Harassment Cases

Kimberly Dahms vs. Cognex Corporation & others. Middlesex. May 5, 2009. October 15, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, & Gants, JJ. Employment, Sexual harassment. Evidence, Settlement offer, Judicial discretion, Relevancy and materiality, Hearsay, State of mind. Practice, Civil, Instructions to jury. At the trial of a civil complaint alleging, inter alla, sexual harassment in employment and retaliation, the judge did not err in allowing the defendants (the corporate employer and one of its officers) to introduce in evidence statements made during settlement negotiations on a claim that the plaintiff filed with the Massachusetts Commission Against Discrimination, where the statements were probative of whether the work restrictions imposed on the plaintiff subsequent to the filing of that claim were imposed for a nonretaliatory purpose. [198-199] At the trial of a civil complaint alleging, inter alla, sexual harassment in employment and retaliation, the judge did not abuse his discretion in allowing the introduction of evidence regarding the plaintiff’s clothing, speech, and conduct, where the plaintiff’s counsel was the first to mention evidence of this type and introduced photographs of the plaintiff and other employees of the corporate defendant in various party costumes; where such evidence was probative of whether the plaintiff was subjectively offended by her work environment or by the conduct of one of the individual defendants, and was not admitted as character evidence; and where some of that evidence was also relevant to show another individual defendant’s state of mind. [199-202] At the trial of a civil complaint alleging, inter aha, sexual harassment in employment and retaliation, the judge’s exclusion of a certain witness’s testimony about the substance of a telephone conversation did not rise to the level of an abuse of discretion, where the judge permitted the witness to testify that the plaintiff contacted her and was upset on the telephone. [202-204] The judge at a civil trial did not abuse his discretion in declining to take judicial notice of the release date of a movie, or in denying a request for rebuttal testimony regarding the date of the movie’s release, where the party seeking to introduce such testimony had not proposed a proper method for introducing such evidence before resting its case-in-chief. [204] At the trial of a civil complaint alleging, inter alla, sexual harassment in employment and retaliation, although the judge’s instruction on the claim that two of the individual defendants created a hostile work environment contained error, the verdict would not have differed absent the error. [204-208] Civil action commenced in the Superior Court Department on June 24, 1999. The case was tried before Stephen E. Neel, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Wendy H. Sibbison for the plaintiff. Joan A. Lukey (Elizabeth E. Feeherry with her) for Cognex Corporation & another. Justine H. Brousseau for John J. Rogers, Jr. Rebecca G. Pontikes, Tara M. Swartz, & Jonathan J. Margolis, for Massachusetts Chapter of the National Employment Lawyers Association, amicus curiae, submitted a brief. Catherine C. Ziehl & Beverly I. Ward, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Robert J. Shillman and John J. Rogers, Jr. Cordy, J. Kimberly Dahms, an employee of Cognex Corporation (Cognex), filed a civil complaint alleging that John J. Rogers, an officer of Cognex, subjected her to “quid pro quo” sexual harassment over the course of several years in violation of G. L. c. 151B, § 4 (16A); Cognex and Robert J. Shillman, the chief executive officer of Cognex, aided and abetted Rogers’s harassment by failing promptly to investigate his conduct and take corrective measures to stop it; Rogers and Shillman created a hostile work environment in violation of G. L. c. 151B, § 4 (16A); and all three defendants wrongfully retaliated against her in violation of G. L. c. 151B, § 4 (4), because she reported being sexually harassed and filed a charge with the Massachusetts Commission Against Discrimination (MCAD). She also claimed that Rogers was liable for assault, battery, and intentional infliction of emotional distress. The trial commenced on October 1, 2003, and on November 10, the jury returned a verdict for the defendants on all counts. Dahms appealed, arguing that the judge erred in allowing certain evidence to be introduced, in excluding certain other evidence, and in instructing the jury on hostile work environment sexual harassment. We transferred the case from the Appeals Court on our own motion. We affirm. 