, 551 (1986) (construing G. L. c. 156B, §§ 92 and 95). While compounding interest may effectuate the “legislative purpose that each employee be free from discrimination in employment practices,” School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 377 Mass. 392, 399 (1979), so too does a jury’s ability, under G. L. c. 151B, § 9, to award multiple damages. As the judge observed, the statute’s legislative ends were adequately served by the jury’s doubling of Scott’s award. There was no abuse of discretion. Conclusion. The final judgment after rescript is affirmed. The parties shall bear their own legal fees and costs relating to this appeal. So ordered.

BARBARA A. JARMAN, Plaintiff v. JIM DEASON, d/b/a DEASON LANDSCAPE & IRRIGATION, Defendant No. COA04-1005 (Filed 20 September 2005) Employer and Employee— wrongful discharge — age discrimination — no public policy violation The trial court did not err by dismissing under N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiffs claim for wrongful discharge on the basis of age discrimination, because: (1) where, as here, the General Assembly has set forth the public policy of this State and limited the application of the policy to employers of fifteen or more people, it is not the province of the Court of Appeals to superimpose its own determination of what North Carolina’s public policy should be; and (2) defendant’s actions are not pro- ■ hibited by the public policy as established by our General Assembly when defendant does not employ fifteen or more full-time employees. N.C.G.S. § 143-422.2. Judge Geer concurring. Appeal by plaintiff from judgment entered 24 May 2004 by Judge Yvonne Mims Evans in Gaston County Superior Court. Heard in the Court of Appeals 10 March 2005. Jim Funderburk, for plaintiff-appellant. Van Hoy, Reutlinger, Adams & Dunn, by G. Bryan Adams, III, and Stephen J. Dunn, for defendant-appellee. CALABRIA, Judge. Barbara A. Jarman (“plaintiff”) appeals from a trial court judgment dismissing her claim for wrongful discharge on the basis of age discrimination against Jim Deason, d/b/a Deason Landscape & Irrigation (“defendant”). We affirm. Plaintiff’s 9 June 2003 complaint, as later amended, alleged the following facts. On or about 24 March 2003, defendant “advised [plaintiff] that even though she was doing a good job, she was ‘getting some age on her’ and [discharged] her.” At the time of her discharge, plaintiff was fifty-two years old and had been employed by defendant for approximately eight years and seven months as an employee-at-will working in the area of lawn maintenance, landscaping, and irrigation. Plaintiff worked with defendant longer than any other employee, was considered a good employee, received wage increases during her employment from $5.00 per hour to $9.50 per hour, was physically capable of continuing her employment, and intended to continue working with defendant past her retirement age of sixty-five. Defendant did not contest plaintiffs application for unemployment benefits, which stated she was discharged due to her age. As the basis for her claim plaintiff alleged, “[A]lthough Defendant does not employ 15 full-time employees, it is, on information and belief, against the public policy of the State of North Carolina to allow discrimination on the basis of age.” On 24 May 2004, the trial court granted defendant’s motion to dismiss plaintiffs complaint for failure to state a claim upon which relief may be granted under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003). Plaintiff appeals. “On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted.” Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). On appeal, plaintiff asserts the trial court erred by dismissing her complaint under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) on the grounds that the legislature, via N.C. Gen. Stat. § 143-422.2 (2003), has declared it against the public policy of this State to discriminate based on age. Defendant rejoins that dismissal was proper under N.C. Gen. Stat. § 143-422.2, which provides as follows: It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees. It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general[] For reasons that follow, we are of the opinion that defendant’s interpretation regarding the legislature’s expression of public policy in N.C. Gen. Stat. § 143-422.2 is correct and affirm. “The general rule in North Carolina is that absent ‘constitutional restraint, questions as to public policy are for legislative determination.’ ” In re Phillip Morris, 335 N.C. 227, 230, 436 S.E.2d 828, 830 (1993) (quoting State v. Whittle Communications, 328 N.C. 456, 470, 402 S.E.2d 556, 564 (1991). In the instant case, the legislature has clearly and distinctly set forth this State’s public policy with respect to employment discrimination. Our legislature has specifically prohibited employment discrimination on certain enumerated bases by employers of fifteen or more people and deemed such discrimination to be contrary to the interests of the public. Our Supreme Court has noted that, where the legislature is clearly aware of a practice challenged on public policy grounds and knows how to forbid it but chooses not to, the proper course of action is to recognize and honor the legislative determination. Id. Thus, where, as here, the General Assembly has set forth the public policy of this State and limited the application of the policy to employers of fifteen or more people, it is not the province of this Court to superimpose our own determination of what North Carolina’s public policy should be over that deemed appropriate by our General Assembly. This holding is not an endorsement of such practices; rather, it is a recognition of the respective functions of the judiciary and legislature. Defendant’s actions, regardless of how repugnant we may find those actions, are not prohibited by the public policy as established by our General Assembly, and relief must come from the appropriate governmental body. Plaintiff nevertheless asserts that “th[is] Court is not limited by the legislature. The Court is free to determine, on its own, whether an act on the part of an employer in an at-will employment situation violates the public policy of this state.” Plaintiff cites various cases concerning discrimination on bases other than those specifically enumerated in N.C. Gen. Stat. § 143-422.2. See, e.g., Simmons v. Chemol Corp., 137 N.C. App. 319, 528 S.E.2d 368 (2000) (concerning employment discrimination on the basis of physical impairment); Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276 (1992) (concerning termination of employment due to an employee’s exercise of his right to free speech); Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989) (concerning termination of employment due to employee’s refusal to violate state and federal transportation regulations). However, those cases cannot avail plaintiff precisely because they involve bases not encompassed by the language of the statute. There is a marked difference between recognizing additional bases not enumerated in the statute and changing the criteria of the bases that are specifically enumerated. In the first instance, the General Assembly has declared the contours and existence of this State’s public policy, and the Court is not faced with the task of overriding that which has been set forth. In the second instance, the Court is forced to countermand the determination of the General Assembly in favor of our own. We do not believe that to be the proper function of this Court. Affirmed. Judge TIMMONS-GOODSON concurs. Judge GEER concurs in a separate opinion. . We note both Title VII and the Age and Employment Discrimination Act contain the similar numerical thresholds of employees below which they do not apply. Title VII prohibits discrimination on the basis of “race, color, religion, sex, or national origin” by an employer “who has fifteen or more employees for each working day in each of twenty or more calendar weeks.” 