Harassment Cases

CHAMBERS v TRETTCO, INC (ON REMAND) Docket No. 202151. Submitted September 5, 2000, at Lansing. Decided February 16, 2001, at 9:05 A.M. Robyn Chambers brought an action in the Washtenaw Circuit Court against her employer, Trettco, Inc., claiming sex discrimination in employment, involving sexual harassment. The court, Donald E. Shelton, J., submitted the case to a jury on theories of quid pro quo sexual harassment and hostile work environment sexual harassment. The jury returned a verdict for the plaintiff. The Court of Appeals, Jansen, P.J., and Markey, J. (O’Connell, J., dissenting), affirmed on the basis of Faragher v Boca Raton, 524 US 775 (1998), and Burlington Industries, Inc v Etterth, 524 US 742 (1998), which had applied the federal Civil Rights Act. 232 Mich App 560 (1998). The defendant appealed, and the Supreme Court held that the reliance on federal case law by the Court of Appeals was misplaced, dismissed the plaintiff’s claim of quid pro quo sexual harassment, vacated the prior opinion of the Court of Appeals, and remanded the matter to the Court of Appeals for resolution of the claim of hostile work environment sexual harassment in accordance with Michigan precedents. On remand, the Court of Appeals held: Reversed and remanded. O’Connell, J., in the lead opinion, stated: 1. The Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., expressly recognizes sexual harassment as a prohibited form of discrimination’ and carefully distinguishes between what are commonly labeled quid pro quo sexual harassment and hostile work environment sexual harassment. The federal Civil Rights Act, 42 USC 2000e et seq., does neither, but merely prohibits discrimination based on sex. 2. The United States Supreme Court has concluded that, under the federal Civil Rights Act, once a plaintiff has established that a supervisor created a hostile working environment, the burden shifts to the employer to disprove vicarious liability for the supervisor’s actions. 3. Under the Michigan Civil Rights Act, a defendant employer does not bear the burden of disproving responsibility for a hostile work environment. Rather, the plaintiff employee must prove respondeat superior by a preponderance of the evidence. This ordinarily requires a showing that either a recurring problem existed or a repetition of an offending incident was likely and that the defendant failed to rectify the problem on adequate notice. Notice of sexual harassment sufficient to impute liability to the employer exists where, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of the substantial probability that sexual harassment was occurring. 4. The plaintiff failed to prove respondeat superior by a preponderance of the evidence. The trial court’s judgment must be reversed and the matter must be remanded for entry of a judgment in favor of the defendant. Markey, J., concurred in the result only. Jansen, P.J., dissenting, stated that there was sufficient evidence presented at trial for the jury to conclude that the defendant failed to take prompt remedial action after it knew or should have known that the plaintiff had been sexually harassed. The judgment of the trial court should be affirmed. Garris, Garris, Garris & Garris, P.C. (by Steven Z. Garris), for the plaintiff. MacDonald and Goren, P.C. (by Cindy Rhodes Victor and Lawrence C. Atorthy), for the defendant. on remand Before: Jansen, P.J., and Markey and O’Connell, JJ. O’Connell, J. This case returns to this Court on remand from our Supreme Court. Because the facts are set forth in detail in our earlier opinion, Chambers v Trettco, Inc, 232 Mich App 560, 562-564; 591 NW2d 413 (1998) (Chambers I), and in the Supreme Court’s decision that vacated our prior opinion and remanded the matter, Chambers v Trettco, Inc, 463 Mich 297, 303-306; 614 NW2d 910 (2000) (Chambers II), we will repeat them here only as necessary to bring the issues into focus. Plaintiff brought a claim of sexual harassment against defendant, her employer, under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., alleging both quid pro quo harassment and hostile workplace harassment. The jury accepted both theories and awarded damages. A divided panel of this Court, relying heavily on recent federal cases construing title VII of the federal Civil Rights Act, 42 USC 2000e et seq., affirmed. Our Supreme Court in turn held that this Court’s reliance on the federal case law was misplaced, Chambers II, supra at 313-316, dismissed plaintiff’s claim of quid pro quo harassment, and vacated our prior opinion and remanded the case to this Court for resolution of the hostile environment harassment claim in accordance with Michigan precedents. Id. at 326. We reverse and remand. Plaintiff alleged that a temporary supervisor, assigned to her work station for four days while her regular supervisor was on vacation, engaged in a pattern of seriously suggestive and offensive behavior, and did so over plaintiff’s clear objections. Plaintiff complained to co-workers about wishing to leave her job, but she did not initiate the proceedings for sexual harassment complaints set forth in defendant’s employee handbook. However, plaintiff happened to answer the telephone when defendant’s regional director of operations telephoned. The latter sensed that something was wrong, but plaintiff chose not to explain the problem, apparently because the offender was nearby. The director indicated that he would talk to plaintiff later, but no meeting between plaintiff and the director followed. Plaintiff did complain to her regular supervisor when the latter returned from vacation. The record does not indicate what action, if any, defendant took against the offender in response, but the offender never confronted plaintiff at work again. Section 202 of our Civil Rights Act provides that an employer may not “discharge, or otherwise discriminate against an individual with respect to employment, . . . because of . . . sex, ... or marital status.” MCL 37.2202; MSA 3.548(202). Subsection 103(i) clarifies that “[discrimination because of sex includes sexual harassment,” which the subsection defines as “unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct or communication of a sexual nature,” under certain circumstances. MCL 37.2103; MSA 3.548(103)(i). Qualifying circumstances include, under subsection 103(i)(w), where the employee’s submission to or rejection of sexual overtures “is used as a factor in decisions affecting the individual’s employment,” and, under subsection 103(i)(m), where “[t]he 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.” MCL 37.2103(i)(n) and (m); MSA 3.548(103)(i)(ü) and (m). Our statute thus expressly recognizes sexual harassment as a prohibited form of discrimination and carefully distinguishes between what are commonly labeled “quid pro quo” harassment and “hostile environment” harassment. The federal Civil Rights Act does neither, but merely prohibits discrimination based on sex. Chambers II, supra at 315, citing 42 USC 2000e-2(a)(l). Further, the United States Supreme Court has concluded that, under the federal Civil Rights Act, once a plaintiff has established that a supervisor created a hostile working environment, the burden shifts to the employer to disprove vicarious liability for the supervisor’s actions. Chambers II, supra at 314-315, citing Burlington Industries, Inc v Ellerth, 524 US 742, 765; 118 S Ct 2257; 141 L Ed 2d 633 (1998), and Faragher v Boca Raton, 524 US 775, 807; 118 S Ct 2275; 141 L Ed 2d 662 (1998). Conversely, under state law, vicarious liability will be found only where the plaintiff has carried the burden of proving respondeat superior. This ordinarily requires a showing that either a recurring problem existed or a repetition of an offending incident was likely and that the employer failed to rectify the problem on adequate notice. Radtke v Everett, 442 Mich 368, 382, 395; 501 NW2d 155 (1993). Notice of sexual harassment sufficient to impute liability to the employer exists where, “by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of the substantial probability that sexual harassment was occurring.” Chambers II, supra at 319. In light of our Supreme Court’s opinion directing us to apply only Michigan precedents, we now conclude that the facts as plaintiff alleged them cannot render defendant in this case vicariously hable for its temporary supervisor’s conduct in establishing a hostile working environment. Plaintiff’s general indication to defendant’s regional director over the telephone that something was wrong did not sufficiently alert him to the problem to the extent that the director, and thus defendant, could reasonably be charged with actual or constructive notice that sexual harassment was taking place. Nor did the evidence otherwise indicate that anyone with supervisory responsibility knew of plaintiff’s four-day plight until she spoke with her normal supervisor after the offending temporary supervisor was no longer visiting plaintiff’s workplace. As the dissent accompanying our earlier decision in this case stated, “Imputing notice of sexual harassment to an employer on the basis of such nebulous implications would have the effect of making an employer an insurer of an employee’s personal anguish of which the employer had little or no understanding.” Chambers I, supra at 574. Again, we are reminded that under our Civil Rights Act, a defendant does not bear the burden of disproving responsibility for a hostile environment. Rather, the plaintiff must prove respondeat superior by a preponderance of the evidence. Chambers II, supra at 311-313, 316, citing Radtke, supra at 382-383, 396-397. For these reasons, we reverse and remand this case to the trial court with instructions to enter a judgment in favor of defendant. Reversed and remanded. We do not retain jurisdiction. Markey, J. I concur in the result only. Jansen, P.J. (dissenting). I respectfully dissent and would again affirm the jury’s verdict. This is a sexual harassment case in which plaintiff, a cook for defendant, was sexually harassed by Paul Wolshon, a floating supervisor, while he was supervising at defendant’s facility in Ann Arbor in July 1995. Following a jury trial, the jury specially found that Wolshon sexually assaulted or molested plaintiff through the use of his supervisory powers and that defendant failed to take prompt remedial action after it knew or should have known that plaintiff had been sexually harassed. The jury awarded damages totaling $150,000. This Court initially affirmed, with Judge O’Connell dissenting, and the Supreme Court, 463 Mich 297; 614 NW2d 910 (2000), vacated our decision, which had applied the United States Supreme Court’s rulings in Burlington Industries, Inc v Ellerth, 524 US 742; 118 S Ct 2257; 141 L Ed 2d 633 (1998), and Faragher v Boca Raton, 524 US 775; 118 S Ct 2275; 141 L Ed 2d 662 (1998), both concerning an employer’s vicarious liability in a sexual harassment case brought under title VII of the federal Civil Rights Act. Our Supreme Court, in ordering the matter remanded to this Court decided that application of Ellerth and Faragher was erroneous and that an employer’s vicarious liability in cases brought under the Michigan Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq., must instead be analyzed under Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993). According to our Supreme Court, the “central question to be addressed on remand is whether plaintiff presented sufficient evidence to demonstrate that defendant ‘failed to rectify a problem after adequate notice.’ ” Chambers, supra, 463 Mich 318-319, quoting Radtke, supra at 395. The Court further stated that “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.” Chambers, supra at 319. With regard to rectifying the problem, the Court stated that “the relevant inquiry concerning the adequacy of the employer’s remedial action is whether the action reasonably served to prevent future harassment of the plaintiff.” Id. The issue of vicarious liability was preserved by defendant when it moved for a directed verdict at the close of plaintiff’s proofs. A trial court’s ruling on a motion for a directed verdict is reviewed de novo. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). When reviewing a motion for a directed verdict, the evidence and all reasonable inferences from that evidence are reviewed in a light most favorable to the nonmoving party. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998). Directed verdicts are appropriate only when no factual question exists on which reasonable minds could differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). As found in our previous opinion, I believe that, taken in a light most favorable to plaintiff, there was sufficient evidence presented at trial for the jury to conclude that defendant failed to take prompt remedial action after it knew or should have known that plaintiff had been sexually harassed. The evidence adduced at trial shows that plaintiff began working for defendant in June 1995 for $7.50 an hour as a cook. Plaintiff was assigned to work at ADP, Inc., while the previous cook was on medical leave. Plaintiffs regular supervisor was Jennifer Hostutler, who went on vacation for the week of July 5 to 8, 1995. During that week, Hostutler was replaced by Paul Wolshon, an employee of defendant and a floating supervisor. Upon becoming the acting supervisor, Wolshon immediately began sexually harassing plaintiff. Wolshon’s conduct was described in detail by plaintiff and her co-worker, Russell Cade, a dishwasher and preparatory cook. Plaintiff testified that she spoke with Kevin McLaughlin, the regional director of operations, on the telephone, she believed on Wednesday, July 6. McLaughlin had called the facility, and plaintiff admitted at trial that, while on the telephone, she was being evasive with him. According to plaintiff, McLaughlin asked her, “There’s something wrong, isn’t there?” She stated that there was and he further inquired if she could tell him. She stated that she could not and McLaughlin said, “I’ll be in there to talk to you.” Plaintiff testified that she did not tell McLaughlin of Wolshon’s behavior because Wolshon was standing directly in front of her during this telephone conversation. In fact, plaintiff testified that Wolshon was constantly in the kitchen area during the week he supervised at the ADP facility, and this was confirmed by Cade. Although McLaughlin told plaintiff that he would be in later that week, plaintiff stated that he did not show up and talk to her that week. When Hostutler returned to her supervisory position after her vacation on the following Monday, plaintiff immediately reported Wolshon’s conduct to her. Hostutler asked plaintiff to put her complaint in writing, which plaintiff did. After McLaughlin received the written complaint from Hostutler, he had a meeting with plaintiff and Hostutler and told plaintiff that he would further investigate the matter. He also asked plaintiff not to speak to anyone else about the situation. According to plaintiff, after this meeting with McLaughlin and Hostutler, no one from defendant ever again spoke to her about any investigation or the incidents concerning Wolshon. With regard to Wolshon, there was some indication that he was supposed to go to the ADP facility on the day that plaintiff made her written complaint, but that Hostutler “turned him around” and told him to go see McLaughlin. Apparently, Wolshon was, in any event, scheduled to act as a supervisor in Chicago that week following his stay at ADP in Ann Arbor. Defendant should not be able to escape liability because of the fortuitous circumstance that Wolshon is a floating supervisor who was scheduled to be at the ADP facility for only one week and then act as a supervisor in another city. The jury could conclude that defendant had adequate notice on the basis of plaintiff’s testimony that she talked on the telephone with McLaughlin and McLaughlin did not thereafter talk to her the week that Wolshon acted as her supervisor, despite stating that he would and knowing that something was wrong, and on the basis of the fact that plaintiff told Hostutler of Wolshon’s conduct the immediate Monday after Wolshon left. Further, the jury could conclude on the basis of plaintiff’s testimony that she was never informed of any investigation that defendant did not take adequate remedial action to prevent Wolshon from sexually harassing plaintiff. With regard to defendant’s antiharassment policy, plaintiff testified that she did not remember receiving any employment handbook, that she did not remember signing a statement stating that she had read the handbook, and that she was not aware that defendant had an antiharassment policy. The policy required employees to contact George Cousins, a vice president, but when asked at trial if she ever attempted to contact Cousins, plaintiff stated, “I don’t even know who he is.” Further, McLaughlin testified at length regarding defendant’s harassment policy and that new hires are supposed to sign an acknowledgment form. However, defendant never produced any acknowledgment form at trial showing that plaintiff, in fact, received and read the employee handbook. Regarding vicarious liability, the jury was instructed pursuant to Radtke and Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). The evidence and reasonable inferences from the evidence at trial, taken in a light most favorable to plaintiff, supports the jury’s verdict that defendant had adequate notice of the sexual harassment of plaintiff by her supervisor and that defendant failed to rectify the problem, that being Wolshon’s conduct of sexually harassing plaintiff. I emphasize that it was for the jury to make credibility determinations, to resolve conflicts in the evidence, to weigh the evidence, to accept or reject any of the evidence, and to draw any reasonable inferences from the evidence that it chose to draw. Brisboy, supra at 550; Johnson v Corbet, 423 Mich 304, 314; 377 NW2d 713 (1985); Thomas v McGinnis, 239 Mich App 636, 643-644; 609 NW2d 222 (2000). Moreover, neither the trial court nor an appellate court may substitute its judgment for that of the jury. Hunt v Freeman, 217 Mich App 92, 99; 550 NW2d 817 (1996). Accordingly, I would find that there was sufficient evidence from which the jury could conclude that defendant received notice of the supervisor’s harassment toward plaintiff and that defendant did not take adequate remedial action to stop the harassment. I would affirm the jury’s verdict. Chambers v Trettco, Inc, 232 Mich App 560; 591 NW2d 413 (1998). See 42 USC 2000e et seq. Interestingly, while our Supreme Court stated that we “erroneously failed to apply controlling Michigan legal principles regarding sexual harassment claims brought under Michigan law, and instead applied the federal principles announced in Faragher and Ellerth," Chambers, supra, 463 Mich 318, the Court in Radtlce, supra at 397, relied exclusively on federal cases, Katz v Dole, 709 F2d 251 (CA 4, 1983), and Henson v Dundee, 682 F2d 897 (CA 11, 1982), in determining that an employer must have notice of the alleged harassment before being held liable for not implementing action. The United States Supreme Court in Faragher and Ellerth did not follow the notice principles set forth in Katz and Henso

BETTY J. SOUTHER, Petitioner v. NEW RIVER AREA MENTAL HEALTH DEVELOPMENT DISABILITIES AND SUBSTANCE ABUSE PROGRAM, Respondent No. COA99-1092 (Filed 6 February 2001) Public Officers and Employees— termination — insubordination — evidence insufficient The trial court correctly reversed a decision of the State Personnel Commission, which had upheld the termination of petitioner’s employment, where petitioner had worked as an habilitation assistant providing care in the home of a severely disabled client; petitioner complained of sexual harassment by the father of the client; respondent allowed petitioner to take vacation time and to care for the client in petitioner’s own home while undertaking an investigation; respondent concluded that petitioner’s allegations were without merit and asked petitioner to resume caring for the client in the client’s home; and petitioner’s employment was terminated when she refused. Petitioner had the burden of proving that her termination was not for just cause; respondent contended that petitioner was dismissed for insubordination following her failure to attend a meeting with her supervisors and her refusal to provide service to her client. Based upon a de novo review of the proceeding, the refusal to attend the meeting did not constitute insubordination because she had a. reasonable understanding from State Personnel Guidelines that she was entitled to an initial meeting with only her immediate supervisor rather than a joint meeting with several people, one of whom she perceived to be hostile, when she was not aware that her claims had been investigated and feared that she might lose her job. Furthermore, her refusal to comply with the directive to return to the client’s home was reasonable under circumstances in which she was not aware that her complaints had been investigated and was given no alternative to returning to what she considered an unacceptable working environment. Judge Edmunds dissenting prior to 31 December 2000. Appeal by respondent from order entered 21 May 1999 by Judge L. Todd Burke in Superior Court, Wilkes County. Heard in the Court of Appeals 17 May 2000. Legal Services of the Blue Ridge, by Charlotte Gail Blake, for petitioner-appellee. McElwee Firm, PLLC, by Elizabeth K. Mahan and William H. McElwee, III, for respondent-appellant. WYNN, Judge. Respondent New River Area Mental Health appeals from the trial court’s order reversing its termination of petitioner Betty J. Souther. We affirm. New River employed Souther in September 1988 as an habilitation assistant for the Community Alternatives Program For People With Mental Retardation. The Community Alternatives Program allows disabled individuals to avoid institutionalization by receiving care at home. Under the program, habilitation assistants provide personal and respite care to the disabled participants. The assistants typically serve one client at a time. During Souther’s employment with New River, Randy Johnson was her immediate supervisor; Suzanne Tate was the Director of Developmental Disabilities and Johnson’s supervisor; and, Dorothy Beamon was the Area Director and supervisor of New River’s mental health programs. In 1988, New River assigned Souther to care for Robinette Jenkins, the daughter of Lester and Virginia Jenkins. Robinette was severely disabled and required constant assistance with personal maintenance. In late June or early July 1993, Souther informed Lester Jenkins that she was having trouble with her neighbors; so, he allowed her to move her trailer onto his lot. Later in 1993, Souther complained to her immediate supervisor, Johnson, that Mr. Jenkins was sexually harassing her and expressed concerns about working in the Jenkins’ home. Upon receiving these complaints, New River allowed Souther to take vacation time and to care for Robinette in her own home; at the same time, New River undertook an investigation of her complaints. New River’s investigation concluded that Souther’s allegations were without merit. Accordingly, at a meeting on 20 September 1993, Beamon asked Souther to resume assisting Robinette in the Jenkins’ home. Souther, however, refused. Thereafter, New River terminated her employment. Souther appealed to the Office of Administrative Hearings. After conducting an evidentiary hearing, the assigned Administrative Law Judge entered a Recommended Decision to affirm the dismissal for just cause. Souther appealed to the State Personnel Commission, which conducted a whole record review and adopted the recommended findings and conclusions of the Administrative Law Judge and recommended that New River “find and conclude that it had just cause to terminate Souther for her unacceptable personal conduct due to her refusal to obey a reasonable work [order].” Thereafter, Souther brought a Petition for Judicial Review before the Superior Court in Wilkes County. The trial court granted the petition and, “after hearing the arguments of counsel and reviewing the official record, including the transcript of the administrative hearing, and the memo-randa submitted by counsel,” found that New River’s decision to terminate Souther was “arbitrary and capricious and not supported by substantial evidence in light of the whole record.” From the trial court’s order reversing Souther’s termination, New River appeals. Our review of a superior court order regarding an agency decision consists of: “ ‘(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). The proper standard for the superior court to apply depends upon the issues presented on appeal. Where the petitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the superior court applies the “whole record test” to determine whether the agency decision was supported by substantial evidence contained in the entire record. Where the petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency. Avant v. Sandhills Center for Mental Health, 132 N.C. App. 542, 546, 513 S.E.2d 79, 82 (1999) (internal citations omitted). Both parties contend the superior court, in reviewing the Administrative Law Judge’s decision, appropriately employed the “whole record” standard. However, this Court has held that a superior court’s determination of whether a termination was for “just cause” based upon personal misconduct is a question of law, and that questions of law are to be reviewed de novo. See Amanini, 114 N.C. App. at 677, 678, 443 S.E.2d at 119, 120. A de novo review “requires a court to consider a question anew, as if not considered or decided by the agency.” Id. at 674, 443 S.E.2d at 118. We note that the Amanini court observed that “[separate panels of this Court [] appear to have reached differing conclusions concerning the proper standard of appellate review” of orders of the superior court affirming or reversing a decision of an administrative agency. Id. at 675, 443 S.E.2d at 118. After an extended review and discussion of the issue, the Amanini court held that the proper standard of review is whether the superior court applied the proper scope of review and did so properly. Id. at 675-76, 443 S.E.2d at 118-19. Despite some continuing inconsistencies within the court, see Mendenhall v. N.C. Dep’t of Hum. Res., 119 N.C. App. 644, 650, 459 S.E.2d 820, 824 (1995) (citation omitted) (“When an appellate court reviews the decision of a lower court (as opposed to reviewing an administrative agency’s decision on direct appeal), the scope of review is the same as for other civil cases. However, this review also requires an examination of the entire record.”), we believe that the analysis in Amanini is persuasive. We will employ the proper standard of review regardless of that employed by the reviewing trial court. See Amanini, 114 N.C. App. at 675, 677, 443 S.E.2d at 118, 119 (“[T]he manner of our review is [not] governed