1. The trial. The following evidence was introduced at trial. In 1981, Shillman cofounded Cognex, a company that designs and manufactures computer systems that can “see” their surroundings. Dahms, who held a bachelor of science degree in computer engineering, was hired by Cognex in 1990 and by 1996 had become its director of customer satisfaction. In her position at Cognex, Dahms was subject to a noncompete agreement. Dahms reported to Patrick Alias, the executive vice-president of sales and marketing at Cognex, who reported to Shillman. Rogers, a certified public accountant, joined Cognex in 1991 and, at different times, held the titles of vice-president of finance and administration, chief financial officer, and treasurer. In 1996, Rogers moved to the town where Dahms lived, and the two sometimes traveled to work together. Dahms testified that she and Rogers began discussing the failure of one of his recent romantic relationships, and that Rogers was “heart-broken.” Rogers testified that they also discussed Dahms’s boy friend at that time, a Cognex engineer named Michael Cook, and that from the summer of 1996 until the summer of 1997 they frequently discussed their personal lives and relationships. Much of the trial focused on the broadening of the relationship between Rogers and Dahms in 1996 and 1997. Dahms testified that she and Rogers “became friendly” and sometimes saw each other outside of work. Marilyn Matz, who at the time of trial was a senior vice-president in charge of engineering at Cognex, testified that Dahms and Rogers appeared to be friends, and that they “chatted” and “danced at parties.” Jo Ann Woodyard, vice-president of corporate employee services at Cognex (including human resources and corporate communications), testified that Dahms “obviously had a friendship with [Rogers],” and that during the first half of 1997, she increasingly saw Dahms socialize with Rogers at company events, at times placing a “hand on the [other’s] arm” and frequently socializing in hallways and in meetings. She said Dahms appeared “happy” and “friendly.” She also reported often seeing Dahms in Rogers’s office with the door closed. Dahms testified that Rogers asked her to accompany him to his high school reunion and that this made her uncomfortable. She also testified that he asked to spend a weekend with her in her rented ski house; Rogers denied this. Dahms further testified that she never had any romantic interest in Rogers; Rogers testified that she initiated a first kiss, and that she “had very strong feelings” for him. As of January, 1997, Rogers was dating a woman whom he later married. By the spring, 1997, Dahms was living with Cook, whom she later married. Around that time, Dahms began receiving voicemails from Rogers, which she recorded and kept; he described her as beautiful, said that he dreamed of her, and said that he wanted to kiss her. Rogers testified that Dahms left him voicemails with a similar tone, but that he did not have any reason to record them. Dahms denied that she had left such voice-mails for Rogers. In March, 1997, Dahms and Rogers took a business trip to Japan. She testified that at dinner one night, he told her that he would have a role in her next promotion. He had a lot to drink that night, she said, and he later tried to push open the door to her hotel room; she shut the door and locked it, and thirty minutes later he returned and pounded on the door. Dahms was upset by this and telephoned a friend, Denise Donovan, in the United States, to talk about it. Rogers denied Dahms’s version of events, testifying that she invited him to her room that night, and that he left the room without incident. Finally, Dahms and Rogers testified that they went on a rafting trip in June, 1997, together with their future spouses. Dahms said that the trip was uneventful, except that Rogers once stated that he was “the guy who decided how much money [Cook] and [Dahms] made.” Rogers said that Dahms was excited about the trip, and that he and Dahms talked about how they might be better suited for each other than the people they were dating at the time because they both enjoyed outdoor activities. After the rafting trip, Dahms testified, she ended all nonwork contact with Rogers. Soon thereafter, Rogers registered complaints about Dahms to her direct supervisor, Alias, on her use of a company credit card, her travel expenses, and her criticism concerning an unsuccessful Cognex project. Dahms told Alias in August, 1997, that such criticism might not be objective because she had told Rogers that she “didn’t want to date him.” In September, 1997, Dahms approached Shillman to discuss Rogers’s conduct, and played the voicemails for him. Shillman was “outraged” and “distraught” that “Rogers had gotten involved with a female at Cognex against [his] specific orders.” He began pacing around his office, and told Dahms that “this would be the last time that Mr. Rogers would do that.” He told Dahms that he would fire Rogers if she wished; she initially did not respond, but later told Shillman that she did not want him to fire Rogers. He asked Dahms to write a summary of Rogers’s actions, and to deliver to him copies of the tape recordings of the voicemails. Approximately one month later, Dahms sent Shillman the tapes and a two-page memorandum highlighting Rogers’s conduct. After the meeting with Dahms, Shillman began an investigation into Rogers’s conduct, and reminded Rogers that he was prohibited from engaging in any type of romantic relationship with a Cognex employee. He did not inform