Discrimination Cases

Nancy Chadwick vs. Duxbury Public Schools & others. Plymouth. May 3, 2016. October 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Privileged Communication. Evidence. Privileged communication. Practice. Civil. Discovery. Public Employment. Collective bargaining. Labor. Collective bargaining. Discussion of the standard of review applicable to review of a report of a question of law by a single justice of the Appeals Court. [649-650] This court concluded that G. L. c. 150E, which grants public employees of the Commonwealth the right to bargain collectively over wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion, and which declares any interference, restraint, or coercion by a public employer of any employee in the exercise of any right guaranteed under that chapter to be a prohibited practice, as well as any domination, interference, or assistance in the formation, existence, or administration of any employee organization, does not implicitly create a privilege protecting communications between a union member and a union representative that is applicable in a civil action alleging discrimination in employment, where the relevant statutory provisions clearly are not intended to apply to a civil action [650-653]; further, this court declined to create such a privilege judicially [653-656], Civil action commenced in the Superior Court Department on December 8, 2014. A motion to compel discovery was heard by Raffi Yes say an. J. A question of law presented in a petition for leave to prosecute an interlocutory appeal in the Appeals Court was reported by Andrew R. Grainger, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jonathan J. Margolis (Beth R. Myers also present) for the plaintiff. John J. Cloherty, III, for the defendants. The following submitted briefs for amici curiae: Ava R. Barbour, of Michigan, Matthew D. Jones, Ira C. Fader, James A.W. Shaw, Jasper Groner, Haidee Morris, Matthew E. Dwyer, Eric P. Klein, & Katherine D. Shea for Massachusetts Teachers Association & others. Paul T. Hynes & Michael R. Keefe for Professional Fire Fighters of Massachusetts. Stephen J. Finnegan & Christopher J. Petrini for Massachusetts Association of School Committees, Inc., & another. Karen Baynes, Andrew Stephens, and Marc Talbot. Justices Spina, Cordy, and Duffly participated in the deliberation on this case prior to their retirements. Hines, J. In this appeal, we consider an issue of first impression: whether an employer, in defense of a lawsuit alleging discrimination in employment filed by a union member, may demand communications between the union member and her union representatives or between union representatives acting in their official capacity. The issue arises on interlocutory review of a discovery dispute in a Superior Court action brought by the plaintiff, Nancy Chadwick, alleging claims of discrimination and retaliation against the defendants. The plaintiff objected to certain of the defendants’ discovery requests, asserting a “union member-union” privilege. A Superior Court judge rejected the plaintiffs claim and entered an order compelling production of the requested discovery. The plaintiff filed an application for relief under G. L. c. 231, § 118, and a single justice of the Appeals Court reported the issue to a panel of the Appeals Court. We transferred the case to this court on our own motion. In her challenge to the defendant’s discovery requests, the plaintiff concedes that a union member-union privilege has never been recognized in Massachusetts. She argues, however, that G. L. c. 150E, the statute establishing the collective bargaining rights of public employees, should be interpreted to recognize a union member-union privilege and that such a privilege bars the employer’s access to the requested discovery. We affirm the judge’s ruling declining to recognize such a privilege, as we discern no legislative intent to incorporate within G. L. c. 150E a union member-union privilege extending beyond the labor dispute setting, and we decline to recognize the privilege under common law. Background. The following summary of the facts is drawn from the allegations in the plaintiffs complaint, the motion judge’s memorandum of decision and order on the defendants’ motion to compel, and other relevant documents in the record. 1. The alleged discrimination and retaliation. Beginning in 2006, and continuing to her retirement in 2015, the plaintiff was employed as an English teacher at Duxbury High School. During her employment by the Duxbury public schools, the plaintiff was represented by the Duxbury Teachers Association, the local affiliate of the Massachusetts Teachers Association. She served as president of the Duxbury Teachers Association for six years, from 2010 to 2015. In 1998, the plaintiff was diagnosed with posttraumatic stress disorder (PTSD), but she successfully managed the symptoms until 2009. After 2009, she experienced panic attacks, anxiety, hypervigilance, and disturbed sleep patterns, which she asserts were caused by work conditions, including bullying and harassment from her direct supervisor. In 2012, the plaintiff’s attorney notified the school superintendent of her PTSD diagnosis and requested accommodation in the form of a replacement supervisor. In response, the school superintendent assigned the assistant principal to conduct the plaintiff’s performance evaluation but declined to alter the subject-matter supervisor for the English courses that the plaintiff taught. In December, 2013, and between March and May, 2014, the plaintiff and the defendants engaged in a series of interactions that, according to the plaintiff, involved discrimination and retaliation against her. On June 9, 2014, the plaintiff was placed on a “directed growth plan,” a disciplinary action that permitted Duxbury public schools to dismiss her at the end of the 2014-2015 school year. The plaintiff commenced this lawsuit seeking monetary damages in December, 2014. 2. The discovery requests. On January 5, 2015, the defendants served document requests and interrogatories pursuant to Mass. R. Civ. R 26, as amended, 423 Mass. 1401 (1996), and Mass. R. Civ. P. 33, as amended, 385 Mass. 1212 (1982), respectively. On June 19, 2015, the plaintiff objected to certain of the discovery requests,’ claiming a union member-union privilege. At the request of the defendants, the plaintiff supplied a privilege log for ninety-two electronic mail (e-mail) messages withheld from disclosure. The defendants filed a motion to compel production of the requested discovery, and the plaintiff responded with an opposition and cross-motion for protective order. The Superior Court judge declined the plaintiff’s request to recognize a union member-union privilege and ordered the plaintiff to disclose all requested discovery withheld on the basis of an asserted union member-union privilege. The judge acknowledged that some jurisdictions have recognized a union member-union privilege, but he concluded that the Legislature is the more appropriate body to weigh the policy implications of doing so and declined the plaintiffs request to create such a privilege. Discussion. The plaintiff seeks recognition of a union member-union privilege “that would protect from disclosure to employers communications between public sector employees and their unions when made (1) in confidence; (2) in connection with bargaining or representative services relating to anticipated or ongoing disciplinary or grievance proceedings; (3) between an employee (or the employee’s attorney) and union representatives; or (4) by union representatives acting in official representative capacities.” Conceding that no such privilege exists under G. L. c. 150E, the plaintiff argues instead that we should interpret the statute as implying a union member-union privilege to secure the collective bargaining rights inherent in the statute. More specifically, she contends that the prohibited practices in G. L. c. 150E, § 10 (a) (1) and (2), are vital to furthering the statute’s purpose and that such prohibitions must extend beyond the context of collective bargaining disputes to protect employee and union interests. 1. Standard of review. The issue before us comes by way of a report for appellate review entered by a single justice of the Appeals Court. Under G. L. c. 231, § 118, first par., a single justice of the Appeals Court has the authority to allow appellate review of an interlocutory order or a question of law contained therein. CUNA Mut. Ins. Soc’y v. Attorney Gen., 380 Mass. 539, 540 (1980). See Barnes v. Metropolitan Hous. Assistance Program, 425 Mass. 79, 84 (1997). On review of a report by the single justice, we consider the merits of the underlying order. CUNA Mut. Ins. Soc’y, supra at 540, 544. The issue whether the court should recognize a union member-union privilege as implicit in G. L. c. 150E is a pure question of law. Thus, we accord “no deference to the judge’s decision” declining to recognize the privilege. See Barr Inc. v. Holliston, 462 Mass. 112, 114 (2012), quoting Sylvester v. Commissioner of Revenue, 445 Mass. 304, 308 (2005), cert. denied, 547 U.S. 1147 (2006) (reviewing interlocutory order reported for appellate review by judge of Superior Court). 