42 U.S.C. § 2000e (2005). Under the Age and Employment Discrimination Act, an employer, “who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year[,]” 29 U.S.C. § 630 (2005), is prohibited from “fail[ing] or refusing] to hire or discharging] any individual or otherwise discriminating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a) (2005). GEER, Judge, concurring. Although I concur with the majority’s conclusion that the trial court properly granted defendant’s motion to dismiss, I analyze the issue somewhat differently. In Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (quoting Sides v. Duke Univ., 74 N.C. App. 331, 342, 328 S.E.2d 818, 826, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985)), our Supreme Court first recognized a public policy exception to the employment at will doctrine: “ ‘[Wjhile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, .there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.’ ” Although Coman establishes the availability of a tort action for wrongful discharge in violation of public policy, the Court did not define what constituted “public policy” for purposes of such a claim. Id. That issue was addressed by the Supreme Court in Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992), in which the Court held: Although the definition of “public policy” approved by this Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Since Amos, our courts, in identifying “public policy,” have looked not only to statutes, but also to the constitution and state regulations. See, e.g., Deerman v. Beverly Cal. Corp., 135 N.C. App. 1, 12, 518 S.E.2d 804, 810 (1999) (Board of Nursing regulations); Lenzer v. Flaherty, 106 N.C. App. 496, 515, 418 S.E.2d 276, 287 (the state constitution), disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Plaintiff, in arguing that her termination based on age discrimination violated public policy, points only to North Carolina’s Equal Employment Practices Act (“EEPA”): It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees. N.C. Gen. Stat. § 143-422.2 (2003). This Court has repeatedly recognized that the EEPA may form the basis for a wrongful discharge claim. See, e.g., Simmons v. Chemol Corp., 137 N.C. App. 319, 322, 528 S.E.2d 368, 370 (2000) (wrongful discharge claim for handicap discrimination based upon N.C. Gen. Stat. § 143-422.2); McCullough v. Branch Banking & Trust Co., 136 N.C. App. 340, 346, 524 S.E.2d 569, 574 (2000) (holding that the plaintiff had asserted a claim by alleging that his termination was “in violation of this State’s public policy prohibiting discrimination on account of a person’s handicap or disability,” citing N.C. Gen. Stat. § 143-422.2); Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 504 S.E.2d 580 (1998) (remanding race discrimination and retaliation claims based on N.C. Gen. Stat. § 143-422.2 for trial), disc. review denied, 350 N.C. 91, 527 S.E.2d 662 (1999). As the majority opinion explains, since the complaint does not allege that defendant employed 15 or more employees, the question before this Court is whether the numerical limitation in N.C. Gen. Stat. § 143-422.2 also limits the scope of North Carolina’s public policy against age discrimination. Several other states have addressed this same question, reaching varying results. In Jennings v. Marralle, 8 Cal. 4th 121, 124-25, 32 Cal. Rptr. 2d 275, 277, 876 P.2d 1074, 1076 (1994), the California Supreme Court held that an employee, alleging age discrimination, could not maintain a claim for wrongful discharge in violation of public policy when the state fair employment act applied only to employers who employed five or more persons, a criteria that the defendant did not meet. The Court stated: This exemption of small employers from the [Act’s] ban on age discrimination was enacted simultaneously to, and is inseparable from, the legislative statement of policy. For that reason, and because no other statute or constitutional provision bars age discrimination, we conclude that there presently exists no “fundamental policy” which precludes age discrimination by a small employer. Id. at 125, 32 Cal. Rptr. 2d at 277, 876 P.2d at 1076 (construing Cal. Code §§ 12920, 12926(d) (West 2005)). The Supreme Courts in Connecticut, Nevada, Oklahoma, and Utah have all reached the same conclusion with respect to discrimination claims. See Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 709, 802 A.2d 731, 742 (2002) (“[T]he act also embodies a second public policy, namely that employers with fewer than three employees shall not be required to defend against employment discrimination claims. Contrary to the urging of the plaintiff, we cannot give voice to the act’s prohibitions and simultaneously ignore its exemption for small employers, for the latter operates as a limitation on the former.” (construing Conn. Gen. Stat. §§ 460-51(10), -60 (2004))); Chavez v. Sievers, 118 Nev. 288, 294, 43 P.3d 1022, 1026 (2002) (“Since the legislature determined that small businesses should not be subject to racial discrimination suits, we decline to create an exception to the at-will doctrine for alleged racial discrimination at these businesses.” (construing Nev. Rev. Stat. §§ 613.310(2), .330 (2003))); Brown v. Ford, 905 P.2d 223, 229 (Okla. 1995) (“[Plaintiff’s] common-law claim would not be actionable as a discharge in breach of public policy because her employer, who engaged fewer than fifteen employees, is outside the Act’s purview.” (construing Okla. Stat. tit. 25, §§.1301(1), 1302 (1987))); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 2000 UT 18, — 13-14, 994 P.2d 1261, 1266 (2000) (holding that the plaintiff could not assert an age discrimination claim against a small employer when the fair employment statute applied only to employers of 15 or more employees and the plaintiff pointed to no other applicable constitutional or statutory declaration of public policy (construing Utah Code Ann. §§ 34A-5-102(8), -106 (2001))). In contrast, the highest courts in Ohio and West Virginia have both allowed wrongful discharge in violation of public policy claims based on discrimination by employers not employing the statutorily-required number of employees. See Collins v. Rizkana, 73 Ohio St. 3d 65, 652 N.E.2d 653 (1995); Williamson v. Greene, 200 W. Va. 