Discrimination Cases

Mary Kellie Beaupre vs. Cliff Smith & Associates & another. No. 98-P-100. Middlesex. May 5, 2000. November 16, 2000. Present: Kass, Laurence, & Duefly, JJ. Employment, Discrimination, Sexual harassment. Anti-Discrimination Law, Termination of employment, Sex, Burden of proof, Individual liability, Damages. Practice, Civil, Challenge of jurors, Judicial discretion, Directed verdict, Instructions to jury. Witness, Expert. Damages, Under anti-discrimination law. Defendants in a civil action did not preserve for appellate review any issue regarding their peremptory challenges. [482-483] Defendants in a civil action did not demonstrate that the trial judge’s decision mid-trial to allow the plaintiff’s treating physician to testify as an expert constituted an abuse of discretion, or, in any event, that any prejudice resulted from the judge’s ruling. [483-488] Evidence at the trial of a claim for sex discrimination in employment in violatian of G. L. c. 151B, § 4, was more than sufficient to meet the plaintiff’s burden of establishing “quid pro quo” and “hostile work environment” sexual harassment, and there was no error in the judge’s submitting the case to the jury or denying the defendants’ motions for judgment notwithstanding the verdict. [488-489] There was no merit to a claim that there is a presumption in the law favoring an accused harasser in a case involving a former consensual sexual relationship between the accuser and the accused. [489] A claim of sex discrimination in employment was not barred by the six-month statute of limitations set forth in G. L. c. 15IB, § 5 [489-490], and the judge properly allowed evidence of related conduct falling outside the six-month period on a theory of a continuing violation [490], A corporation’s president and controlling shareholder was correctly held personally liable, along with the corporation, for his sexual harassment of an employee of the corporation, where there was sufficient evidence of his conduct coercing the plaintiff into submitting to his sexual demands and using his authority over the corporation to create a hostile environment to warrant the jury’s verdicts; further, the individual defendant had ample notice of the specific allegations against him. [490-496] The awards of damages in a claim of sex discrimination in employment, consisting of lost front pay and lost back pay, were neither speculative nor excessive [496-497], and the punitive damages award was not, on the record, excessive [497-498]. Civil action commenced in the Superior Court Department on April 16, 1993. The case was tried before Herman J. Smith, Jr., J. Raymond J. Reed for Cliff Smith & Associates. Paul M. Stein for Clifford F. Smith. Laura R. Studen (John G. DiPiano with her) for the plaintiff. Clifford E Smith, individually. Laurence, J. The defendants, Cliff Smith & Associates (CSA) and Clifford F. Smith (CSA’s president and controlling shareholder), appeal from verdicts and damage awards by a Superior Court jury in favor of a former employee, the plaintiff, Mary Kellie Beaupre. The plaintiff had commenced suit in April, 1993, on a complaint alleging that her discharge from CSA in September, 1992, was motivated by unlawful sex discrimination in violation of G. L. c. 151B, § 4, in the form of sexual harassment of both the “quid pro quo” and “hostile work environment” varieties (see G. L. c. 151B, § 1[18]; Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 677 [1993]; Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-66 [1986]). The defendants assign several errors on appeal: the judge’s supposed limitation of their peremptory jury challenges; the judge’s allowance at trial of previously undisclosed expert opinion testimony by the plaintiff’s treating psychiatrist; the judge’s denial of their motions for directed verdict and judgment notwithstanding the verdict (challenging the sufficiency of the plaintiff’s sexual harassment case); the verdict of individual liability against Smith; and the excessiveness of the damage awards generally, and the award of punitive damages against Smith individually in particular. We affirm. 1. Peremptory challenges. The defendants assert that they were erroneously deprived of four peremptory challenges during jury empanelment. The record, however, does not support their contention. Indeed, they did not properly preserve the issue for appeal. The record reflects no statement or action by the judge regarding the number of challenges each party was allowed, nor the judge’s rejection of any attempted exercise of additional challenges by the defendants, nor any defense objection to any aspect of the jury selection process. For all we know from the record, had either of the defendants v/ished to challenge additional jurors peremptorily, the judge would have allowed it. Their appellate claim that any further challenges by them would have been futile is entirely speculative. That they essayed no such additional challenges more likely shows that they in fact had none. The record reveals that both CSA and Smith informed the judge that they were content with the jury. Nothing on the record suggests any error or abuse with respect to the “trial judge[‘s] . . . large degree of discretion in the jury selection process.” Commonwealth v. Benjamin, 430 Mass. 673, 675 (2000). Moreover, “the denial of the correct number of peremptory challenges [does not] constitute^ by itself ground for reversal . . . .” Andras v. Marcyoniak, 13 Mass. App. Ct. 1043, 1043 (1982). Neither CSA nor Smith has shown, as they must even if an error in this regard occurred, that “the ruling affected the jury’s verdict in some material way.” Id. at 1044. The lack of the requisite prejudice is seen in the failure of CSA and Smith to demonstrate that either defendant “was required to accept one or more jurors whom he wished to challenge . . . .” Ibid., quoting from Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex. 1965). 