2. Statutory scheme. We begin the analysis of the plaintiffs claim by reviewing the statutory language to determine if it reveals an unspoken legislative intent to create a union member-union privilege. General Laws c. 150E grants public employees of the Commonwealth, as defined therein, the right to bargain collectively over “wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion.” G. L. c. 150E, § 2. As relevant here, it is a “prohibited practice for a public employer” to, among other things, (1) “[ijnterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter”; or (2) “[djominate, interfere, or assist in the formation, existence, or administration of any employee organization.” G. L. c. 150E, § 10 (a) (1), (2). Considering the statutory scheme as a whole, its essential purpose is to protect the right of public employees to organize and to protect unions and their members from intrusion or control by the employer in the collective bargaining context. To determine whether the Legislature intended that communications between a union member and a union representative be protected from disclosure to an employer in its defense against a civil action filed by an employee, “we look first to the language of the relevant statute, which is generally the clearest window into the collective mind of the Legislature.” Holmes v. Holmes, 467 Mass. 653, 659 (2014), citing Commonwealth v. Nanny, 462 Mass. 798, 801-802 (2012). “If the language of the statute is unambiguous, our function is to enforce the statute according to its terms.” Reading Co-op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 547-548 (2013), citing Massachusetts Community College Council MTA/NEA v. Labor Relations Comm’n, 402 Mass. 352, 354 (1988). We conclude that the privilege sought by the plaintiff is not implicit in G. L. c. 150E, § 10 (a) (1) and (2), because those provisions clearly are not intended to apply to a civil action. First, the dispute underlying the plaintiffs civil action is not related to “the formation, existence, or administration of any employee organization,” as protected in G. L. c. 150E, § 10 (a) (2). Although the plaintiff was president of her local union for six years, her lawsuit relates to allegedly discriminatory actions taken against her personally as an employee, not to matters encompassing union activity. Neither is a privilege implicit in § 10 (a) (1), which provides that a public employer may not “[ijnterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter' (emphasis added). The rights provided under c. 150E protect collective bargaining and “lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.” G. L. c. 150E, § 2. Where the plain and unambiguous language of § 10 (a) (1) restricts its application to the collective bargaining context, we cannot say that, in securing that right, the Legislature contemplated a necessity to protect the confidentiality of union member-union communications in a private lawsuit brought by the union member against the employer. Consistent with the statutory emphasis on protecting the right to collective bargaining, § 10 (a) (1) has been interpreted by the Massachusetts Labor Relations Commission to protect the confidentiality of communications between a union and its members in labor disputes. See Bristol County Sheriff’s Dep’t, 31 M.L.C. 6, 17 (2004) (employer prohibited from asking union members, during internal affairs investigations, “overly-broad questions about the means and methods by which the Union was organizing the upcoming picket” because such organization “clearly falls within the realm of concerted activities protected under [G. L. c. 150E, § 2]”). See also City of Lawrence & Lawrence Patrolmen’s Ass’n, 15 M.L.C. 1162, 1165-1166 (1988) (employer prohibited from demanding content of letter containing communications between union members and union administrator because subject matter protected whether written or oral). A parallel provision in the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (2012), has been interpreted similarly by the National Labor Relations Board (board). In Local 754, 258 N.L.R.B. 1230 (1981) (Cook Paint), the board ruled that compelled disclosure of communications between an employee and his union steward during the grievance process violated the prohibition against interfering, restraining, or coercing employees in the exercise of their collective bargaining rights. Id. at 1232, citing 29 U.S.C. § 158(a)(1). The communications sought in Cook. Paint related to an incident where an employee allegedly fell in a paint spill after notifying his union representative of the spill and being advised to return to regular duties while the representative sought out the floor supervisor. Id. at 1230. As a result of the incident, the employer decided to discharge the employee. Id. The board relied on the facts that the union representative’s involvement “arose solely as a result of his status as union steward,” and after the union filed a grievance on behalf of the employee, the employer specifically sought contemporaneous notes taken by the representative in his capacity of carrying out union functions. Id. at 1231-1232. In ruling that the employer impermissibly interfered with the employee’s collective bargaining rights by demanding the substance of the conversations during the grievance process, the board reasoned that “consultation between an employee potentially subject to discipline and his union steward constitutes protected activity in one of its purest forms.” Id. at 1232. The board specifically limited its ruling, emphasizing, “[Tjhis case does not mean that all discussions between employees and stewards are confidential and protected by the [National Labor Relations Act]. Nor does our decision hold that stewards are, in all instances, insulated from employer interrogation.” Id. Unlike proceedings that are directly connected to the collective bargaining context, the plaintiff here seeks a protective order in a civil lawsuit against her employer. Civil lawsuits are beyond the zone of protection for union rights contemplated in G. L. c. 150E. Therefore, the plain and unambiguous language of § 10 (a) (1) does not require that communications between union members and union representatives be protected from interference by an employer defending itself from an employee’s civil action. 3. Common-law privilege. Having concluded that there is no statutorily based privilege implicit in G. L. c. 150E, we now decline the plaintiff’s request to judicially create such a privilege. Under Massachusetts law, a litigant or witness may not rely on a privilege to withhold evidence in a legal proceeding except as recognized by the “constitution, statute, rules promulgated by the Supreme Judicial Court, or the common law.” See Mass. G. Evid. § 501 (2016). In the absence of a recognized privilege as set forth in § 501, this court has the power to create privileges, but “it is a power that we have exercised sparingly.” Babets v. Secretary of the Executive Office of Human Servs., 403 Mass. 230, 234 (1988), citing Three Juveniles v. Commonwealth, 390 Mass. 357, 360 (1983), cert. denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984). Privileges are exceptions to the general duty imposed on a person to be a witness, disclose information, and produce writings. Matter of the Enforcement of a Subpoena, 463 Mass. 162, 166 (2012). a. The plaintiff’s reliance on other jurisdictions. The plaintiff relies principally on a recent case, Peterson v. State, 280 P.3d 559 (Alaska 2012) (Peterson), in which the Supreme Court of Alaska recognized a broad union-member privilege based on language in the State’s Public Employment Relations Act. Id. at 564-565. Peterson goes substantially beyond other jurisdictions that have considered the matter, and is the only case we have located where a court has judicially recognized such a privilege for civil lawsuits without relying on a State statute specifically protecting the same. The Supreme Court of Alaska held that ‘“[a]ny attempt by the State to force disclosure of confidential communications between an employee and a union representative during a grievance proceeding would constitute an unfair labor practice” (emphasis in original). Id. at 565. The communications at issue in Peterson developed during a grievance proceeding, but when the union and the State were unable to resolve the issue, the employee filed a civil suit claiming wrongful termination. Id. at 561. The court created a broad union-member privilege after reasoning that the ‘“protection against forced disclosure of confidential union-related communications should not be lost if the grievance dispute is not resolved and the employee files a civil suit” because ‘“the strong interest in confidential union-related communications” would otherwise be undermined. Id. at 565. Other jurisdictions that have analyzed this issue have declined to judicially create privileges that would apply to matters outside of grievance proceedings or disciplinary investigations. The Supreme Court of New Hampshire, although recognizing that ‘“an employer engages in an unfair labor practice when it compels a union representative to disclose confidential communications with a union employee” during a disciplinary investigation, declined to create a privilege that would apply in the context of a grand jury proceeding. In re Grand Jury Subpoena, 155 N.H. 557, 560-561, 563 (2007). The court reasoned that the petitioner “failed to show that the union relationship is so highly valued by an ordered society that its confidences warrant protection even at the cost of losing evidence important to the administration of justice.” Id. at 563, quoting In re Grand Jury Subpoenas Dated January 20, 1998, 995 F. Supp. 332, 335 (E.D.N.Y. 1998). Likewise, a California court declined to recognize a union-member privilege. In American Airlines, Inc. v. Superior Court, 114 Cal. App. 4th 881, 891 (2003), the court concluded that determination of the “countervailing policy reasons why a union representative should not be compelled during civil litigation to disclose factual information obtained