421, 490 S.E.2d 23 (1997). In Collins, the statute at issue prohibited “any employer” from discriminating based on race, color, religion, sex, national origin, handicap, age, or ancestry. Collins, 73 Ohio St. 3d at 74, 652 N.E.2d at 660-61 (construing Ohio Rev. Code Ann. § 4112.02 (LexisNexis 2001)). It also provided a statutory remedy with respect to employers of four or more persons. Id. (construing Ohio Rev. Code Ann. § 4112.01(A)(2) (LexisNexis 2001)). In holding that the small employer limitation did not preclude the wrongful discharge claim, the Court explained: Since [the statute] does not preempt common-law claims, we cannot interpret [the requirement of four employees] as an intent by the General Assembly to grant small businesses in Ohio a license to sexually harass/discriminate against their employees with impunity. Instead, we can only read [that requirement] as evidencing an intention to exempt small businesses from the burdens of [the statute], not from its antidiscrimination policy. . . . We do not mean to suggest that where a statute’s coverage provisions form an essential part of its public policy, we may extract a policy from the statute and use it to nullify the statute’s own coverage provisions. However, in the absence of legislative intent to preempt common-law remedies, we can perceive no basis upon which to find that [the four-employee requirement] forms part of the public policy reflected in [the anti-discrimination provision]. Therefore, we cannot find it to be Ohio’s public policy that an employer with three employees may condition their employment upon the performance of sexual favors while an employer with four employees may not. Id. (internal citations omitted). Likewise, the West Virginia Human Rights Act expresses a public policy of providing “ ‘all of its citizens equal opportunity for employment’ ” and prohibited discrimination by “ ‘any employer.’ ” Williamson, 200 W. Va. at 429, 490 S.E.2d at 31 (emphasis omitted) (quoting W. Va. Code §§ 5-11-2, 5-11-9(1) (2002)). The Williamson court first determined that the remedial portions of the West Virginia Human Rights Act applied only to employers of 12 or more employees because it defined “employer” as including only employers of 12 or more employees. Id. at 428, 490 S.E.2d at 30 (construing W. Va. Code § 5-11-3(d) (2002)). Nevertheless, the court held that “[although the Act does not provide this plaintiff with a statutory remedy, it nevertheless sets forth a clear statement of public policy sufficient to support a common law claim for retaliatory discharge against an employer . . . exempted by [the statutory definition of employer].” Id. at 431, 490 S.E.2d at 33. See also Molesworth v. Brandon, 341 Md. 621, 632, 672 A.2d 608, 613 (1996) (“The public policy in § 14, however, by its own language, proscribes discrimination in employment by ‘any employer.’ ... If the term ‘employer’ in § 14 were meant to refer only to employers as defined in § 15(b), the term ‘any’ would be unnecessary.” (quoting Md. Ann. Code art. 49B, § 14 (2003)); Roberts v. Dudley, 140 Wash. 2d 58, 70, 993 P.2d 901, 908 (2000) (en banc) (“[T]he statutory remedy is not in itself an expression of the public policy, and the definition of ‘employer’ for the purpose of applying the statutory remedy does not alter or otherwise undo to any degree this state’s public policy against employment discrimination.” (construing Wash. Rev. Code § 49.60.040(3) (West 2002)). Unlike the statutes in Ohio, West Virginia, Washington, and Maryland, however, the North Carolina EEPA does not contain an expression of policy regarding discrimination separate from the small employer exemption. The 15-employee requirement is incorporated within the anti-discrimination policy. Further, the EEPA contains no statutory remedy to which the 15-employee requirement could apply apart from the anti-discrimination policy. The EEPA simply declares the public policy of the State and authorizes the North Carolina Human Relations Commission to receive, investigate, and conciliate charges of discrimination forbidden by-federal law forwarded by the Equal Employment Opportunity Commission. N.C. Gen. Stat. §§ 143-422.2, -422.3 (2003). I cannot, therefore, discern an intent by the General Assembly to express in the EEPA a public policy regarding discrimination divorced from the 15-employee requirement. Nevertheless, as the California Supreme Court recognized in Jennings and the Utah Supreme Court recognized in Burton, an exemption for small employers in one statute addressing discrimination would not preclude a wrongful discharge claim if another statute or constitutional provision expressed a policy against discrimina

CLARK v DAIMLERCHRYSLER CORPORATION Docket No. 252765. Submitted July 7, 2005, at Detroit. Decided September 13, 2005, at 9:00 a.m. Leave to appeal sought. Robert W Clark brought an action in the Macomb Circuit Court against DaimlerChrysler Corporation, alleging that the defendant discharged him from employment on the basis of his age in violation of the Civil Rights Act, MCL 37.2101 et seq. The court, Edward A. Servitto, Jr., J., granted the defendant summary disposition after determining that the plaintiffs claim was time-barred by a provision in the plaintiffs employment application requiring that any action relating to the plaintiffs employment be brought within six months. The plaintiff appealed. The Court of Appeals held-. 1. The trial court did not err by applying the shortened six-month period of limitations found in the plaintiffs employment contract. Under Rory v Continental Ins Co, 473 Mich 457 (2005), a contractually modified period of limitations is not analyzed for reasonableness, but is to be enforced as written unless it is contrary to law or public policy, or is otherwise unenforceable under a recognized contract defense. No statute explicitly prohibits the contractual modification of limitations periods in the employment context. Nor does the modification violate public policy. 2. Rory precludes considering whether a contract is one of adhesion when determining whether a modified limitations period is unconscionable. The limitations provision is not unconscionable because neither procedural nor substantive unconscionability is present. Procedural unconscionability exists when the weaker party had no realistic alternative to accepting the contract term. Despite unequal bargaining power, however, the plaintiff has not shown that he had no realistic alternative to employment with the defendant. Substantive unconscionability exists when the challenged provision is not substantively reasonable, such that the inequity of the contract term is so extreme as to shock the conscience. The six-month period of limitations, however, is neither inherently unreasonably nor so extreme that it shocks the conscience. 