Rogers of Dahms’s complaint because she had asked him to keep the report confidential. Rogers lied to Shillman, saying that he had not “asked anybody out at Cognex.” Shillman testified that he believed Rogers had “misbehaved,” but struggled over the proper response in light of Dahms’s request that Rogers not be fired. Shillman then approached Woodyard for advice; she surprised him by saying he should “take a step back” before acting. She told him that Dahms and Rogers “had a very close relationship,” and had had dinners and dates together. He testified that in light of this information (which he was told was “company knowledge”), he was “confused why [Dahms] would make these claims.” He began asking Cognex employees about their relationship, and learned that Dahms had cooked food for Rogers; that they went on skiing, rafting, and other trips together; that they had gone on double-dates together; and that they visited each others’ homes. He testified that at this point, although he was still inclined to fire Rogers for becoming involved with a Cognex employee, he had concluded that Rogers’s “voice-mails were wanted, not unwanted,” and that Dahms was “making a false claim” about the harassment. He continued to weigh his response to Rogers’s behavior, and checked in with Dahms approximately five times in the months following the receipt of her memorandum to see if Rogers was bothering her in any way; she said he was not. There were no new developments regarding Dahms’s harassment claims, and Shillman testified that by 1998 he “was comfortable that the matter of John Rogers and [Dahms] was over.” On May 13, 1998, Cognex held a meeting with an important customer. The customer had reported serious problems with some Cognex products, and requested the meeting to discuss how Cognex would solve them. During the meeting, several Cognex employees gave presentations outlining and discussing the project from various points of view. Shillman testified that when Dahms stood to give her own presentation, she stated that the problems were caused by Matz, who was in the room. This, Shillman testified, angered him, and that it was “frankly the worst thing that can happen in front of a customer.” He pulled Dahms aside in the parking lot as they were leaving the meeting, and told her that he was disappointed that she would “blame other people in the company in front of a customer.” In response, she said, “Bob, I want you to pay my legal fees,” referring to her having consulted with a lawyer in the summer of 1997 about a possible harassment claim arising from Rogers’s conduct. He said that he would consider paying them if she submitted receipts, but that her legal claim was not connected to her behavior in the meeting with the customer. One month later, she submitted legal bills totaling $4,500. Shillman then called Dahms to a meeting, and offered her $5,000 and 10,000 shares of Cognex stock if she would agree to release the company and its officers and employees from any claims of harassment she might have arising out of Rogers’s conduct. She rejected the offer. Dahms filed a complaint with the MCAD on August 7, 1998. In addition to sexual harassment claims against Rogers, the complaint alleged that Cognex had created a sexually hostile work environment, and that Shillman (personally) had both sexually harassed Dahms and had created a hostile work environment.* Shillman testified that he was shocked to be named personally in the MCAD complaint, that he had never sexually harassed anyone, and that he knew the claims against him were false. At that point, he said, he began gathering evidence to defend himself. He sent an electronic mail message (e-mail) to Woodyard asking her for copies of photographs and videotapes of Dahms, descriptions of any complaints employees had made about Dahms, and a “list of rumors/things that you’ve heard about [Dahms] . . . with some information about how we can track these rumors down.” He testified that he sought to demonstrate that “she enjoyed being at the company,” and that “she was an active participant and enjoyed the culture of the company,” which, as others described it, was based on a “work hard, play hard” team building philosophy. Over the next few months, Dahms’s attorney and the defendants sent several letters to each other in an attempt to negotiate a settlement of the MCAD claim. On August 21,1998, Dahms’s attorney outlined the terms that Dahms would accept in settlement, and also wrote that “it is our position that a court would not be likely to enforce a non-compete agreement given the egregious behavior of the company.” On September 15, Dahms’s attorney wrote that “Ms. Dahms will not agree to abide by the non-compete agreement, which would preclude her from finding any meaningful employment for the next two years. As previously stated to you, we believe Cognex has very little likelihood of enforcing the agreement . . . .’’On October 14, Dahms’s attorney sent a new settlement offer to counsel for Cognex, writing that, “[w]ith regard to the suggestion of Ms. Dahms remaining with Cognex, that is not