merely by the label an appellant places upon an assignment of error; rather, we first determine the actual nature of the contended error, then proceed with an application of the proper scope of review. [] [W]here the initial reviewing court should have conducted de novo review, this Court will directly review the State Personnel Commission’s decision under a de novo review standard.”) A state employee may be dismissed only for “just cause.” N.C. Gen. Stat. § 126-35 (1995). An employee challenging his or her termination for just cause has the burden of proving that the agency’s decision was improper. As our Supreme Court has said: [A]n employee terminated pursuant to the “just, cause” provision of N.C.G.S. § 126-35 should bear the burden of proof in an action contesting the validity of that termination. Petitioner, the terminated employee, is the party attempting to alter the status quo. The burden should appropriately rest upon the employee who brings the action, even if the proof of that position requires the demonstration of the absence of certain events or causes. Neither party in a “just cause” termination dispute has peculiar knowledge not available to the opposing party. A terminated employee may readily utilize the procedures outlined in chapter 126 and section 1A-1 of the North Carolina General Statutes, as well as title 26 of the North Carolina Administrative Code, to obtain any and all necessary information to establish and advocate his or her position. Peace v. Employment Sec. Comm’n of North Carolina, 349 N.C. 315, 328, 507 S.E.2d 272, 281-82 (1998). Just cause may result either from unacceptable job performance or unacceptable personal conduct. See Amanini at 679, 443 S.E.2d at 120. The difference is important because an employee must receive certain warnings before being terminated for unsatisfactory job performance, while no warnings are required for termination based on personal misconduct. See id. at 679, 443 S.E.2d at 121. However, “[t]he categories are not mutually exclusive, as certain actions by employees may fall into both categories, depending upon the facts of each case.” N.C. Admin. Code tit. 25, r. 1J.0604 (June 2000). Although New River never specifically stated the grounds for Souther’s dismissal, Beamon’s letter terminating petitioner read in pertinent part: Over the past weeks, your relationship with your client’s family has deteriorated to the point that you refuse to provide in-home services to your client in her home. As you have been aware, the main purpose of the work you do for us is to enable clients to live in their own homes. You refused to meet with me and your supervisor on 9-15-93, after being required by your supervisor to do so for the purpose of getting services flowing to your client again. Recently, you have spent a great deal of time and energy discussing with various staff how stressful it is for you to work here. Thus, New River’s finding of just cause was based on (1) petitioner’s refusal to provide service to her client, and (2) petitioner’s failure to attend the 15 September 1993 meeting with her supervisors. New River contends that these reasons for dismissal constitute insubordination. “Insubordination” is defined as “the refusal to accept a reasonable and proper assignment from an authorized supervisor.” Mendenhall, 119 N.C. App. at 651, 459 S.E.2d at 824 (citation omitted). Insubordination has been defined more broadly as “1. A willful disregard of an employer’s instructions .... 2. An act of disobedience to proper authority; esp. a refusal to obey an order that a superior officer is authorized to give.” Black’s Law Dictionary 802 (7th ed. 1999). Thus, insubordination involves two elements: (1) A reasonable and proper instruction or assignment by an authorized supervisor; and (2) A willful or intentional refusal to comply with such instruction or assignment. We must therefore determine the reasonableness of the requests made by New River for Souther to return to the Jenkins’ home and to attend the 15 September 1993 meeting, and the reasonableness of Souther’s failure to comply with those requests. We note that, because insubordination is a form of personal misconduct, see Amanini, 114 N.C. App. at 679, 334 S.E.2d at 121, if Souther’s conduct constituted insubordination, then New River was not required to provide warnings to her before her discharge. We first consider the 15 September 1993 meeting, which was called for the purpose of reviewing the results of the investigation into petitioner’s allegations and to re-establish service to Robinette. We assume arguendo that the request by Beamon and Johnson that Souther attend the meeting was reasonable and proper. Our inquiry thus proceeds to whether Souther’s refusal to comply with this reasonable request was willful. “The conduct of an employee cannot be termed willful misconduct if it is determined that the employee’s actions were reasonable and taken with good cause.” Urback v. East Carolina Univ., 105 N.C. App. 605, 608, 414 S.E.2d 100, 102, disc. review denied, 331 N.C. 291, 417 S.E.2d 70 (1992). What constitutes a “reasonable” action by petitioner is necessarily a subjective determination. See, e.g., Mendenhall (holding that under whole record test, a petitioner was improperly terminated for insubordination where petitioner refused to care for AIDS patient on the basis of legitimate and reasonable health concerns). Therefore, we will review the record in some detail to determine the reasonableness of Souther’s actions. The record shows that on 14 September 1993, Johnson and Beamon met with Tate to discuss Souther’s allegations and the results of Johnson’s abbreviated investigation into those allegations. At that meeting, Beamon, the Area Director, decided on the basis of Johnson’s investigation and report that Lester Jenkins had not sexually harassed Souther and that Souther’s allegations were unfounded. Following the 14 September 1993 meeting, Beamon called Souther to arrange for a meeting with Beamon and Johnson. According to Souther’s account of this telephone call from Beamon on 14 September 1993, Beamon was very angry with Souther and spoke rudely to her. Beamon informed Souther during this call that she did not believe Souther’s account of the events concerning Lester Jenkins. Souther testified that she was worried about meeting with Beamon and Johnson together on 15 September. Furthermore, she understood from her copy of the State Employees’ Grievance Policy that she first was entitled to a meeting alone with her immediate supervisor, Johnson, rather than a joint meeting with both Johnson and Beamon. On 15 September 1993, Souther sent a letter to Johnson asking for his help in resolving her complaint. When Souther failed to show up for the 15 September meeting, Beamon called Souther again. According to Beamon’s notes from this conversation, Souther repeatedly expressed her reservations about meeting with the supervisors without an attorney present, and indicated that she could not meet with the supervisors without an attorney. The North Carolina Administrative Code, as it existed in 1993, provided that “[p]rior to dismissal of a permanent employee on the basis of personal conduct, there shall be a pre-dismissal conference between the employee and the person recommending dismissal. This conference shall be held in accordance with the provision of 25 NCAC 1J .0606(2), (3).” 25 NCAC 1J .0608(c) (effective 1 July 1989). The requirements for the pre-dismissal conference provided in part that “[t]he Supervisor or designated management representative shall schedule and conduct a pre-dismissal conference with the employee. Advance notice of the pre-dismissal conference must be given to the employee. A second management representative or security personnel may be present at management’s discretion.” 25 NCAC 1J .0606(2) (effective 1 September 1991). Following the hearing of this matter, an Administrative Law Judge issued a recommended decision which included findings of fact and conclusions of law. In her conclusions of law, the Administrative Law Judge found that “[t]he presence of more than one management person at the [20 September 1993] conference was a violation of [State Personnel Commission] rules regarding who is to attend pre-dismissal conferences.” Nonetheless, the Administrative Law Judge found that, because Souther was permitted to have her attorney present at the 20 September meeting, “she was not unduly prejudiced by this procedural violation.” Souther’s understanding that she was entitled, pursuant to these State Personnel Commission guidelines, to an initial meeting with only Johnson was not inherently unreasonable. Furthermore, Souther was worried by what she perceived to be a hostile attitude on behalf of Beamon, and feared that she might lose her job. It is apparent from the record that Souther perceived that Beamon and Johnson did not believe her allegations, and Souther was not aware that her claims had been investigated at all. Moreover, the record supports Souther’s contention that she understood from Beamon’s telephone call on 14 September 1993 that Beamon, Tate and Johnson (who were all present at the 14 September discussion) would all be present at the proposed 15 September meeting, which would have been a clear violation of the requirements for the pre-dismissal conference (as was the presence of all three at the 20 September meeting). These facts indicate the basis of Souther’s failure to attend the 15 September 1993 meeting, which failure appears under the circumstances to have been reasonable. Thus, Souther’s refusal to attend the meeting did not constitute insubordination. We must next determine whether Souther’s refusal at the 20 September 1993 meeting to re-establish in-house care for Robinette amounted to insubordination. A careful review of the record on appeal reveals the reasonableness of this action as well. The investigation which was performed by New River into Souther’s allegations of sexual harassment by Lester Jenkins appears to have been limited at best. Souther testified that she initially believed that Lester Jenkins’ comments that she should get out and date, and asking for sex with her, were “one big joke.” However, he persisted, and she testified that when Lester Jenkins forthrightly stated without euphemisms that he wanted to have sex with her, she knew his comments had not been a joke. According to petitioner, she notified Johnson and asked him to talk to Lester Jenkins. She wanted Johnson to “tell [Lester Jenkins] that this was bothering [her], and ... to leave that kind of jokes alone because . . . they weren’t appropriate for the work.” On 17 August 1993, Souther first contacted Johnson regarding her concerns, reporting, according to Johnson’s notes from the conversation, that Lester Jenkins “had said or done something which caused [Souther] emotional pain and hurt.” Souther also expressed her desire to tell Johnson the details regarding the incident but was hesitant to do so as she did not feel she would be believed. At this point Johnson took no action, though he was clearly aware that something had occurred between Souther and Lester Jenkins which was causing Souther some distress. On 19 August 1993, Souther again spoke with Johnson; and, according to Johnson’s notes, she informed Johnson that “Jenkins offered to help her complete moving into her new trailer if she would repay him with sexual favors.” According to Souther’s testimony before the Administrative Law Judge, she informed Johnson that Lester Jenkins’ comments were bothering her, and asked Johnson to talk to Lester Jenkins alone as she did not wa

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