2. Expert testimony. The defendants point out that the plaintiff’s treating psychiatrist, Dr. Compaine, was not designated an expert during discovery or at any other time prior to trial. In the parties’ joint pretrial memorandum, the plaintiff affirmatively represented that she had no expert witnesses. On the seventh day of trial, however, the judge allowed the plaintiff to question Dr. Compaine both as an expert and as her treating physician, over the defendants’ objection that the plaintiff had not previously identified him as an expert. Dr. Compaine went on to testify not only to his diagnosis and treatment of the emotional and physical problems that the plaintiff had presented in the wake of her leaving CSA, but also to the general characteristics displayed by persons in abusive relationships, including lack of free will. He opined, based on what the plaintiff had told him and the symptoms she manifested, that she appeared to lack free will in the context of an abusive relationship. This, the defendants contend on appeal, constituted prejudicial surprise. We are not unsympathetic to the defendants’ indignation at the plaintiff’s cavalier violation of the procedural rules with respect to her expert. The defendants’ appeal nonetheless falters in not coming to grips with either the applicable standards of review or their failure to discharge the basic obligation of litigants seeking appellate relief to make and preserve proper objections at trial. The extensive discretion of trial judges with respect to both the process of discovery and the admission of evidence, particularly expert testimony, and the great deference appellate courts accord the rulings of trial judges in these areas are too well established to require citation. The defendants have not demonstrated that the judge’s decision to allow Dr. Compaine to testify as an expert in mid-trial constituted an abuse of that broad discretion; or that, even if the judge erred in his exercise of discretion in these matters, prejudicial error ensued. See Commonwealth v. Francis, 390 Mass. 89, 99 & n.6 (1983); Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985); Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987). The defendants have cited to, and we know of, no case in which a trial judge’s discretionary admission (or exclusion) of belatedly offered and previously unidentified expert testimony has been reversed by our appellate courts, notwithstanding any violation of discovery obligations or pretrial orders. Moreover, it is clear that they knew well prior to trial that Dr. Compaine would be the plaintiff’s key witness. They had subpoenaed all his treatment notes and they had deposed him, thereby having had the opportunity to obtain the substance of his testimony. We conclude that “[ajbsent here [was] the sort of unfair surprise which [the discovery rules] spekQ to prevent.” Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 351 (1995). Further subversive of their claim of unfair surprise or prejudice are the facts that the defendants (a) did not request a continuance, thereby indicating that there was nothing further to investigate regarding Dr. Compaine, that they were prepared to cross-examine him, and that their own expert was ready to counter opinions favorable to the plaintiff’s case, see Giannaros v. M.S. Walker, Inc., 16 Mass. App. Ct. 902, 902 (1983); Resendes v. Boston Edison Co., 38 Mass. App. Ct. at 350-351 (failure of defendant to seek continuance when plaintiff’s late-identified expert allowed to testify cuts against claim of abuse of discretion and prejudice); cf. Commonwealth v. Gordon, 422 Mass. 816, 836 (1996), quoting from Commonwealth v. McGann, 20 Mass. App. Ct. 59, 66 (1985) (when “surprise” evidence surfaces at trial in violation of discovery obligations, “the preferred course of action is ... a provision of additional time . . . .”); (b) did not seek a voir dire on or challenge Dr. Compaine’s qualifications to provide expert testimony (and have likewise not challenged the judge’s implicit discretionary finding that Dr. Compaine was so qualified, a finding amply supported by his resume and experience, see Commonwealth v. Boyd, 367 Mass. 169, 182 [1975], and cases cited); (c) did not state any specific objection to the content of the opinions Dr. Compaine expressed or to his testifying as both the treating physician and an expert (indeed, defense counsel conceded that a treating physician may render an expert opinion so long as he is qualified to do so and there is a proper foundation for the opinion); and (d) did at no time articulate any objection to Dr. Compaine’s testimony beyond the lack of prior notification. Assuming, arguendo, that Dr. Compaine should not have been allowed to testify as an expert, the defendants have not demonstrated any consequent prejudice. Their ability to cross-examine him thoroughly was not discernibly hindered. In particular, they effectively used his treatment notes and admissions to emphasize for the jury that he had no personal knowledge of the events at CSA that the plaintiff reported to him and that he based his opinions on the information supplied by the plaintiff. They responded to every significant aspect of Compaine’s testimony through their own expert, Dr. Gutheil, who had personally interviewed both the plaintiff and Smith. Gutheil not only contradicted Compaine’s opinion that the plaintiff presented the clinical picture of someone in an abusive relationship who had lost her free will, but further opined (well beyond the testimony of Compaine, see note 12, supra) that the facts of the case were “most consistent with a broken-up office romance . . . rather than a gender-based sexual harassment scenario” (an opinion not challenged by the plaintiff). There was also no undue emphasis by plaintiff’s counsel in closing argument on Dr. Compaine’s testimony. The judge’s charge on the subject of expert testimony was additionally counteractive of any residue of prejudice. In sum, we discern neither abuse of discretion nor improper prejudice to the defendants by virtue of the judge’s allowance of the plaintiffs expert testimony. See Eagan v. Marr Scaffolding Co., 14 Mass. App. Ct. 1036, 1036 (1982) (“[i]t was within the discretion of the trial judge to permit substitute expert witnesses to testify on the plaintiffs behalf even though supplementation of [discovery] . . . did not occur until shortly before and during trial, where [the] defendant long had notice of the substance of the testimony expected, where [the] defendant had an opportunity to — and did — depose each witness . . . , and where no bad faith was shown on the part of the plaintiff’). Cf. Resendes v. Boston Edison Co., 38 Mass. App. Ct. at 350-351, and cases cited. 