Harassment Cases

Joleen Morrison & another vs. Northern Essex Community College. No. 99-P-2024. Essex. February 14, 2002. - December 19, 2002. Present: Duffly, Dreben, & Trainor, JJ. Education, Public colleges and universities. Anti-Discrimination Law, Unfair educational practice, Sex. Practice, Civil, Statute of limitations. Limitations, Statute of. Words, “Deliberate indifference.” In a civil action brought by two female athletes, alleging that they were sexually harassed by their college basketball coach in violation of G. L. c. 151C, § 2(g), the trial court judge erred in dismissing the plaintiffs’ claims of quid pro quo harassment (namely, that submission to the coach’s advances was a condition of continued participation on a sports team) on the ground that they were barred by the statute of limitations, where the record demonstrated that the claims encompassed discrete conduct that occurred within the applicable three-year limitations period preceding the filing of the complaint. [792-795] In a civil action brought by two female athletes, alleging that they were sexually harassed by their college basketball coach, the trial court judge erred in dismissing, on statute of limitations grounds, the plaintiffs’ claims that the coach’s conduct gave rise to a hostile educational environment in violation of G. L. c. 151C, § 2(g), and § 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (2000), where the record demonstrated that each plaintiff raised a genuine issue of material fact regarding whether there was at least one incident of harassment within the limitations period that was substantially related to earlier events, thus rendering the claims timely under the continuing violation doctrine. [795-798] In a civil action brought by two female athletes against their college, seeking damages for violations of § 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (2000) (Title IX), arising out of the allegedly sexually harassing conduct of their basketball coach, a question of fact existed whether the college’s response to the plaintiffs’ complaints constituted “deliberate indifference” to discrimination, in violation of Title IX. [798-800] Civil action commenced in the Superior Court Department on October 9, 1996. The case was heard by Peter F. Brady, J., on a motion for summary judgment. Richard J. Fallon for the plaintiffs. Stephen Dick, Assistant Attorney General, for the defendant. Jahayara Santiago. Duffly, J. Two female athletes, claiming to have been harassed by their basketball coach, Marshall Hess, while they were students attending Northern Essex Community College (college), brought a complaint on October 9, 1996, for monetary damages in Superior Court asserting that the college violated G. L. c. 151C, §§ 1(e), 2(g), inserted by St. 1986, c. 588, §§ 4, 5, by committing an unfair educational practice, and § 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (2000) (Title IX), by perpetuating a hostile educational environment arising from sexual harassment. A Superior Court judge entered summary judgment for the college, concluding that the action was barred by the applicable statute of limitations, which he determined to be three years. The plaintiffs appeal from the judgment dismissing their claims. LEGAL FRAMEWORK Under G. L. c. 151C, § 2(g), it is an unfair educational practice “[t]o sexually harass students in any program or course of study in any educational institution.” Section 1(e) of c. 151C defines sexual harassment as encompassing the following: “any sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when: — (i) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of the provision of the benefits, privileges or placement services or as a basis for the evaluation of academic achievement; or (ii) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s education by creating an intimidating, hostile, humiliating or sexually offensive educational environment.” Violations of c. 151C are actionable in Superior Court. G. L. c. 214, § 1C., Title IX provides in relevant part that “no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (2000). Sexual harassment can constitute sex discrimination under Title IX. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75 (1992). Title IX is enforceable, in State or Federal court, through an implied right of action for monetary damages. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). FACTS We describe relevant facts contained in the summary judgment record in the light most favorable to the nonmoving party. Graham v. Quincy Food Serv. Employees Assn. & Hosp. Library & Pub. Employees Union, 407 Mass. 601, 603 (1990). 1. Notice of incidents in the 1980’s. As early as the 1979-1980 academic year, administrators at the college, including its president, John Dimitry, were informed that the school’s athletic director and coach, Marshall Hess, gave liquor to underage students and asked female students for sexual favors. A 1984 complaint about Hess prompted the college to formulate policies and procedures to deal with sexual harassment on the college campus. A committee, the “Sexual Harassment Resource Group,” was established, and a faculty member, Paula Strangle, was named its contact person. Despite a series of claims that Hess had sexually harassed female athletes, no official action was taken by college administrators until 1987, when Strangle investigated a female athlete’s complaint against Hess and reported the results to Dimitry and other college administrators. In response, the college conducted a further investigation that uncovered the same or similar accusations about Hess as that reported by Strangle. Those allegations included the following: female athletes had been made to feel beholden to Hess for getting them scholarships or playing time; Hess had, during walks or lunches with female students, encouraged them to confide in him about intimate details of their lives, their relationships with boyfriends, and whether or not they had had abortions; he made liquor available to female students, some under the legal age for drinking alcohol; he pulled down their shorts, patted bottoms, and undid bra straps; he walked in on female students in the bathroom in his house; he had them drink liquor out of his mouth; he kissed them; he engaged in sexual intercourse with female students during the frequent trips he organized; and he discussed his vasectomy and made “dirty vasectomy jokes.” Women athletes left the team, stopped attending classes, or withdrew from the college in order to avoid continued contact with Hess. Some former students agreed that they would testify about their experiences with Hess. Others declined to testify or provide the names of students who had confided that they had been sexually intimate with Hess, stating either that they believed the relationships to have been consensual or that they were intimidated — Hess had threatened to reveal pictures in which female students appeared naked, apparently taken while they were drunk. The report resulted in an agreement between Hess and the college that was signed by Hess on March 29, 1988, and by Dimitry on April 8, 1988. The agreement stipulated that Hess could “not act as coach for any female athletic teams at the College for the remainder of his employment at the College.” Hess did not coach any female athletic team for the next two and one-half years. In the fall of 1991, the agreement was modified twice: first, to allow Hess to participate in field trips involving female students; and second, following the unexpected resignation of a coach, to permit Hess to function as head coach of the women’s basketball team “for the balance of the 1991/ 1992 season only.” Although no further modifications were made to the agreement, Hess continued to coach women’s basketball until he was suspended in August, 1994, following the investigation of complaints by the plaintiffs and a third student that he had sexually harassed them. 2. Conduct directed at the plaintiffs, a. Morrison. Morrison was nineteen years old when she first attended the college in the fall of 1992 and tried out for the women’s basketball team. Hess coached the team, and she saw him daily at the gym in connection with her work-study assignment for Hess and on walks they took together. Conversations with Hess were replete with sexual innuendo: he asked Morrison for details about her sex life, a miscarriage, and whether she had had orgasms. Hess would ignore or make fun of Morrison if she failed to respond to his comments. Hess owned a condominium near the college that he rented to the assistant basketball coach, Donna Johnson, who allowed team members to use her home to relax or have lunch. Sometimes Hess would be there. In February, 1993, Morrison agreed to have lunch with Hess at Johnson’s home but, upon arriving, was surprised to find that no one else was there. Morrison massaged Hess’s back and legs when he asked her to (he often asked her for massages) but stopped when he asked her to rub his buttocks. Saying it was her turn, Hess untucked Morrison’s shirt, undid her bra, and began to massage her back. He then reached around and grabbed her breasts and began to massage them. At the same time, someone drove up, and Hess told Morrison to go to the bathroom and put her bra on. Hess then came to the bathroom door, asked if she had gotten her bra back on, and said, “They seem really big, maybe next time I can see them.” Morrison tried to avoid Hess after that. When he saw her, he made jokes about her breasts. He also told her that, if she had not had an orgasm yet, he would give her one. The comments made her feel “dirty, like it was [her] fault.” In May, 1993, Hess bet Morrison that she could not “go all summer without getting it .... I bet you lunch when you get back you probably got laid in Dallas.” During the first weeks of the 1993 fall semester, Hess asked Morrison if he had won the bet and if Morrison was buying him lunch. A week or two later, during the first or second week of October, 1993, Hess and Morrison had a second conversation during which he asked when she was buying him lunch because he knew that he had won the bet. Thereafter, Morrison avoided conversation with Hess, but when she ran into him, he would ask “when was lunch.” Hess’s comments made Morrison feel threatened, confused, and pressured. Morrison did not play basketball during the 1993-1994 season. An excellent softball player, she joined the softball team for the 1994 spring season. Her softball coach was Johnson (who rented Hess’s condominium). Whenever Hess appeared at a softball game, Johnson pulled Morrison from the game for no apparent reason. During one home game, Morrison was playing in the outfield in the second or third inning when Hess appeared. Morrison saw him speak to Johnson, who then pulled Morrison out of the rest of the game. Sometime in early 1994, Morrison spoke to the college sexual harassment counselor about what had occurred, and thereafter, in February, 1994, she complained to Stephen Fabrucci, the associate dean. She left the college in May, 1994, before completing her degree. Hess’s conduct adversely affected Morrison’s relationships with other people, particularly male authority figures. She felt ashamed and depressed, and as a result, engaged in treatment with a counselor. On October 9, 1996, Morrison and Santiago filed their complaint. b. Santiago. Santiago arrived at the college in the spring of 1992, but was ineligible to play basketball until the fall. After joining the women’s basketball team in the fall of 1992, Hess took Santiago on walks, asking that she tell no one because of what people might say. The conversations grew increasingly personal: he asked questions about her sex life and made fun of her when she referred to sex as “it.” Uncomfortable, Santiago began to avoid Hess. Hess was persistent in asking Santiago to find time to go on walks with him. He also told her that he had asked Johnson to invite her to go drinking with them since he couldn’t invite her himself because she was only nineteen. He said that he was not trying to “hit on her” and that if he wanted to “fuck” anyone on the team “it would be [another student].” In late November, 1992, Hess confronted Santiago and asked if she was trying to avoid him. She agreed to have lunch with him and, at Hess’s invitation, got into his van. During the drive Hess turned the conversation to movie sex scenes, asked if she had ever had an orgasm, and laughed when Santiago, embarrassed, looked out the window. Hess stopped and bought sandwiches and beer, then continued on, eventually stopping at a condominium complex that Santiago did not recognize. She asked what they were doing there, and Hess said that it was someplace to eat, and that it belonged to him and his wife. Santiago felt frightened but tried to reassure herself. Once inside, she sat on the couch while Hess sat on a bed in the room. They drank beer, and he brought out a bottle of champagne. Hess, now lying on the bed, said, “I want a massage but don’t worry, we don’t have to do it. I just want it in your underwear.” When Santiago said she did not give massages, Hess told her about another student who had regretted having rejected him. Santiago responded that it “must have been a long time ago,” and Hess became insulted, saying she was rejecting him because he was fat. Worried that he might rape or harm her, Santiago was relieved when Hess agreed to take