HECHT v NATIONAL HERITAGE ACADEMIES, INC Docket No. 150616. Argued March 10, 2016 (Calendar No. 3). Decided July 26, 2016. Craig Hecht brought an action in the Genesee Circuit Court alleging that his employment was terminated by National Heritage Academies, Inc., in violation of the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. Plaintiff had been employed as a teacher by defendant when he made racially charged comments. When later questioned about the comments by his supervisors, plaintiff provided inconsistent explanations. Plaintiff also allegedly attempted to interfere with his supervisors’ investigation of the incident by asking a witness to change his statement about what had happened. Plaintiff was subsequently terminated. Plaintiff asserted that his attempts to find new employment as a teacher were hampered by defendant’s mandatory statutory disclosures to other schools of his record of unprofessional conduct. Before trial, defendant moved to preclude plaintiff from presenting evidence of the disclosures because the disclosures were required by MCL 380.1230b and a school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure. The court, Geoffrey L. Neithercut, J., ruled that the evidence was admissible. Defendant moved for a directed verdict at the close of plaintiffs case in chief, arguing that this was a disparate-treatment discrimination case and plaintiff had not shown that any of defendant’s other employees engaged in the same or similar conduct. The court denied the motion. The jury returned a verdict in favor of plaintiff, finding that he had proved that race was a factor in his termination, that he had shown $50,120 in past economic loss, and that he had shown $485,000 in future economic loss. Defendant moved for judgment notwithstanding the verdict (JNOV), a new trial, or remittitur. The court denied the motion. The Court of Appeals, Sekvitto, P. J., and Cavanagh, J. (Wilder, J., dissenting), affirmed in an unpublished opinion. The Supreme Court granted defendant’s application for leave to appeal. 498 Mich 877 (2015). In an opinion by Chief Justice Young, joined by Justices Markman, Zahra, McCormack (as to Parts I, II, and III), Viviano, Bernstein (as to Parts I, II, and III), and Larsen, the Supreme Court held,'. In light of the circumstantial evidence presented and all the inferences that could have been reasonably drawn from that evidence in favor of the jury’s liability verdict, a reasonable jury could have concluded that defendant violated the CRA. However, because MCL 380.1230b afforded defendant complete immunity from civil liability flowing from the mandatory disclosures compelled by that statute, the trial court erred by allowing the jury to consider the disclosure evidence. Accordingly, the award of future damages had to be vacated and the case remanded for further proceedings. 1. When reviewing a motion for JNOV, an appellate court must construe all the evidence and the inferences arising from the evidence in the nonmoving party’s favor. If reasonable jurors could have honestly reached different conclusions, the jury verdict must stand. Under MCL 37.2202(1) of the CRA, an employer may not discharge or otherwise discriminate against an individual with respect to employment because of race. A claim under the CRA requires proof of “but for” causation. There are multiple ways to prove that a plaintiff was the victim of unlawful discrimination, including direct evidence of discrimination, i.e., evidence that proves impermissible discriminatory bias without additional inference or presumption. In this case, however, contrary to the conclusion of the Court of Appeals majority, defendant failed to present direct evidence of discrimination. One way of proving unlawful discrimination without direct evidence is by showing that the plaintiff was treated unequally to a similarly situated employee who did not have the characteristic protected under the CRA. Thus, an employer’s differing treatment of employees who were similar to the plaintiff in all relevant respects, except for their race, can give rise to an inference of unlawful discrimination. In order for this type of evidence to give rise to such an inference, the similarly situated employee must be nearly identical to the plaintiff in all relevant respects. In this case, plaintiff presented a different kind of circumstantial evidence: circumstantial evidence that his employer considered his race in its decision to discharge him. Plaintiff argued that the black employees routinely engaged in racial banter, but were not disciplined. There were distinctions between the comments made by plaintiff and those made by defendant’s black employees that, if credited by the jury, might have allowed the jury to find for defendant. However, plaintiff presented additional evidence that defendant considered plaintiffs race in terminating him. Specifically, plaintiff also presented evidence that defendant’s management employees were aware of and tolerated the unequal enforcement of defendant’s stated zero-tolerance policy. The evidence, if believed, suggested that defendant’s management employees prohibited negative stereotyping in the workplace except when negative stereotyping comments were made by defendant’s black employees. The jury was thus shown the difference between defendant’s policy in theory and its racially biased application. This was potent circumstantial evidence of defendant’s allegedly racially biased decision-making. This evidence could have allowed a reasonable jury to conclude that defendant applied a different standard to plaintiffs conduct based on his race. Accordingly, the jury could reasonably have found that race was a ‘Tut for” cause in defendant’s decision to investigate plaintiff and escalate punishment for his racial comments. Similarly, while defendant presented nondiscriminatory reasons for its decision to terminate plaintiff, plaintiff presented sufficient evidence for a reasonable juror to reject those race-neutral reasons as unbelievable. The jury’s verdict, finding a violation of the CRA, was supported by the totality of the evidence presented and the reasonable inferences in plaintiffs favor that could be drawn from that evidence. 2. Generally, all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the state of Michigan, the rules of evidence, or other rules adopted by the Supreme Court. Evidence may also be prohibited by statute. MCL 380.1230b provides that before hiring an applicant for employment, school employers must request that the applicant sign a statement (1) authorizing the applicant’s current or former employer or employers to disclose to the school employer any unprofessional conduct by the applicant, and (2) releasing the current or former employer from any liability for providing that information. Before hiring an applicant for employment, a school employer must request that the applicant’s current or prior employer provide information concerning the applicant’s unprofessional conduct, if any. After receiving such a request, a school employer must provide the information requested and make available to the requesting school employer copies of all documents in the employee’s personnel record relating to the unprofessional conduct. A school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure. In this case, plaintiff argued that he was not precluded from presenting evidence of the mandatory disclosure because he did not sue for the disclosure itself—he sued for a violation of the CRA and presented evidence of the adverse impact of the disclosure to establish future damages. Plaintiffs belief was that only a direct action for the disclosure, e.g., a defamation claim, was precluded by MCL 380.1230b(3), but the admission of evidence of the disclosures in a case such as this was permissible. The term “civil liability’ is defined as being legally obligated for civil damages. The trial court’s decision to admit evidence and argument regarding the mandatory disclosures for the purpose of assessing damages allowed the jury to impose against defendant legal obligations arising from the disclosure. This violated the plain language of the statute. There can be no damages without liability. A legislative decision to preclude liability necessarily precludes damages on the same basis. There is no textual support for the view that immunity under the statute depends on the nature of the claim underlying the civil liability. The improper admission of the disclosure evidence tainted the jury’s future damages award, which had to be vacated. Court of Appeals judgment is affirmed to the extent it held that plaintiff presented sufficient circumstantial evidence to sustain the jury’s verdict finding that defendant violated the CRA; Court of Appeals judgment is reversed to the extent it held that the trial court properly admitted evidence of defendant’s mandatory disclosures of plaintiffs unprofessional conduct; jury award of future damages is vacated; case is remanded to the trial court for further proceedings. Justice McCormack, joined by Justice BERNSTEIN, concurring in part and dissenting in part, agreed with the majority that plaintiff presented sufficient evidence of discrimination such that the trial court did not err by denying defendant’s motion for JNOV, but disagreed with the majority’s decision to vacate the jury award for future damages. MCL 380.1230b(3) confers immunity from liability, i.e., the state of being legally obligated for damages, “for the disclosure,” not from paying money as compensation for a state of legal responsibility unrelated to the disclosure. Because the statutory immunity is tied to the liability and not the remedy, MCL 380.1230b(3) only precludes imposing liability (and damages flowing therefrom) on a defendant when the liability arises from an injury caused by the disclosure itself. Disclosing plaintiffs unprofessional conduct did not create additional legal responsibility for which defendant was on the hook; rather, it was the alleged illegal act of discharging plaintiff based on his race that gave rise to defendant’s liability. The injury from which the liability arose was the discriminatory discharge, not the disclosures. Introducing evidence of defendant’s disclosures of plaintiffs conduct merely assisted the jury in determining the appropriate remedy for the discriminatory discharge. Because plaintiffs injury was the discriminatory discharge rather than defendant’s disclosures, and because it was the discriminatory discharge for which defendant was held liable, the future damages award did not constitute civil liability for the disclosure, and the award of future damages should have been affirmed. 