3. While the plaintiff contended that he did not knowingly waive the three-year period of limitations applicable to civil rights claims, one who signs an agreement is presumed, in the absence of coercion, mistake, or fraud, to know the nature of the document and to understand its contents, even'if he or she has not read the agreement. Affirmed. Neff, J., dissenting, would hold that the provision for the shortened period of limitations is unconscionable and violates public policy and is, therefore, unenforceable under the circumstances of this case. With regard to procedural unconscionability, the plaintiff and the defendant were not dealing at arm’s length when negotiating the contract. The provision was in the defendant’s preprinted application form, which the plaintiff filled out five months before he was hired. The plaintiff clearly had no realistic alternative to the contractually shortened limitations period, which was not a bargained-for term. An applicant would be aware that objecting to the provision at the time of application might thwart a job offer, and it is unlikely that an applicant would recall the provision or recognize its significance when hired much later. Unlike subsequent employment applications used by the defendant, this application did not indicate that the applicant agreed to forgo important legal rights. Thus, there was an absence of meaningful choice, and the provision took advantage of or surprised the plaintiff. The provision was also substantively unreasonable given the three-year period of limitations applicable by statute. The shortened limitations period places the plaintiff at a severe disadvantage and permits the defendant to wholly avoid employee claims. Finally, the manner in which the defendant imposed the shortened limitations period offends public policy. In cases such as a civil rights action, six months may be insufficient to pursue a claim related to a job loss at a time when the employee’s primary concern is maintaining a livelihood. The shortened period is extreme and unnecessary to protect employers from stale claims. 1. Contracts — Employment Contracts — Contractual Periods of Limitations. An unambiguous provision in an employment contract providing for a period of limitations shorter than that provided by statute for a lawsuit relating to employment must be enforced as written unless it is contrary to law or public policy or is otherwise unenforceable under a recognized traditional contract defense, such as duress, waiver, estoppel, fraud, or unconscionability. 2. Contracts — Defenses — Unconscionability. Both procedural and substantive unconscionabihty must be present for a contract or contract provision to be considered unconscionable and thus unenforceable; procedural unconscionability exists when the weaker party had no realistic alternative to accepting a provision; substantive unconscionabihty exists when a challenged provision is not substantively reasonable, such that the inequity of the provision is so extreme as to shock the conscience. 3. Contracts — Defenses — Knowledge of Terms. One who signs an agreement is presumed, in the absence of coercion, mistake, or fraud, to know the nature of the document and to understand its contents, even if he or she has not read the agreement. Pitt, Dowty, McGehee, Mirer & Palmer, PC. (by Michael L. Pitt and Beth M. Rivers), for the plaintiff. Cattel, Tuyn & Rudzewicz, PLLC (by Thomas A. Cattel, Michelle J. LeBeau, and Debra A. Colby), for the defendant. Before: Neff, EJ., and SMOLENSK and TALBOT, JJ. SMOLENSK, J. In this wrongful termination case, plaintiff appeals as of right the trial court’s order granting summary disposition for defendant. We affirm. Plaintiff asserts that he was approached sometime in 2001 and asked to accept early retirement as part of a salaried work force reduction. When plaintiff declined to retire, he claims he was told that his position would likely be eliminated and that retirement was in his best interest. Plaintiff accepted early retirement and completed his last day of work on August 31, 2001. Plaintiff filed this action on September 8, 2003, alleging that defendant had discharged him on the basis of age in violation of the Civil Rights Act, MCL 37.2101 et seq. Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that plaintiffs claim was time-barred by a provision in plaintiffs employment application. The relevant portion stated: I agree that any claim or lawsuit relating to my service with [defendant] or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary. The trial court applied the shortened six-month period of limitations to plaintiffs claim and granted defendant’s motion. We review de novo a trial court’s decision on a motion for summary disposition under MCR 2.116(C)(7). DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46; 631 NW2d 59 (2001). The proper interpretation of a contract is a matter of law that this Court reviews de novo. DaimlerChrysler Corp v G-Tech Professional Staffing, Inc, 260 Mich App 183, 184-185; 678 NW2d 647 (2003). Plaintiff contends that the trial court erred by applying the shortened six-month limitations provision of plaintiffs employment contract. We disagree. Until recently, the general rule was to uphold contract terms limiting the time to bring suit, provided the limitation was reasonable. See Herweyer v Clark Hwy Services, Inc, 455 Mich 14, 20; 564 NW2d 857 (1997), citing Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 127; 301 NW2d 275 (1981). However, in Rory v Continental Ins Co, 473 Mich 457, 470; 703 NW2d 23 (2005), our Supreme Court overruled the reasonableness rule followed by Camelot and its progeny. The Court held that an unambiguous contractual provision providing for a shortened period of limitations is to be enforced as written unless the provision would violate law or public policy. A mere judicial assessment of “reasonableness” is an invalid basis upon which to refuse to enforce contractual provisions. Only recognized traditional contract defenses may be used to avoid the enforcement of the contract provision. [Id. 3 The contractually modified period of limitations in question is not ambiguous; therefore, under Rory, we are compelled to enforce it as written unless it is contrary to law or public policy, or is otherwise unenforceable under recognized traditional contract defenses. Because there are no statutes explicitly prohibiting the contractual modification of limitations periods in the employment context, the contract provision is not contrary to law. Id. at 472. Furthermore, the Court in Rory clarified that public policy must be clearly rooted in the law. Id. at 471. Hence, this Court “must look to ‘policies that, in fact, have been adopted by the public through our various legal processes, and are reflected in our state and federal constitutions, our statutes, and the common law.’ ” Id., quoting Terrien v Zwit, 467 Mich 56, 66-67; 648 NW2d 602 (2002). Michigan has no general policy or statutory enactment prohibiting the contractual modification of the periods of limitations provided by statute. Rory, supra at 471. Likewise, even before Rory, provisions within an employment contract providing for a shortened period of limitations were held to be reasonable and, therefore, valid and enforceable. See Timko v Oakwood Custom Coating, Inc, 244 Mich App 234, 240-244; 625 NW2d 101 (2001). Consequently, we are unable to conclude that the limitations period provided in the contract violates public policy. Plaintiff further contends that this Court should not enforce the contract’s period of limitations because it constitutes an unconscionable contract of adhesion. We disagree. We shall first address plaintiffs contention that the employment contract in question was one of adhesion requiring close scrutiny. In Herweyer, supra at 21, our Supreme Court noted that employers and employees often do not deal at arm’s length when negotiating employment contracts; instead, the employee is often placed in the position of having to accept the terms of the employment contract or forgo the job. The Herweyer Court concluded, “Where one party has less bargaining power than another, the contract agreed upon might be, but is not necessarily, one of adhesion, and at least deserves close judicial scrutiny.” Id. However, in Rory, supra at 489, the Court overruled the Herweyer rule that contracts of adhesion were subject to heightened review. The Court stated that it is of no legal relevance that a contract is or is not described as “adhesive.” In either case, the contract is to be enforced according to its plain language. Regardless of whether a contract is adhesive, a court may not revise or void the unambiguous language of the agreement to achieve a result that it views as fairer or more reasonable. [Ml Therefore, we may not consider whether the contract was one of adhesion when determining whether the modified period of limitations was unconscionable. In order for a contract or contract provision to be considered unconscionable, both procedural and substantive unconscionability must be present. Northwest Acceptance Corp v Almont Gravel, Inc, 162 Mich App 294, 302; 412 NW2d 719 (1987). Procedural unconscionability exists where the weaker party had no realistic alternative to acceptance of the term. Allen v Michigan Bell Tel Co, 18 Mich App 632, 637; 171 NW2d 689 (1969). If, under a fair appraisal of the circumstances, the weaker party was free to accept or reject the term, there was no procedural unconscionability. Id. Substantive unconscionability exists where the challenged term is not substantively reasonable. Id. at 637-638. However, a contract or contract provision is not invariably substantively unconscionable simply because it is foolish for one party and very advantageous to the other. Gillam v Michigan Mortgage-Investment Corp, 224 Mich 405, 409; 194 NW 981 (1923). Instead, a term is substantively unreasonable where the inequity of the term is so extreme as to shock the conscience. Id. In the present case, plaintiff did not present any evidence that he had no realistic alternative to employment with defendant. Therefore, while plaintiffs bargaining power may have been unequal to that of defendant, we cannot say that plaintiff lacked any meaningful choice but to accept employment under the terms dictated by defendant. Allen, supra at 637-638. Furthermore, the six-month period of limitations is neither inherently unreasonable, Timko, supra at 243, nor so extreme that it shocks the conscience, Gillam, supra at 409. Consequently, plaintiff failed to establish that the contractually modified period of limitations was either substantively or procedurally unconscionable. Finally, plaintiff contends that he did not knowingly waive the statutory three-year limitations period applicable to civil rights claims. This argument is unavailing. The law is clear that one who signs an agreement, in the absence of coercion, mistake, or fraud, is presumed to know the nature of the document and to understand its contents, even if he or she has not read the agreement. See Watts v Polaczyk, 242 Mich App 600, 604; 619 NW2d 714 (2000). Because plaintiff has not demonstrated that the disputed contract provision is contrary to law or public policy, and has failed to demonstrate that the contractually provided period of limitations was unconscionable, we are compelled to enforce that term as written. Therefore, the trial court did not err when it applied the contractually modified period of limitations to plaintiffs claim. Affirmed. TALBOT, J., concurred. These include duress, waiver, estoppel, fraud, or unconscionability. Rory, supra at 470 n 23. While we have much sympathy for the dissent’s argument that there ought to be limitations on an employer’s ability to contractually modify periods of limitations, especially in the civil rights context, we believe such limitations ought to he imposed by the Legislature, not the judiciary. NEFF, P.J. (dissenting). I respectfully dissent. I would hold that the contract provision is unconscionable and violates public policy and is, therefore, unenforceable under the circumstances of this case. RORYv CONTINENTAL INS CO In Rory, decided after oral argument in this case, our Supreme Court revised Michigan law concerning contracts that shorten the legislated periods of limitations. Before Rory, contracts such as that at issue in this case were subject to heightened judicial scrutiny to determine the reasonableness of the shortened period of limitations. Herweyer v Clark Hwy Services, Inc, 455 Mich 14, 20-21; 564 NW2d 857 (1997). In accordance with the general rule applied in a majority of jurisdictions and adopted in Michigan, “a shortened contractual period of limitations was ‘valid if reasonable even though the period is less than that prescribed by otherwise applicable statutes of limitation.’ ” Rory, supra at 466, quoting Tom Thomas Org, Inc v Reliance Ins Co, 396 Mich 588, 592; 242 NW2d 396 (1976) (emphasis in Rory); see also Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 126; 301 NW2d 275 (1981). In Rory, the Court rejected any judicial assessment of reasonableness, stating that “the decision in Camelot was premised upon the adoption of a ‘reasonableness’ test found in the dicta of Tom Thomas.” Rory, supra at 468. The Rory Court held that “an unambiguous contractual provision providing for a shortened period of limitations is to be enforced as written unless the provision would violate law or public policy.” Id. at 470. In rejecting any judicial assessment of reasonableness, the Court observed: A fundamental tenet of our jurisprudence is that unambiguous contracts are not open to judicial construction and must be enforced as written. Courts enforce contracts according to their unambiguous terms because doing so respects the freedom of individuals freely to arrange their affairs via contract. This Court has previously noted that “ ‘[t]he general rule [of contracts] is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.’ ” [Id. at 468 (citations omitted).] The Court further cited its own recent reasoning in Wilkie v Auto-Owners Ins Co, 469 Mich 41, 52; 664 NW2d 776 (2003), quoting Corbin on Contracts: “ ‘One does not have “liberty of contract” unless organized society both forbears and enforces, forbears to penalize him for making his bargain and enforces it for him after it is made. [15 Corbin, Contracts (Interim ed), ch 79, § 1376, p 17.]’ ” [Rory, supra at 469-470.] The Rory Court concluded that “[o]nly recognized traditional contract defenses may be used to avoid the enforcement of the contract provision.” Id. at 470. “Examples of traditional defenses include duress, waiver, estoppel, fraud, or unconscionability.” Id. at 470 n 23. UNCONSCIONABILITY In this case, the applicable statute of limitations permitted plaintiffs action to be brought within three years. That defendant exacted a shortened limitations period of six-months on the basis of a nondescript provision included among several others in a preprinted application for employment, which plaintiff filled out five months before he was hired, is unconscionable. The examination of a contract for unconscionability considers both procedural and substantive unconscionability. Hubscher & Son, Inc v Storey, 228 Mich App 478, 481; 578 NW2d 701 (1998). Our courts have applied a two-pronged test for determining whether a contract is unenforceable as unconscionable: “(1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?; (2) Is the challenged term substantively reasonable?” [Id. (citations omitted).] “Reasonableness is the primary consideration.” Id. Although this two-pronged test has been used to assess unconscionability, the general underpinnings of the defense must also be considered: The concept of unconscionability was meant to counteract two generic forms of abuses: the first of which relates to procedural deficiencies in the contract formation process, such as deception or a refusal to bargain over contract terms, today often analyzed in terms of whether the imposed-upon party had meaningful choice about whether and how to enter into the transaction; and the second of which relates to the substantive contract terms themselves and whether those terms are unreasonably favorable to the more powerful party, such as terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction. It has been said that this formulation requires a showing that the contract was both procedurally and substantively unconscionable when made. It has often been suggested that a finding of a procedural abuse, inherent in the formation process, must be coupled as well with a substantive abuse, such as an unfair or unreasonably harsh contractual term which benefits the drafting party at the other party’s expense. Another way of viewing this problem is that the fact that a contract is one of adhesion does not itself render the

Phyllis J. Dragonas vs. School Committee of Melrose & others. No. 04-P-98. Middlesex. March 3, 2005. - September 6, 2005. Present: Lenk, Kafker, & Katzmann, JJ. Practice, Civil, Summary judgment. Libel and Slander. Anti-Discrimination Law, Age, Employment, Prima facie case. Employment, Discrimination. A Superior Court judge improperly granted summary judgment in favor of the defendants (a school committee, a school superintendent, and a school principal) on a teacher’s claim of defamation, arising out of certain statements made by the principal, where genuine issues of material fact existed regarding whether the allegedly defamatory statements were false, and whether the conditional privilege of the principal to make such statements was abused due to malice [437-440]; likewise, a trial was warranted on the teacher’s claim of age discrimination under G. L. c. 151B, § 4(1C), where a fact finder could determine that the principal’s proffered assessment of the teacher’s performance was false and not a good faith judgment [440-445]. Civil action commenced in the Superior Court Department on November 9, 2001. The case was heard by Nonnie S. Bumes, J., on a motion for summary judgment. Alice Olsen Mann for the plaintiff. Mary Jo Hollender for the defendants. Daniel Burke and Charles Martin. Kafker, J. Phyllis Dragonas, a foreign languages teacher, brought this action against the school committee of Melrose; Charles Martin, former superintendent of the Melrose public schools; and Daniel Burke, principal of Melrose High School, alleging defamation and age discrimination. She claimed that Burke defamed her when he made derogatory comments about her at a meeting with parents concerning an overseas trip to be chaperoned by Dragonas. She also claimed age discrimination arising out of the failure to reappoint her as the lead foreign languages teacher in the school system. A Superior Court judge allowed the defendants’ motion for summary judgment. We reverse. Background. Because this is an appeal from a summary judgment decision, we view the evidence in a light most favorable to the plaintiff as the nonmoving party. Dattoli v. Hale Hosp., 400 Mass. 175, 178 (1987). Dragonas, who was born on November 26, 1930, has been employed as a foreign languages teacher in the Melrose school system since 1971. In addition to teaching Spanish and French, she served in various administrative roles during this time. In the summer of 1998, she was appointed lead teacher of foreign languages for the 1998-1999 school year. Lead teacher was a one-year stipendiary position that required appointment by the high school principal and approval by the superintendent. Lead teachers were responsible for teaching four classes daily and performing various administrative tasks on behalf of the foreign languages department. In addition to her teaching and administrative duties, Dragonas served as the coordinator of the German-American Partnership Program (GAPP), a student exchange program that she cofounded in 1975. In this program, German students would visit Melrose every other fall to study; Dragonas would chaperone Melrose students in Hamburg, Germany, for a month-long stay the following spring. Burke assumed the position of principal of Melrose High School in July, 1999, and, shortly thereafter, reappointed Dragonas as lead teacher for the 1999-2000 school year, which Martin approved. Burke met with Dragonas on December 3 and 22, 1999, to discuss his concerns about her ability to oversee the upcoming GAPP trip to Germany from April 12 to May 12, 2000. Burke stated in his affidavit and deposition that his concern arose from the following: (1) foreign language department and GAPP budgeting issues; (2) problems with two German students’ home placements during their stay in Melrose in October, 1999; (3) Dragonas’s attendance in Focus classes in October, 1999; (4) difficulties that tenth grade students traveling to Germany might have with the Massachusetts Comprehensive Assessment System (MCAS) examination upon their return in May, 2000; (5) her fluency and familiarity with German studies compared with those of a German language teacher; and (6) a report he received from two parents that, on a prior GAPP trip to Germany, Dragonas had left Hamburg during the Easter vacation and had been unavailable to a seriously ill student who was without any adult supervision. Dragonas stated in her affidavit and deposition that at the December 22 meeting she either denied the reports or at least attempted to explain them. She also requested that Burke put any issues he had in writing, although Burke denies this. Both agree that after Dragonas cited her twenty-five years of GAPP leadership and mentioned that people in the community would be upset if she were relieved of her GAPP duties, Burke warned her to “not go political because [he] had been there.” At this