her back to the college. Thereafter, whenever Hess saw Santiago he alluded to the condominium incident — he would look at her and wink or smirk as he made comments about his weight or efforts to lose weight, or while patting his stomach. Hess began to ridicule her publicly and made comments about her being “lower class.” During the next basketball season, Hess benched Santiago, a team captain, for increasingly longer periods and often yelled at her. On February 5, 1994, he called her to the middle of the gym floor during pregame warm-up. In front of both teams, he told her that he knew she was not getting playing time, that it was his decision, and that, if she did not like it, she could turn in her uniform. He repeated this twice, until she left the gym and quit the team. Later in February, Santiago complained to Fabrucci that Hess had sexually harassed her. Thereafter, when she encountered Hess alone, he would walk close to her and snicker in a way she experienced as intimidating. He continued making nearly daily suggestive references to his weight until Santiago transferred from the college in May, 1994. As a result of her encounters with Hess, Santiago felt depressed and helpless, blamed herself, and sought counseling. Her relationships with other people were affected, and she experienced flashbacks that left her feeling sad, disgusted, and emotional. In August, 1994, six months after the plaintiffs complained, the college took steps to suspend Hess. As we have indicated, the plaintiffs filed their complaint in Superior Court on October 9, 1996. DISCUSSION 1. Statute of limitations. Whether a sexual harassment claim brought under G. L. c. 151C or Title IX is barred by the statute of limitations depends on the claim and on the nature of the viola-tive conduct — that is, whether the conduct consisted of a “discrete act” or was a “continuing violation.” We address the plaintiffs’ alternative arguments: that the acts complained of amounted to serial continuing violations, all of which are actionable because the last occurred within the statute of limitations; or, if we conclude that there was no continuing violation, that there was independently actionable conduct that fell within the three-year limitations period. See note 4, supra. Statute of limitations principles in an employment discrimination context, recently articulated by the United States Supreme Court in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (discussing Title VII), and previously adopted by the Supreme Judicial Court in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001) (discussing G. L. c. 15IB), are analogous to claims of sexual harassment in an educational setting. See Legoff v. Trustees of Brown Univ., 23 F. Supp. 2d 120, 126 (1998) (“In interpreting Title IX, courts apply the legal principles elaborated under Title VII”). These two cases indicate that the Massachusetts and Federal courts interpret continuing violations of the serial kind in the same manner. a. Discrete acts: General Laws c. 151C. The plaintiffs’ claims of “quid pro quo” harassment, see Beaupre v. Smith & Assocs., 50 Mass. App. Ct. 480, 488 (2000); G. L. c. 151C, § l(e)(i), encompass discrete conduct within the limitations period that establishes a violation under the definition of sexual harassment set forth in c. 151C, § l(e)(i), namely, that submission to Hess’s advances was a condition of continued participation on a college sports team. Cf. Beaupre v. Smith & Assocs., supra at 481 n.4, 488. The violation occurred when it became apparent that submission was the “quid pro quo” of continued participation on a sports team. In the light most favorable to the plaintiffs, that occurred when Hess, responding to the rejection of his advances, caused his assistant coach to pull Morrison from softball games early in the spring of 1994 and forced Santiago’s resignation from the basketball team in February, 1994. Cf. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’. . .[Ojnly incidents that took place within the timely filing period are actionable.” Id. at 114. These acts (when Morrison was precluded from participating fully on the softball team and Santiago was forced to resign from the basketball team) constituted discrete, independently actionable violations of c. 151C, § l(e)(i), and the limitations period began to run from the date of each act (with respect to Morrison’s claim, in the spring of 1994, and with respect to Santiago’s claim, in February, 1994). See, e.g., Davis v. Sears, Roebuck & Co., 708 F.2d 862, 865 (1st Cir. 1983) (limitations period begins to run on date of notice of discriminatory dismissal); Davis v. Lucent Technologies, Inc., 251 F.3d 227, 231 (1st Cir. 2001) (MCAD complaint should have been filed within six months of date of termination to be timely). Because both events took place within the three-year period preceding the filing of the complaint on October 9, 1996, each plaintiff’s claim of quid pro quo harassment was timely filed. b. Continuing violations (serial): General Laws c. 151C. The facts we have described establish continuing violations that support the plaintiffs’ hostile educational environment claims, viable under G. L. c. 151C, § 1 (e)(ii), as well as Title IX. Hostile educational environment claims generally involve continuing violations that “are different in kind from discrete acts. Their very nature involves repeated conduct. . . . The ‘unlawful [educational] practice’ therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” National R.R. Passenger Corp. v. Morgan, 536 U.S. at 115. With respect to the hostile educatio

JOEL T. LEWIS, Petitioner v. N.C. DEPARTMENT OF CORRECTION, Respondent No. COA01-1386 (Filed 15 October 2002) Public Officers and Employees— sexual remarks — personal misconduct or sexual harassment — appellate review The trial court did not err by reversing the decision of the State Personnel Commission to demote and transfer a correctional sergeant who had made sexual remarks to two female correctional officers. Although grounds may exist for establishing unacceptable personal conduct, the issue specified by the Administrative Law Judge (and neither rejected nor amended by the SPC) was whether there was just cause to demote petitioner because of sexual harassment, which does not appear to have occurred. Judge McCullough dissenting. Appeal by respondent from order entered 10 August 2001 by Judge A. Moses Massey in Stokes County Superior Court. Heard in the Court of Appeals 21 August 2002. Anderson D. Cromer, PC, by Anderson D. Cromer, for petitioner. Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for respondent. BRYANT, Judge. On 7 September 1999, petitioner Joel T. Lewis initiated a petition for a contested case hearing pursuant to N.C.G.S. § 150B-23(a), appealing the 25 May 1999 decision of respondent N.C. Department of Correction (DOC) to demote and transfer Lewis from the position of correctional sergeant at Forsyth Correctional Center to the position of correctional officer with a ten percent reduction in pay. Lewis’s demotion was for just cause, premised on several “unprofessional comments of a sexual nature” that he made to two female correctional officers with whom he was employed. The unprofessional comments included offering money to correctional officer Pleasants to go with him to the beach, telling officer Pleasants that she was being stingy with her “coochie,” and asking officer Pleasants and fellow correctional officer Lattimore what color panties they were wearing. The contested case came for hearing before Administrative Law Judge (ALJ) Robert Roosevelt Reilly, Jr:, on 25 April 2000. On 31 May 2000, Judge Reilly issued a recommended decision in favor of Lewis. The State Personnel Commission (SPC) declined to adopt the recommended decision as written and instead adopted an amended decision and order dated 31 August 2000 in favor of DOC. From the decision and order of the SPC, Lewis petitioned for judicial review. This matter came for judicial review at the 3 January 2001 term of Stokes County Superior Court with the Honorable A. Moses Massey presiding. By order filed 10 August 2001, the superior court reversed the decision and order of the SPC to demote and transfer Lewis. DOC appeals. Standard of review At the trial court level, the court must first determine de novo whether the SPC heard new evidence after receiving the AU’s recommended decision; and if the SPC did not adopt the ALJ’s recommended decision, whether the SPC stated specific reasons explaining its new findings. See N.C.G.S. § 150B-51(a) (2001). After the initial determination is made, the court must then determine de novo whether an error of law occurred. See Associated Mechanical Contractors, Inc. v. Payne, 342 N.C. 825, 831, 467 S.E.2d 398, 401 (1996). If the allegation is that the findings of fact and conclusions of law are unsupported by competent evidence or are arbitrary and capricious, then the court must utilize the whole record test. See Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). When this Court reviews appeals from superior court either affirming or reversing the decision of an administrative agency, our scope of review is twofold, and is limited to determine: (1) whether the superior court applied the appropriate standard of review and, if so, (2) whether the superior court properly applied this standard. In re Appeal by McCrary, 112 N.C. App. 161, 166, 435 S.E.2d 359, 363 (1993). However, this Court’s obligation to review a superior court order for errors of law can be accomplished by addressing the dis-positive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court and remanding the case if the standard of review utilized by the superior court cannot be ascertained. Capital Outdoor, Inc. v. Guilford County Board of Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002). Upon review of the superior court’s order, it appears that the superior court utilized the appropriate standard of review as to each issue presented. This Court must now determine whether it properly applied the standard of review. Dispositive issue DOC presents several issues on appeal, however, we find the dis-positive issue to be whether the superior court erred in determining that Lewis’s conduct had to rise to the level of sexual harassment to justify his demotion and transfer. For the following reasons, we affirm the superior court’s conclusion on this issue. N.C.G.S. § 126-35 (2001), states that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” N.C. Admin. Code tit. 25, r.lJ0604(b) (June 2002), defines just cause as discipline or dismissal based on either unsatisfactory job performance or unacceptable personal conduct. N.C. Admin. Code tit. 25, r.lJ0614(i) (June 2002), enumerates several examples of unacceptable personal conduct including: 1) “conduct for which no reasonable person should expect to receive a prior warning; or” 2) “job-related conduct which constitutes a violation of state or federal law; or” 3) “the willful violation of known or written work rules; or” 4) “conduct unbecoming a state employee that is detrimental to state service; or” 5) “the abuse of client(s), patient(s), student(s), or person(s) over whom the employee has charge or to whom the employee has a responsibility. . . .” Effective 1 September 1992, DOC implemented a sexual harassment policy. The SPC concluded, Sexual harassment usually involves an employee being personally subjected to one or more of the following behaviors: (a) Unwelcome sexual advances; (b) Acts of gender-based animosity (hostile conduct based on the victim’s gender); or (c) Sexually charged workplace behavior (conduct that is offensive on the basis of gender to persons whether or not they are the targets of the conduct). [] Sexual harassment is unlawful sex discrimination under one or two legal theories: “quid pro quo” or “hostile environment.” All three forms of behavior referenced may constitute a hostile environment, but a claim of quid pro quo harassment necessarily involves unwelcome sexual advances. Sexual harassment claims are usually analyzed as disparate treatment claims. [] The essence of a quid pro quo claim is that an individual has been forced to choose between suffering an employment detriment and submitting to sexual demands. . . . [] The essence of a hostile environment claim is that an individual has been required to endure a work environment that, while not necessarily causing any direct economic harm, or even significant psychological or emotional harm, substantially affects a term or condition of employment. . . . Lewis was a career State employee prior to his demotion/transfer and was subject to the provisions of N.C.G.S. § 126, et seq. (State Personnel Act). By letter dated 25 May 1999, Lewis was notified that an investigation of the incidents at issue, revealed that he made unprofessional comments of a sexual nature to both officers Pleasants and Lattimore. In addition, the letter stated that a recommendation for his demotion for unacceptable personal conduct had been approved effective 1 June 1999. After an unsuccessful internal appeal, Lewis appealed to the Office of Administrative Hearings for a contested case hearing. By decision dated 31 August 2000, the presiding ALJ specified the issue as, “Did the respondent have just cause to demote petitioner because of sexual harassment?” The SPC did not reject nor amend this articulation of the issue. Rather the SPC stated in its decision and