1. Actions — Violations of the Civil Rights Act — Sufficiency of the Evidence — Causation. Under MCL 37.2202(1) of the Civil Rights Act, an employer may not discharge or otherwise discriminate against an individual with respect to employment because of race; a claim under the act requires proof of “but for” causation; there are multiple ways to prove that a plaintiff was the victim of unlawful discrimination, including through proofs of either direct or circumstantial evidence of discrimination. 2. Schools — Disclosures of Unprofessional Conduct — Immunity from Civil Liability for Disclosures — Inadmissibility of Evidence of Disclosures to Assess Damages in a Discrimination Case. Under MCL 380.1230b, before hiring an applicant for employment a school employer must request that the applicant’s current or prior employer provide information concerning the applicant’s unprofessional conduct, if any; after receiving such a request, a school employer must provide the information requested and make available to the requesting school employer copies of all documents in the employee’s personnel record relating to the unprofessional conduct; a school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure; evidence of such a disclosure is not admissible for the purpose of assessing the plaintiffs damages arising out of the disclosure in a case brought by a plaintiff alleging that he or she was fired in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq. Law Office of Glen N. Lenhoff (by Glen N. Lenhoff and Robert D. Kent-Bryant) and Rizik & Rizik, PC (by Michael B. Rizik, Jr.), for plaintiff. Warner Norcross & Judd LLP (by John J. Bursch, Dean F. Pacific, and Matthew T. Nelson) for defendant. Amici Curiae: Bill Schuette, Attorney General, Aaron D. Lind-strom, Solicitor General, Matthew Schneider, Chief Legal Counsel, Kathryn M. Dalzell, Assistant Solicitor General, and Mark G. Sands, Assistant Attorney General, for the Attorney General. Miller, Canfield, Paddock and Stone, PLC (by Clifford W. Taylor, Paul D. Hudson, and Brian M. Schwartz), for the Michigan Manufacturers Association. YOUNG, C.J. In this race discrimination case, we must decide whether the trial court erred by denying defendant’s motion for judgment notwithstanding the verdict (JNOV) and determine the propriety of the admission of evidence of defendant’s mandatory reporting under MCL 380.1230b. We hold that the Court of Appeals did not err by affirming the trial court’s denial of defendant’s motion for JNOV on plaintiffs claim of discrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq. Contrary to the Court of Appeals, we conclude that there was no direct evidence of discriminatory animus concerning the firing of plaintiff. This case turned on circumstantial evidence—on the credibility of plaintiffs proofs that suggested there were racial reasons for his treatment and on the credibility of defendant’s nonracial justifications for firing him. We conclude, based on the evidence presented and all the inferences that could be reasonably drawn from that evidence in favor of the jury’s liability verdict, that a reasonable jury could have concluded that defendant violated the CRA. Finally, because MCL 380.1230b afforded defendant complete immunity from civil liability flowing from the mandatory disclosures compelled by this statute, we hold that the trial court erred by allowing the jury to consider evidence of defendant’s statutorily mandated disclosures of plaintiffs wrongdoing to other schools, and the Court of Appeals erred by affirming the trial court’s decision in that regard. For these reasons, we reverse in part and affirm in part the judgment of the Court of Appeals, vacate the jury award for future damages, and remand to the trial court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY Defendant, National Heritage Academies, Inc., is a company that owns and operates a number of public, independently operated schools, including Linden Charter Academy (LCA) located in Flint, Michigan. The student body at LCA is predominantly black. Plaintiff, Craig Hecht, is a white teacher who had been employed by defendant at LCA for approximately eight years, most recently serving as a third-grade teacher. We draw from the evidence adduced at trial the following narrative concerning the events that led to plaintiffs termination. On November 3, 2009, Lisa Code, a white library aide at LCA, entered plaintiffs classroom during class time to return a computer table she had borrowed. Upon her arrival, however, Code realized that she had brought back the wrong table— the one she borrowed was white, whereas the one she returned was brown. Noting her error, Code asked plaintiff if he would prefer to have a white table, like the one she borrowed, or the brown one she had returned. Plaintiff responded, “[Y]ou know I want a white table, white tables are better.” He continued, “[W]e can take all these brown tables and we can burn the brown tables.” Also present for this exchange was Floyd Bell, a black paraprofessional assigned to plaintiffs classroom. After hearing plaintiffs comments, Bell and Code both “called a foul” on plaintiff, in accordance with the school’s informal procedures for addressing inappropriate personal conduct. Plaintiff denied hearing either Bell or Code call a foul on him, but later acknowledged that his comments were meant to imply that “white” people are better than “brown” people. Later that same day, Code reported the incident to Corrine Weaver, the dean of LCA. Weaver, in turn, reported the incident to her supervisor, Linda Caine-Smith, the principal of LCA, who initiated an investigation. Caine-Smith and Weaver each separately interviewed plaintiff, Bell, and Code and took written statements from all three. Although Code’s testimony at trial emphasized that plaintiff made the statements in front of a child, plaintiffs counsel also elicited testimony from Code that her November 4th written statement did not include that allegation. When questioned, plaintiff provided varying explanations regarding what had happened. At first, plaintiff confirmed to Weaver the general discussion about white and brown tables, but he denied that he meant anything racial by his statements. The following day, plaintiff told Caine-Smith that he never said “brown should burn.” However, later that day, plaintiff sent Caine-Smith a written statement in which he admitted to saying, “white tables are better than brown tables” and “all brown tables should burn.” He also admitted that he involved a third-grade student in the “jok[e]” after he made the comments. Plaintiff subsequently met with Bell, apologized to him, and shook his hand. At this point in the investigation, Caine-Smith contacted Courtney Unwin, defendant’s employee relations manager, to discuss plaintiffs conduct and Caine-Smith’s belief that plaintiff had lied during their initial conversation regarding the incident. Unwin then spoke directly to plaintiff, who, despite the admissions made in his earlier written statement, told her that his remark was simply a “tasteless joke,” denied involving a student in the joke, and claimed that none of his students heard the exchange. Unwin also claimed that plaintiff called her later that day, stated that he could not even remember saying anything about brown tables burning, and then justified his conduct by reference to racial banter he suggested was regularly engaged in by black teachers at LCA. Plaintiff claimed that he told Unwin he was just kidding around, that similar joking happened all the time at the school, and that he would do anything to make it better. Caine-Smith and Unwin met to discuss plaintiffs comments in the classroom and his versions of the incident. They discussed several disciplinary options, including a final written warning and termination. After that meeting, Caine-Smith called plaintiff to her office and told him he was being placed on immediate leave pending further investigation. Instead of leaving the building, plaintiff went into a room in which Bell was tutoring students. Plaintiff asked the students to leave the room so that he and Bell could speak privately. He then asked Bell to change the statement he gave defendant. Bell declined the request and explained that he would not lie for plaintiff. Plaintiff also tried to contact Code by calling both her home and cellular phones. Code did not answer either call, but plaintiff left a voicemail stating that he was “desperate” to speak to her. Code testified that plaintiff had never before tried to contact her. Code further testified that plaintiff never asked her to change her statement. The following day, Bell told Caine-Smith that plaintiff had asked him to lie. After receiving this information, Caine-Smith worried that plaintiff had similarly contacted Code. When asked, Code told Caine-Smith about the voicemail, causing Caine-Smith to consult with Unwin again.