3. Denial of directed verdict motion. Under the standard of review applicable to the denial of the defendants’ motion for a directed verdict on the G. L. c. 15 IB claim, the defendants’ contention that the evidence did not establish actionable sexual harassment fails. The plaintiffs testimony (see note 4, supra), if believed by the jury, would be more than sufficient to meet her burden of establishing both sets of circumstances constituting what are commonly known as “quid pro quo” and “hostile work environment” sexual harassment (see G. L. c. 151B, § l[18][a], [b]), namely that (a) Smith’s sexual advances and other sexual conduct directed at the plaintiff were unwelcome, cf. Gnerre v. Massachusetts Commn. Against Discrimination, 402 Mass. 502, 507 (1988); and (b) the advances either conditioned some aspect of employment or were sufficiently pervasive that they “ha[d] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 15IB, § 1(18)(6). See Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 678-679 (1993). The defendants, who did not request that the special questions submitted to the jury provide that the jury specify the theory of sexual harassment supporting any verdict, may not now be heard to argue, as they do, that it is impossible to tell on which theory the jury based their verdict. See Mass.R.Civ.P. 49(a), 365 Mass. 813 (1974); Hawco v. Massachusetts Bay Transp. Authy., 398 Mass. 1006, 1006 (1986); Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 530 (1992). There being adequate evidence to support a verdict on both theories, the judge did not err in sending the case to the jury and in not overturning the jury’s verdicts. Also unavailing is the defendants’ suggestion that the judge erred in not instructing the jury (as they requested) that a special presumption favoring accused harassers applies to sexual harassment cases involving coworkers who once shared a consensual sexual relationship. Such a presumption finds no support in the law of this Commonwealth. We are not obligated to follow the Federal courts’ interpretations of related, but distinguishable, portions of Title VII which suggest such a presumption — see, e.g., College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 163-164 (1987); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 289 (1997); Bain v. Springfield, 424 Mass. 758, 765 n.4 (1997); Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 153 (D. Mass. 1996) — and none of the cases cited by the defendants involved the relevant provisions of chapter 151B. Finally, the defendants contend that the plaintiff’s January 29, 1993, complaint with the MCAD was filed over six months after the ugly July 27, 1992, incident between the plaintiff and Smith (see G. L. c. 151B, § 5, creating a six-month statute of limitations), and that the judge consequently erred in not instructing the jury to ignore that outside-the-statute incident, which they assert was unduly “played up” in the plaintiff’s closing argument. The evidence (of Smith’s constant sexual harassment of the plaintiff during August and into October, 1992, and his offers during that same time period of restoration of employment perquisites and of reemployment explicitly conditioned upon resumption of a sexual relationship, see note 4, supra) eliminated any statute of limitations problem by providing sufficient independent bases for the jury’s verdicts. The judge also acted within his discretion in allowing the admission of evidence of related conduct falling outside of the six-month period on a “continuing violation” theory, which he implicitly did in denying the defendants’ directed verdict motion that was in part premised on the irrelevance of the July 27, 1992, flare-up. See, e.g., Lynn Teachers Union, Local 1037 v. Massachusetts Commn. Against Discrimination, 406 Mass. 515, 520-523 (1990); In re C.F. Smith & Assocs., Inc., 235 B.R. 153, 164 (Bankr. D. Mass. 1999). 4. Smith’s individual liability. The defendants argue that no Massachusetts appellate decision has recognized personal liability of individual employees under G. L. c. 15IB; that the “trend of authority” in other states and under analogous Federal law is to construe sexual harassment statutes so as “to limit liability to an ‘employer’ ”; that in any event Smith himself could only be held personally liable in this case for “aiding and abetting” CSA under G. L. c. 151B, § 4(5), but he was never charged individually or as an aider or abettor in the MCAD charge or the Superior Court complaint; and that such liability would be legally impossible since the only sexually harassing conduct alleged was his own, i.e., “there was no one else whom he could have aided and abetted.” These arguments all fail, for several reasons. First, G. L. c. 15 IB does not limit the categories of persons who may be individually liable. To the contrary, the plain language of the statute provides on its face for individual personal liability in several sections, unlike the cognate provisions of other jurisdictions (including Federal), which are more or less ambiguous on the issue. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992) (“[W]hen a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished”). The MCAD, whose interpretations of G. L. c. 151B we are to accord deference, College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 166, has long recognized and imposed individual liability under the statute, including in situations similar to this one. Highly pertinent in this regard are the mandate of G. L. c. 151B, § 9, that the provisions of the chapter must be construed liberally for the accomplishment of its purposes — one of which was to discourage and penalize discriminatory conduct, including sexual harassment, by individuals — and the explicitly declared policy of the Commonwealth that all persons have the. right to be free from sexual harassment. G. L. c. 214, § 1C. Given these authorities, we have no hesitation in stating that our law clearly rejects the defendants’ contention that Smith cannot be held individually liable under c. 15 IB for his active sexual harassment of the plaintiff. Contrary to the defendants’ assertion, Smith was from the outset named as an individual defendant and alleged to have had personal responsibility for the plaintiff’s claimed sexual harassment and consequent injuries, in both the MCAD charge and the Superior Court complaint. He had ample notice of the specific allegations made against him personally by the plaintiff. See Brunson v. Wall, 405 Mass. 446, 451 (1989); Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996); Chatman v. Gentle Dental Center of Waltham, 973 F. Supp. 228, 235 (D. Mass. 1997) (together emphasizing the importance under c. 15 IB of sufficient notice being provided in the MCAD filing of the charges being made and of the parties deemed responsible, so as to allow both the opportunity to attempt early conciliation and a fair oppor

Public Utilities Commission—Allegations that rates charged outside the geographical area of a "competitive pilot program" were discriminatory—R.C. 4905.31, 4905.33, and 4905.35 do not prohibit all discrimination—Discounts are permitted based on competition—Commission's dismissal of complaint affirmed.