GEORGE E. GROVES, Plaintiff-Appellant v. THE TRAVELERS INSURANCE COMPANY, CHRISTINE DE SIMONE, ANDY GREEN, and PORCELANITE, INC., f/k/a P&M TILE, INC., f/k/a MANNINGTON CERAMIC TILE, INC., Defendant-Appellees No. COA99-831 (Filed 29 August 2000) 1. Workers’ Compensation— exclusive jurisdiction — bad faith — unfair and deceptive trade practices — civil conspiracy The trial court did not err by granting judgment on the pleadings as to plaintiff’s claims for bad faith, unfair and deceptive trade practices, and civil conspiracy arising out of a refusal to pay a claim which arose from a workers’ compensation claim involving an allegedly inaccurate videotape, because all of plaintiff’s claims were within the exclusive jurisdiction of the Industrial Commission. 2. Workers’ Compensation— no exclusive jurisdiction — intentional infliction of emotional distress The trial court erred by granting judgment on the pleadings as to plaintiff’s claim for intentional infliction of emotional distress arising out of a refusal to pay a claim which arose from a workers’ compensation claim involving an allegedly inaccurate videotape, because: (1) an intentional infliction of emotional distress claim lies outside the exclusivity provisions of the Workers’ Compensation Act; and (2) plaintiff has pled the elements of the tort. Judge McGee concurring in part and dissenting in part. Appeal by plaintiff from order entered 28 April 1999 by Judge Julius A. Rousseau, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 18 April 2000. Donaldson & Black, P.A., by Jay A. Gervasi, Jr., and Rachel Scott Decker, for plaintiff-appellant. Womble, Carlyle, Sandridge & Rice, PLLC, by Richard T. Rice and Garth A. Gersten, for defendant-appellees. EDMUNDS, Judge. Plaintiff George E. Groves appeals the trial court’s order granting judgment on the pleadings in favor of defendants. We affirm in part and reverse in part. In 1994, plaintiff was employed as the production manager by defendant Porcelanite, Inc. (Porcelanite). During plaintiffs employment, defendant The Travelers Insurance Company (Travelers) provided workers’ compensation insurance to Porcelanite. On 12 August 1994, plaintiff became disabled as the result of a shoulder injury. He alleged that the injury was compensable because it resulted from repetitive motion required by his job. Plaintiff sought treatment from Dr. Robert V. Sypher, Jr., who diagnosed plaintiff as suffering from impingement and a probable rotator cuff tear. Based on plaintiff’s description of his job duties, Dr. Sypher was of the opinion that the injury likely was related to plaintiff’s employment. Accordingly, plaintiff submitted a workers’ compensation claim to Travelers, which, through its agent defendant Christine De Simone, denied liability. Sometime prior to 28 March 1995, defendants prepared a video tape purporting to demonstrate the functions of plaintiff’s job. The video failed to show all aspects of plaintiff’s job and allegedly omitted some of the job functions plaintiff contended were the cause of his injury. Defendants forwarded the video to Dr. Sypher, who reviewed the tape and changed his opinion that plaintiff’s condition was job-related. Dr. Sypher then wrote a letter to defendants informing them that it was his opinion that plaintiff’s condition was a result of age-related degeneration. After a hearing on plaintiff’s workers’ compensation claim, plaintiff, Porcelanite, and Travelers entered into an Agreement of Final Settlement and Release (Agreement). Pursuant to the Agreement, plaintiff agreed to dismiss his workers’ compensation claim against Porcelanite and Travelers in return for a lump-sum payment of $13,000 plus payment of medical bills related to his injury. Thereafter, on 30 March 1998, plaintiff brought suit against Travelers, De Simone, and Porcelanite alleging (1) intentional infliction of emotional distress, (2) bad faith, (3) unfair or deceptive trade practices, and (4) civil conspiracy. Defendants answered on 10 June 1998 and asserted as affirmative defenses the Agreement and the statute of limitations. Defendants filed a Motion for Judgment on the Pleadings on 2 July 1998. This motion was denied, but on 15 March 1999, defendants filed a Motion for Reconsideration of Judgment on the Pleadings, citing Johnson v. First Union Corp., 131 N.C. App. 142, 504 S.E.2d 808 (1998), disc. review allowed, 349 N.C. 529, 526 S.E.2d 175, review dismissed as improvidently granted, 351 N.C. 339, 525 S.E.2d 171 (2000). On 28 April 1999, the trial court granted defendants’ motion and entered judgment in favor of defendants. Plaintiff appeals. Plaintiff contends that his claims were outside of the exclusivity provision of the North Carolina Workers’ Compensation Act and that the trial court accordingly erred in granting defendants’ motion. Section 97-10.1 of the Act states: If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death. N.C. Gen. Stat. § 97-10.1 (1999). Plaintiff contends that “[i]n the case currently before this Court, the actions of the defendants as alleged do not fall within the exclusive jurisdiction of the Industrial Commission because the acts did not occur within the course and scope of employment.” We disagree. All of plaintiff’s claims except for his claim for intentional infliction of emotional distress are precluded by our holding in Johnson. In Johnson, where the facts were virtually identical to those at bar, the plaintiffs allegedly suffered on-the-job injuries and filed claims with the Industrial Commission seeking workers’ compensation benefits. Both plaintiffs initially were diagnosed as suffering from job-related repetitive motion disorders. Defendants then prepared a videotape portraying the physical requirements of the plaintiffs’ jobs. After viewing the tape, the physician withdrew diagnoses that the plaintiffs’ injuries were job-related. When the plaintiffs’ claims were rejected by the Industrial Commission, they filed suit alleging fraud, bad faith, unfair and deceptive trade practices, intentional infliction of emotional distress, and civil conspiracy, contending that the videotape was inaccurate and made with the intent of deceiving plaintiff’s physician. The trial court dismissed the complaint for failure to state a claim for which relief could be granted. The plaintiffs appealed, and the defendants cross-appealed, arguing that while the trial court was correct in dismissing the suit, the dismissal should have been based upon lack of subject matter jurisdiction. We agreed with the defendants that all of the plaintiffs’ claims were within the exclusive jurisdiction of the Industrial Commission and affirmed the trial court’s dismissal. See Johnson, 131 N.C. App. at 145, 504 S.E.2d at 810. Plaintiff in the case at bar also alleged intentional infliction of emotional distress. This Court has long held that such a claim lies outside the exclusivity provision of the Workers’ Compensation Act. See Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986) (allowing plaintiff’s claim for intentional infliction of emotional distress). The issue was one of first impression before the Hogan Court, which addressed the question directly and discussed at length the policy considerations behind its holding. Hogan has since been followed by this Court. See Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232 (1989). Accordingly, despite the suggestion in Johnson that such a claim is precluded, we address plaintiff’s claim as to this issue. To establish such a claim, plaintiff must have shown that defendants engaged in extreme and outrageous conduct that was intended to cause severe emotional distress, or were recklessly indifferent to the likelihood that such distress would result, and that severe distress did result from defendants’ conduct. See Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). In his complaint, plaintiff alleged: 29. The defendants created the videotape and sent it to Dr. Sypher intentionally, which conduct was extreme and outrageous, with the intent to cause emotional distress to Groves, and said actions did, in fact, cause emotional distress to Groves. 30. As a result of said conduct, Groves suffered frustration and severe emotional distress, for which he is entitled to compensatory and punitive damages, in an amount to be determined at trial. Although the level of proof required for such a claim is high, see Waddle v. Sparks, 331 N.C. 73, 84, 414 S.E.2d 22, 27-28 (1992), plaintiff has pled the elements of the tort. Under principles of notice pleading, a complaint is adequate if it gives a defendant sufficient notice of the nature and basis of the plaintiffs claim and allows the defendant to answer and prepare for trial. See Gilchrist, District Attorney v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646 (1980). Therefore, the trial court erred in granting judgment on the pleadings as to plaintiffs claim for intentional infliction of emotional distress. The case is remanded to the trial court for further proceedings in accordance with this opinion. Affirmed in part, reversed in part. Judge GREENE concurs. Judge McGEE concurs in part and dissents in part. Judge McGee concurring in part and dissenting in part. I agree with the majority that plaintiffs claims for bad faith, unfair or deceptive trade practices, and civil conspiracy fall within the exclusive jurisdiction of the Industrial Commission. I respectfully disagree that the trial court erred in granting judgment on the pleadings as to plaintiffs claim for intentional infliction of emotional distress under the facts alleged by plaintiff. To properly state a claim for intentional infliction of emotional distress, a plaintiff must allege that (1) the defendant engaged in extreme and outrageous conduct and (2) such conduct was intended to cause, and in fact did cause, severe emotional distress. See Dickens v. Puryear, 302 N.C. 437, 447, 276 S.E.2d 325, 332 (1981). Plaintiff has alleged a claim of intentional infliction of emotional distress specifically asserting that defendants “created the videotape and sent it to Dr. Sypher intentionally, which conduct was extreme and outrageous, with the intent to cause emotional distress to [plaintiff].” “The determination of whether the conduct alleged” is sufficiently “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) (citation omitted). 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 (1985) (quoting Restatement (Second) of Torts, § 46 cmt. d (1965)). In this case, plaintiff essentially alleges that defendants prepared a videotape purporting to demonstrate the functions of plaintiffs job which failed to show all áspects of his job and allegedly omitted some of the job functions plaintiff contended were the cause of his injury. Defendants sent the videotape to plaintiffs physician, who reviewed the tape and changed his opinion that plaintiffs condition was job-related. While such alleged conduct might well be most objectionable, defendants’ actions “may not be reasonably regarded as exceeding all bounds usually tolerated by a decent society so as to satisfy the first element of the tort, requiring a showing of extreme and outrageous conduct.” Shreve v. Duke Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 360 (1987) (citing Hogan v. Forsyth Country Club Co., 79 N.C. 483, 340 S.E.2d 116 (1986)). Plaintiffs claim for intentional infliction of emotional distress should be dismissed because the conduct alleged under this cause of action, even if true, does not rise to the level of behavior our courts previously have required. Assuming the allegations in plaintiff’s claim to be true, these actions do not exceed all bounds usually tolerated by decent society. Our courts have appropriately held that allegations of actions by a defendant that rose to the level of “extreme and outrageous” conduct are actionable. See, e.g., Hogan, 79 N.C. App. at 494, 340 S.E.2d at 123 (sexual advances and harassment and threats of bodily injury sufficient to maintain claim for intentional infliction of emotional distress). However, in other employment actions, our courts have been reluctant to find intentional infliction of emotional distress claims actionable. See, e.g., Haburjak v. Prudential Bache Securities, Inc., 759 F. Supp. 293 (W.D.N.C. 1991); Mullís v. The Pantry, Inc., 93 N.C. App. 591, 378 S.E.2d 578 (1989); McKnight v. Simpson’s Beauty Supply, Inc., 86 N.C. App. 451, 358 S.E.2d 107 (1987). But see Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232 (1989). The tort of intentional infliction of emotional distress is reserved for conduct that is “ ‘utterly intolerable in a civilized community.’ ” Hogan, 79 N.C. App. at 493-94, 340 S.E.2d at 123 (citation omitted). Our Court in Hogan dismissed one plaintiff’s claim for intentional infliction of emotional distress despite the fact that she alleged her manager refused her request for pregnancy leave, directed her to carry heavy objects weighing more than ten pounds, cursed at her, and refused her request to leave work to visit a hospital. See id. at 494, 340 S.E.2d at 123 (characterizing such alleged conduct as “unjustified under the circumstances” but not “ ‘extreme and outrageous’ as to give rise to a claim for intentional infliction of emotional distress”). Like other cases in which our courts have found the alleged conduct fell short of establishing the tort, defendants’ alleged actions do not rise to the level of conduct required to establish a claim of intentional infliction of emotional distress and as a matter of law, are insufficient to state such a cause of action. See, e.g., Buser v. Southern Foodservice, Inc., 73 F. Supp. 2d 556 (M.D.N.C. 1999) (termination of employee who refused to return to work from leave under Family and Medical Leave Act not “extreme and outrageous” conduct); Pardasani v. Rack Room Shoes Inc., 912 F. Supp. 187 (M.D.N.C. 1996) (conduct not “extreme and outrageous” when the plaintiff alleged that he was given poor performance evaluations, denied promotions available to others, excluded from training, and finally terminated from his employment); Dickens, 302 N.C. 437, 276 S.E.2d 325 (physical abuse not sufficient); Lorbacher v. Housing Authority of the City of Raleigh, 127 N.C. App. 663, 493 S.E.2d 74 (1997) (alleged discharge for the purposes of deflecting responsibility for certain deaths and for retaliation of First Amendment rights not “extreme and outrageous” conduct); Poston v. Poston, 112 N.C. App. 849, 436 S.E.2d 854 (1993) (adultery not extreme and outrageous conduct); Wilson v. Bellamy, 105 N.C. App. 446, 414 S.E.2d 347 (1992) (some evidence of sexual battery, standing alone, not “atrocious”). The totality of defendants’ actions simply is not comparable to cases in which our courts have imposed liability for intentional infliction of emotional distress. For example, defendants’ actions did not involve physical abuse as in Dickens, sexual harassment as in Hogan and Brown, or threats, obscene gestures, and cursing as in Wilson. The conduct that sustained claims in those cases far exceeds in outrageousness the conduct experienced by plaintiff in this case. Accordingly, to the extent that plaintiff’s complaint does not identify conduct that can be considered extreme and outrageous, he has not alleged a claim for intentional infliction of emotional distress; therefore, the trial court did not err in entering judgment in favor of defendants. I respectfully disagree and dissent in part.