Plymouth Public Schools vs. Education Association of Plymouth & Carver & another. No. 15-P-906. Plymouth. April 11, 2016. June 30, 2016. Present: Cypher, Katzmann, & Massing, JJ. School and School Committee. Professional teacher status. Maternity leave. Arbitration, Termination of employment. Arbitration. Arbitrable question. School committee. Public Employment. Paid leave. Termination. Family & Medical Leave Act. In a civil action brought by a school district seeking, inter alia, a stay of arbitration following its tender of a notice of nonrenewal to a teacher who had taught in the district’s schools over the course of five consecutive years, but who had twice taken maternity leave permitted under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq., a Superior Court judge erred in denying the defendants’ motion to dismiss the complaint, where, given the strong public policy favoring arbitration, the preference for arbitration expressed in the Education Reform Act of 1993, and this court’s prior decisions, the question of the teacher’s status as a professional teacher must be decided by an arbitrator. [646-649] This court did not reach public policy arguments in a case involving the question of professional teacher status, where the issues were not ripe for review. [649-650] Civil action commenced in the Superior Court Department on February 18, 2014. A motion to dismiss was heard by Robert J. Kane, J., and the case was heard by Frank M. Gaziano, J., on motions for summary judgment. Matthew D. Jones (Ashley F. Call also present) for the defendants. Michael J. Long for the plaintiff. Kristen Bilbo. Massing, J. Defendant Kristen Bilbo taught in the plaintiff Plymouth Public Schools (district) over the course of five consecutive school years. She took maternity leave during two of them. The district tendered a notice of nonrenewal at the end of the fifth year. Bilbo asserts that her service, interrupted only by her leave permitted under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (FMLA), entitles her to professional teacher status, giving her rights including arbitration of her dismissal. The district contends that Bilbo is not entitled professional teacher status or arbitration because she did not serve three consecutive full years. We conclude that whether Bilbo has attained professional teacher status is for the arbitrator to decide. Background, Bilbo worked full-time as a special education teacher at Plymouth North High School starting on March 10, 2008, through the end of the school year in June, 2013. She took maternity leave during her first and fourth full years as a teacher, for sixty days in 2009 and for fifty-six days in 2012. Bilbo’s leave was authorized under the FMLA. She was paid during both absences using accumulated sick time and a sick-leave bank available under the governing collective bargaining agreement. Toward the end of her fifth year of teaching, by letter dated May 31, 2013, the district provided Bilbo with notice that she would not be reappointed to a teaching position for the next school year. The letter explained, “You are not being appointed to a teaching position based upon the recommendations of your supervising principal and program manager and the concerns about continuity of instruction and the education of our students.” Asserting that she possessed professional teacher status by virtue of her five consecutive school years of service, Bilbo, through the defendant Education Association of Plymouth and Carver (union), timely petitioned the Commissioner of Elementary and Secondary Education (commissioner) for arbitration of her status. The district opposed her request, arguing that she lacked professional teacher status and was therefore ineligible for arbitration. The commissioner on January 9, 2014, forwarded Bilbo’s petition to the American Arbitration Association, noting that “before addressing the merits of the dispute, the arbitrator should first address the question of arbitrability raised by the [district].” On February 18, 2014, the district filed the instant complaint in the Superior Court against Bilbo and the union, together with a motion for a preliminary injunction seeking to stay the arbitration. After a hearing, a judge denied the preliminary injunction motion on March 4, 2014, reasoning that G. L. c. 71, § 42, and our decision in Turner v. School Comm. of Dedham, 41 Mass. App. Ct. 354 (1996), mandated “that arbitration be the sole method used to resolve disputes concerning teacher termination in this Commonwealth, including disputes in which a teacher’s status as a professional teacher is questioned.” Bilbo and the union next moved to dismiss the complaint. While the motion to dismiss was pending, the parties proceeded to arbitration, submitting the matter to the arbitrator in the form of a joint statement of facts and legal memoranda in lieu of a formal hearing. Before the arbitrator issued a decision, however, a second judge denied the defendants’ motion to dismiss, reasoning that the question of Bilbo’s professional teacher status was for the court and not the arbitrator to decide. The arbitrator agreed not to issue his decision pending final resolution of the litigation. On December 17, 2014, the parties simultaneously filed cross motions for summary judgment. After a hearing, a third judge allowed the district’s motion and denied Bilbo’s and the union’s motion. Judgment entered for the district, declaring that Bilbo did not have professional teacher status at the time the district notified her of nonrenewal and that the nonrenewal did not violate the FMLA or the Massachusetts parental leave statute, G. L. c. 149, § 105D. The judgment also ordered a permanent stay of the arbitration. Bilbo and the union timely appealed from the judgment. Arbitration of professional teacher status. The first issue before us — and the only issue we reach — is whether the question of Bilbo’s professional teacher status is for an arbitrator or a judge to decide. As the judge who denied the district’s motion to preliminarily enjoin arbitration aptly noted, there is a “chicken and the egg nature” to this question. A teacher who teaches for three consecutive school years in a public school district of the Commonwealth and is not tendered written notice of nonrenewal by June 15 of the third year is entitled to “professional teacher status” under G. L. c. 71, § 41. Professional teacher status confers certain rights, including a degree of protection from dismissal, the right to seek review of a dismissal decision through arbitration, and, in the case of layoffs, the right to “bump” teachers without such status. See G. L. c. 71, §42. If Bilbo’s five school years of service, interrupted only by maternity leave in year one and year four, entitled her to professional teacher status, then the district’s action amounted to a “dismissal” under § 42, triggering the procedural and substantive rights that accompany professional teacher status — including arbitration. If not, then the district’s action was simply a “nonrenewal” under § 41. See note 5, supra. “A dismissal is not the same as a nonrenewal of a contract.” Laurano v. Superintendent of Schs. of Saugus, 459 Mass. 1008, 1009 (2011), quoting from Downing v. Lowell, 50 Mass. App. Ct. 779, 782 (2001). If Bilbo “was not dismissed from her position,” then “she was not entitled to the safeguards provided in G. L. c. 71, § 42,” Laurano, supra — including arbitration. Thus, the threshold question whether Bilbo has professional teacher status is determinative of whether she is entitled to arbitration of any dismissal. We have previously held that this question is within the scope of the arbitrator’s authority. The appeal in Turner v. School Comm. of Dedham, 41 Mass. App. Ct. 354 (1996), presented nearly the mirror image of the case now before us. After receiving notice that she was being laid off by the Dedham school where she taught, Pauline Turner filed a complaint in Superior Court seeking a declaration that she had professional teacher status and requesting an order that the school reinstate her and “bump” another teacher. Id. at 355. The school defendants filed a motion to dismiss, arguing that Turner’s sole remedy to challenge her dismissal was through arbitration under G. L. c. 71, § 42. Turner, supra. This court agreed, stating that the Education Reform Act of 1993, see St. 1993, c. 71, “t[ook] away the right of teachers to challenge their dismissal by filing an action in the Superior Court,” and instead “establish[ed] arbitration as the sole remedy for all dismissals.” Turner, supra at 357-358. Much like the district argues now, Turner argued then that the Legislature’s requirement of arbitration of dismissals did not prevent, as a threshold matter, “filing a complaint in the Superior Court seeking a declaration that he or she has attained professional teacher status.” Id. at 358. We rejected that argument: “We disagree with Turner’s argument because such an action would result in a Superior Court judge having to first make a declaration as to the status of the dismissed teacher, and then, if the judge declares that the teacher has acquired that status, the matter being remanded for arbitration as to his or her ‘bumping rights.’ We do not think that the Legislature intended to establish two successive forms of review in two different forums for dismissed teachers with professional status.” Ibid. Here, too, treating the question of Bilbo’s status separately from the propriety of her dismissal presents the risk of two successive forms of review in two different forums. The district makes a futile attempt to distinguish Turner by arguing that the concern with two successive forms of review is not present here because the only question to be determined is whether Bilbo enjoys professional teacher status. While it is true that a judicial determination that Bilbo does not have professional teacher status would be the end of the matter — she would not be entitled to arbitration of the grounds for her dismissal — the same was true in Turner. A judicial determination that Turner did not have professional teacher status would not have required a remand to determine her bumping rights. However, if a judge were to declare that Bilbo did have professional status, the merits of any dismissal decision would be for an arbitrator to review. The decision in Lyons v. School Comm. of Dedham, 440 Mass. 74 (2003), reinforces our decision in Turner. After this court affirmed the dismissal of Turner’s complaint, she and another Dedham teacher, Anne Lyons, had separate arbitration proceedings to determine their professional teacher status. Id. at 76. The arbitrators issued a joint decision, concluding that Turner and Lyons were not “teachers” within the meaning of G. L. c. 71, §§ 41 and 42, because their employment status as “Chapter I teachers” — hired under a federally funded program providing supplemental instruction to designated students in reading and mathematics — did not equate with the qualifications and characteristics of classroom teachers in the “Unit A” collective bargaining unit. Id. at 75-77. Lyons and Turner (again) filed a complaint in Superior Court, seeking to vacate the arbitrators’ decision and for a declaration that they were “teachers” within the meaning of the statute. Id. at 77. A judge of the Superior Court vacated the arbitration award, ibid., which the Supreme Judicial Court reinstated. Id. at 82-83. The court rejected the argument that the determination of professional teacher status under G. L. c. 71, § 42, was outside the jurisdiction of the arbitrators and reserved for the courts. Id. at 79-82. Relying on School Dist. of Beverly v. Geller, 435 Mass. 223, 230 (2001) (Cordy, J., concurring) (“[T]he responsibility for interpreting the meaning of G. L. c. 71, § 42, and the scope of the arbitrator’s authority thereunder remains with the court”), Turner and Lyons argued that “the judiciary is responsible for independently determining whether [they] are teachers under G. L. c. 71, §§ 41 and 42.” Lyons, supra at 81. The court disagreed, observing that G. L. c. 71 “does not define ‘teacher’ in the context of delineating who is eligible for ‘professional teacher status,’ ” ibid., and concluding that “the arbitrators had the authority to determine whether Lyons and Turner were teachers,” id. at 82. As an arbitrator has the authority to determine whether a person “shall be considered a teacher” within the meaning of G. L. c. 71, §41, we perceive no reason why an arbitrator does not equally have the authority to determine whether a person “has served in the public schools of a school district for the three previous consecutive school years” within the meaning of the same sentence of the same statute. See note 2, supra. In addition, we have held that an arbitrator may properly consider a similar question: whether a lengthy break in service deprives a teacher of professional teacher status. In Goncalo v. School Comm. of Fall River, 55 Mass. App. Ct. 7, 7-8 (2002), a tenured teacher stopped teaching after a dispute with school officials, which, she alleged, was related to her union activities. Nine years later, the school sent her a letter formally dismissing her as a teacher. Id. at 8. The teacher sought to arbitrate her dismissal, but the arbitrator declined to consider whether the school’s refusal to offer her a contract during those nine years was in continuing retaliation for her union activities, deciding instead that she was not entitled to arbitration because her break in service caused her to lose her professional teacher status. Id. at 8-9. We confirmed the arbitrator’s decision, concluding that the arbitrator did not exceed his authority. Id. at 10-11. Given “the strong public policy favoring arbitration,” Lyons, 440 Mass. at 77, quoting from Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990), the preference for arbitration expressed in the Education Reform Act of 1993, and our prior decisions, we hold that the issue whether Bilbo has professional teacher status must be decided by an arbitrator. Additional considerations. Both parties contend that important public policy considerations require a determination in their favor on the issue of professional teacher status. Bilbo and the union contend that the FMLA forbids penalizing pregnant employees, or any other employee who takes FMLA-qualifying leave, by putting them in a worse position than if they had not taken leave. The district maintains that service time can be measured only in full-year increments, and that three uninterrupted years of review are necessary for schools to properly evaluate teachers and make staffing decisions for the next year. See G. L. c. 71, §41 (“A teacher without professional teacher status shall be notified in writing on or before June fifteenth whenever such person is not to be employed for the following school year” [emphasis supplied]). ‘“An arbitration award that offends public policy ‘is beyond the arbitrator’s powers and is therefore subject to vacation under G. L. c. 150C, § 11(a)(3).’ ” Lyons, 440 Mass. at 79, quoting from Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Council 93, 420 Mass. 13, 16 (1995). However, ‘“because the public policy ‘doctrine allows courts to by-pass the normal heavy deference accorded to arbitration awards and potentially to ‘“judicialize” the arbitration process, the judiciary must be cautious about overruling an arbitration award on the ground that it conflicts with public policy.’ ” Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 604 (2000), quoting from E.I. DuPont de Nemours & Co. v. Grasselli Employees Indep. Assn. of E. Chicago, 790 F.2d 611, 615 (7th Cir.), cert. denied, 479 U.S. 853 (1986). Because of the view we take on the threshold question of arbitration, we decline to address the parties’ public policy arguments, which are in any event unripe at this juncture. Conclusion . The defendant Bilbo is entitled to arbitration of her professional teacher status and, if the arbitrator determines that she enjoys such status, ultimately of the merits of any dismissal. The judgment of the Superior Court is reversed, and a new judgment shall enter on all counts of the complaint and counterclaim consistent with this opinion. So ordered. “[A] teacher, school librarian, school adjustment counselor, school nurse, school social worker or school psychologist who has served in the public schools of a school district for the three previous consecutive school years shall be considered a teacher, and shall be entitled to professional teacher status as provided in section forty-two.” G. L. c. 71, § 41, as amended through St. 2006, c. 267. “A teacher with professional teacher status may seek review of a dismissal decision within thirty days after receiving notice of his dismissal by filing a petition for arbitration with the [Cjommissioner [of Elementary and Secondary Education].” G. L. c. 71, § 42, as appearing in St. 1993, c. 71, § 44. We draw our statement of facts from the parties’ joint statement of uncontested facts and exhibits submitted with their' cross motions for summary judgment. The letter cited G. L. c. 71, § 41, a portion of which provides, “A teacher without professional teacher status shall be notified in writing on or before June fifteenth whenever such person is not to be employed for the following school year. Unless such notice is given as herein provided, a teacher without such status shall be deemed to be appointed for the following school year.” Id., as appealing in St. 1993, c. 71, § 43. Bilbo has not asserted the alternative means of obtaining professional teacher status: “The superintendent of [a] district, upon the recommendation of the principal, may award such status to any teacher who has served in the principal’s school for not less than one year or to a teacher who has obtained such status in any other public school district in the commonwealth.” G. L. c. 71, § 41, as amended by St. 1996, c. 450, § 127. The complaint’s three counts sought a stay of the arbitration, a declaration that Bilbo did not have professional teacher status, and a declaration that Bilbo’s nonrenewal by the district was proper. Bilbo and the union then filed an answer and a counterclaim in three counts: to compel arbitration, to confirm any award issued by the arbitrator, and for a declaration that arbitration is the exclusive forum for determining Bilbo’s professional teacher status. “A teacher with professional teacher status . . . shall not be dismissed except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter or other just cause.” G. L. c. 71, § 42, as appealing in St. 1993, c. 71, § 44. Moreover, school principals “must follow strict procedural and substantive provisions before firing a teacher with professional status.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 761 (2003). The plaintiff had achieved tenure under G. L. c. 71, § 41, as it read before passage of the Education Reform Act in 1993. Goncalo, 55 Mass. App. Ct. at 9. A case interpreting the tenure statute prior to amendment by the Education Reform Act of 1993 held that “[t]he time spent on maternity leave [under G. L. c. 149, § 105D,] may not be counted towards the amount of time required for tenure,” but at the same time, that maternity leave “does not interrupt the consecutiveness of [the teacher’s] service except as to the period of time consumed by the leave.” Solomon v. School Comm. of Boston, 395 Mass. 12, 18-19 (1985). The court left open “the question whether such teacher must serve an entire additional year to compensate for the incomplet