an option.” None of these letters was introduced in evidence. Shillman then wrote a letter to Dahms on October 27, 1998, stating that in an October 7 meeting and in the previous letters from “your attorney,” Dahms had made “unequivocal statements that [she] would not remain at Cognex under any circumstances and that it simply was not open for discussion,” and had “expressed insistence that [she] intended] not to be bound by the non-compete provisions” that she signed when joining the company. As a consequence, he wrote, while Dahms remained an employee of Cognex, her access would be restricted, including access to the physical facility, proprietary information, and strategic planning. She would be required to leave Cognex by 6:30 p.m. each day and to leave meetings when strategic discussions began, and her access to computer files would be limited to those deemed necessary for her work. Shillman testified that the restrictions were necessary only because Dahms had stated an intention to leave the company and compete with it, and that he personally informed Dahms that the restrictions would be lifted “if she would reaffirm her non-compete commitment.” On June 24, 1999, Dahms filed the present civil complaint, and alleged that these restrictions (among other things) constituted retaliation for the filing of her MCAD complaint in August, 1998. Over the ensuing months, Shillman testified that Dahms spent a large portion of each day at Cognex working on her legal case, and that she was “inundat[ing]” coworkers with e-mails and voicemails about her claims. Alias testified that Dahms came to work less frequently, and was not working well with her Cognex peers. She was terminated on June 6, 2000; Alias testified that he made the decision to terminate her because he “wasn’t able to make her work.” 2. Discussion. On appeal, Dahms argues that the judge committed five errors that alone or in combination require a new trial: (1) allowing the defendants to introduce in evidence references to settlement negotiations; (2) admitting evidence of Dahms’s dress, speech, and conduct, which she contends was inadmissible “character and propensity evidence”; (3) excluding Denise Donovan’s testimony about the substance of Dahms’s telephone call to her from Japan; (4) excluding evidence of the general release date of a movie, a matter, Dahms contends, that was relevant to Rogers’s credibility; and (5) instructing the jury to enter a judgment for the defendants on the hostile work environment claim if Dahms was “a willing participant in sexual behavior in her workplace.” a. Evidence referring to settlement negotiations. Dahms argues that the judge improperly allowed in evidence Shillman’s October 27, 1998, letter and his related testimony on Dahms’s intention to leave and compete with the company, thereby improperly presenting the contents of a settlement negotiation to the jury. “We do not disturb a judge’s decision to admit evidence absent an abuse of discretion or other legal error.” Zucco v. Kane, 439 Mass. 503, 507 (2003). Typically, offers of settlement are inadmissible to prove or disprove a defendant’s liability. Id. at 509. This rule attempts “to encourage settlements by limiting the collateral consequences of a decision to compromise.” Id. There are, however, exceptions to that rule. First, factual statements made during the course of settlement negotiations are admissible. See M.S. Brodin & M. Avery, Massachusetts Evidence § 4.6, at 183 (8th ed. 2007), and cases cited. Second, evidence regarding the settlement may be admissible if it “is relevant for some other purpose .... There may be situations ... in which evidence of a settlement, or the amount of a settlement, will bear on some issue in the case other than damages, and an automatic rule of exclusion should not be applied.” Morea v. Cosco, Inc., 422 Mass. 601, 603 (1996). The evidence admitted in this case was relevant for a purpose other than liability or damages on the MCAD claim about which the negotiations related. The evidence was probative of whether the work restrictions imposed by Shillman subsequent to the filing of that claim were imposed for a nonretaliatory purpose. Specifically, the statements made in settlement negotiation correspondence were properly admitted for the purpose of demonstrating Shillman’s state of mind at the time he imposed the work restrictions on Dahms. The judge carefully weighed the benefits and potential prejudice of this evidence. In discussions with Dahms’s counsel, the judge agreed that the evidence (devoid