order, “Sexual harassment is unlawful sex discrimination under one of two legal theories: ‘quid pro quo’ or ‘hostile environment’. . . . [Petitioner's behavior must be analyzed to determine whether his behavior created a hostile working environment that substantially affected a term or condition of Ms. Pleasant’s (sic) employment.” The SPC went further to conclude, “Regardless of whether Petitioner’s conduct rose to the level of sexual harassment as defined above, Petitioner’s conduct did constitute personal misconduct ‘for which no reasonable person should expect to receive a prior warning,’ thereby subjecting Petitioner to disciplinary action as provided for in 25 NCAC 1J.0162 and .0613 and in DOC’s Disciplinary Policy and Procedures, Section 6, p.38, resulting in his demotion and transfer.” Based upon our reading of the case, the issue before the ALJ was whether just cause existed to demote Lewis because of sexual harassment. The SPC did not articulate a different issue for consideration. The SPC concluded there were no allegations of quid pro quo sexual harassment in this case. In addition, the SPC found that “Neither Ms. Pleasants nor Ms. Lattimore stated that the Petitioner’s statements had or may have had [] direct employment consequences resulting from either the acceptance or rejection of the statements or that the statements created an intimidating, hostile or offensive environment or that the statements interfered with their performance.” Notwithstanding, the SPC ordered that the recommended decision of the AU be rejected and respondent’s disciplinary action for unacceptable personal conduct be upheld. In light of the above noted findings and conclusions, it appears that unacceptable personal conduct based on sexual harassment did not occur as sexual harassment has been previously defined. Although several grounds may exist for establishing unacceptable personal conduct, the ground specified as the basis for Lewis’s demotion and transfer was sexual harassment. The superior court did not err in reversing the decision and order of the SPC. Therefore, this assignment of error is overruled and we affirm the order of the superior court. AFFIRMED. Judge McGEE concurs. Judge McCULLOUGH dissents with' a separate opinion. McCULLOUGH, Judge, dissenting. The majority affirms a ruling of the superior court reversing an order of the State Personnel Commission (SPC) which demoted, transferred and decreased the respondent’s salary due to comments of a crude sexual nature made by respondent to female correctional officers with whom he worked. From this ruling, I respectfully dissent. The record shows that respondent offered a female correctional officer money to go to the beach with him, stated that she was being stingy with her “coochie,” that she would have to sell a lot of “coochie” to make her car payment, and asked this officer and another officer what color underpants they were wearing. Both the Administrative Law Judge (ALJ) who originally heard this matter, and the superior court judge who heard the Petition For Judicial Review, concluded that, to be actionable, (1) sexual comments had to rise to the level of sexual harassment as defined by the Department of Correction (DOC); and (2) such comments that do not rise to that level cannot qualify as “unacceptable personal behavior,” as that term is defined in the Office of State Personnel Policy Manual, codified at N.C. Admin. Code tit. 25, r.1J.0614(i)(1) (June 2002). In affirming, the majority concurs with the shared viewpoint expressed by the ALJ and the superior court. The majority opinion sets forth the DOC sexual harassment policy in detail. Upon reading the DOC policy statement, it is apparent that not all crude sexual remarks meet the test set forth therein. I would reverse the order of the superior court which reversed respondent’s discipline, as I believe that the SPC gave an adequate explanation of why it did not adopt the reasoning and conclusions of the ALJ. A point-by-point refutation of the ALJ’s findings and conclusions is not required. Webb v. N.C. Dept. of Envir., Health and Nat. Resources, 102 N.C. App. 767, 404 S.E.2d 29 (1991). I believe the SPC addressed the case adequately and complied with N.C. Gen. Stat. § 150B-51 (2001) when it included Conclusion of Law No. 8 in its order. That conclusion stated: 8. Regardless of whether Petitioner’s conduct rose to the level of sexual harassment as defined above, Petitioner’s conduct did constitute personal misconduct, “for which no reasonable person should expect to receive a prior warning,” thereby subjecting Petitioner to disciplinary action as provided for in 25 NCAC 1J.0612 and .0613 and in DOC’s Disciplinary Policy and Procedures, Section 6, p. 38, resulting in his demotion and transfer. Respondent was well aware that comments of a sexual nature could lead to some form of discipline, whether or not they rose to the level of sexual harassment. The record indicates that, on 19 November 1996, respondent signed a Human Relations in the Workplace memorandum to that effect. His conduct was therefore a willful violation of a work rule, which is also unacceptable personal conduct for which he could be disciplined. See N.C. Admin. Code tit. 25, r.1J.0614(i)(4); and North Carolina Department of Correction v. McNeely, 135 N.C. App. 587, 521 S.E.2d 730 (1999). The majority seems to hold that, although the SPC inserted Conclusion of Law No. 8 into its Order as an alternative basis for discipline, such was of no import. The majority then accepts the superior court’s determination that the sole issue before that court (and, by implication, this Court as well) was whether the complained-of comments constituted sexual harassment as defined by the DOC policy statement. With this assessment, I disagree. In so doing, I believe the superior court made an error of law, which we review de novo. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). While crude sexual comments may not always rise to the level of sexual harassment as defined in the DOC policy statement, they are nevertheless capable of subjecting an employee to discipline. The SPC never attempted to rely solely on sexual harassment as the only ground for discipline, and this Court should not overlook the SPC’s attempt to base the discipline imposed on its Conclusion of Law No. 8 set forth above. In summary, I would reverse the order of the superior court and uphold the SPC and the discipline it imposed.

Sonja Sahli vs. Bull HN Information Systems, Inc. Middlesex. May 8, 2002. September 9, 2002. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Termination of employment, Age. Employment, Discrimination, Retaliation. Constitutional Law, Right to petition government. Practice, Civil, Costs. This court concluded that a lawsuit filed by a corporate employer against a former employee, seeking a declaration of its rights, duties, and obligations under a release and severance agreement entered into with the former employee, who had lodged a charge of age discrimination ¿gainst the employer, did not constitute an act of retaliation or interference in violation of the Commonwealth’s antidiscrimination laws, G. L. c. 151B, § 4 (4), or G. L. c. 15IB, § 4 (4A), where, although the interest in remedying discrimination was weighty, it was not so weighty as to justify what would amount to an absolute restriction on the employer’s right to petition the courts, and where the lawsuit had a legitimate basis in law and fact. [700-707] In a civil action, the judge properly allowed the prevailing defendant’s motion for costs. [707] Civil action commenced in the Superior Court Department on June 30, 1998. The case was heard by Nonnie S. Bumes, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Justine H. Brousseau (Nina Joan Kimball with her) for the plaintiff. David B. Chaffin {Kathleen A. Kelley with him) for the defendant. Thomas F. Reilly, Attorney General, Catherine C. Ziehl & Kathleen Z. Quill, Assistant Attorneys General, for the Attorney General, amicus curiae, submitted a brief. Cordy, J. In this case, we hold that a lawsuit filed by an employer against a former employee who has lodged a charge of discrimination is not an act of retaliation or interference in violation of the State’s antidiscrimination laws where the lawsuit had a legitimate basis in law and in fact. 1. Background. Sonja Sahli worked in the human resources department of Bull HN Information Systems, Inc. (Bull), for eight years. She was laid off in April, 1995, at age fifty-three. After she was notified about the impending layoff, Sahli applied for, but was not selected to fill, a vacant position in the human resources department. Before she left Bull, Sahli signed a release and severance agreement, in which she agreed to release Bull from any “current or prior claims arising out of [her] employment with or termination from Bull,” in exchange for eight weeks of her salary as severance payment. Several months after leaving Bull, Sahli learned that the person who was hired to fill the vacant position was a younger woman. Believing that she was not chosen to fill the position because of her age, Sahli filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD), asserting, inter alla, that: (1) “Bull’s policy and practice in the event of a lay-off is to place a laid-off employee in another vacant position within the company, where possible.” (2) “I was amply qualified for [a vacant position in the human resources department].” (3) “I heard that Bull had filled the [vacant position] with an outside applicant who was a number of years younger than I was. On information or belief, the person who was hired for the position was less qualified for it than I was.” (4) “I believe that Bull failed to follow its policy and practice in my case of relocating laid-off employees into vacant positions within the company and failed to hire me for the [vacant position] because of my age.” In response to Sahli’s MCAD charge, Bull filed a complaint for declaratory relief in the Superior Court alleging that Sahli’s discrimination charge was barred by the terms of the release that she had signed when she left Bull. Bull contended that the essence of Sahli’s discrimination claim was Bull’s failure to relocate her into a vacant position instead of laying her off, and as such, was a claim arising out of her termination. Therefore, Bull asked the court to “declar[e] the parties’ respective rights, duties, and obligations under the Release Agreement,” find that Sahli’s bringing of the discrimination charge violated its terms, and order the return of Sahli’s severance payment. One month after Bull filed its complaint, Sahli filed a second charge of discrimination with the MCAD alleging that Bull’s complaint constituted discriminatory retaliation in violation of G. L. c. 151B, § 4 (4) (retaliation claim), and threats, intimidation, coercion, and interference with her protected rights in violation of G. L. c. 151B, § 4 (4A) (interference claim). She also filed a motion to dismiss Bull’s complaint in the Superior Court, arguing that the release did not bar her MCAD charge because it involved a “failure to hire” claim that did not accrue until she discovered, several months after she had left Bull, that the person who filled the vacant position was a younger woman. Without deciding the merits of Bull’s claim, a Superior Court judge allowed Sahli’s motion to dismiss without prejudice. As permitted by G. L. c. 151B, § 9, Sahli removed both of her charges from the MCAD and filed a complaint in the Superior Court alleging age discrimination in violation of G. L. c. 151B, § 4 (IB) (Count I), retaliation in violation of G. L. c. 15IB, § 4 (4) (Count II), and interference with a protected right in violation of G. L. c. 151B, § 4 (4A) (Count HI). Following discovery, both parties moved for summary judgment and, on March 16, 2001, a judge allowed Bull’s motion on all counts. She ruled that the undisputed fact that the person who filled the vacant position was more qualified than Sahli defeated her discrimination claim. She also ruled that Sahli’s retaliation claim failed because Sahli could not show that she suffered any “adverse employment consequence” as a result of filing her MCAD charge, and that her interference claim failed because the filing of a lawsuit did not rise to the level of “threats, intimidation or coercion” necessary to violate § 4 (4A). Bull then filed a motion for costs, which was allowed. Sahli appealed the summary judgment rulings on her claims of retaliation (Count II), and interference (Count HI). She also appealed from the allowance of the motion for costs. We transferred the case here on our own motion. We conclude that Bull’s filing of a complaint in the Superior Court for declaratory relief did not constitute an act of retaliation or interference violative of G. L. c. 151B, § 4 (4), or G. L. c. 15IB, § 4 (4A), and therefore affirm the judge’s allowance of Bull’s motion for summary judgment, although on different grounds. GTE Prods. Corp. v. Stewart, 421 Mass. 22, 36 (1995). We also affirm the allowance of Bull’s motion for costs. 2. Discussion. Retaliation claims under G. L. c. 151B, § 4 (4), and interference claims under G. L. c. 151B, § 4 (4A), constitute separate and independent causes of action. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000). Sahli contends that Bull violated both § 4 (4) and § 4 (4A), by filing the complaint for declaratory relief which forced her to defend herself in a separate litigation, incur additional attorney’s fees, and fear the loss of her severance pay. The threshold question we must decide is whether the filing of a lawsuit by a corporate employer seeking a declaration of its rights, duties, and obligations under a contract entered into with one of its employees can constitute an act violative of the retaliation and interference provisions of G. L. c. 151B. To resolve this question, we must balance the constitutional right to seek judicial resolution of disputes under the First Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights* against the statutory right under G. L. c. 151B to seek redress for allegations of discrimination without fear of retaliation for or interference with the exercise of that right. We had occasion to balance similar interests in Bain v. Springfield, 424 Mass. 758 (1997) (Bain). In that case, a newspaper article described the plaintiff’s allegations of discriminatory hiring practices in city government. The same article also reported the mayor’s response to the allegations, which included his belief that the plaintiff’s complaints were “ ‘baseless,’ ‘meritless,’ and ‘an example of someone trying to manipulate the civil rights laws for personal gain.’ ” Id. at 760. The plaintiff filed suit, alleging that the mayor’s comments, among other things, constituted retaliation under G. L. c. 151B against her for having voiced concerns about the city’s hiring practices. Id. at 761, 765-766. Balancing the plaintiff’s interest in remedying discrimination with the mayor’s First Amendment right to free speech, we concluded: “[W]e most emphatically cannot countenance as an instance of retaliation . . . the mayor’s response in the local newspaper to the charges against him. The newspaper quoted Bain’s serious and damaging charges against the mayor, an elected official. He was entitled to respond in the same forum, to defend himself and to state what political judgments seemed appropriate so long as they were not defamatory — which these were not. . . . The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Id. at 766-767. Consistent with this reasoning, we conclude in the instant case that, although the interest in remedying discrimination is weighty, it is not so weighty as to justify what amounts to an absolute restriction on an employer’s right to petition the courts. The United States Supreme Court has recognized the right to petition the government, including the courts, as one of “the most precious of the liberties safeguarded by the Bill of Rights,” United Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 222 (1967), implied by the “very idea of a government, republican in form,” United States v. Cruikshank, 92 U.S. 542, 552 (1875). See Pinnick v. Cleary, 360 Mass. 1, 11-12 (1971) (art. 11 “is clearly directed toward the preservation of procedural rights and has been so construed”). The Court has protected the right to petition “whenever it is genuine, not simply when it triumphs.” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 532 (2002) (BE & K). Thus, in the antitrust context, the Court has held that unless petitioning activity is both objectively and subjectively a “sham,” it is immune from antitrust liability. Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993). And in the labor context, the Court has held that the First Amendment protects “[t]he filing and prosecution of a well-founded lawsuit [from being] enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the [National Labor Relations] Act.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). The right to petition is not, however, an absolute right. For example, “baseless” or “sham” litigation is not protected by the First Amendment. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961) (Noerr). See also BE & K, supra at 531 (“our holdings [have] limited regulation to suits that were both objectively baseless and subjectively motivated by an unlawful purpose” [emphasis in original]). “Sham” litigation has been defined in the antitrust context as litigation that is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits,” and in which the litigant’s subjective motivation is “ ‘to interfere directly with the business relationships of a competitor’ . . . through the ‘use [of] the governmental process — as opposed to the outcome of that process — as an anticompetitive weapon’” (emphasis in original). Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., supra at 60-61, quoting Noerr, supra at 144, and Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380 (1991). The United States Supreme Court recently granted certiorari to reexamine the scope of the right to petition when it considered whether the National Labor Relations Board (NLRB) could “impose liability on an employer for filing a losing retaliatory lawsuit, even if the employer could show the suit was not objectively baseless.” BE & K Constr. Co. v. NLRB, 534 U.S. 1074 (2002). The employer (BE & K) had filed a series of unsuccessful complaints in Federal court against several unions, alleging that they had attempted to delay a construction project because BE & K’s employees were not unionized. BE & K, supra at 520-522. The unions responded by lodging complaints against BE & K with the NLRB, alleging that BE & K had violated the antiretaliation provision of the National Labor Relations Act (NLRA). Id. at 522. The NLRB agreed, deciding that BE & K’s lawsuit was not meritorious and “had been unlawfully motivated because it was directed at protected conduct’ and ‘necessarily tended to discourage similar protected activity,’ and because petitioner admitted it had filed suit ‘to stop certain [u]nion conduct which it believed to be unprotected.’ ” Id. at 523. Based on these conclusions, the NLRB concluded that BE & K had violated the NLRA, and ordered BE & K “to cease and desist from prosecuting such suits and to post notice to its employees . . . promising not to pursue such litigation in the future.” Id. The United States Court of Appeals for the Sixth Circuit found substantial evidence to support the NLRB’s conclusions. Id. at 523-524. The Supreme Court reversed, concluding that “unsuccessful but reasonably based suits” fall within the scope of First Amendment protection. Id. at 536. In support of its decision, the Court rejected the NLRB’s view of a retaliatory lawsuit — “one ‘brought with a motive to interfere with the exercise of protected [NLRA] rights’ ” — because that definition “broadly covers a substantial amount of genuine petitioning.” Id. at 533. The Court decided that if an employer’s belief that certain conduct is illegal “is both subjectively genuine and objectively reasonable, then declaring the resulting suit illegal affects genuine petitioning.” Id. at 533-534. The Court concluded that “[a]s long as a plaintiff’s purpose is to stop conduct he reasonably believes is illegal, petitioning is genuine both objectively and subjectively” (emphasis in original). Id. at 534. Where the only evidence of retaliatory purpose was the bringing of a reasonably based but unsuccessful lawsuit, combined with testimony that the employer disliked the unions, the Court held that finding the lawsuit to be violative of Federal law barring employers from interfering with, restraining, or coercing employees in the exercise of their rights, unduly burdened the employer’s First Amendment right to petition. Applying these principles to G. L. c. 15IB, we decline to read § 4 (4) and § 4 (4A) as reaching all reasonably based but unsuccessful lawsuits brought in response to the filing of a discrimination claim. Cf. BE & K, supra at 536. When an employer files a complaint seeking a declaration of its rights, duties, and obligations under a contract that it entered into with an employee, and the lawsuit has a legitimate basis in law and fact, the employer does not violate the provisions of either § 4 (4) or § 4 (4A), absent evidence that the employer’s purpose is other than to stop conduct it reasonably believes violates the terms of the contract. Cf. BE & K, supra at 533-534. We now apply this holding to the case before us. We first consider whether Bull’s complaint for declaratory relief had a legitimate basis in law. General Laws c. 231 A, § 1, allows courts to “make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings.” The purpose of this statute is to provide a plaintiff relief from uncertainty and insecurity with respect to rights, duties, status, and other legal relations. See, e.g., Oxford v. Oxford Water Co., 391 Mass. 581, 584-585 (1984). The determination of contractual rights is a proper subject of a declaratory judgment proceeding. See, e.g., Pitman v. J.C. Pitman & Sons, 324 Mass. 371 (1949) (determining effect of general release signed in conjunction with sale of business). See also Billings v. Fowler, 361 Mass. 230, 234 (1972) (c. 231A “was intended to expand, at least in the discretion of the court, prior provisions for the interpretation of written instruments”); School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518 (1946) (“One of the benefits of the declaratory procedure is that it does not require one to incur the risk of violating some term of a contract or of invading some right of the other, even if done in good faith, before he may have relief”). Thus, Bull’s complaint seeking declaratory relief had a legitimate basis in law. We next consider whether there was a legitimate basis in fact to support Bull’s complaint. Bull’s one-count complaint sought a declaration from the court regarding its rights under the terms of the release: “Sahli released and covenanted not to sue Bull for any current or prior claims arising out of her employment with Bull or her termination from Bull. At the time she signed the Release Agreement, she knew she was being terminated and so acknowledged in the Release Agreement. The essence of her claim is that she was terminated rather than being relocated into an open position pursuant to an alleged policy or practice of Bull HN.” Bull asserted that “[a] real, substantial, and justiciable controversy exists between Bull HN and Sahli concerning whether she has breached her Release Agreement with Bull HN and concerning the parties’ respective rights and obligations under the General Release and Severance Agreement.” Sahli contended that there should never have been any confusion about the basis of her “failure-to-hire” claim. We disagree. The correspondence between Sahli’s counsel and Bull preceding the filing of the MCAD charge, the description of the claim set out in the MCAD charge itself, and the affidavits attached to the charge demonstrate that as originally filed, Sahli’s MCAD charge included discrimination claims based both on Bull’s failure to relocate her into the vacant position instead of laying her off (a claim likely covered by the release), and on Bull’s failure to hire her into the vacant position after she had been laid off (a claim likely not covered by the release). Even if viewed in the light most favorable to Sahli, the basis for her original charge was unclear. To the extent that this lack of clarity could have reasonably led Bull to believe that part or all of Sahli’s MCAD charge was barred by the release, there was a legitimate basis in fact to support the filing of Bull’s complaint. Finally, there is no evidence that Bull’s purpose in bringing the lawsuit was anything other than to stop conduct it reasonably believed to be violative of the terms of the release. The only evidence of retaliatory purpose was the filing of the lawsuit itself. As the Supreme Court held in BE & K, supra, such evidence is inadequate, as a matter of law, to justify any burden on Bull’s constitutional right to petition the courts. The filing of Bull’s complaint did not violate § 4 (4) or § 4 (4A) of G. L. c. 15IB, and summary judgment was properly granted. 3. Award of costs. The Superior Court judge properly allowed Bull’s motion for costs. General Laws c. 261, § 1, states: “In civil actions the prevailing party shall recover his c