meeting, Burke also informed Dragonas that her position as lead teacher of foreign languages would be abolished at the end of the 1999-2000 school year. Burke stated that his concerns about the upcoming GAPP trip did not abate in the spring of 2000. In addition to the unresolved housing and MCAS issues, he questioned the prudence of allowing one student with poor attendance and grades to go to Germany. On March 3, 2000, Burke issued a memorandum to Dragonas stating his “desire to reorganize lead teachers . . . along the lines of the MCAS Curriculum and testing areas.” He also stated, “I have a number of serious concerns about the Foreign Language Program at Melrose High School that need[] . . . to be addressed.” On March 7, 2000, Martin met with Dragonas and Barbara Quinlan, the business manager for the Melrose schools, and informed Dragonas that he would recommend that her lead teacher position be abolished at the end of the school year due to the MCAS. Martin then offered Dragonas the option of retiring at the end of the school year and suggested that if she backdated her notice of departure to December 23, 1999, she would be eligible to receive a $10,000 sick leave buyback bonus. If she decided to retire, Martin also offered to secure a part-time position for her as administrative assistant to the middle school principal. Dragonas indicated that she was not interested. Martin gave Dragonas a week to accept the offer in case she changed her mind, which she did not. On March 9 or 11, Burke convened an “emergency” meeting of twenty-five to thirty GAPP parents to discuss his concerns about Dragonas’s leadership of the impending trip to Germany. Burke stated that he did not invite Dragonas to the ninety-minute meeting because he felt that “her overall aggressiveness and defensiveness” would prevent him from getting an “objective and fair view” from the parents. According to parents in attendance, Burke questioned Dragonas’s competency to lead the GAPP program and her ability to speak German and stated that, on a previous trip, she had left a student ill and unattended while on a sightseeing trip. In their affidavits, the parents stated that Burke made disparaging comments about Dragonas’s character, claiming she had accused him of sexual harassment (which she denied in her deposition). They also attested that Burke stated that Dragonas was someone who would “rip your face off.” Burke testified that when he asked the parents whether they wanted him to find another teacher to accompany the students to Germany, they were still willing to have Dragonas accompany the students because of her experience and the trip’s imminence. In response to some of the parents’ objections to Dragonas’s absence from the meeting, Burke apologized to her shortly thereafter. When Dragonas returned from Germany in May, 2000, Burke did not ask her to participate in hiring new teachers for the foreign languages department — even though this was one of the lead teacher’s responsibilities — because he expected her position to be eliminated. Dragonas stated that she felt she was treated as a “persona non grata.” After the school committee decided to retain the lead teacher position (see note 7, supra), Martin posted the position within the foreign languages department and advertised the position in the Boston Globe. Three people submitted applications: Dragonas; Mariastella Cocchiara, an Italian and Spanish teacher for twenty-one years in the Melrose public schools, whom Burke had personally encouraged to apply; and a teacher at Salem High School. A hiring committee comprised of Burke; Thomas Brow, the Melrose Middle School principal; and Gayle Means, an elementary school principal, interviewed the prospective candidates. As summarized by Burke in his affidavit, based on the review of the written applications and interviews, “Mr. Brow, Ms. Means and I agreed that Ms. Cocchiara was far better qualified for the position of Lead Teacher for foreign languages than plaintiff.” The hiring committee concluded that “Cocchiara had a strong educational and employment record which, when combined with her additional professional accomplishments, indicated that she would be capable of assuming a leadership role in the foreign language department. Moreover, her computer skills and interpersonal skills led to the conclusion that she was better suited for the position than plaintiff, notwithstanding the fact that plaintiff had served in the same or similar position previously.” Burke added that Cocchiara had specific ideas, based on her training and prior experience, about how to integrate computers and the Internet into the curriculum, which was important due to State directives and the school committee’s recent decision to invest in a new computer-driven language laboratory. Cocchiara had also explained how she would incorporate foreign languages into the elementary school. Burke stated that Cocchiara was committed to bringing the foreign language teachers together around a common goal and eliminating the “division” and “frustration” they experienced under Dragonas’s leadership. Burke also “felt that plaintiffs prior service during the time I observed her had been lackluster at best.” In addition, Burke said that Dragonas interviewed poorly, particularly with respect to her vision for the future and her ideas for integrating technology into the curriculum. In his view, Dragonas essentially stated that she would continue doing what she had done in the past. Her responses to technology questions were unsatisfactory. When asked what “www” and “URL” meant, Dragonas did not know. Burke also stated that Dragonas did not have a plan for introducing foreign languages to fifth graders. Conversely, Dragonas stated that she did not recall being asked any substantive, in-depth questions about her plans for the elementary schools or technological integration. She described herself as a “visionary.” She also said that she “knew what the needs of the department were . . . and . . . was providing resources under certain conditions and circumstances which were budgetary restraints . . . and . . . was hoping . . . what [she] was providing for could be perpetuated for the future . . . and that we could have a good . . . elementary school program.” Her sense was that she was “doing everything that needed to be done and more.” She also described her computer skills as “adequate” and pointed out that she had taken at least two computer courses for instructional purposes prior to 2000; however, she did not indicate that she had shared this informatian with the hiring committee. She denied friction or divisions in the department or that her performance was in any way deficient. The record also contained evidence that Dragonas had very favorable references in regard to her handling of the GAPP program and her position as lead teacher, including from the former superintendent of the Melrose public schools, who was then the Commissioner of Education. In June, 2000, the hiring committee unanimously recommended Cocchiara, who was twenty-four years Dragonas’s junior. Martin subsequently approved Cocchiara’s appointment. Dragonas