Augis Corporation vs. Massachusetts Commission Against Discrimination & another. No. 08-P-1271. Norfolk. March 11, 2009. October 14, 2009. Present: McHugh, Green, & Fecteau, JJ. Anti-Discrimination Law, Employment, Race, Damages. Employment, Discrimination. Massachusetts Commission Against Discrimination. Administrative Law, Hearing, Evidence, Substantial evidence. Damages, Emotional distress. Emotional Distress. At the hearing on a complaint filed with the Massachusetts Commission Against Discrimination, alleging discrimination in employment based on race, the hearing officer did not abuse her discretion in prohibiting the employer from calling a certain witness to testify as a sanction for the employer’s bad faith in failing to cooperate after the illness of its attorney frustrated the employee’s ability to comply with a discovery deadline for the deposition of that witness; further, any error arising from the exclusion of another witness’s testimony, on the ground that his name first appeared on the employer’s witness list shortly before the hearing, was harmless, in that the exclusion of the witness’s testimony did not deprive the employer of any substantial rights. [402-406] In a civil action, a Superior Court judge did not err in affirming a decision of the Massachusetts Commission Against Discrimination (commission) that an employer had engaged in racial discrimination against the complaining employee, where the award of damages was not based on uncharged conduct, in that the employee’s allegation that he was singled out for harsh treatment because of his race was a visible, central component of his over-all claim [406-407]; where there was substantial evidence to support the commission’s finding, based on a single incident, that the employer was liable for discrimination of a type G. L. c. 151B, § 4, prohibits [408-409]; and where there was substantial evidence to support the commission’s award of damages for emotional distress [409-410], Civil action commenced in the Superior Court Department on October 16, 2003. The case was heard by Barbara A. Dortch-Okara, J., on a motion for judgment on the pleadings, and a motion for attorney’s fees and costs was also heard by her. Peter R. Fenn (Lowry Heussler with him) for the plaintiff. Simone R. Liebman for Massachusetts Commission Against Discrimination. Annette Hill Green, for Franklin McCreath, was present but did not argue. Franklin McCreath. McHugh, J. Franklin McCreath filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging that his employer, Augis Corporation, doing business as Elite Protective Services (Augis), engaged in racial discrimination. After a public hearing, an MCAD hearing officer agreed and awarded McCreath $10,000, plus costs and attorney’s fees. Augis appealed to the full commission, which affirmed the hearing officer’s decision but reduced the attorney’s fee award by one-half. Augis then appealed to the Superior Court, which in turn affirmed the decision of the MCAD. Augis now appeals to this court, claiming that the MCAD decision is erroneous and that the MCAD proceedings were infected by a series of procedural errors. We affirm. Background. The administrative record reveals that McCreath is a black man of Jamaican descent who worked for Augis, a security services firm, as a security officer at the Hammond Park Condominiums (Hammond Park) in the Chestnut Hill section of Brookline. McCreath had a history of difficulty with his supervisor, Neil Lesman. On several occasions, Lesman disciplined Mc-Creath for work rule violations such as making personal telephone calls, washing his motor vehicle while on duty, and leaving his post with an insufficiently trained replacement. On November 3, 1999, Lesman and McCreath got into an argument in which Lesman told McCreath that if he did not like the company rules, he could hand in his uniform. According to McCreath, Lesman ended the exchange by calling him a “fucking nigger” and storming out. McCreath was “stunned” by the slur, which made him feel inferior to Lesman, and concerned about continuing to work for him. He was so upset by the incident that he considered resigning. Though financial considerations prevented him from doing so, he did reduce the hours he worked. McCreath filed an incident report with Augis on November 6, but received no response. On November 15, he filed a complaint with the MCAD alleging that Desman’s comment and racially motivated differential treatment violated G. D. c. 15IB. A few weeks later, on December 11, 1999, the guard scheduled to work the shift after McCreath’s reported that he could not come to work. McCreath called Augis to ask who would relieve him. When he had not received an answer by 4:45 p.m., he gave the Hammond Park maintenance supervisor his keys and told him that he had to leave for a 5:00 p.m. appointment. Leaving his post without a replacement violated a written Augis work rule, and later that day, McCreath received notice that Augis had suspended him. Citing the incident, Augis ultimately terminated McCreath, who then expanded his MCAD complaint to allege that the termination was retaliatory. The case proceeded to a public hearing on November 1 and 2, 2001. As the hearing began, the hearing officer entered an order prohibiting Augis from calling Desman as a witness because she found that Augis had acted in bad faith by requiring a subpoena before it would produce Desman for a deposition. The hearing officer also prohibited Augis from calling its president and chief executive officer, John Augis, as a witness because she found that Augis had given McCreath inadequate notice of its intent to do