CHAMBERS v TRETTCO, INC Docket No. 114085. Argued April 4, 2000 (Calendar No. 5). Decided July 31, 2000. Robyn Chambers brought an action in the Washtenaw Circuit Court against her employer, Trettco, Inc., claiming sex discrimination in employment, involving sexual harassment. The court, Donald E. Shelton, J., submitted the case to a jury on theories of quid pro quo sexual harassment and hostile work environment sexual harassment. The jury returned a verdict for the plaintiff. The Court of Appeals, Jansen, P.J., and Markey, J. (O’Connell, J., dissenting), affirmed on the basis of Faragher v Boca Raton, 524 US 775 (1998), and Burlington Industries, Inc v Ellerth, 524 US 742 (1998), which had applied the federal Civil Rights Act. 232 Mich App 560 (1998) (Docket No. 202151). The defendant appeals. In an opinion by Justice Markman, joined by Chief Justice Weaver, and Justices Cavanagh, Taylor, Corrigan, and Young, the Supreme Court held-. The defendant was entitled to a directed verdict on the plaintiff’s claim of quid pro quo sexual harassment, requiring vacation of the Court of Appeals opinion and remand to that Court for reconsideration of the plaintiff’s claim of hostile environment sexual harassment. 1. The Michigan Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., recognizes that, in employment, freedom from discrimination because of sex is a civil right. Employers are prohibited from violating this right, and discrimination because of sex includes sexual harassment. “Sexual harassment” is specifically defined to include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature where submission to such conduct or communication is made a term or condition, either explicitly or implicitly, 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 (quid pro quo harassment), or where such conduct or communication has the purpose or effect of substantially interfering with employment (hostile work environment harassment). 2. In order to establish a claim of quid pro quo harassment, an employee must demonstrate, 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. In order to establish a claim of hostile work environment harassment, an employee must prove, 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 in fact did, substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and respondeat superior. Whichever category of sexual harassment is at issue, it is always necessary to determine the extent of the employer’s vicarious liability when harassment is committed by an agent. Because the Civil Rights Act expressly defines “employer” to include agents, common-law agency principles are to be relied on in determining when an employer is liable for sexual harassment committed by its employees. Vicarious liability exists in the case of quid pro quo harassment because the quid pro quo harasser, by definition, uses the power of the employer to alter the terms and conditions of employment. 3. An employer is strictly liable only for quid pro quo sexual harassment. In terms of the statute, this means that an agent of the employer must have used submission or rejection of unwelcome sexual conduct or communication as a factor in decisions affecting the plaintiffs employment. By comparison, when the submission to or rejection of unwelcome sexual conduct or communication has not been factored into an employment decision, but a hostile work environment has nevertheless been created because unwelcome sexual communication or conduct substantially interferes with an individual’s employment, the violation can only be attributed to the employer if the employer failed to take prompt remedial action after having been reasonably put on notice of the harassment. 4. Although, at times, the Michigan Supreme Court may seek guidance in interpreting the Michigan Civil Rights Act from federal court interpretations of the federal Civil Rights Act, it is not compelled to follow federal interpretations. Adoption of the principles announced by the United States Supreme Court in Faragher and Ellerth, on which the Court of Appeals relied, would represent a significant change in the approach to determining an employer’s vicarious liability for sexual harassment under Michigan law. Specifically, those holdings conflate the concepts of quid pro quo harassment and hostile work environment harassment, and shift the burden of proof from the employee to the employer regarding whether the employer should be held vicariously liable for an actionable hostile environment created by a supervisor. The terms “quid pro quo,” “hostile work environment,” and “sexual harassment” are nowhere found in the federal statute. The Michigan Civil Rights Act expressly includes sexual harassment as a prohibited form of sex discrimination, and further provides detailed definitions for sexual harassment that can be easily identified by the labels “quid pro quo” and “hostile work environment.” 5. The trial court erred in not granting the defendant a directed verdict with regard to the plaintiff’s quid pro quo claim of sexual harassment. The sine qua non of a quid pro quo harassment claim is a decision affecting the plaintiff’s employment. In this case, there was no tangible employment action, adverse or otherwise, that was shown to be causally related to the plaintiffs submission to or rejection of the supervisor’s harassment. Because there was no decision affecting the plaintiff’s employment, the plaintiffs proofs were insufficient, as a matter of law, to put such a theory of liability at issue. 6. Because the Court of Appeals erroneously failed to apply controlling Michigan legal principles regarding sexual harassment claims brought under Michigan law, and instead applied the federal principles announced in Faragher and Ellerth, remand is required to the Court of Appeals for reconsideration of the defendant’s challenge to the plaintiff’s hostile work environment claim under the proper legal framework. The plaintiff’s testimony clearly established the existence of a hostile work environment. The central question to be addressed on remand is whether the plaintiff presented sufficient evidence to demonstrate that defendant failed to take prompt and appropriate remedial action after receiving adequate notice that the supervisor was sexually harassing the plaintiff. Notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances would cause a reasonable employer to be aware of a substantial probability that sexual harassment was occurring. The relevant inquiry concerning the adequacy of the employer’s remedial action is whether the action reasonably served to prevent future harassment of the plaintiff. Vacated and remanded. Justice Kelly, dissenting, stated that the plaintiff established a prima facie case of quid pro quo sexual harassment, pursuant to the Michigan Civil Rights Act and Champion v Nationwide Security, 450 Mich 702 (1996). But the majority has misinterpreted Champion, and added an element not found in the mcra. The mcra specifically includes sexual harassment as a form of discrimination because of sex, and presents two separate theories under which a party may make out a claim for quid pro quo sexual harassment. Champion held that under the act a plaintiff must establish that she was subject to any of the types of unwelcome sexual conduct or communication or communication described in the statute, and 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. It also imposed close to strict liability for such harassment committed by supervisory personnel. According to the majority, in order to establish such a claim, a plaintiff must show the existence of a tangible employment action. However, neither MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii) nor Champion requires a plaintiff to prove a tangible employment action in order to proceed with a claim of quid pro quo sexual harassment. Each requires only a showing that the plaintiff’s submission or rejection was a factor in a decision affecting her employment. Pursuant to Champion, the proper point of focus is the supervisor’s conduct, not the plaintiff’s or the defendant’s actions after the incident. Because the majority determines that there was no constructive discharge, it concludes that the plaintiff did not suffer a tangible employment action. But, a claim of quid pro quo sexual harassment under the facts of this case is not precluded. A correct application of Champion requires the conclusion that the supervisor’s decision to make sexual contact with Mrs. Chambers without her consent, in and of itself, was a decision affecting her employment. By focusing on Mrs. Chambers’ actions after her employment had been adversely affected, the majority misapplies Champion. By giving the supervisor the authority he used to assault Mrs. Chambers, the defendant committed the violation through its agent. The flaw in the majority’s overall treatment of this case is that, in analyzing whether the supervisor’s conduct was quid pro quo sexual harassment, it focuses on the plaintiff’s reaction. As was pointed out in Champion, this is incorrect because it blames the victim. Instead, the analysis should concentrate on what defendant and its agent did, comporting with the legislative intent that employers, not the victims of sexual harassment, should bear the costs of remedying and eradicating discrimination. There is a critical difference between quid pro quo and hostile work environment sexual harassment claims. In quid pro quo claims, the victim’s employment must be adversely affected in some manner. In hostile work environment claims, it need not be affected. The majority’s assertion that the effect on employment must be tangible is incorrect. It can be tacit. The supervisor made submitting to his sexual misconduct a term of Mrs. Chambers’ employment. He could do this only because defendant gave him supervisory authority over her. Thus, quid pro quo sexual harassment occurs when the employer’s agent misuses his supervisory authority in a way that affects a subordinate’s employment. In hostile work environment claims, the harasser does not affect the victim’s employment. Either, he does not have the authority to do so, or he does not accomplish the harassment through the use of supervisory authority over the victim. To require plaintiffs to prove that they suffered a tangible employment action is to introduce an element that cannot be derived from the statutory language of MCL 37.2103(i)(ii); MSA 3.548(103)(i)(n). The majority creates a loophole in the sexual harassment provisions of the mcra. It will allow an employer to sexually harass an employee without adverse legal consequences if the employee submits, rather than risk potential job injury. It also places the burden on employees to complain about their supervisor’s sexually harassing conduct, rather than encouraging employers to take the initiative to prevent such occurrences. In taking the position that it matters little to the issue of vicarious liability if, for reasons not attributable to the defendant, the plaintiff was not actually aware of the policy, the majority usurps the role of the jury by deciding that the defendant did communicate the policy to the plaintiff. The evidence presented permitted the jury to infer that the defendant never communicated the policy to the plaintiff. If the jury did so infer, the fact that the defendant had a sexual harassment policy becomes irrelevant. The majority seems to suggest that employees have a duty to discover employers’ policies when they begin working. Champion indicates there is a line which, if crossed, results in an automatic imputation to the employer of a supervisor’s sexual misconduct, if performed in his capacity as a supervisor. In this case, the supervisor’s behavior crossed that line. By finding that it did not, the majority draws an arbitrary distinction between rape and a week of unwelcome sexual contact. This case cannot be distinguished from Champion, either, merely because Mrs. Chambers did not quit after her supervisor sexually harassed her. The majority treats employees who continue to work after being sexually harassed by a supervisor differently from those who quit. In so doing, it misinterprets Champion. Champion makes it clear that it is not the victim’s conduct, but the supervisor’s conduct, that is scrutinized. The majority’s holding shifts responsibility for a decision made by its agent from the employer to the victim. If the vie-tim does not respond as the majority deems appropriate, she loses her claim of quid pro quo sexual harassment. This position clearly subjects victims of sexual harassment to burdens not contemplated by either Champion or the mcra. It is inappropriate to remand this case to the Court of Appeals to assess the sufficiency of the evidence presented regarding whether defendant had adequate notice of hostile work environment sexual harassment. The jury and the Court of Appeals determined that the evidence was sufficient. Garris, Garris, Garris & Garris, P.C. (by Steven Z. Garris'), for the plaintiff-appellant. C. R. Victor & Associates, P.L.L.C. (by Cindy Rhodes Victor), for the defendant-appellant. Amici Curiae: Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Angelito Espino, Assistant Attorney General, for Michigan Department of Civil Rights. Pitt, Dowty, McGehee & Mirer, P.C. (by Michael L. Pitt and Shannon L. Dunn), for Women’s Justice Center. Honigman, Miller, Schwartz & Cohn (by Cameron J. Evans) for Michigan Health and Hospital Association. The Fishman Group (by Steven J. Fishman and Thomas A. Pinch) for Michigan Chamber of Commerce and Michigan Restaurant Association. Amberg, McNenly, Firestone & Lee, P.C. (by Joseph H. Firestone), for Michigan Education Association. Clark Hill, P.L.C. (by Duane L. Tamacki, Rochelle G. Silberberg, and Lira A. Johnson), for Michigan Manufacturers Association. Diane M. Soubly, Deputy General Counsel, Litigation, Comerica Incoiporated, for American Society of Employers. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, P.C. (by Mary Katherine Norton and Elizabeth A. Cabot), for Michigan State AFL-CIO and International Union UAW. Markman, J. We granted leave to consider whether the Court of Appeals properly held an employer vicariously liable under the Civil Rights Act (cra), MCL 37.2101 et seq.-, MSA 3.548(101) et seq., for sexual harassment by a supervisory employee against a subordinate employee. A divided Court of Appeals panel affirmed the judgment on a jury verdict returned in plaintiffs favor. The majority utilized vicarious liability principles articulated in two recent United States Supreme Court decisions applying the federal Civil Rights Act. We hold that the principles stated in the federal cases relied on by the Court of Appeals do not apply to claims brought under Michigan’s Civil Rights Act. Instead, we adhere to prior Michigan precedent and the specific language of the Michigan statute. We also hold that defendant was entitled to a directed verdict on plaintiff’s claim of quid pro quo sexual harassment. Accordingly, we vacate the Court of Appeals opinion and remand to the Court of Appeals for reconsideration of plaintiffs claim of hostile environment sexual harassment in light of this opinion. I Defendant Trettco, Inc., a corporation that manages food service operations for a number of businesses, hired plaintiff as a cook in June 1995, planning to use her in various locations, pending possible placement in a permanent position. Plaintiff was initially assigned to replace a cook who was on medical leave. During her second week in this position, a temporary supervisor, Paul Wolshon, was assigned to cover the duties of the regular on-site supervisor, Jennifer Hos-tutler, who was on vacation. Wolshon was a “float manager” for defendant, meaning that he moved from location to location working as an interim manager as needed. Wolshon lacked the authority to hire, fire, or discipline other employees. Plaintiff, however, believed that Wolshon had the authority to fire her. According to the trial testimony, during the four-day period that Wolshon was at the facility, he engaged in a course of offensive conduct toward plaintiff, including rubbing plaintiffs buttocks, grabbing her breasts, and repeatedly propositioning plaintiff for sexual favors. Plaintiff testified that she felt intimidated and threatened by Wolshon’s behavior. Defendant had a written sexual harassment policy in its company handbook, which all employees were required to read and sign. The policy defined sexual harassment, explained that persons engaging in sexual harassment were subject to discipline, including immediate termination, and instructed all employees experiencing or witnessing an incident that they considered sexual harassment or discrimination were to report the incident to defendant’s vice president. All defendant’s managers were also required to attend a yearly management-development seminar that included a segment on sexual-harassment education. On Wednesday, July 6, 1995, defendant’s regional director, Kevin McLaughlin, called the facility and plaintiff answered the telephone. After sensing something “wrong” in plaintiff’s voice, McLaughlin inquired whether there was a problem. Without specifying the nature of the problem, plaintiff indicated that something was wrong and that she needed to talk to him. When McLaughlin sought to get more information over the telephone, plaintiff refused to elaborate. Plaintiff later testified that this was because Wolshon was standing next to her. There was conflicting testimony regarding whether McLaughlin did anything further to determine the nature of the undescribed problem. According to McLaughlin, he called the following day and plaintiff again refused to say what was wrong. Plaintiff testified that he only called on Wednesday. They both agree that McLaughlin said that he would come to the facility on Friday. McLaughlin testified that he did so, but did not speak to plaintiff. Plaintiff and others testified that they did not see him on that day. It is undisputed, however, that at no time during the week did plaintiff ever specifically tell McLaughlin about the sexual harassment perpetrated by Wolshon. Nor did she follow the process outlined in the policy manual for reporting sexual harassment. McLaughlin testified that it never occurred to him that plaintiff might be having problems with her male supervisor. On the following Monday, when Hostutler returned from vacation, and plaintiff informed her of Wolshon’s conduct. Hostutler immediately telephoned McLaughlin and relayed the news. McLaughlin instructed Hos-tutler to prevent Wolshon from entering the facility, where he was scheduled to work that morning, and to send him directly to the home office. McLaughlin then commenced an investigation of the incident. He instructed Hostutler to have plaintiff prepare a written statement, which was then submitted to McLaughlin. Shortly thereafter, McLaughlin met with plaintiff and Hostutler, and assured plaintiff that she would never have to work with Wolshon again. Thus, as soon as plaintiff reported the sexual harassment, Wol-shon w

Viatcheslav G. Abramian vs. President & Fellows of Harvard College & others. Middlesex. February 11, 2000. July 14, 2000. Present: Abrams, Lynch, Ireland, Spina, & Cowin, JJ. Employment, Discrimination, Termination, Retaliation. Anti-Discrimination Law, Employment, Termination of employment, Burden of proof, National origin. Practice, Civil, Judgment notwithstanding verdict, Instructions to jury, Conduct of counsel. Federal Preemption. Waiver. Damages, Punitive. Evidence at the trial of an employment discrimination case warranted a finding that an employer’s reason for terminating an employee was a pretext and that the disparate treatment received by the employee was motivated by a discriminatory animus based on national origin. [113-115] A Superior Court judge correctly ruled that, in an employment discrimination action, the defendant employer waived its affirmative defense of Federal preemption. [115] This court undertook to reexamine the holding of Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-446 (1995), and stated that, in an employment discrimination case in which the plaintiff demonstrates that the employer’s proffered reason for terminating the plaintiff is a pretext, i.e., untrue, that gives rise to an inference of unlawful discrimination sufficient to withstand a motion for directed verdict and sufficient to warrant a jury to return a verdict for the plaintiff; and that the employer may rebut this inference by showing that there was no discriminatory intent or that the employer’s action was based on a different nondiscriminatory reason. [115-118] Where, in an action alleging unlawful employment discrimination based on national origin, the judge instructed the jury in response to a question in accordance with Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-446 (1995), to the effect that they had to find for the plaintiff if they determined that the defendants’ proferred reason for terminating the plaintiff’s employment was a pretext, the jury was thereby stripped of their fact-finding function: where there was a basis in the evidence for concluding that the plaintiff was terminated for other than a discriminatory reason, the defendants were entitled to a new trial. [117-119] A Superior Court judge correctly allowed defendants’ motion for a new trial in an employment discrimination case on the issue of punitive damages, where the judge concluded that his instructions could have allowed the jury to award punitive damages without a finding that the defendants’ conduct was “outrageous.” [119] At the trial of an employment discrimination case based on national origin, the judge properly allowed evidence of racial bias expressed by one defendant as relevant to the defendant’s state of mind and credibility, and the judge properly allowed use of such evidence to impeach the defendant; further, plaintiffs counsel’s pursuit of evidence of racial bias at trial did not constitute a basis for the grant of a new trial. [119-121] In a retaliation claim brought under G. L. c. 15 IB, § 4 (4), arising from asserted employment discrimination, the evidence was sufficient for the jury to return a verdict for the plaintiff and the judge instructed the jury correctly on that claim. [121-122] A retaliation claim was separate from and independent of the underlying discrimination in employment claim, on which the defendant was granted a new trial, but claims of intentional interference with contractual relations and aiding and abetting discrimination were, in the circumstances, so intertwined with or derivative of the discrimination claim that the defendant was entitled to a new trial on those claims as well. [122] At a civil trial, the judge did not err in excluding evidence proffered to demonstrate an assertion that the proponent had no reasonable expectation of proving. [122-123] Civil action commenced in the Superior Court Department on October 14, 1993. The case was tried before James F. McHugh, III, J. The Supreme Judicial Court granted an application for direct appellate review. George Marshall Moriarty (Allan A. Ryan, Jr., with him) for the defendants. John J. Barter {John G. Swomley with him) for the plaintiff. The following submitted briefs for amici curiae: Michael E. Malamut for Associated Industries of Massachusetts. Betsy L. Ehrenberg & James S. Weliky for National Employment Lawyers Association, Massachusetts Chapter, & others. Paul E. Johnson, Robert J. Dowling, and Thomas Henaghan. Spina, J. Viatcheslav G. Abramian (Abramian) brought a civil action against the president and fellows of Harvard College (Harvard), alleging that (1) he was discharged in February, 1993, from his employment as a security guard because of his national origin in violation of G. L. c. 151B, § 4 (1), and (2) he was harassed and eventually discharged in retaliation for his complaints about discriminatory acts directed at him because of his national origin in violation of G. L. c. 151B, § 4 (4). The jury returned verdicts against Harvard on both counts, and as to each count the jury awarded compensatory damages of $522,136 and punitive damages of $750,000. In response to special questions, the jury specified the components of compensatory damages as follows: (1) past lost wages — $116,866; (2) future lost wages — $155,270; and (3) emotional distress — $250,000. Abramian named as additional defendants Paul E. Johnson, chief of police and security at Harvard (Johnson); Robert J. Dowling, manager of operations for the security department (Dowling); Thomas Henaghan, supervisor (Henaghan); and Timothy Carlow, a fellow security guard (Carlow). Abramian alleged, inter alia, that each individual defendant (1) aided and abetted acts of unlawful discrimination directed at him, G. L. c. 151B, § 4 (5), and (2) intentionally interfered with his employment relationship with Harvard. The jury returned verdicts for Johnson and against Dowling and Henaghan for aiding and abetting unlawful discrimination, and awarded punitive damages of $25,000. The jury returned verdicts against Johnson, Dowling, and Henaghan for intentional interference with an employment relationship, and awarded compensatory damages of $522,136. The jury were not asked to identify the components of this aspect of damages, as it had with respect to Harvard. The jury returned verdicts for Carlow on both counts. Abramian moved for attorney’s fees and received an award of $161,181.01. The defendants (other than Carlow) moved for judgment notwithstanding the verdict (judgment n.o.v.), Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974), in which they challenged the sufficiency of the evidence and raised a Federal preemption claim. The defendants also filed a motion for a new trial, Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), contending, inter alia, that the judge gave incorrect burden-shifting instructions as to “pretext” and incorrect instructions as to punitive damages. The defendants also sought a new trial based on alleged repeated misconduct of Abramian’s trial counsel. Finally, the defendants filed a motion to alter or amend judgment, Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), challenging the damages as duplica-tive, and requesting that compensatory damages awarded against the individual defendants be broken into component parts, similar to what had been done for Harvard, to avoid calculation of prejudgment interest on future damages. The judge denied the defendants’ motion for judgment n.o.v. and granted the defendants’ motion for a new trial only as to the issue of punitive damages. The defendants’ motion to alter or amend the judgment was allowed such that they would be jointly and severally liable for compensatory damages; it was denied as to the individual defendants’ request that compensatory damages be broken into components, and prejudgment interest was ordered on that entire amount. The defendants and Abramian appealed. We granted both applications for direct appellate review. On appeal, the defendants claim that (1) the evidence was insufficient to warrant a finding of pretext; (2) the judge erroneously concluded that they waived their Federal preemption claim; (3) the judge gave an erroneous instruction as to the effect of a finding of pretext; (4) the judge’s erroneous instructions of pretext and punitive damages require a new trial as to all issues; (5) they are entitled to a new trial because of repeated misconduct by Abramian’s counsel; and (6) the calculation of prejudgment interest on the award of compensatory damages against the individual defendants was error. Abramian claims that the judge erred in (1) allowing the defendants’ motion for a new trial as to punitive damages; (2) ordering certain subpoenas quashed; and (3) making certain evidentiary rulings. We affirm the judgment against Harvard on the count alleging retaliation, and vacate the other judgments. 