Ronald A. Mitchell vs. TAC Technical Services, Inc., & others. No. 98-P-343. Middlesex. May 16, 2000. September 14, 2000. Present: Rapoza, Smith, & Gillerman, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Age. Occupational Safety and Health Administration. Practice, Civil, Summary judgment. Words, “Public policy exception,” “At-will employee.” In an employment discrimination action, the judge properly granted summary judgment in favor of the employer on the plaintiff’s age discrimination claim, where the plaintiff failed to produce evidence sufficient to establish a prima facie case, or to file an affidavit, pursuant to Mass.R.Civ.P. 56(f), that would have provided a basis for a continuance in order to conduct discovery to obtain such evidence. [92-93] In a civil action in which an at-will employee claimed that he was wrongfully terminated in retaliation for asking to examine the material safety data sheet for a hazardous chemical present in his workplace, no considerations of public policy, as evidenced by the Occupational Health and Safety Act of 1970 and its corresponding regulations, rose to the level of importance required to justify an exception to the general rule regarding termination of at-will employees; summary judgment was properly granted in favor of the employer. [95] Civil action commenced in the Superior Court Department on July 9, 1996. The case was heard by Regina L. Quinlan, J., on motions for summary judgment. Paul A. Manoff for the plaintiff. Michael P. Boudett for Polaroid Corporation & another. Amy M. Soisson for TAC Technical Services, Inc. Polaroid Corporation and David Chenard. Gillerman, J. Claiming that his employment was terminated on account of his age (count I) and that the termination was in violation of public policy and therefore wrongful (count II), the plaintiff brought this action against his employer, TAC Technical Services, Inc. (TAC); Polaroid Corporation (Polaroid), his workplace; and David Chenard, his supervisor at Polaroid. A judge of the Superior Court allowed the defendants’ motions for summary judgment. We affirm. We state the material facts, as developed in the plaintiff’s deposition and his two affidavits, in the light most favorable to the plaintiff. The plaintiff, a mold mechanic, began working as an at-will employee at Polaroid on or about April 24, 1995. The plaintiff’s job involved the use of isopropanol 99, a cleaning substance used to wipe molds. According to the plaintiff, his first supervisor, Robert Roussos, on several occasions told him that he was happy with the plaintiff’s job performance as a mold mechanic. A week or two after beginning his work at Polaroid, the plaintiff found that fumes from the isopropanol “irritated” him, and he asked Roussos for a material safety data sheet (MSDS) at that time. The plaintiff wanted to assess the “hazardous nature” of the isopropanol. Roussos said he would try to locate one. The plaintiff made the same request on a “number of occasions” thereafter. The plaintiff makes no mention in his affidavit of any additional events during the succeeding months of May and June. On Thursday, July 6, 1995, the plaintiff again asked Roussos for an MSDS on isopropanol. Roussos said he wanted to see the MSDS also; he intended to complain about the fumes as well. Later that day the plaintiff repeated his request in front of the defendant Chenard, the plaintiff’s second supervisor. Chenard was annoyed and interrogated the plaintiff in a hostile manner. Later, Chenard gave the plaintiff the wrong MSDS. The plaintiff discovered the mistake, and Chenard told the plaintiff to look for the MSDS himself. The plaintiff was unable to find it. Chenard said he would get the MSDS directly from the manufacturer. The MSDS arrived from the manufacturer very shortly thereafter and was given to the plaintiff. At about 11 a.m. on July 6 or July 7 (the record is unclear), the plaintiff left work because he “didn’t feel well.” He did not return to work the following Monday “[b]ecause the hazard still existed and I was sick when I left [work].” On the following Monday, July 10, he learned that he had been terminated either late Friday or on Monday. On July 10 or 11, he filed a “health complaint” with the Occupational Safety and Health Administration (OSHA), and met with that agency on July ll. In his affidavit dated May 8, 1997, filed in these proceedings, the plaintiff stated, “I need to conduct discovery in this matter in order to demonstrate inter alla, the age of the person that replaced me, when the actual decision was made to discharge me, who made such decision, what statements were made about such decision, what documents are in existence relative to such decision, what conversations . . . Chenard had with Roussos about my performance, etc. I need to take the depositions of . . . Chenard and Roussos.” It appears from the record before us that the plaintiff did not conduct any such discovery or take any such depositions. Discussion. The first stage of the established three-stage analysis under the Massachusetts antidiscrimination statute, G. L. c. 15IB, puts the burden on the plaintiff to establish a prima facie case of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000). In an age discrimination case, this requires the plaintiff to establish that he was (i) over forty; (ii) doing his job acceptably; (iii) fired; and (iv) replaced by a younger person. Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 n.4 (1996). The plaintiff appears to have satisfied the first three conditions, but not the fourth. As noted above, the plaintiff acknowledged that he required discovery in order to establish “the age of the person that replaced” him. The plaintiff attempted no such discovery, and he filed no affidavit pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), that could provide a basis for a continuance in order to take the needed depositions. In these circumstances the failure to file the rule 56(f) affidavit was “fatal.” See Baker v. Monga, 32 Mass. App. Ct. 450, 453 (1992). The fourth condition not having been fulfilled, the plaintiff did not survive stage one of his discrimination claim. There was no error in dismissing count I. Count II — the alleged public policy exception to the rule governing at-will employees — presents a quite different question. We start with the fact that the public policy exception to the general rule — that an at-will employee may be terminated with or without cause — is quite narrow. Merola v. Exergen Corp., 423 Mass. 461, 464 (1996). See King v. Driscoll, 418 Mass. 576, 582-583 (1994), describing instances where the exception is available, and concluding “[t]his court consistently has interpreted the public policy exception narrowly, reasoning that to do otherwise would ‘convert the general rule . . . into a rule that requires just cause to terminate an at-will employee.’ ” Ibid., quoting from Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989). The plaintiff points to the Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651 et seq. (1994) (act), as evidence of a strong Federal policy of providing a safe workplace to employees. For that reason, the argument continues, the act provides the basis for applying the public policy exception to the Massachusetts common law regarding at-will employment. More particularly, the plaintiff points to 29 C.F.R. § 1977.12(a) (1999), which discusses § 11(c) of the act. Section 11(c) of the act protects employees, inter alla, from discrimination, or discharge, occurring because of the exercise “of any right afforded by this Act.” See 29 C.F.R. § 1977.3(d). Section 1977.12(a) continues: “Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (section 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation.” Subsection (b)(1) of 29 C.F.R. § 1977.12 continues the discussion of § 11(c) of the act: “On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.” (Emphases added.) See Marshall v. Daniel Constr. Co., 563 F.2d 707, 716 (5th Cir. 1977) (“[w]hen adopting OSHA, Congress deliberately sought to achieve job safety while maintaining proper employer-employee relations”). One further regulation bears on this discussion. 29 C.F.R. § 1910.1200(g)(8) (1999) provides that employers “shall maintain in the workplace copies of the required material safety data sheets for each hazardous chemical, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).” We consider these regulations in the context of the facts alleged by the plaintiff. After his initial request, within a week or two after his arrival, to see the MSDS for isopropanol, he subsequently made several additional requests. Then, on July 6 or 7, after some difficulty, the plaintiff obtained a copy of the MSDS, and on that same day he left work because he was not feeling well. He did not return to work. On the following Monday he learned that he had been terminated. Thereupon he filed a complaint with OSHA, and met with OSHA officials on Tuesday, July 11. On these facts the plaintiff’s claim is quite narrow. He says in his brief, “Plaintiff is not claiming that he was discharged in retaliation for going to OSHA, only that he was discharged in retaliation for asking to see the MSDS sheet. Since he had a legal right to see the sheet, and since his request to see the sheet was a good faith attempt to resolve matters, prior to going to OSHA, it makes no sense to hold that his discharge was merely an internal matter.” The plaintiff offers 29 C.F.R. § 1977.12(a), quoted above, in support of this proposition. Without doubt 29 C.F.R. § 1910.1200(g)(8), quoted above, imposes on Polaroid the obligation to make the sheets “readily accessible” to its employees and, by implication, there is the corresponding “right” of an employee to see the sheets. It is a different matter to argue that the employee’s “right” to see the sheets is of sufficient public importance to require a modification of the rules governing employees at will. To put the matter in terms of 29 C.F.R. § 1977.12(b)(1): Polaroid’s obligation to make the sheets accessible to its employees did not create a corresponding right “afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. . . . [Consequently,] an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.” The employee’s remedy is to request an inspection of the workplace pursuant to section 8(f) of the act. Taking the case most favorably to the plaintiff, as we must, we do not think that the plaintiff’s “right” to examine the sheets as a result of his apprehension of “potential unsafe conditions at the workplace” so clearly created a “right afforded by the act” that the courts of this Commonwealth are bound to recognize that “right” as “a source of well-defined public policy sufficient to modify the general at-will employment rule,” Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474 (1992) (Massachusetts regulation regarding the responsibilities of a registered nurse is an insufficient source of public policy to modify the general at-will employment rule), nor does it “rise to the level of importance required to justify an exception to the general rule regarding termination of employees at will.” King v. Driscoll, 418 Mass. at 584. Judgment affirmed. The complaint alleges that TAC is an employment agency, that Polaroid was a client and agent of TAC, and that the plaintiff was employed by TAC. In his deposition the plaintiff testified that Roussos then told him, “He’s going to get rid of you.” (The statement apparently was intended to refer to Chenard.) If not otherwise admissible, the hearsay statement, being merely Roussos’s personal opinion as to how others at Polaroid would be expected to act, does not fall within the exception described in Ruszcyk, v. Secretary of Pub. Safety, 401 Mass. 418, 420, 423 (1988) (a statement by an employee “concerning a matter within the scope of his . . . employment”). The plaintiff did not obtain an affidavit from Roussos, nor did he take Roussos’s deposition. Hearsay in an affidavit is “unacceptable to defeat summary judgment,” Madsen v. Erwin, 395 Mass. 715, 721 (1985), and the reasoning underlying that rule —• the desirability of avoiding a futile trial for lack of competent evidence — is equally applicable to the hearsay testimony in a deposition. See Flesner v. Technical Communications Corp., 410 Mass. 805, 817 (1991). While the record is unclear exactly when the plaintiff was terminated, there does not appear to be anything in the record to suggest that the termination occurred after Polaroid became aware that the plaintiff had filed a complaint with OSHA. The plaintiff’s brief to this court reiterates that the plaintiff had “hoped” that through discovery he would show that a younger man replaced him.