so. Substantively, the hearing officer found that Desman had used the racial slur McCreath alleged and that Augis had violated G. L. c. 151B, § 4, because Lesman’s slur constituted “racial harassment” producing an “abusive working environment.” She found that McCreath’s report put Augis on notice of Lesman’s conduct and that Augis took no remedial action. However, she found that McCreath did not establish discrimination based on disparate treatment or retaliatory termination. She awarded him $10,000 in emotional distress damages, $31,710 in attorney’s fees, and $2,008 in costs, and she ordered Augis to hold a management training program on racial discrimination and harassment. On September 17, 2003, the MCAD affirmed the hearing officer’s award but reduced the award of fees and costs to a total of $17,863. Augis subsequently sought review in the Superior Court, where a judge affirmed the MCAD’s decision and awarded Mc-Creath an additional $8,400 in fees in connection with the appeal to the Superior Court. On appeal, Augis contends that (i) the hearing officer’s award violated its right to due process by excluding evidence; (ii) “racial harassment,” which was the language used in McCreath’s complaint, is not discrimination prohibited by G. L. c. 15IB, § 4, and neither McCreath nor the MCAD charged Augis with creating a hostile work environment; (iii) it was error to base liability for discrimination on a single incident; and (iv) the record did not contain substantial evidence to support the damages award for emotional distress. Discussion, a. Exclusion of evidence. As noted, at the outset of the hearing, the MCAD hearing officer prohibited Augis both from calling Lesman to testify about his interactions with Mc-Creath and from calling John Augis to testify about Augis’s response to McCreath’s complaint. Augis claims that the exclusion order denied its right to due process of law. The order barring Lesman’s testimony was a sanction for what the hearing examiner found was Augis’s bad faith interference with McCreath’s effort to obtain discovery. That finding is rooted in an order entitled “Commission Complaint and Order for Certification to Public Hearing” (certification order) that the MCAD’s investigating commissioner issued on July 23, 2001. The certification order set a discovery deadline of September 15, 2001, and provided that “Neil Lesman’s deposition will be conducted no later than” that date. The order mentioned Lesman because he was a key witness whom Augis had listed in a joint certification memorandum the parties had filed earlier. In the memorandum, Augis gave Lesman’s address as “c/o Elite Protective Services.” Counsel for McCreath initially noticed Lesman’s deposition, along with the deposition of Augis and of McCreath’s coworker Aaron Cribbs, for June 12, 2001, but she then canceled both depositions. The deposition notices stated that the address of Lesman and Cribbs was “Elite Protective Services, 255 Commandant’s Way, Chelsea, MA 02150,” and the record contains no suggestion, contemporaneous or other, from Augis that the address was inappropriate. On August 2, 2001, a few days before the MCAD issued an order that the case would proceed to a hearing on November 1 and 2, counsel for McCreath issued a notice of Lesman’s deposition for September 11, 2001. Shortly before September 11, counsel for Augis canceled the date because of an illness, but Lesman, unaware of the cancellation, appeared without a subpoena, evidently having been instructed by counsel for Augis to do so. No deposition took place. Insofar as the administrative record is concerned, neither party immediately rescheduled the depositions. Instead, the parties jointly moved on October 16,2001, to continue the November 1 and 2 hearing dates because McCreath had not completed depositions of the Augis witnesses he wanted to depose and would not be able to do so by November 1. The hearing officer denied that motion on October 18. On Monday, October 22, 2001, McCreath’s counsel mailed counsel for Augis two notices of deposition, one for Lesman and one for Cribbs, both of which were scheduled for the following Monday, October 29. The notices prompted a telephone call from Augis’s counsel, a lawyer other than the one who had been handling the matter from the outset, but a member of the same firm. In the telephone call, Augis’s attorney said that neither Lesman nor Cribbs would appear for a deposition without a subpoena. He followed that telephone call with a letter dated October 26, the Friday before the scheduled depositions, reiterating the same position. Counsel for McCreath issued no subpoenas but instead filed a motion in limine to preclude Les-man’s testimony. The circumstances surrounding the order barring John Augis’s testimony begin with a “position statement,” essentially a response to McCreath’s complaint that counsel for Augis filed on December 10, 1999. See 804 Code Mass. Regs. § 1.10(8) (1998). In that statement, counsel said that Augis intended to call as witnesses three individuals, Lesman, Cribbs, and its general manager, Tom Healy, although it