1. Background facts. We summarize facts that the jury could have found. Abramian, a white male bom in Russia, was hired by Harvard as a security guard in January, 1988. Abramian was one of approximately ninety security guards on the force. At the time Abramian was hired, Dowling maintained input into the hiring and disciplining of security guards, but did not have direct control. Dowling became manager of operations, with authority to hire and recommend the discipline of guards, in 1989. Henaghan was hired as a security guard in February, 1989, and was promoted to supervisor in August of that same year. He was one of five men who supervised Abramian. The first two years of Abramian’s employment at Harvard were relatively uneventful except for three incidents. In November, 1988, he was found sleeping during his midnight to 8 a.m. shift, and was suspended for five days. The customary sanction for sleeping on post was a suspension of from two to three days. An American-born guard who was also found asleep at his post was disciplined with a letter of reprimand but no suspension. In January, 1989, Abramian was terminated after two Harvard custodial staff members complained that he had fallen asleep on post again. After his union steward investigated the matter during a grievance procedure, Abramian was reinstated with back pay in February, 1989, and the incident was ordered expunged from his personnel file. In May, 1989, a supervisor noted that Abramian had lost part of his uniform, but Abramian received no discipline as a result of this incident. The harassment alleged by Abramian occurred between 1990 and 1993 after Henaghan had become a supervisor. In July, 1990, Henaghan submitted a written incident report into Abrami-an’s personnel file that described Abramian on duty in his T-shirt rather than his uniform shirt. In April, 1991, Henaghan submitted a report that described Abramian wearing a summer uniform shirt opened to the fourth button and wearing civilian pants. In May, 1991, Dowling entered a “final warning” into Abramian’s personnel file, citing a “substantial number of verbal warnings” for being out of uniform. In August, 1991, Henaghan submitted an incident report describing Abramian on duty wearing a uniform shirt open to the second button, no uniform belt, and a uniform shirt and pants in “a mass of wrinkles.” Abramian testified that he never received copies of these written reports, and the jury could have found that the incident reports were false and were entered into Abramian’s file without his knowledge, in violation of Harvard’s personnel policy. From 1990 to 1993, Henaghan was the only supervisor to “write up” Abramian for being out of uniform. During that same time period, Abramian was subjected to demeaning slurs about his national origin. In the presence of an unnamed supervisor, an unnamed guard called him a “bullshit Bolshevik” but no action was taken on the matter. Henaghan, in speaking about Abramian, said, “I’d like to send that fucking Russian back to Russia,” and, “This Russian is nothing but trouble.” Fellow guard Carlow called him a “commie,” and a “fucking Russian” as well. Henaghan also ridiculed Abramian for having an accent and attempting to practice his English skills. Carlow, while in the presence of Henaghan, called Abramian “fucking Rainman” in reference to the movie about an autistic man who “memorizefd] a lot of stuff.” Abramian’s work environment also was tainted by his supervisors’ pejorative references to the national origin of others. From the testimony of a guard of Portuguese descent, the jury could have found that Henaghan ridiculed the guard’s name and the accent of the guard’s mother. From his own testimony, the jury could have found that Henaghan purposefully declined immediately to reprimand another guard for referring to a supervisor of Italian descent as a “fucking little guinea.” After Dowling received complaints about a guard whose native language was Spanish, he said, “We’re trying to give him a job with his own kind, like the Dining Hall Service.” There was testimony that Dowling expressed support, while in the workplace, for the 1992 presidential candidacy of David Duke, a former candidate for Governor of Louisiana in 1991 whose background included an affiliation with the Ku Klux Klan. Dowling condoned comments by other guards who referred to the holiday honoring the birthday of Dr. Martin Luther King, Jr., as “nigger day.” On February 17, 1992, Henaghan went to Abramian’s work station and reprimanded him for not wearing a tie and ridiculed his accent. Abramian asked Henaghan to stop harassing him,, but in response Henaghan threatened to beat him up and challenged him to meet him “outside” at the end of his shift. Abramian wrote a letter dated March 11 to Johnson complaining about the threats and harassment from Henaghan. On March 14, Henaghan wrote up Abramian for being tardy; on March 16, Henaghan wrote up Abramian for eating dinner at a coffee shop during his shift and wearing a civilian jacket; and on March 18, Henaghan wrote a note to Dowling claiming that Abramian had left numerous doors and windows open at the end of his shift. On April 2, a meeting presided over by Dowling was convened for the alleged purpose of discussing the harassment claimed by Abramian, but the result of the meeting was that Abramian was suspended without pay for three days for lying and being out of uniform and Henaghan was not asked to stop harassing Abramian. Although an arbitrator reduced the suspension to one day for being out of uniform, Carlow and other American-born guards had received as many or more warnings than Abramian for being out of uniform, but only Abramian was suspended for being out of uniform. On May 20, 1992, the Harvard Crimson, a student-run newspaper, ran an article detailing how an unnamed Russian security guard (Abramian) was being harassed on a regular basis by his supervisors in the security division of the Harvard police department. After the article was published, Carlow told another guard that he would “help [Dowling] get rid of the — Russian, because he’s causing a lot of problems.” On January 21, 1993, Abramian walked into the security office to pick up his paycheck and see if any new opportunities for promotion had been posted on the bulletin board. Dowling and Carlow were the only others present. As Abramian approached the bulletin board, Carlow blocked his way, and Abramian asked him to move. Carlow refused, looked at Dowling, told Abramian, “Get out from here, fucking Russian,” and struck him and threatened to kill him. After this incident, witnessed by Dowling and reported to Johnson, Abramian was fired for committing assault and battery, filing a false report, and having a history of disciplinary actions. Carlow, who had been a part-time guard, was promoted to a full-time position, inferably Abramian’s. Although there had been other incidents of assaultive behavior between American-born guards, no other guard except Abramian actually had been terminated for assaultive behavior during Johnson’s ten-year tenure as chief of police. 2. Motion for judgment notwithstanding the verdict, (a) Sufficiency of the evidence of pretext. The defendants argue that the judge erred in denying their motion for judgment n.o.v. because the evidence did not support a finding that the reason advanced by Harvard for discharging Abramian was a pretext. They contend that there was no evidence that Dowling knew Carlow started the fight with Abramian that led to his discharge, or that Dowling heard Carlow’s disparaging remark about Abramian’s national origin. They further contend that Abramian failed to “identify and relate specific instances where persons similarly situated ‘in all relevant aspects’ were treated differently.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997), quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989). The evidence warranted a finding of pretext. Although Abramian was discharged because he allegedly started the fight with Carlow, the jury could have concluded that Carlow started the fight with Dowling’s approval. The fight occurred in front of Dowling, and the jury heard testimony that Carlow looked toward Dowling as if to seek approval before escalating the hostilities. The defendants rely on a statement Abramian allegedly gave to an investigator in which he was reported to have said that Carlow positioned himself so that Dowling would not be able to see or hear what occurred. The jury were not bound by this testimony, which was at odds with Abramian’s trial testimony and could be discounted as a misunderstanding attributable to Abramian’s difficulty with English. There was sufficient evidence for the jury to find that the reason given by Harvard for terminating Abramian was not true, which alone would have warranted a finding for Abramian, as we discuss at Part 3(a), infra. The graphic evidence of discriminatory animus on the part of Dowling and Henaghan provides further support for a finding that Abramian was more likely than not the victim of unlawful discrimination. The derogatory references to Abramian’s national origin and the denigration of other security guards because of their national origin indicate that Dowling and Henaghan were very likely biased against people of other nationalities, and that they carried out their responsibilities as supervisors by harassing such employees and tolerating an atmosphere of bigotry in the workplace. There was also evidence that persons similarly situated were treated differently. Abramian was punished more severely than American-born guards for falling asleep on post, being out of uniform, and engaging in assaultive behavior. As noted, the jury could have concluded that it was Carlow who started the fight, and rather than being discharged, as was Abramian, he was promoted. The jury could have found that the treatment of Abramian was motivated by discriminatory animus rather than a legitimate employment decision. (b) Waiver of Federal preemption claim. The defendants argue that the judge erred in finding that they had waived their affirmative defense of preemption. They contend that Abramian’s claim of wrongful interference with contractual relations is preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1994), where, as here, a collective bargaining agreement is involved. See Magerer v. John Sexton & Co., 912 F.2d 525, 528 (1st Cir. 1990). The “majority of Federal courts have concluded that, where a Federal statute only controls what substantive law applies rather than the forum in which the matter must be adjudicated, preemption is a waivable affirmative defense.” Central Transp., Inc. v. Package Printing Co., 429 Mass. 189 (1999), and cases cited. Where the defendants first raised this defense in their motion for judgment n.o.v. and not in their motion for directed verdict, we agree with the trial judge that the defense is now waived. Bonofiglio v. Commercial Union Ins. Co.,

Civil rights—Unlawful discriminatory practices—Establishing violation of R.C. 4112.02(A)—Requirements to establish claim of hostile-environment sexual harassment—R.C. 4112.02(A) protects men as well as women from all forms of sex discrimination in the workplace—Harassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment, when—Determining whether harassing conduct was "severe or pervasive" enough to affect conditions of plaintiff's employment.