Kamee Verdrager vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., & others. Suffolk. November 5, 2015. May 31, 2016. Present: Botsford, Duffly, Lenk, & Hines, JJ. Anti-Discrimination Law, Employment, Sex, Termination of employment. Employment, Discrimination, Sexual harassment, Demotion, Retaliation, Termination. Unlawful Interference. Practice, Civil, Summary judgment, Discovery. In a civil action brought by an attorney (plaintiff) against the law firm that employed her and certain individuals in that firm (defendants), alleging discrimination on the basis of gender, the judge erred in granting summary judgment in favor of the defendants, where the plaintiff presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination [396-405], as well as evidence allowing an inference that both were the result of retaliation [405-410]. This court concluded that an employee’s acts of self-help discovery in aid of claims under G. L. c. 151B, § 4, might constitute protected activity under that statute, but only if the employee’s actions are reasonable in the totality of the circumstances; further, this court concluded that where the plaintiff in a civil action alleging discrimination in employment is an attorney, such that some of the documents at issue might be subject to the rules of attorney-client confidentiality and privilege, the plaintiff’s acts of self-help discovery are not thereby stripped of the protections afforded other employees by G. L. c. 151B; finally, this court set forth seven factors to be taken into account in an analysis of the reasonableness of self-help measures in the totality of the circumstances. [410-415] In a civil action alleging tortious interference with contractual relations, the judge properly granted summary judgment in favor of the defendant on the ground that the claim was time barred because the relevant acts took place more than three years before the complaint was filed, where the proper vehicle for the plaintiff’s claim would have been the administrative procedure provided in G. L. c. 151B. [415] Civil action commenced in the Superior Court Department on November 3, 2009. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Kamee Verdrager, pro se. Joan A. Lukey (.Justin J. Wolosz also present) for the defendants. Ellen J. Messing, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. Robert Gault, David Barmak, Bret Cohen, R. Robert Popeo, and Donald Schroeder. Lenk, J. General Laws c. 151B, § 4, prohibits employers from discriminating against employees on the basis of gender. It also prohibits them from retaliating against employees for engaging in “protected activity,” i.e., activity undertaken “to protest or oppose statutorily prohibited discrimination” (citation omitted). See Thirkield v. Neary & Hunter OB/GYN, LLC, 76 F. Supp. 3d 339, 350 (D. Mass. 2015) (interpreting G. L. c. 151B). Here, we are asked to determine whether summary judgment should have entered for the employer on an employee’s claims for gender discrimination and retaliation. In addressing the retaliation claim, we confront the novel question whether it is “protected activity” for an employee to search for, copy, and share with the employee’s attorney confidential documents that the employee is authorized to access in the course of employment and that may help prove a discrimination claim. The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm). During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD) that she was being subjected to discriminatory treatment on the basis of her gender — treatment that, she believed, led to her demotion in February, 2007. In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm’s document management system for items that might prove her assertions of discrimination. In November, 2008, after these searches were made known to the firm’s chairman, the plaintiff’s employment was terminated “for cause.” In November, 2009, the plaintiff filed the present action in the Superior Court, which, as amended, named as defendants the firm, certain firm “members” with whom she worked, and the firm’s chairman, R. Robert Popeo. The complaint alleged that both the plaintiff’s demotion and her termination were the result of discrimination on the basis of gender, and that both also constituted retaliation for her having opposed such discrimination. The complaint specified five counts pursuant to G. L. c. 151B, § 4: gender discrimination (against all defendants except Bret Cohen); pregnancy discrimination (against the firm); aiding and abetting discrimination (against all except the firm and Cohen); failure to investigate and remedy discrimination (against the firm); and retaliation (against all except Cohen). A sixth count, tortious interference with contractual relations, was filed only against Cohen, who was not named in any of the other counts. The defendants then counterclaimed on various grounds. Following cross motions for summary judgment, only three of the defendants’ counterclaims survived, and all of the plaintiff’s claims were dismissed. The plaintiff appealed from the dismissal of her claims, and we allowed her petition for direct appellate review. We conclude, first, that the plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation. Therefore, summary judgment for the defendants on those counts was inappropriate. Second, we hold that an employee’s accessing, copying, and forwarding of documents may, in certain limited circumstances, constitute “protected activity,” but only where her actions are reasonable in the totality of the circumstances. Finally, we conclude that judgment was entered properly on the claim against Cohen for tortious interference with contractual relations. 1. Background. We summarize the facts, which are generally undisputed, “drawing inferences in favor of the plaintiff where they may reasonably be drawn from the facts.” Young v. Boston Univ., 64 Mass. App. Ct. 586, 587 (2005), cert. denied, 549 U.S. 832 (2006). To the extent that facts are disputed, we resolve them in favor of the plaintiff. See Miller v. Cotter, 448 Mass. 671, 676 (2007). We reserve certain details for later discussion. After graduating from law school in 1999, the plaintiff practiced employment and labor law in New York. In June, 2004, she began work as a fifth-year associate at the firm’s Boston office, in its employment, labor, and benefits (ELB) section. Throughout the course of the plaintiff’s employment, the firm had in place an “Electronic Information System [EIS] Acceptable Use Policy” (EIS policy). On June 16, 2004, the plaintiff signed a copy of that policy and agreed to be governed by its provisions. The plaintiff was trained in the use of DeskSite, a document management system used by the firm, at the beginning of her employment. She was told that she “was supposed to save almost all documents which she authored to the public section of DeskSite” and “was expected to search the system regularly in connection with her work.” Any documents in the “public” section of that system “were available to everyone in the firm who could access DeskSite.” Such documents could be accessed directly or could be found through a general word search of the system’s contents. Users also could choose, however, to save documents in a “private” section of the system, accessible only to themselves or to individuals that they specified. The EIS policy provided that the “EIS should be used, with limited exceptions, only for job-related communications. Although personal use is permitted, employees should do so with the full understanding that nothing is private” (emphasis in original). Associates frequently used DeskSite for personal or nonbusiness reasons, including to check the time records of other associates to see “who was getting the most work.” The firm also had in place a confidentiality policy, which stated that “[a]ll documents, correspondence, forms and other work product created or produced by the firm in connection with the delivery of legal services to the firm’s clients are the sole property of [the firm] and its clients. Such material should not be removed from the office or used for any reason other than for or in connection with the delivery of services on behalf of the firm.” Shortly after joining the firm, in late June and early July, 2004, the plaintiff was assigned to work with Cohen, a member in the ELB section, to draft a brief on behalf of one of the firm’s clients. In an electronic mail message dated July 19, 2004, Cohen stated that the client “has really liked our pleadings to date. Let’s keep up the good work!” Another firm member, who also worked on the brief, later wrote in an evaluation that the plaintiff “not only has a sound command of legal principles but she appears to have great intuition and reaction to legal issues that will make her an excellent advisor to clients and an attorney who has much to contribute to strategic issues in matters. On numerous matters in [this] case she has dropped by my office to discuss an issue and her intuitive response to the issue has been on point and well-considered .... I have not witnessed [her] interaction with clients, but I do know that she has had extensive contact with opposing counsel and the client in [this] matter. My impression is that [the client] has appreciated [the plaintiff’s] counsel and that [she] is well-respected and had ‘run with the ball’ in connection with opposing counsel in the matter .... I would certainly like