characterized the list as “preliminary” and reserved its right to amend it. In the joint certification memorandum, which was dated July 13, 2001, McCreath listed four witnesses in addition to himself, and Augis listed Lesman and Healy. Both parties reserved their right to amend the lists. The investigating commissioner incorporated the joint certification memorandum in his July 23 certification order where, in addition to setting the deadline discussed earlier, he ordered McCreath to “produce a complete list of his witnesses, including names and addresses and the substance of their testimony, by August 17, 2001.” He imposed no similar obligation on Augis. Counsel for McCreath did not comply with the certification order until October 15,2001, when she sent by facsimile transmission to counsel for Augis a list containing the names of two witnesses and the other required information. One of the two names had not appeared in any earlier filing or correspondence. In response, Augis sent counsel for McCreath its witness list by letter dated October 26, 2001, substituting John Augis for Healy. On that record, the MCAD hearing officer barred Augis from calling either Lesman or John Augis as a witness. Insofar as Lesman is concerned, she noted that the certification order required the parties to depose Lesman “on or before September 15, 2001,” and that, although Lesman had appeared on September 11, counsel for Augis had not. Subsequent attempts to depose Lesman failed, she found, “because of [Augis’s] sudden refusal to produce him without subpoena.” As for John Augis, the hearing officer barred both sides from calling witnesses whose names appeared for the first time on the lists counsel exchanged shortly before the hearing. In considering Augis’s claims regarding exclusion of Les-man’s testimony, we keep in mind that if the MCAD’s “interpretation of its regulations and statutory mandate is rational, and adhered to consistently, it should be respected.” Boston Police Superior Officers Fedn. v. Boston, 414 Mass. 458, 462 (1993). Moreover, regulation of the administrative discovery process lies within the sound exercise of the hearing officer’s discretion, just as regulation of the discovery process in judicial proceedings lies within the sound exercise of judicial discretion. See, e.g., University Hosp., Inc. v. Massachusetts Commn. Against Discrimination, 396 Mass. 533, 536-538 (1986). Compare, e.g., Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131-133 (2002). In excluding Lesman’s testimony, the hearing officer appeared to be applying 804 Code Mass. Regs. § 1.19(5) (1999), which states that “[i]f a party or person from whom discovery is sought fails to comply with an Order for discovery ... a party . . . seeking discovery may apply to the Commission to make such Orders in regard to the failure of discovery as are just.” Here, the relevant order required completion of any deposition of Lesman by September 15, 2001. Counsel for McCreath attempted to comply with that order but the illness of counsel for Augis prevented her from doing so. Thereafter, as evidenced by their joint motion for a continuance, both counsel appear to have thought that the best course was to seek a continuance of the hearing. When that effort failed, counsel for McCreath attempted to obtain the discovery she would have had by the deadline but for the illness of Augis’s counsel. At that point, Augis suddenly decided that it was time for hardball. The hearing was imminent. For almost two years, Augis had given no indication that witness subpoenas were required for the deposition of its own employees. In filings with the MCAD, it had given its own address as the address for its employee witnesses. It had raised no objection to deposition notices using that address. It had manifestly instructed Lesman to appear without a subpoena for the September 11, 2001, deposition. Then, the week before the hearing, it decided that subpoenas would be necessary and gave no assurance, at least so far as the record reveals, that it would honor the subpoenas, make its employees available to receive service, or provide its employees’ home addresses. Under those circumstances, we think that the hearing officer could conclude that Augis acted in bad faith and could prohibit Lesman’s testimony as a sanction for Augis’s failure to cooperate to remedy the problem it had created when the illness of its attorney prevented McCreath’s attorney from complying with the discovery deadline she otherwise would have met. See generally Mattoon v. Pittsfield, 56 Mass. App. Ct. at 128-133. A party that frustrates, innocently or otherwise, another party’s ability to comply with a discovery deadline has an obligation to cooperate in repairing the damage and cannot with impunity seek to capitalize on the problems its own conduct created. The order precluding John Augis’s testimony presents greater difficulty. Although McCreath was under an order to provide a witness list and a summary of witness testimony, no such order applied to Augis. Despite the fact that Healy’s name had been on Augis’s witness