commenced the present action in November, 2001, seeking damages and injunctive relief for, inter alla, the defendants’ alleged violations of G. L. c. 151B, § 4(1C) (counts one and two), and, against Burke and Martin only, aiding and abetting violations of c. 151B (count four), and defamation (count six). Following discovery, the defendants moved for summary judgment on all counts of the complaint, which Dragonas opposed. After a hearing, the judge granted summary judgment for the defendants and allowed, in part, the defendants’ motion to strike certain materials submitted by Dragonas in opposition to the motion. On September 25, 2003, judgment was entered for the defendants. On October 1, 2003, Dragonas moved for reconsideration. On the same day, a different judge denied Dragonas’s motion to strike portions of the summary judgment materials submitted by the defendants. While the motion for reconsideration was pending, Dragonas filed a timely notice of appeal from the judgment and related orders. After the judge declined to reconsider the summary judgment decision, Dragonas filed a second notice of appeal. Standard of review. “[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), [365 Mass. 824 (1974),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Defamation. To prove defamation, the plaintiff must establish that “the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss” (footnote omitted). White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004), citing Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003). Dragonas’s defamation claim is based upon Burke’s statements to the GAPP parents at the meeting in early March, 2000, which she claims impugned her professional character and competence. Specifically, Dragonas finds fault with (1) Burke’s statement that on a previous GAPP trip, she went on a sightseeing trip and was unavailable to an ill and unattended student in Hamburg; and (2) Burke’s statements questioning her fluency in German. She also highlights his “hyperbolic” statement that she was someone “who would rip your face off.” In their memorandum in support of summary judgment, the defendants argued that the statements were either true, nonactionable matters of opinion, or subject to Burke’s conditional privilege as Dragonas’s supervisor. The motion judge held that Burke was entitled to summary judgment because, even assuming that his comments were false and defamatory, he had a conditional privilege to express his concerns to parents. We conclude that (if false) the statement that Dragonas left a sick child unattended while she was out of town sightseeing was defamatory, particularly when it was combined with other derogatory comments Burke allegedly made about Dragonas’s temperament and competence. The truth of the statement is a disputed fact based on the record before us, as is the question whether Burke acted out of malice and thus lost the protection of the conditional privilege. As the school principal, Burke had a conditional privilege to convey relevant information regarding a teacher to parents planning on sending their children overseas in the teacher’s care. The school and the parents shared a common and legitimate interest in the communication of such information. See Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950); Foley v. Polaroid Corp., 400 Mass. 82, 95 (1987); Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 558 (2003). That information would include the teacher’s sense of responsibility for the students under her supervision, her temperament, and her command of the language of the country they were visiting. A conditional privilege may, however, be lost if the defendant abuses it. The burden of proving abuse of the privilege is on the plaintiff. Foley v. Polaroid Corp., 400 Mass. at 95. “The conditional privilege is lost if the defendant (1) knew the information was false, (2) had no reason to believe it to be true, or (3) recklessly published the information unnecessarily, unreasonably, or excessively.” Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. at 558, and cases cited. Lastly, the conditional privilege may be lost if the plaintiff proves the defendant acted out of malice. Malice, in this sense, occurs when the “defamatory words, although spoken on a privileged occasion, were not spoken pursuant to the right and duty which created the privilege but were spoken out of some base ulterior motive.” Dexter's Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct. 217, 223 (1987). This “may consist either in a direct intention to injure another,” Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 514 (1984), quoting from Retail ers Commercial Agency, Inc., petitioner, 342 Mass. 515, 521 (1961), or an “intent to abuse the occasion [giving rise to the privilege] by resorting to it ‘as a pretence,’ ... or ‘reckless disregard’ of the rights of another.” Ezekiel v. Jones Motor Co., 374 Mass. 382, 390 (1978). Reckless disregard of the rights of another can occur through “unnecessary, unreasonable or excessive publication.” Bratt v. International Bus. Machs. Corp., supra at 515. Although spite or ill will can support a finding of malice, it is not enough to show that the defendant merely disliked the plaintiff or that such animosity was part of the defendant’s motivation. Sack on Defamation § 9.3.1 (3d ed. 2005). See Restatement (Second) of Torts § 603 comment a, at 292 (1977) (“[I]f the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege”). Instead, the conditional privilege is lost only “if the publication is not made chiefly for the purpose of furthering the interest which is entitled to protection” (emphasis supplied). Ezekiel v. Jones Motor Co., 374 Mass. at 390 n.4. See Novecon Ltd. v. Bulgarian-Am. Enterprise Fund, 190 F.3d 556, 567 (D.C. Cir. 1999) (court looks to “primary motive”). Compare Restatement (Second) of Torts § 603 comment a, at 292 (abuse of privilege if publication is “made solely from spite or ill will”) (emphasis supplied). In the instant case, there is both a “privileged” and an “unprivileged” explanation for Burke’s conduct at the meeting. The privileged explanation was that he was thoroughly and honestly briefing the parents about all of his concerns regarding Dragonas’s conduct and competence to ensure that they made a fully informed decision about sending their children to Germany with her. The unprivileged explanation is that he used (he occasion as a pretext to demean a teacher he personally disliked, to generate parental opposition to her participation in a program that she had founded and cared deeply about, and to pressure her into retirement. Considering the facts in a light most favorable to Dragonas, we hold that a triable issue of fact remains whether Burke abused his conditional privilege. It could be inferred from the tone and substance of Burke’s statements — that Dragonas might “rip your face off” and that she had accused him of sexual harassment — that his motivation was not primarily to further a legitimate interest. There was also evidence that Burke had an ongoing antagonistic relationship with Dragonas. See Ezekiel v. Jones Moto