to work with her again on any matters that involve ELB litigation[.]” The plaintiff maintains that, while Cohen and the plaintiff were working on this brief, he made a number of inappropriate, sexually charged comments to her. At some point in July, 2004, the plaintiff complained of these incidents to the firm’s human resources office. In mid-August, 2004, the plaintiff spoke with, among others, the firm’s managing director, Peter Biagetti, and with the attorney managing the ELB section, defendant Robert Gault, about the incidents. Gault and Biagetti met with Cohen in August, 2004, to discuss the plaintiff’s assertions. Gault and Biagetti concluded that her complaints were “management style complaints” rather than “complaints related to gender differences,” and decided to hire an executive coach to work with Cohen. At some point during that summer, firm chairman Popeo was informed of the plaintiff’s complaints. Popeo spoke with Biagetti and was told that Biagetti had looked into the complaints and had found no evidence of gender-based discrimination. In October, 2004, after a client complained to Cohen about the plaintiff’s performance, Cohen asked the client to submit the complaint in writing, which Cohen then forwarded to Gault, the ELB section manager, and Starr, the director of human resources. Also in October, 2004, various individuals, both members and associates, told the plaintiff that Cohen was making negative remarks about her. In evaluating the plaintiff’s performance in the fall of 2004, Cohen rated it as “usually below expectations.” He wrote that the plaintiff “needs a great deal of help on her writing. She is smart and seems to have a great deal of institutional knowledge but, at least when I dealt with her, was unable to translate her knowledge into a cohesive thought.... Orally, I find that she does not speak with confidence. For example, she says ‘um’ a lot.” The concerns regarding the plaintiff’s writing were echoed in the comments of her other evaluators. Defendant Donald Schroeder, then a senior associate in the ELB section, who would later be promoted to membership, rated the plaintiff’s performance as “always meets expectations.” In his written comments, however, he added that the plaintiff “needs to develop her analytical writing skills and organize her thoughts more clearly on paper.” Gault rated her work as “usually meets expectations” and noted that “I do not have much exposure” to her work but “I’ve seen a few things [in her writing] that suggest a need for more attention to detail.” In January, 2005, Cohen increased the scope of a research project he had assigned to the plaintiff. This project did not count toward her quota of hours billable to clients. Based on conversations she had at the time with her colleagues, the plaintiff maintains that the scope of the nonbillable work assigned to her was greater than that assigned by Cohen to other associates, a point that Cohen disputes. On February 2, 2005, the United States Court of Appeals for the Fourth Circuit upheld a jury verdict in favor of a female employee in the firm’s Virginia office. See Gallina vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, U.S. Ct. App., Nos. 03-1883 & 03-1947, slip op. at 12 (4th Cir. Feb 2, 2005) (Gallina). The jury found that, in violation of Federal antidiscrimination laws, the firm had retaliated against the employee for complaining of what she believed to be discriminatory treatment on the basis of her gender. Id. at 8. On February 11, 2005, Cherie Kiser, a member in the firm’s Washington, D.C., office who chaired the firm’s diversity committee, left a voicemail message for Popeo expressing her concern that the firm in general, and section manager Gault, in particular, did not take seriously employees’ complaints of gender discrimination. Popeo later spoke with Kiser, stating his commitment to combatting discrimination based on gender, but suggesting that Kiser was “overreacting” to what “she was hearing from Gault.” In March, 2005, the plaintiff underwent her annual performance review. Among her evaluators were Schroeder and Gault. She received an over-all rating of “always meets expectations” in five competencies, and an over-all rating of “usually meets expectations” in another six competencies. Each evaluator also provided written comments. Gault wrote that the plaintiff “seems very smart but [I] think the writing issues may mask some of her inherent intellectual ability.” Schroeder wrote that “her writing style is too informal” and that “[s]he needs to proofread her work and pay more attention to detail.” Some of the other comments were positive, including a comment from Gault that the plaintiff “[s]eems to have a pretty good substantive knowledge of a lot of general employment law areas” and from Schroeder that she “is very good with clients.” In the fiscal year ending that month, the plaintiff had amassed thirty-three more billable hours per month than the average associate. Also in March, 2005, Starr, the human resources director, and Rosemary Allen, a firm member who oversaw the firm’s personnel matters, received complaints from six women that Cohen had made inappropriate comments to them. After investigating, Starr and Allen concluded that no gender-based discrimination had taken place. On July 20, 2005, Eastern Point Consulting Group, Inc. (Eastern Point), a consulting company hired in the wake of the Gallina case to investigate allegations of discrimination, presented the findings from its investigation to the firm. Among other things, Eastern Point reported that many female attorneys, both members and associates, “believe it is more difficult for women than men at [the firm].” Starr was interviewed in the course of this investigation, and stated that there is a “tolerance for poor behavior” at the firm. In September, 2005, after returning from her honeymoon, the plaintiff informed Gault that she was pregnant with her first child. Gault responded, “Well, I suppose these things happen. I guess we have your honeymoon to blame for this?” He then discussed the possibility of the plaintiff reducing her schedule to part time, although the plaintiff had not sought a reduction in hours or raised the possibility of such a reduction. Subsequently, the plaintiff experienced medical difficulties related to her pregnancy and was placed on short-term disability. Gault and Schroeder exchanged electronic mail messages in January, 2006, and March, 2006, in which each expressed that he was “frustrated” with the plaintiff’s absences and lack of availability. Gault also spoke to the plaintiff’s neighbors and discovered that she was performing work around her house that he did not believe was consistent with the medical conditions she reported. In March, 2006, the plaintiff underwent her second annual performance review. Gault was one of her evaluators. She received over-all ratings of “usually exceeds expectations” in four competencies, “always meets expectations” in six other competencies, and a rating of “usually meets expectations” in the eleventh area, business development. In a written comment, Gault stated, “I noted some areas of substantive knowledge and writing in my last review that needed improvement,” but that he “has seen what seems to be an improvement in her work since her last evaluation.” His main criticism was that “I have not seen any evidence of production potential/entrepreneurial instincts.” Another member wrote “that she spent excessive time on the work” he had assigned her and that her “drafting is not particularly precise.” On the other hand, a firm member from outside ELB wrote positively that “the work [the plaintiff] did was for a very demanding client who set pretty unrealistic expectations, but [she] was able to meet them.” In a separate evaluation dated May 1, 2006, Schroeder wrote, among other things, that the plaintiff’s “writing needs to improve” and that she “did not always communicate [her reduced] schedule to everyone in ELB and I had to handle a number of matters on an emergency basis.” On May 3, 2006, the plaintiff gave birth to her first child. She began a planned six-month maternity leave. In June, 2006, defendant David Barmak replaced Gault as section manager of the ELB section. While the plaintiff was on leave, she was informed that, based on the performance reviews she had received in March, 2006, prior to her leave, she would be subject to another, interim performance review. This review would be based on her performance during the first ninety days after her return from leave. The plaintiff returned to work on November 1, 2006. Thereafter, she registered a relatively low number of billable hours compared to other associates in the ELB section. By early February, 2007, the plaintiff had received two negative reviews of her work. One review criticized her for putting into a contract “poorly drafted language that needed to be redrafted in more conventional form.” The other review, from Schroeder, noted, among other things, that she took “too much time to complete [a writing] task” he had assigned her and that “I had to perform more editing than I normally need to do for memos done by more junior associates.” He also noted that “[d]espite a full-time schedule, she is coming in at 9[:]30 or so and leaving no later than 5[:]30 ... I cannot understand why she has not attempted to step up to the plate.” The plaintiff also received positive comments from a client who “was very complimentary of [the plaintiff] and [her] work.” In or around February, 2007, Allen, the member overseeing personnel matters, told Popeo, the firm chairman, that the senior attorneys in the ELB section had requested that the plaintiff