list from the very beginning, counsel for McCreath never attempted to obtain discovery from him after the notices for the June 12, 2001, deposition. McCreath’s own witness list was delivered at the eleventh hour and well past the applicable deadline. Whatever doubts we may have about the propriety of precluding testimony from John Augis under those circumstances, we think that the preclusion order was harmless. Augis intended to have John Augis testify as to two subjects, i.e., that McCreath’s termination was neither retaliatory nor discriminatory and that Augis was unable to determine whether the incident about which McCreath complained in fact took place. The hearing officer and the MCAD found in Augis’s favor on the first issue without testimony from John Augis. The damages award was based on Desman’s conduct, not on Augis’s knowledge of that conduct. The portion of the order requiring training for Augis supervisors was warranted by Desman’s conduct and would have been warranted by evidence that, when confronted by an allegation of conduct as profoundly offensive as Desman’s, Augis chose to do nothing because it could not determine precisely what had happened. In sum, we think that the hearing officer’s preclusive orders did not deprive Augis of any substantial rights. b. The basis of liability. Augis’s second claim is that the MCAD’s damages award rested on a form of discriminatory conduct with which it had not been charged. More specifically, Augis alleges that the complaint charged it with wrongfully terminating McCreath but the MCAD, after determining that there had been no wrongful termination, imposed liability because of a “hostile work environment,” a claim no one had ever made. The record paints a different picture. In his complaint to the MCAD, McCreath alleged that he had been “the victim of different terms and condition[s] in the facility where [he] work[ed] because of [his] race and color.” As an example of that different treatment, McCreath stated that “[o]n November 3, 1999, [Les-man] called me a ‘f . . . g nigger.’ ” An MCAD investigator stated that “the gravamen of [Mc-Creath’s] complaint is that the supervisor, Neil Lesman, used racially derogatory language directly toward the black employees, and specifically towards him.” The investigator found evidence supporting that allegation and concluded that there was probable cause “for crediting the allegations of the . . . complaint.” Later, in the parties’ joint certification memorandum, Mc-Creath’s counsel stated that McCreath alleged, among other things, that Lesman had called him a “nigger” and that, after he complained, he was singled out for discriminatory treatment for minor workplace violations. One of the four issues as to which counsel sought certification was whether Augis, through Lesman, “unlawfully discriminated against [McCreath] when [Lesman] voiced racial epithets and displayed hostilities toward [McCreath] and other African-American security guards.” Still later, in his certification order, to which a copy of McCreath’s complaint was attached, the investigating commissioner said that a public hearing was required on three issues: “1) Whether [McCreath] was subjected to different terms and conditions of employment by reason of his race, when he was singled out in an unusually harsh and unjust manner for alleged job infractions. “2) Whether [McCreath] was unlawfully terminated by his supervisor Neil Lesman on account of his race. “3) Whether [McCreath] suffered damages from emotional distress and lost wages on account of the alleged disparate treatment and termination.” From the outset, then, McCreath’s allegation that he was singled out for harsh treatment because of his race was a visible, central component of his over-all claim. To be sure, wrongful termination was also an issue in the case. But Lesman’s alleged use of a racial epithet and the extent of the resulting harm were always issues on center stage. The damages award was not based on uncharged conduct. c. Sufficiency of the evidence. Augis’s cla

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

<bold>Domestic Violence — protective order — insufficient evidence</bold> <block_quote> The trial court erred by issuing a Domestic Violence Protective Order (DVPO) where there was no competent evidence that defendant caused or attempted to cause bodily injury or committed any sex offense against a minor child in plaintiff's custody, or placed a member of plaintiff's family in fear of imminent serious bodily injury or continued harassment that rose to the level of substantial emotional distress. The fact of a DSS investigation of abuse was not relevant to whether defendant actually committed acts of domestic violence, a statement by plaintiffs son was admitted for the limited purpose of explaining plaintiff's actions and was not competent to support a finding of domestic violence, and plaintiffs testimony was not sufficient to support the court's finding of previous violence. Moreover, a DVPO is authorized only upon a showing of acts which the court may bring about a halt.</block_quote>