JAGER v NATIONWIDE TRUCK BROKERS, INC Docket Nos. 226007, 228672. Sumitted May 8, 2002, at Grand Rapids. Decided August 9, 2002, at 9:20 am. Leave to appeal sought. Brenda S. Jager brought an action in the Kent Circuit Court against Nationwide Truck Brokers, Inc., James Wilkerson, Designed Administrative Resources and Technologies, Inc., and Simplified Employment Services, Inc., seeking damages under the Michigan Civil Rights Act (ora), MCL 37.2101 et seq. The plaintiff was employed with defendants Designed and Simplified and worked, through an employee lease agreement, for defendant Nationwide under the supervision of defendant Wilkerson. The plaintiff alleged that defendant Wilkerson made unwanted sexual advances toward her and that she told certain employees of defendant Nationwide about Wilkerson’s conduct before she left work at Nationwide. On the plaintiff’s last day of work, an attorney on behalf of the plaintiff sent a letter to the president of Nationwide concerning the alleged harassment. After Nationwide, Designed, and Simplified had conducted a prompt investigation and were unable to substantiate the plaintiff’s allegations of harassment, Nationwide invited the plaintiff to return to work for Nationwide in a capacity in which she would not have to have any contact with Wilkerson, arid Designed and Simplified offered to assist the plaintiff with finding a new job assignment if she preferred not to return to Nationwide. The plaintiff declined both offers and commenced her action. Following discovery, Nationwide and Wilkerson moved for summary disposition, arguing that the plaintiff could not demonstrate quid pro quo sexual harassment because the defendants took no adverse employment action against the plaintiff and that the plaintiff could not show a hostile work environment because she had not properly notified Nationwide of the harassment. The plaintiff argued that she had been subjected to severe and pervasive harassment and that her communications with Nationwide employees concerning the harassment provided adequate notice to Nationwide. The court, Robert A. Benson, X, granted summary disposition for Nationwide and Wilkerson and dismissed the plaintiff’s complaint, holding that the plaintiff had not demonstrated that any adverse employment action had been taken against her, that the plaintiff had not demonstrated that Nationwide had been properly notified of the sexual harassment before receiving the letter from her attorney that resulted in its prompt investigation of the plaintiff’s charges, and that there was no authority for holding an individual employee liable under the cra for sexual harassment where the employer had been dismissed. The court denied the plaintiff’s motion to amend her complaint to add a count of assault and battery against Wilkerson. Nationwide and Wilkerson moved for attorney fees pursuant to the case evaluation provisions of MCR 2.403(0), which the court, George S. Buth, J., granted, albeit in an amount less than requested, on the basis of the affidavits of defense counsel, the itemized billing statements, and the surveys of hourly rates of Michigan attorneys that had been provided in support of the motion. The plaintiff appealed separately the order granting summary disposition and dismissing her complaint (Docket No. 226007) and the order granting case evaluation sanctions (Docket No. 228672). The appeals were consolidated. The Court of Appeals held: 1. The cra prohibits an employer from discriminating on the basis of sex, which includes sexual harassment. Subsection 103(i) of the cra, MCL 37.2103(i), defines sexual harassment as sexual advances, requests for sexual favors, or other verbal or physical conduct or communication of a sexual nature where submission to such conduct or communication is made a term or condition to obtain employment, where submission to or rejection of such conduct or communication by an individual is used as a factor in a decision affecting employment, or where such conduct or communication has the purpose or effect of substantially interfering with employment. The first two situations are commonly labeled quid pro quo harassment, while the third situation is commonly labeled hostile environment harassment. 2. In order to establish a claim of quid pro quo harassment, an employee must show, by a preponderance of the evidence, subjection to any of the types of unwelcome sexual conduct or communication described in the statute and that the employer or the employer’s agent used submission to or rejection of the proscribed conduct as a factor in a decision affecting employment. 3. In order to establish a claim of hostile environment harassment, an employee must show, by a preponderance of the evidence, membership in a protected group, subjection to unwelcome sexual conduct or communication, that the unwelcome sexual conduct or communication was either intended to or did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and respondeat superior. 4. Although the plaintiffs proffered evidence created a genuine issue of material fact concerning whether she was subjected to unwelcome sexual conduct and communication, the plaintiff failed to present any evidence of a decision affecting her employment that was related to her submission to or rejection of the unwelcome sexual conduct and communication. Accordingly, the trial court properly granted summary disposition for Nationwide with respect to the plaintiff’s claim of quid pro quo sexual harassment under the cra. 5. To establish the respondeat superior element of a hostile environment harassment claim, a plaintiff must show that the employer knew of the harassment, which can be shown by evidence that a complaint was made to higher management, or that the employer should have known about the harassment because of its pervasiveness. Higher management is someone in the employer’s chain of command who possesses the ability to exercise significant influence in the decision-making process of hiring, firing, and disciplining the employee who was engaging in the offensive behavior. 6. The plaintiff failed to show on the record that she had specifically informed any person who had management authority over Wilkerson of his harassment of her at any significant time before she left her employment with Nationwide. The plaintiff further failed to show that the harassment was so pervasive that Nationwide should have been alerted to the possibility that she was being harassed. Because the plaintiffs threats to Wilkerson to stop his harassment does not constitute notice to higher management, the trial court properly granted summary disposition for Nationwide with respect to the claim of hostile environment harassment under the cra. 7. The language of the cra indicates a clear intent that liability for violation of the civil rights protected by the act rests solely on employers even though that liability may arise from the acts of employees who have the authority to act on the employer’s behalf. Because the cra imposes liability only on employers and not on individual employees of an employer, the trial court properly held that Wilkerson could not be held liable with respect to the plaintiffs claims under the cra and, accordingly, properly granted summary disposition for Wilkerson with respect to those claims. 8. The trial court did not abuse its discretion in denying the plaintiff’s motion to amend her complaint to add a claim against Wilkerson for assault and battery, given the fact that the motion to amend was made more than l'A years after the original complaint was filed, and after the close of discovery, after case evaluation, and after summary disposition had been granted to the defendants. 9. There was sufficient evidence on the record to support the trial court’s award of attorney fees and, accordingly, there was no need to hold an evidentiary hearing concerning the reasonableness of those fees. Affirmed. Civil Rights — Civil Rights Act — Employers — Agents — Individual Liability. The Michigan Civil Rights Act imposes liability on an employer for violation of the civil rights of an employee that are protected under the act; the act creates liability on the part of the employer for acts committed by an agent of the employer, but the act does not impose on the agent any individual liability for a violation of the civil rights of an employee that are protected under the act (MCL 37.2201[a], 37.2202). Eardley Law Offices, P.C. (by Eugenie B. Eardley), for the plaintiff. Warner Norcross & Judd LLP (by Paul T. Sorensen and Andrea J. Bernard) for Nationwide Truck Brokers, Inc., and James Wilkerson. Before: Wilder, P.J., and Bandstra and Hoekstra, JJ. Hoekstra, J. In these consolidated appeals stemming from plaintiffs sexual harassment action against her employers and her supervisor, plaintiff appeals as of right the trial court’s grant of summary disposition in favor of defendant Nationwide Truck Brokers, Inc. (ntb), and defendant James Wilkerson (Docket No. 226007), and the trial court’s grant of case evaluation sanctions to those defendants (Docket No. 228672). We affirm. I. FACTS AND PROCEDURAL HISTORY Plaintiff was employed with defendants Designed Administrative Resources and Technologies, Inc. (dart), and Simplified Employment Services, Inc. (ses). Through an employee lease agreement, plaintiff worked for ntb under the supervision of Wilkerson as a log entry clerk in ntb’s safety department. According to plaintiff, in August 1996, Wilkerson began making unwanted sexual advances toward her, including sending her sexually explicit electronic mail “pop up” messages, repeatedly asking her to go out with him, and telling her that she “smelled” good. Further, Wilkerson allegedly grabbed her breasts and buttocks, put his face close to her breasts, pulled her skirt up over her waist, ran a toy golf club up the slit of her skirt, presented her with a gift of lingerie, and made sexually explicit remarks to her. Plaintiff testified at a deposition that she told certain employees of ntb about Wilkerson’s conduct, including Dave Wojtaszek and Mark Doyle, and talked to Dave Birge about possibly transferring to his department. On February 17, 1997, plaintiff left work at NTB. Thereafter, plaintiff contacted an attorney, who sent a letter on that same date to Henry Schwarz, the president of ntb, notifying NTB of the harassment. Plaintiff was given paid leave, as she requested, and Wilkerson was placed on suspension pending the outcome of an investigation. Ntb, dart, and ses conducted an investigation and were unable to substantiate plaintiff’s allegations of harassment. Thereafter, ntb invited plaintiff to return to work at ntb, but indicated that plaintiff would not have any contact with Wilkerson, either directly or indirectly. Similarly, dart and ses offered to assist plaintiff with finding a new job assignment if she preferred not to return to NTB. Plaintiff declined both offers. On June 8, 1998, plaintiff filed a complaint against NTB, DART, SES, and Wilkerson, alleging two counts of discrimination in violation of Michigan’s Civil Rights Act (CRA), MCL 37.2101 et seq. The only count at issue on appeal is plaintiff’s claim of “sexual discrimination and harassment.” Defendants answered the complaint, and Wilkerson also filed a counterclaim alleging slander and intentional infliction of emotional distress. Discovery ensued and in September 1999, NTB and Wilkerson moved for summary disposition under MCR 2.116(C)(10). These defendants argued, in essence, that plaintiff could not demonstrate quid pro quo sexual harassment because defendants took no adverse employment action against plaintiff and that plaintiff could not demonstrate a hostile work environment because she had not properly notified ntb of the harassment. In response, plaintiff claimed she was subjected to severe and pervasive harassment and that notice had been given to defendant ntb because plaintiff told ntb employees Dave Wojtaszek, Mark Doyle, and Al Szukala about the harassment. After a hearing on the motion, on February 4, 2000, the trial court granted summary disposition in favor of ntb and Wilkerson and dismissed the sexual harassment count of plaintiffs complaint. The trial court noted that under the quid pro quo theory of sexual harassment, plaintiff had not demonstrated that any adverse job action was taken against her. The trial court also rejected plaintiffs hostile environment sexual harassment clafitt because ntb was not notified of the sexual harassment until ntb received the letter from plaintiffs attorney and thereafter ntb suspended Wilkerson, provided plaintiff with paid leave, and conducted a prompt investigation. Further, the trial court explained that plaintiff provided no authority for the proposition that an individual employee could be held liable for sexual harassment where the employer had been dismissed. In another order relevant to this appeal, the trial court denied plaintiff’s oral motion to amend the complaint to add an assault and battery count against Wilkerson. Further, ntb and Wilkerson moved for case evaluation sanctions in accordance with MCR 2.403(0), which the trial court awarded, albeit in an amount less than requested. H. SUMMARY DISPOSITION OF PLAINTIFF’S SEXUAL HARASSMENT CLAIMS AGAINST NTB On appeal, plaintiff first argues that the trial court erred in granting summary disposition pursuant to MCR 2.116(C)(10) in favor of ntb under two separate theories of liability, quid pro quo sexual harassment and hostile environment sexual harassment. Plaintiff claims that she produced sufficient evidence to create a question of fact and, thus, that her sexual harassment claims under these theories should have gone to a jury. We review de novo a trial court’s grant of summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the claim. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), the trial court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties in the light most favorable to the party opposing the motion.” Meyer v Center Line, 242 Mich App 560, 574; 619 NW2d 182 (2000). Summary disposition is appropriate where the proffered evidence fails to establish a genuine issue of material fact. Maiden, supra; Smith v Globe Life Ins Co, 460 Mich 446, 455-456, n 2; 597 NW2d 28 (1999). The CRA prohibits an employer from, among other things, discriminating because of sex, which includes sexual harassment. MCL 37.2202(1); MCL 37.2103(i); Chambers v Trettco, Inc (On Remand), 244 Mich App 614, 617; 624 NW2d 543 (2001). Section 103(i) of the act, MCL 37.2103(i), defines sexual harassment: Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: (i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment.... (iii) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment. . . environment. When sexual harassment falls under one of the first two subsections, it is commonly labeled quid pro quo harassment, and when it falls under the third subsection, it is commonly labeled hostile environment harassment. Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000). With regard to each of these two categories of sexual harassment, our Supreme Court has identified the elements that a plaintiff must establish to make out a claim. Id. Quoting its previous decisions in Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996), and Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993), our Supreme Court explained: In order to establish a claim of quid pro quo harassment, an employee must, by a preponderance of the evidence, demonstrate: “(1) that she was subject to any of the types of unwelcome sexual conduct or communication described in the statute, and (2) that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment. [Champion, supra at 708-709.]” In order to establish a claim of hostile environment harassment, an employee must prove the following elements by a preponderance of the evidence: “(1) the employee belonged to a protected group; “(2) the employee was subjected to communication or conduct on the basis of sex; “(3) the employee was subjected to unwelcome sexual conduct or communication; “(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and “(5) respondeat superior. [Radtke, supra at 382-383.]” [Chambers, supra, 463 Mich 310-311.] However, when hostile environment harassment is committed by an agent of the employer, an employer may avoid liability if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged harassment. Chambers, supra, 463 Mich 312. “The bottom line is that, in cases involving a hostile work environment claim, a plaintiff must show some fault on the part of the employer.” Id. “An employer, of course, must have notice of alleged harassment before being held liable for not implementing action.” Radtke, supra at 396-397. When considering whether the employer was provided adequate notice, courts must apply an objective standard. Chambers, supra, 463 Mich 319 (“notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring”). A. QUID PRO QUO HARASSMENT We first address plaintiff’s claim of quid pro quo harassment and conclude that plaintiff satisfied only the first of the two elements. Viewing the evidence in a light most favorable to plaintiff, plaintiff did present evidence that created a genuine issue of material fact concerning whether she was subjected to unwelcome sexual conduct and communication. Plaintiff presented evidence that Wilkerson made sexually explicit comments to her and made inappropriate sexual contact with her. However, plaintiff must also present evidence that her submission to or rejection of the sexual advances was used as a factor in a decision affecting her employment. Chambers, supra, 463 Mich 310. Here, plaintiff offers no evidence of a decision affecting her employment made by Wilkerson that related to her submission to or rejection of his sexual advances. Rather, on appeal, she argues that she was constructively discharged because her efforts to alert someone to the harassment appeared to be futile, she felt hopeless, she thought she needed outside help, she felt humiliated after ntb conducted its investigation but found her charges unsubstantiated, and she was dissatisfied with ntb’s request that she return to work under a different supervisor or seek reassignment through DART and SES, while Wilkerson returned to his job. While we acknowledge that under certain circumstances a constructive discharge can be an adverse employment action resulting from submission to or rejection of sexual advances, see Champion, supra at 710-713, plaintiff has not shown that connection in this case. Chambers, supra 463 Mich 317. In other words, the events on whic

LINDA GUTHRIE, Plaintiff v. RAYMOND CONROY and CLEGG’S TERMITE AND PEST CONTROL, INC., Defendants No. COA01-740 (Filed 6 August 2002) 1. Appeal and Error— partial summary judgment — certification — phrase “final judgment” — not necessary Plaintiff’s claims were subject to dismissal (but were heard in the discretion of the Court of Appeals) where plaintiff appealed more than 30 days from entry of a partial summary judgment for defendants. Although plaintiff’s notice of appeal was within 30 days of an amendment that added “final judgment” to the order, whether an order is final is determined by the resolution of the claim rather than the phrase “final judgment.” 2. Emotional Distress— intentional inflection — sexual harassment — behavior juvenile but not extreme The trial court did not err by granting summary judgment for defendants on a claim for intentional infliction of emotional distress (IIED) involving alleged workplace sexual harassment where the alleged behavior was annoyingly juvenile, obnoxious, and offensive, but not outrageous and extreme. 3. Emotional Distress— negligent inflection — sexual harassment by co-worker — no breach of duty The trial court did not err by granting summary judgment for defendants on plaintiff’s claim for negligent infliction of emotional distress (NIED) arising from alleged workplace sexual harassment where plaintiff did not allege a duty owed to her by the co-employee who was allegedly harassing her. While NIED does not require extreme and outrageous conduct, negligence involves the breach of a duty. 4. Employer and Employee— negligent retention and supervision — underlying tort The trial court did not err by granting summary judgment for defendant employer on a claim for negligent retention and supervision of an employee accused of sexually harassing plaintiff where there was no viable tort claim against the employee. 5. Employer and Employee— civil assault — sexual harassment — ratification The trial court erred in a sexual harassment action by granting summary judgment for the employer on a claim for civil assault where the evidence was sufficient to create a genuine issue of material fact regarding ratification. Appeal by plaintiff from order entered 14 March 2001 by Judge Steve A. Balog in Orange County Superior Court. Heard in the Court 6f Appeals 17 April 2002. Patterson, Harkavy, & Lawrence, L.L.P., by Martha A. Geer, and Davis, Murrelle & Lyles, by Edward L. Murrelle, for plaintiff - appellant. Kathryn P. Fagan, for defendant-appellants. BIGGS, Judge. Plaintiff (Linda Guthrie) appeals from a summary judgment order entered 14 March 2001 in favor of defendants (Raymond Conroy and Clegg’s Termite and Pest Control, Inc.). For the reasons that follow, we affirm in part and reverse in part. Plaintiff was employed in 1998 by defendant Clegg’s Termite and Pest, Inc. (Clegg’s), as a secretary. Defendant Conroy was plaintiff’s co-employee, and worked for Clegg’s as a salesman and pesticide technician. On 17 March 1999, plaintiff submitted her resignation from Clegg’s, in a letter stating that her departure was due to her medical problems, the side effects of various medications, and her feeling that it was unfair for her co-workers to have to “put up with [her] condition.” Plaintiff suffered from severe rheumatoid arthritis for which she took numerous medications, some with adverse side effects. However, plaintiff was persuaded not to leave and remained at Clegg’s for two more months. On 20 May 1999, plaintiff submitted a second resignation letter, this one stating that she was quitting in order to escape sexual harassment by defendant Conroy. She then ceased working for defendant Clegg’s. On 5 October 1999, plaintiff filed suit against defendants, alleging (1) intentional infliction of emotional distress (IIED) by both defendants; (2) negligent infliction of emotional distress (NIED) by both defendants; (3) negligent retention and supervision of Conroy by defendant Clegg’s; and (4) civil assault by both defendants. Plaintiff sought compensatory and punitive damages, and attorneys’ fees. Defendants filed a summary judgment motion on 26 September 2000, which was heard in November, 2000. On 13 November 2000, the trial court issued an order granting partial summary judgment; the court dismissed all of plaintiff’s claims, except for her civil assault action against defendant Conroy. Plaintiff appeals from the grant of summary judgment in favor of defendants. Motion to Dismiss Appeal On 7 March 2001, plaintiff filed a motion “pursuant to rule 54(b) and rule 60,” asking the trial court to amend its 13 November 2000 summary judgment order by adding the phrase “final judgment.” Plaintiff asserted that without that phrase, the order was interlocutory and not subject to immediate appeal. On 9 March 2001, the trial court entered an amended summary judgment order making the same rulings as its 13 November order, and adding the phrase “final judgment.” Plaintiff appealed from the amended order on 20 March 2001. On 15 June 2001, defendants filed a motion in this Court seeking dismissal of plaintiff’s appeal. Defendants argue that the 13 November 2000 summary judgment order was immediately appeal-able, and that plaintiff was required by N.C.R. App. P. 3(c) to give notice of appeal within 30 days of its entry. We agree. We note initially that plaintiff has argued that, by failing to appeal from the amended order of 9 March 2001, or to file a cross-assignment of error, defendants waived the right to move for dismissal of plaintiff’s appeal. However, defendant’s motion for dismissal presents a question of jurisdiction, which may be addressed by this Court at any time, sua sponte, regardless of whether defendants properly preserved it for appellate review. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (“if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question . . . has not been raised by the parties themselves”). The summary judgment order from which plaintiff appeals is interlocutory, because it leaves unresolved plaintiff’s claim against Conroy for civil assault. Creech v. Ranmar Props., 146 N.C. App. 97, 551 S.E.2d 224 (2001) (order that leaves claims unresolved is interlocutory). An interlocutory order is subject to immediate appeal only under two circumstances: where the order is final as to some claims or parties, and the trial court certifies pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure that there is no just reason to delay the appeal, see Alford v. Catalytica Pharmaceuticals, Inc., 150 N.C. App. 489, 564 S.E.2d 267 (2002), or where the order deprives the appellant of a substantial right that would be lost unless immediately reviewed, see Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000). Thus, if the trial court enters a judgment “which fully terminates” a claim or claims as to “fewer than all the parties,” Rule 54(b) allows the trial court to “release it for immediate appeal before the litigation is complete as to all claims or all parties” by certifying that there is “no just reason for delay’’Industries, Inc. v. Insurance Co., 296 N.C. 486, 490, 251 S.E.2d 443, 446-47 (1979). This is the mechanism by which the trial court expresses its determination that a final judgment should be subject to immediate appeal. Oestreicher v. Stores, 290 N.C. 118, 127, 225 S.E.2d 797, 803 (1976) (citation omitted) (trial court functions as a “dispatcher” and determines “the appropriate time when each ‘final decision’ upon ‘one or more but less than all’ of the claims in a multiple claims action is ready for appeal”). The trial court’s 13 November 2000 summary judgment order states that “pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, the undersigned Judge hereby finds that there is no just reason for delay in the plaintiff’s taking an appeal from this Order.” Plaintiff cites no cases holding that the trial court is also required to use the phrase “final judgment,” and we find none. It is the resolution of a claim, rather than the phrase “final judgment” that determines whether an order is ‘final.’ Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979) (“That the trial court declared it to be a final, declaratory judgment does not make it so.”). Nor does N.C.G.S. § 1A-1, Rule 54 require the phrase “final judgment” to be included in a trial court’s certification that an order resolving one or more claims is appropriate for immediate appeal: (a) Definition. A judgment is either interlocutory or the final determination of the rights of the parties. (b) . . . When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal[.] N.C.G.S. § 1A-1, Rule 54(a) and (b). The 13 November 2000 summary judgment order was a final judgment as to all of plaintiffs claims against Clegg’s, and on all of her claims against Conroy, except for civil assault. Further, the trial court certified, pursuant to N.C.G.S. § 1A-1, 54(b) that there was “no just reason for delay,” of an appeal from the order. We conclude, therefore, that the order was properly certified for immediate appeal. Because the 13 November 2000 order was subject to appeal, plaintiff was required by N.C.R. App. P. 3(c)(1) to file notice of appeal within 30 days of entry of judgment, or no later than 13 December 2000. Plaintiffs notice of appeal, filed 20 March 2001, or 127 days after entry of the 13 November 2000 summary judgment order, was untimely, and subjects her appeal to dismissal. Herring v. Branch Banking & Trust Co., 108 N.C. App. 780, 424 S.E.2d 925 (1993). However, this Court will exercise its discretion and grant certiorari to review plaintiffs claims on their merits, pursuant to N.C.R. App. P. 21 (2001). See Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) (“Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner”). Standard of Review Preliminarily, we note that plaintiff characterizes her suit as “a conventional sexual harassment case;” compares the conduct at issue to that “in other sexual harassment cases;” and asserts that defendant Conroy’s alleged conduct “constitutes classic sexual harassment that should not be tolerated in any workplace.” We therefore find it necessary to clarify the nature of the matters before us on review. We recognize that the right to be free of sexual harassment in the workplace is addressed in certain federal statutes, e.g., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (2001) (prohibiting discrimination in the “terms, conditions, or privileges of employment” on the basis of an employee’s sex), and is implicated in our State declaration of public policy, N.C.G.S. § 143-422.2 (“It is the public policy of this State to protect. . . the right... of all persons to seek, obtain and hold employment without discrimination or abridgement on account of . . . sex”). A civil suit may be brought to redress, e.g., an alleged violation of Title VII, see Brown v. Henderson, 155 F.Supp.2d 502 (M.D.N.C. 2000) (setting out elements of Title VII claim of hostile work environment caused by sexual harassment); Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728, disc. review denied, 348 N.C. 501, 510 S.E.2d 655 (1998) (employee suit alleging violation of Title VII and N.C. public policy). Such claims focus on the impact of alleged behavior on the workplace, and require proof that the sexual harassment was “so severe or pervasive as to alter the conditions of [the victim’s] employment and create an abusive working environment.” Clark County School Dist. v. Breeden, 532 U.S. 268, 270, 149 L. Ed. 2d 509, 513 (2001) (citation omitted). However, the plaintiff in the present case does not allege violation of these or other similar statutes. Rather, she has brought common law tort claims for personal injury caused by IIED and NIED. The elements and legal prerequisites of her claims are quite different from those of a Title VII claim. For example, as this is not a statutory “sexual harassment case,” plaintiff need not exhaust administrative remedies before bringing her action. Brooks v. Southern Nat’l Corp., 131 N.C. App. 80, 86, 505 S.E.2d 306, 310 (1998), disc. review denied, 350 N.C. 592, 536 S.E.2d 626 (1999) (plaintiff not required to exhaust administrative remedies where alleged common law torts are not subject to administrative review). Further, plaintiff’s claims of IIED and NIED present issues as to whether the named defendants committed certain acts against this plaintiff; however, plaintiff’s claims do not involve a generalized assessment of acceptable workplace behavior, nor an analysis of the “workplace environment.” In short, plaintiff has brought a common law tort action alleging personal injury, which we will treat as such. Plaintiff appeals from the trial court’s grant of summary judgment. Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, 56(c) (2001). “[T]he party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citation omitted). However, “the real purpose of summary judgment is to go beyond or to pierce the pleadings and determine whether there is a genuine issue of material fact.” Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972). In response to a motion for summary judgment, the non-movant must “produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000). On appeal, this Court’s standard of review involves a two-step determination of whether (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001) (citations omitted). Moreover, “the evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Intentional Infliction of Emotional Distress Plaintiff argues first that the trial court erred in its grant of summary judgment for defendants on plaintiffs claim of intentional infliction of emotional distress (IIED). We disagree. The essential elements of IIED are “(1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (citation omitted). “The determination of whether the conduct alleged was intentional and was extreme and outrageous enough to support such an action is a question of law for the trial judge,” Lenins v. K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990), and, thus, our review is conducted de novo, see Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999) (upon challenge to summary judgment order, trial court’s “alleged errors of law are subject to de novo review”). “A claim for intentional infliction of emotional distress exists ‘when a defendant’s conduct exceeds all bounds usually tolerated by decent society[.]’ ” Watson v. Dixon, 130 N.C. App. 47, 52-53, 502 S.E.2d 15, 19-20 (1998), on reh’g, 132 N.C. App. 329, 511 S.E.2d 37 (1999), aff'd, 352 N.C. 343, 532 S.E.2d 175 (2000) (quoting Stanback v. Stanback, 297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979)) (defendant engaged in extreme and outrageous conduct when he “frightened and humiliated [plaintiff] with cruel practical jokes, which escalated to obscene comments and behavior of a sexual nature,... finally culminating in veiled threats to her personal safety”). Conduct is extreme and outrageous when it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). Plaintiff cites Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986), for her assertion that “North Carolina courts have consistently held that sexual harassment constitutes extreme and outrageous conduct intended to cause emotional distress.” However, Hogan held that a claim for intentional infliction of emotional distress might in appropriate factual circumstances be based upon behavior of a sexual nature. The Court concluded that one of the Hogan plaintiffs was entitled to submit her IIED claim to the jury based upon her allegations that [defendant] made sexually suggestive remarks to her while she was working, coaxing her to have sex with him and telling her that he wanted to “take” her. He would brush up against her, rub his penis against her buttocks and touch her buttocks with his hands. When she refused his advances, he screamed profane names at her, threatened her with bodily injury, and on one occasion, advanced toward her with a knife and slammed it down on a table in front of her. Id. at 490, 340 S.E.2d at 121. The Court upheld summary judgment against the two other plaintiffs, on the basis that the defendant’s alleged behavior towards those plaintiffs was not “outrageous and extreme.” Id. at 493-94, 340 S.E.2d at 123. Thus, while a claim of IIED may be based upon allegations of sexually harassing behavior, “extreme and outrageous behavior” must be more than “mere insults, indignities, and threats.” Further, “plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate or unkind.” Hogan, id. See e.g., Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232, disc. review allowed, 325 N.C. 270, 384 S.E.2d 513, (1989), review dismissed as improvidently granted, 326 N.C. 356, 388 S.E.2d 769 (1990) (prima facie case of IIED shown where defendant asked plaintiff “how tight [her vagina] was”; indicated that he wanted plaintiffs “long legs wrapped around his body”; grabbed his penis; implied that if plaintiff would have sex with him, [he] would place [her] in another position), and McLain v. Taco Bell Corp., 137 N.C. App. 179, 181, 527 S.E.2d 712, 715, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000) (defendant “physically assaulted plaintiff, . . . [demanding] sexual relations . . . [and] began masturbating, ultimately ejaculating upon plaintiffs clothing”); compare with Wilson v. Bellamy, 105 N.C. App. 446, 468, 414 S.E.2d 347, 359, disc. review denied, 331 N.C. 558, 418 S.E.2d 668 (1992) (rejecting IIED claim where “defendants engaged in kissing and heavy petting with the plaintiff in the presence of others” while plaintiff was intoxicated to the point of unconsciousness). “Because the forecast of evidence as to the factual basis of each [claim of IIED] is unique, each claim must be decided on its own merits.” Denning-Boyles v. WCES, I

Sandy Williams vs. Episcopal Diocese of Massachusetts & another. Suffolk. February 4, 2002. - April 25, 2002. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Church. Religion. Employment, Discrimination. Anti-Discrimination Law, Employment, Termination of employment. Constitutional Law, Establishment of religion, Freedom of religion. Jurisdiction, Ecclesiastical controversy. The First Amendment to the United States Constitution precluded a Superior Court judge’s exercise of jurisdiction over an employment discrimination complaint brought by a priest against the Episcopal Diocese of Massachusetts and its presiding bishop, where resolution of the dispute would involve assessment of the diocese’s priorities of its ministries and require the defendants to defend the church’s policies regarding its ministers. [579-582] This court declined to address the issue, not presented on the facts of an appeal, whether the First Amendment provided a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim. [582-583] Civil action commenced in the Superior Court'Department on July 21, 2000. A motion to dismiss was heard by Margaret R. Hinkle, J. The Supreme Judicial Court granted an application for direct appellate review. David R Angueira for the plaintiff. L. Martin Nussbaum, of Colorado (William F. Looney, Jr., & Kimberly Y. Jones with him) for the defendants. The presiding Bishop of the Episcopal Diocese of Massachusetts. Greaney, J. The plaintiff, an Episcopal priest, filed an employment discrimination action in the Superior Court, alleging that the defendants, the Episcopal Diocese of Massachusetts (Diocese) and the Right Reverend M. Thomas Shaw (the presiding bishop of the Diocese [Bishop]), discriminated against her based on her gender, in violation of G. L. c. 151B, § 4 (1) and (4), resulting in her constructive discharge when she was forced to resign from her position as an ordained minister and vicar of Saint Andrew’s Episcopal Church of the Deaf in Brookline (St. Andrew’s). The plaintiff’s complaint alleges that (1) throughout her employment, she was paid considerably less than her similarly situated male colleagues; (2) when she complained about the disparate treatment, she was admonished and threatened with termination; and (3) she was constructively discharged as a result of being forced to work in a hostile work environment. The defendants moved to dismiss under Mass. R. Civ. R 12 (b) (6), 365 Mass. 754 (1974), or, alternatively, for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974). A Superior Court judge considered the defendants’ motion as one pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974), and allowed the motion on the ground that the First Amendment to the United States Constitution precludes civil courts from adjudicating disputes between a priest and her diocese. We granted the defendants’ application for direct appellate review, and we now affirm the judgment of dismissal. We begin by summarizing the factual background of this dispute, incorporating relevant facts alleged by the plaintiff in her complaint and supporting affidavit, as well as undisputed facts presented in documents submitted by the parties that were considered by the judge. In 1989, the plaintiff was hired by the Diocese to be director of liturgical life at Saint Andrew’s, and to act as liaison between the deaf community and the Diocese. Part of the plaintiff’s job was to advocate for the members of her congregation and defend their rights under civil and canon law. During the eight years of her employment, the plaintiff claims, she was treated disparately as compared to her male counterparts, including, but not limited to, her rate of pay and benefits. When the plaintiff complained of the disparate treatment, she was either ignored, had her salary and benefits frozen or reduced, or was told that she had no civil or ecclesiastical right to question the treatment she received. Specifically, the plaintiff’s affidavit states that, when she interviewed for the position at Saint Andrew’s, she was given an information packet that contained a salary and benefit range that was above the level of compensation she eventually received for her work. Her complaints to the Diocesan treasurer regarding the insufficient travel allowance provided her, according to the plaintiff, marked “the start of a pattern of behavior directed at [her] that was not directed at [her] male counterparts.” The plaintiff’s affidavit states that the presiding bishop of the Diocese at that time (the predecessor to the Bishop who is a defendant in this action) consistently discredited her work and excluded her from important meetings. He once attempted to fire the plaintiff. Shortly after a new presiding bishop (the defendant Shaw) was elected, the plaintiff discussed with him the discriminatory actions taken against her and informed him that she was considering legal action against the Diocese. The Bishop then expressed his desire to work things out with the plaintiff. Although she received regular salary raises for the next two years, the plaintiff states in her affidavit that she “do[es] not believe [she] was ever raised to the Diocesan minimum standard, nor to the level of [her] male counterparts.” The plaintiff continued to feel ignored by the Diocese. When the plaintiff