SUSAN F. JOHNSON, Plaintiff v. THE TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant No. COA99-676 (Filed 29 August 2000) 1. Employer and Employee— retaliatory discharge — failure to renew employment contract The failure to renew an employment contract qualifies as a retaliatory action in violation of the Retaliatory Employment Discrimination Act under N.C.G.S. § 95-240(2) because it constitutes an adverse employment action. 2. Employer and Employee— retaliatory discharge — employee filed workers’ compensation claim The trial court did not err by granting summary judgment in favor of defendant employer as to plaintiff employee’s claims that she was discharged by her employer in retaliation for filing a workers’ compensation claim, because: (1) the evidence does not suggest that defendant failed to renew plaintiff’s contract in order to forestall the filing of another workers’ compensation claim since plaintiff’s second injury was not work-related; and (2) defendant entered into three additional contracts with plaintiff after she filed a workers’ compensation claim, and defendant’s refusal to renew plaintiff’s contract was not close in time to her workers’ compensation claim. 3. Disabilities— qualified individual — teacher at a jail— wheelchair — banned from jail — anonymous allegations of illegal misconduct The trial court erred by directing verdict on claims under the Americans with Disabilities Act against plaintiff employee who sat in a wheelchair and taught literary skills to inmates at a jail because viewing the evidence in the light most favorable to plaintiff reveals that plaintiff was a qualified individual under 42 U.S.C. § 12111(9) to teach at the jail, even though plaintiff was banned from the jail after the program director confirmed anonymous allegations of plaintiff’s illegal conduct, since: (1) defendant decided not to renew plaintiff’s contract before the anonymous phone calls of plaintiff’s misconduct were received and before plaintiff was banned from the jail; and (2) an employer may not rely on evidence of employee misconduct which is acquired after the employment decision in question to defend the employment decision. 4. Disabilities— qualified individual — teacher at a jail— wheelchair — poor attendance The trial court erred by directing verdict on claims under the Americans with Disabilities Act against plaintiff employee who sat in a wheelchair and taught literary skills to inmates at a jail because viewing the evidence in the light most favorable to plaintiff reveals that plaintiff was a qualified individual under 42 U.S.C. § 12111(9) to teach at the jail, even though defendant alleges that plaintiff had poor attendance at her job, since: (1) plaintiff was able to teach three out of five employment periods without incident, and one employment period in which she missed only two weeks out of twelve weeks of classes; (2) it was only during one employment period that plaintiff missed a significant number of classes; (3) plaintiffs absences were due solely to complications related to her disability and did not establish a clear pattern of absenteeism; (4) following her significant period of absence during the third employment period, defendant did not express that the extended absence was disruptive or excessive and even offered her two additional periods of employment; and (5) plaintiffs employment relationship with defendant did not end solely because of excessive absenteeism. 5. Disabilities— teacher at a jail — wheelchair—no presumption of non-discrimination for employer Defendant employer was not entitled to a directed verdict on plaintiff employee’s claims under the Americans with Disabilities Act based on the presumption of non-discrimination that arises when the same person who hired plaintiff also fired her. Appeal by plaintiff from judgment entered 23 December 1997 by Judge Henry V. Barnette and judgment entered 18 December 1998 by Judge Narley L. Cashwell in Superior Court, Durham County. Heard in the Court of Appeals 14 March 2000. Glenn, Mills & Fisher, P.A., by Stewart W. Fisher and Caitlyn Fulghum, for plaintiff-appellant. Haywood, Denny & Miller, L.L.P., by George W. Miller, Jr. and George W. Miller, III, for defendant-appellee. Patterson, Harkavy & Lawrence, L.L.P., by Burton Craige, for the North Carolina Academy of Trial Lawyers and the American Civil Liberties Union of North Carolina Legal Foundation, amici curiae. TIMMONS-GOODSON, Judge. The present case arises out of Susan F. Johnson’s (“plaintiff’) charges of discrimination filed against Durham Technical Community College (“defendant” or “Durham Tech”) under the Retaliatory Employment Discrimination Act and the Americans with Disabilities Act. Plaintiff appeals adverse rulings that resulted in a denial of her claims. Plaintiff taught literacy skills to inmates at the Durham County Jail Annex. She obtained the job by signing a contract with Durham Tech as a part-time instructor of a basic skills course. Pursuant to the contract, plaintiff taught from November of 1993 until mid-February of 1994. Over a two-year period, plaintiff and defendant entered into seven more contracts, for employment periods which lasted for a term of one to three months, depending on the length of the literacy course. Plaintiff is unable to walk without crutches as a result of having contracted polio as a child. Prior to moving to North Carolina, she taught Latin in Troop County, Georgia. In 1986, plaintiff applied for and received permanent partial disability from her post as a teacher in Georgia and permanent total disability from the Federal Government. In order to teach her class at the jail annex, plaintiff drove to the jail in her own car, entered on crutches, transferred into a wheelchair she kept at the jail, and taught class from the wheelchair. On 8 June 1994, plaintiff fell from her crutches while opening a security door at the jail, breaking a vertebra in her spine. She filed for workers’ compensation benefits on 10 June 1994 and received payment for medical bills and temporary total disability. On 2 January 1995, plaintiff returned to the jail to teach under her fourth employment contract period. Following her fall, plaintiff used her wheelchair exclusively because walking was more difficult. From her home, plaintiff was lifted in her