expressed interest in relocating her ministry from Saint Andrew’s, due to the possibility of a gift of land on the North Shore that was adjacent to two institutions for the deaf, the plaintiff felt that the Bishop failed sufficiently to consider the matter. The plaintiff’s affidavit states that “if [she] had not been a woman, [the Bishop] would have taken this issue seriously, which he didn’t.” On April 21, 1997, on learning that the Bishop intended to conduct an evaluation of her ministry by outside consultants, the plaintiff tendered the Bishop her letter of resignation, effective July 31, 1997. The plaintiff’s letter offered the following reasons for her resignation: (1) “the failure of the Episcopacy and the Episcopal staff to recognize and respect the primary role that the members of St. Andrew’s must have in deciding, not only their own destiny, but also the direction of [d]eaf [mjinistry in the Diocese”; (2) the Bishop’s “failure to respect and trust [the plaintiff’s] insights and judgments .... [The Bishop’s] need to bring in [a m]issioner to the [d]eaf from another [d]iocese to evaluate the program here indicates to me that you do not trust the [m]issioner you have”; (3) the lack of “advocacy and support, both tangible and emotional, from the Episcopacy” and the “cloud of distrust and animosity that ha[s] plagued this Diocese since before either [the Bishop or the plaintiff] were ordained”; and (4) the “inequity of salary and benefits” that she was receiving. The judge allowed the defendants’ motion to dismiss the plaintiff’s claims on the ground that the First Amendment deprived the Superior Court of subject matter jurisdiction. The judge recognized that the doctrine known as the “ministerial exception,” adopted by Federal courts in the context of Federal employment discrimination suits, precludes civil courts from adjudicating employment discrimination suits by ministers against their church or religious institution. See McClure v. Salvation Army, 460 F.2d 553, 559-561 (5th Cir.), cert. denied, 409 U.S. 896 (1972) (reviewing cases in which United States Supreme Court had placed matters of church government and administration beyond regulation of civil authorities; holding that application of Title VII of the Civil Rights Act of 1964 to employment relationships between ministers and churches involves prohibited intrusion into matters of ecclesiastical concern). See also Combs v. Central Tex. Annual Conference of the United Methodist Church, 173 F.3d 343, 348-349 (5th Cir. 1999); Schmoll v. Chapman Univ., 70 Cal. App. 4th 1434, 1436, 1438-1440 (1999); Van Osdol v. Vogt, 908 P.2d 1122, 1129, 1132-1133, 1134 (Colo. 1996); Newport Church of the Nazarene v. Hensley, 161 Or. App. 12, 22-23 (1999). The “ministerial exception” doctrine is based on the premise that a minister’s relationship to an organized church is intrinsically religious. Because civil resolution of disputes surrounding a minister’s employment unavoidably would involve investigation and review of the church’s practices and decisions with respect to, among other matters, the minister’s assignment, salary, and duties, allowing jurisdiction of employment discrimination claims would result in governmental intrusion into an area of religious freedom forbidden by the principles of the First Amendment. See McClure v. Salvation Army, supra at 560 (articulating, for first time,- the “ministerial exception” to Title VII claims). In the words of the United States Court of Appeals for the Fifth Circuit in the McClure decision, as quoted by the judge: “The relationship between an organized chinch and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.” Id. at 558-559. The judge reasoned that, given the “ministerial exception” doctrine’s widespread acceptance in Federal and State appellate courts, including its application by the United States Court of Appeals for the First Circuit, see Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989), and Dowd v. Society of St. Columbans, 861 F.2d 761 (1st Cir. 1988), the doctrine should be applied to this case. The judge subsequently concluded that the exception “squarely addressed” the plaintiff’s claims. 1. The plaintiff’s primary claim on appeal is that the judge erred in applying the “ministerial exception” to this case, because the challenged employment decisions do not implicate religious beliefs, procedures, or law. She asserts an entitlement to the opportunity to prove that any assertion of a legitimate motive on the defendants’ part is a pretext, and that she was constructively discharged solely because she is female. The plaintiff argues that courts should afford an aggrieved minister the same protections provided to plaintiffs in secular employment settings to investigate claims of illegal discrimination in the workplace. The plaintiff contends that the rule applied by the judge, which arbitrarily excludes employment discrimination claims by a minister against a church regardless of their basis, will lead to a situation where “any church and minister, no matter how outrageous and illegal the conduct, will be granted a license to flagrantly violate the discrimination laws of Massachusetts without repercussions.” It is not necessary that we respond to the plaintiff’s specific contentions regarding the “ministerial exception.” The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The principle that this language precludes jurisdiction of civil courts over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships is firmly established in Massachusetts case law. See Parish of the Advent v. Protestant Episcopal Diocese of Mass., 426 Mass. 268, 280 (1997); Fortin v. Roman Catholic Bishop of Worcester, 416 Mass. 781, 785, cert. denied, 511 U.S. 1142 (1994); Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 850, cert. denied, 502 U.S. 865 (1991); Wheeler v. Roman Catholic Archdiocese of Boston, 378 Mass. 58, 61, cert. denied, 444 U.S. 899 (1979). The facts alleged in the plaintiff’s complaint and supporting affidavit present a quintessential example of such a church dispute. The plaintiff’s resignation appears to have been motivated, essentially, by her frustration over the direction of her ministry and the perceived value placed on it by her superiors. A trial on this matter clearly would involve assessment of the church’s priorities of its ministries and require the defendants to defend the church’s policies regarding its ministers. Thus, jurisdiction is precluded in this case, regardless of whether we adopt the “ministerial exception.” It is true that the plaintiff’s claims do not, on their face, question the verity of religious doctrines or beliefs. It is hard to conceive, however, how a court could inquire into the reasons for the defendants’ decisions regarding the plaintiff’s ministry without intruding into matters of the internal management of the Diocese. Irrespective of whether the defendants’ treatment of the plaintiff and her ministry was based on legitimate or illegitimate grounds, the plaintiff’s claims, by their very nature, implicate the defendants’ First Amendment rights. To argue otherwise diminishes the importance of the constitutional separation of chinch and State. We reject the plaintiff’s contention that a balancing test is appropriate to determine to what extent judicial scrutiny of her claims would offend the defendants’ religious freedoms under either the establishment clause, see Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), or the free exercise clause, see Sherbert v. Verner, 374 U.S. 398, 407 (1963), of the First Amendment. The application of First Amendment principles, in circumstances such as these, involves no balancing test. If adjudication of the plaintiff’s claims would implicate matters of ecclesiastical relationships, the courts should not intrude. See Madsen v. Erwin, 395 Mass. 715, 722-723 (1985) (“the decision to fire [the plaintiff] can only be construed as a religious one, made by a Church as employer”); Alberts v. Devine, 395 Mass. 59, 72-73, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985) (“It is clear that the assessment of an individual’s qualifications to be a minister, and the appointment and retirement of ministers, are ecclesiastical matters entitled to constitutional protection against judicial or other State interference”); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir. 1989) (no jurisdiction over minister’s claim of wrongful termination, notwithstanding allegation that organization failed to follow own rules; “[b]y its very nature, the inquiry . . . plunges an inquisitor into a maelstrom of Church policy, administration, and governance”); Dowd v. Society of St. Columbans, 861 F.2d 761, 764 (1st Cir. 1988) (“actions involving] rules, policies, and decisions [] should be left to the exclusive religious jurisdiction of the church”). The plaintiff’s attempts to frame this action as a secular dispute pertaining to the defendants’ “unlawful acts in violation of their own company policies and procedures specifically enacted ... to prohibit discrimination of any type against its employees” is unavailing. That the Diocese may have acted in violation of antidiscrimination policies set forth in its own personnel handbook is irrelevant. We decline to venture into the realm of interpreting internal guidelines and procedures that have been adopted by the Episcopal Church. As discussed above, a church must be free to decide for itself what its obligations to its ministers are, without being subject to court interference. See Dowd v. Society of St. Columbans, supra at 764 (“The [Diocese’s] own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention”). 2. One final point merits discussion. The plaintiff’s counsel, at oral argument, suggested that the plaintiff’s claim involves prohibited conduct of a sexual nature. This basis for the plaintiff’s claim was not, apparently, presented to the judge, nor was it developed in the plaintiff’s brief submitted to this court. It is true that the plaintiff’s complaint states a claim of “gender harassment,” as well as for gender discrimination, against the Bishop and the Diocese. In her supporting affidavit, however, although the plaintiff stated that the Bishop’s predecessor treated her in an “uncomfortably ‘friendly’ ” manner and that he “put his arm around [her] several times, something he never did to men,” she also stated that he made no “overt sexual advances.” Importantly, she described his attitude toward her as merely “patronizing and condescending.” There is nothing in the record to support an inference of conduct that could properly be characterized as sexual harassment for purposes of G. L. c. 151B. This case does not present the question, therefore, considered by the United States Court of Appeals for the Ninth Circuit in Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1999), whether the First Amendment provides a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim. See id. at 949-950 (considering plaintiff’s claims of sexual harassment by church; allowing limited inquiry into whether Jesuit order exercised reasonable care to prevent and correct sexual harassment, and whether plaintiff failed to take advantage of opportunities to limit harm). The First Amendment, as applied to the States by the Fourteenth Amendment to the United States Constitution, requires courts of this Commonwealth “to ensure that individuals or organizations are not unjustly deprived of their right to exercise freely their religious beliefs.” Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 850 (1991). To the extent that this case involves a conflict between the legislative mandate of G. L. c. 15 IB to eliminate discrimination in the workplace and our constitutional mandate to preserve the separation of church and State, the constitutional directive must prevail. 3. We treat the judgment that was entered as a judgment under Mass. R. Civ. P. 12 (b) (1) and, so treated, the judgment is affirmed. So ordered. Although the issue is not raised by either party, we note that the judge properly converted the defendant’s motion under Mass. R. Civ. R 12 (b) (6), 365 Mass. 754 (1974), as one pursuant to Mass. R. Civ. R 12 (b) (1), 365 Mass. 754 (1974). The judge, however, could have decided the motion on the ground of the complaint’s failure to state a claim on which relief can be granted. See Mathias v. Beatrice Foods Co., 23 Mass. App. Ct. 915, 916 n.4 (1986). See also Madsen v. Erwin, 395 Mass. 715, 717 (1985) (jurisdiction preclusion based on First Amendment protection raised in context of motion to dismiss under rule 12 [b] [6]); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1576 (1st Cir. 1989) (same issue raised in context of motion to dismiss under Fed. R. Civ. P. 12 [b] [6]). The important point is that consideration of matters outside of the pleadings generally compels a judge to treat a motion to dismiss under rule 12 (b) (6) as a motion for summary judgment. See Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106, 109 (1995). Such is not the case when deciding a motion to dismiss under rule 12 (b) (1). See id. Cf. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 555 (1999) (authorized in certain circumstances). This difference is not merely technical — under a rule 12 (b) (1) motion, a plaintiff bears the burden of proving jurisdictional facts, see New Hampshire Ins. Guar. Ass’n v. Markem Corp., 424 Mass. 344, 346 (1997); Brown v. Tobyne,