wheelchair onto a public transport van which drove her to the jail. She then rolled into the jail annex and taught her class from her wheelchair. In February of 1995, plaintiff fell in a bathtub at home and broke her leg. She returned to the jail approximately two weeks later and continued to teach from her wheelchair with her leg in a cast. Administrators at Durham Tech grew increasingly concerned about the possibility plaintiff would suffer another accident at the jail, exposing Durham Tech to liability. Additionally, the administrators were concerned about plaintiffs absences as a result of her injuries and her requirements of accommodations such as having guards at the jail assist her to open and close doors. On 16 June 1995, plaintiff met with Russ Conley (“Conley”), the Director of the Adult and Basic Skills program at Durham Tech. Conley proposed that plaintiff teach on campus rather than at the jail at the expiration of her contract. Conley stated that having plaintiff teach at the jail “could prove to be a liability for Durham Tech.” Conley discussed the possibility of plaintiff teaching students with disabilities and mental illnesses. Plaintiff refused the transfer, stating that she had no special education training. Conley informed plaintiff on 16 June 1995 that she would not be returning to the jail and that he had already hired someone to replace her. On 21 June and 24 June 1995, the Dean of Adult and Continuing Education at Durham Tech, Art Clark, received anonymous phone calls alleging that plaintiff used drugs, gave drugs to inmates, carried a loaded weapon, supplied inmates with bullets, and had sex with inmates. Larry Haverland (“Haverland”), Deputy Director for Inmate Programs, testified that he corroborated some of the anonymous charges against plaintiff on 23 June 1995. Haverland did not know who had conducted the informal investigation of the anonymous charges or whether that individual was reliable. The corroborated charges were that plaintiff had taken contraband into the jail in the form of “possibly lighters or matches or something” and that plaintiff had visited an inmate at another prison. Haverland testified that a teacher does not violate jail rules by visiting an inmate at another prison. Plaintiff was not asked to answer the charges of the anonymous caller until after she filed charges of discrimination against Durham Tech in the fall of 1995. On 26 June 1995, Conley approached plaintiff at the jail annex and informed her that her position would end on 28 June 1995 when her contract expired. Plaintiff was not offered another teaching contract with Durham Tech. During the week before trial, Durham Tech identified the anonymous caller as Cynthia Wilson (“Wilson”), a nursing aide who had worked in plaintiff’s home. At trial, plaintiff denied Wilson’s charges. Two nursing aides who assisted plaintiff at the same time as Wilson testified that they had never seen any signs of drug use or improper conduct by plaintiff. Plaintiff initiated charges of discrimination with the North Carolina Department of Labor under the Retaliatory Employment Discrimination Act and with the Equal Employment Opportunity Commission under the Americans with Disabilities Act. After exhausting her administrative remedies, plaintiff filed a complaint alleging that defendant had removed her from its employment in violation of state and federal law. On 23 December 1997, Judge Henry V. Barnette of the Superior Court, Durham County partially allowed defendant’s Motion for Summary Judgment, dismissing plaintiff’s claims brought pursuant to the North Carolina Retaliatory Employment Discrimination Act, but denying summary judgment as to plaintiff’s cause of action brought pursuant to the Americans with Disabilities Act. Specifically, Judge Barnette denied plaintiff’s Motion for Summary Judgment as to whether plaintiff was a “qualified individual with a disability” for purposes of the Americans with Disabilities Act. On 18 December 1998, Judge Narley L. Cashwell of the Superior Court, Durham County granted defendant’s Motion for Directed Verdict as to plaintiff’s claim under the Americans with Disabilities Act. Plaintiff appeals. On appeal, plaintiff argues that the trial court erred in: (I) granting defendant’s Motion for Summary Judgment as to plaintiff’s claims under the Retaliatory Employment Discrimination Act; and (II) directing a verdict against plaintiff as to her claims under the Americans with Disabilities Act. I. RETALIATORY DISCRIMINATION ACT CLAIM By her first assignment of error, plaintiff argues that the trial court erred in granting defendant’s Motion for Summary Judgment as to plaintiff’s claims under the Retaliatory Employment Discrimination Act. We cannot agree. Summary judgment is proper where there is no genuine issue as to any material fact. Alltop v. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885 (1971). An issue is genuine where it is supported by substantial evidence. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). A genuine issue of material fact is of such a nature as to affect the outcome of the action. Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504 (1983). The moving party bears the burden of establishing the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425 (1970). The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). As a general principle, summary judgment is a drastic remedy which must be used cautiously so that no party is deprived of trial on a disputed factual issue. Billings v. Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975), aff’d, 290 N.C. 502, 226 S.E.2d 321 (1976). The North Carolina Retaliatory Employment Discrimination Act (“REDA”), enacted in 1992, prohibits discrimination against an employee who has filed a workers’ compensation claim. N.C. Gen. Stat. § 95-240, et. seq. (1999). In pertinent part, the Act provides: (a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following: (1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following: a. Chapter 97 of the General Statutes. N.C. Gen. Stat. § 95-241 (1999). REDA replaced North Carolina General Statutes section 97-6.1, the purpose of which was to promote an open environment in which employees could pursue remedies under the Workers’ Compensation Act without fear of retaliation from their employers. Abels v. Renfro Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992), aff’d in part, rev’d in part, 335 N.C. 209, 436 S.E.2d 822 (1993). The former law merely protected employees against discharge and demotion. N.C. Gen. Stat. § 97-6.1(a) (repealed 1992). By enacting REDA, however, the General Assembly expanded the definition of retaliation to include “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” N.C. Gen. Stat. § 95-240(2) (1999). In a claim brought pursuant to the former provision, section 97-6.1(a), this Court stated that an employee bears the burden of proof in retaliatory discharge actions. Morgan v. Musselwhite, 101 N.C. App. 390, 399 S.E.2d 151 (1991). “The statute does not prohibit all discharges of employees who are involved in a workers’ compensation claim, it only prohibits those discharges made because the employee exercises his compensation rights.” Id. at 393, 399 S.E.2d at 153 (citation omitted). Furthermore, our appellate courts indicated in applying the former provision that a plaintiff fails to make out a case of retaliatory action where there is no close temporal connection between the filing of the claim and the alleged retaliatory act. See Shaffner v. Westinghouse Electric Corp., 101 N.C. App. 213, 398 S.E.2d 657 (1990); Morgan, 101 N.C. App. 390, 399 S.E.2d 151. As a preliminary matter, we must address the issue of whether the failure to renew an employment contract may qualify as a retaliatory action in violation of REDA. As stated above, in enacting REDA, the General Assembly broadly defined retaliatory action as “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action N.C.G.S. § 95-240(2) (emphasis added). As the failure to renew an employee’s contract produces the adverse result of terminating her employment, the plain language of the statute suggests that non-renewal of an employment contract falls within the scope of REDA. Furthermore, while our appellate courts have not spoken on this issue, we find persuasive authority from other jurisdictions holding that the failure to renew an employment contract may constitute actionable conduct. See, e.g., Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977); Perry v. Sinderman, 408 U.S. 593, 33 L. Ed. 2d 570 (1972); Kramer v. Logan County School District No. R-l, 157 F.3d 620 (8th Cir. 1998); Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998); Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, reh’g denied, 660 F.2d 497 (5th Cir. 1981); Daly v. Exxon Corp., 63 Cal. Rptr. 2d 727 (Cal. Ct. App. 1997). We therefore hold that the failure to renew an employment contract constitutes an adverse employment action for purposes of REDA. We now address plaintiff’s argument that a genuine issue of material fact existed as to whether defendant took retaliatory action against her because she filed a workers’ compensation claim or threatened to do so. See N.C.G.S. § 95-241. In the present case, plaintiff filed a workers’ compensation claim on 10 June 1994 after she broke a vertebra in her spine while opening a security door at the jail annex. Defendant entered into three new contracts with plaintiff after she filed the claim. Plaintiffs final contract with Durham Tech expired on 28 June 1995, over a year after she filed for compensation. Plaintiff argues that she was terminated after a second injury similar to the employee in Abels, 335 N.C. 209, 436 S.E.2d 822, and that a discharge following a second injury is sufficient to show that an employee was discharged to prevent the filing of a workers’ compensation claim. However, plaintiffs second injury occurred in the home when she fell in a bathtub on 11 February 1995 and broke her leg. Durham Tech would not have anticipated a workers’ compensation claim based on plaintiff’s second injury as it was not work related. In contrast to Abel, the circumstantial evidence in the case sub judice does not suggest that defendant failed to renew plaintiff’s contract in order to forestall the filing of a workers’ compensation claim. Defendant entered into three new contracts with plaintiff after she filed a workers’ compensation claim, and defendant’s refusal to renew plaintiff’s contract was not closely temporally related to her workers’ compensation claim in that it took place over a year after she filed for compensation. See Shaffner, 101 N.C. App. 213, 398 S.E.2d 657. We conclude that there was no genuine issue of material fact as to whether defendant took retaliatory action against plaintiff because she filed a workers’ compensation claim or threatened to file one. As such, we hold that the trial court did not err in granting defendant’s Motion for Summary Judgment on plaintiff’s claims under the REDA. II. AMERICANS WITH DISABILITIES ACT CLAIM By her second assignment of error, plaintiff argues that the trial court erred in directing a verdict against her on her claims under the Americans with Disabilities Act. We agree. In deciding whether to direct a verdict at the close of all of the evidence, “the trial court must determine whether the evidence, when considered in the light most favorable to the nonmovant, is sufficient to take the case to the jury.” Southern Bell Telephone and Telegraph Co. v. West, 100 N.C. App. 668, 670, 397 S.E.2d 765, 766 (1990), (citations omitted), aff’d, 328 N.C. 566, 402 S.E.2d 409 (1991) (citations omitted). If there is more than a scintilla to support a plaintiff’s case, the motion must be denied. Edwards v. West, 128 N.C. App. 570, 495 S.E.2d 920, cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998). “Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and submit the case to the jury.” Id. at 573, 495 S.E.2d at 923 (citation omitted). The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (1994), provides in pertinent part: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a) (1994). To prevail on an ADA claim, the plaintiff must prove that: (1) she has a disability as defined by the ADA; (2) she is qualified for the job; and (3) she was unlawfully discriminated against by an employer because of her disability. Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997). Under the ADA, the term “disability” is defined as “a physical. . . impairment that substantially limits one or more of the major life activities of such individual[.]” 42 U.S.C. § 12102(2)(A)