Wynn & Wynn, P.C. vs. Massachusetts Commission Against Discrimination & another. Bristol. February 10, 2000. June 6, 2000. Present: Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ. Administrative Law; Findings, Judicial review. Massachusetts Commission Against Discrimination. Practice, Civil, Jury trial, Retroactivity of judicial holding, Attorney’s fees, Costs. Constitutional Law, Trial by jury, Retroactivity of judicial holding, Sex discrimination. Anti-Discrimination Law, Sex, Employee, Burden of proof. Employment, Discrimination. Limitations, Statute of. Emotional Distress. The defendant in an action alleging unlawful gender discrimination in employment was not entitled to the retroactive application of the holding in Lavelle v. Massachusetts Commission Against Discrimination, 426 Mass. 332 (1997), upon raising the issue in a motion for new trial, where the defendant had failed to assert a jury claim in the case at a time when such a right was sufficiently developed and thus had not properly preserved the issue. [662-664] Discussion of the three-stage approach to proof of a discrimination claim [664-666] and of the mixed-motive analysis applicable to some discrimination claims [666-667], This court articulated the analysis to be applied beyond the threshold stage when a mixed-motive framework is invoked in a discrimination case. [668-670] In the circumstances of a claim of gender discrimination in employment in which the plaintiff demonstrated by direct evidence that discriminatory animus was a factor in the defendant’s decision not to hire her, the record of proceedings before a hearing officer of the Massachusetts Commission Against Discrimination supported his conclusion that, although the decision not to offer the plaintiff a position may have resulted “in part” from concerns about her performance, the defendant’s actions were motivated primarily by unlawful discriminatory animus. [667-668, 670-671] Claims of sexual harassment and disparate treatment were not timely filed within the six-month period specified in G. L. c. 151B, § 5, and did not relate back to the filing of the claimant’s original discrimination complaint, nor was there any equitable reason to toll the limitations period. [671-673] In a gender discrimination in employment claim, the hearing officer’s award of damages for emotional distress was fully supported by substantial evidence, and the damages were not greatly disproportionate to the injury proved, nor did they represent a miscarriage of justice. [675] An award of attorney’s fees in a proceeding before the Massachusetts Commission Against Discrimination was reasonable and not an abuse of discretion [675-676], and the commission properly considered attorney’s fees billed in quarter-hour increments [676], A hearing officer of the Massachusetts Commission Against Discrimination did not err in declining to award front pay in an employment discrimination case, where the amount was not reasonably ascertainable. [676-677] A claimant in a sex discrimination in employment case, prevailing on appeal, was entitled to an award of appellate attorney’s fees and costs. [677] Civil action commenced in the Superior Court Department on November 5, 1996. The case was heard by Richard J. Chin, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Douglas A. Hale for the plaintiff. Judith Ashton (Howard P. Speicher with her) for Jill Carmichael. Jerrold S. Levinsky (Christine E. Davio with him) for Massachusetts Commission Against Discrimination. Howard M. Brown, for Northeast Security, Inc., amicus curiae, submitted a brief. Jill Carmichael. Marshall, C.J. This is an appeal from a judgment of the Superior Court affirming a decision of the Massachusetts Commission Against Discrimination (MCAD or commission) that the law firm of Wynn & Wynn, P.C. (Wynn & Wynn or firm), discriminated against Jill Carmichael on the basis of her sex when it failed to hire her as an associate on her graduation from law school. G. L. c. 151B, § 4 (l). We determine that the judge in the Superior Court correctly concluded that Wynn & Wynn was not entitled to a jury trial. In addition, we conclude that the decision of the commission concerning the discriminatory failure to hire was supported by substantial evidence and was consistent with applicable law. See G. L. c. 30A, § 14 (7). We affirm the judgment in all respects. On May 18, 1992, Carmichael filed her discrimination complaint with the commission charging Wynn & Wynn with failure to hire her on the basis of her sex. On August 18, 1992, Carmichael alleged additional claims for sexual harassment and disparate treatment while she was employed as a law clerk. On December 1, 1992, the MCAD investigating commissioner found probable cause to credit all of Carmichael’s allegations. Conciliation efforts proved unsuccessful, and the matter was certified for a public hearing. In October and November, 1994, a four-day public hearing was held before an MCAD hearing officer. One year later, on November 16, 1995, the hearing officer issued her findings of fact and conclusions of law. She found in favor of Carmichael on her failure to hire claim, and awarded her damages for lost back wages and for emotional distress. She denied Carmichael’s claim for front pay, and dismissed as untimely her claims of sexual harassment and disparate treatment. Wynn & Wynn appealed to the commission, and Carmichael cross-appealed. On September 30, 1996, the commission affirmed the decision in all respects. The commission also concluded that Carmichael had “prevailed,” and awarded her attorney’s fees and costs. G. L. c. 151B, § 5. Wynn & Wynn filed a complaint for judicial review in the Superior Court, challenging the MCAD’s ruling that it had failed to hire Carmichael because of her sex, and the award of fees and costs. See G. L. c. 151B, § 6; G. L. c. 30A, § 14. Carmichael filed a counterclaim seeking to set aside so much of the commission’s decision as denied her damages for front pay and dismissed her sexual harassment and disparate treatment claims as untimely. In the alternative, Carmichael asked the judge to enforce the decision of the commission, and to award her attorney’s fees and costs. Both Wynn & Wynn and the commission moved to dismiss Carmichael’s counterclaim as an “appeal” that had not been filed within the requisite thirty-day filing period. See G. L. c. 151B, § 6; G. L. c. 30A, § 14 (1). A Superior Court judge denied their motions. Wynn & Wynn then filed a motion for judgment on the pleadings, as did Carmichael. The judge affirmed all aspects of the commission’s decision, and judgment entered on September 12, 1997. Wynn & Wynn and Carmichael filed timely appeals. Carmichael filed a motion for attorney’s fees and costs, which the Superior Court judge awarded. On December 23, 1997, we issued our decision in Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332 (1997), holding that in a discrimination case a respondent has the same right to a jury trial as a complainant after the MCAD has taken final action. On January 9, 1998, Wynn & Wynn moved to set aside the judgment of the Superior Court and for a jury trial, which the judge denied. Wynn & Wynn appealed from that decision. We transferred this case from the Appeals Court on our own motion, and treat the appeals as consolidated. 1. The commission decision. Under the State Administrative Procedure Act, we defer to the fact-finding function of the commission where substantial evidence exists to support its findings and there is no error of law. See G. L. c. 30A, § 14 (7); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 133 (1976). The employment decision adverse to Carmichael that the hearing officer concluded was unlawful was made at a meeting in April, 1991, following which Carmichael, then a law student employed as a law clerk at Wynn & Wynn, was told by a managing partner that there were no openings for an associate. We summarize the facts as determined by the hearing officer, supplementing her findings, as appropriate, with facts from the record on appeal. . Carmichael attended New England School of Law as a full-time student from September, 1988, to December, 1991. She passed the Massachusetts bar examination in February, 1992, and was sworn in as an attorney in June, 1992. In November, 1989, while she was a law student, Carmichael obtained a position as a law clerk at Wynn & Wynn in its Fall River office. Carmichael’s interview for that position was with Charles Murray, the managing partner of the Fall River office. During the interview she informed Murray that she was married, had a small child, and planned to have additional children in the future. Carmichael was not pregnant at the time: she was not asked to, nor did she, volunteer this information. She was hired and, within a few days, began work as a law clerk. Her second child was born on September 28, 1990, approximately ten months later. Throughout her tenure as a law clerk, Carmichael worked almost exclusively for William McKeon, an associate, later a partner, on a complex, multi-party litigation case, performing duties in the nature of paralegal work. During the academic year she worked approximately three days a week; during the summers she worked full time. We defer until later discussion the findings concerning Carmichael’s allegations of sexual harassment by McKeon. See part 4, infra. In March, 1991, Carmichael asked to meet with Murray to discuss a raise, which Murray authorized; he also agreed to ask any attorneys supervising her to submit written evaluations of her work. Later that month Carmichael told Murray that she wished to be considered for an associate position with Wynn & Wynn on her graduation from law school in December, 1991. He said he would do so. At Murray’s initiative, in April, 1991, Carmichael’s request to become an associate was discussed at a meeting of the attorneys in the Fall River office. The hearing officer found that Murray expressed concern that (in his view) Carmichael had failed to inform him that she was pregnant when he hired her as a law clerk; he felt this indicated a lack of forthrightness on her part. Three other attorneys, Catherine Murphy, Laurie Mullen, and William Kenney each testified, however, that during the meeting Murray stated “flatly” that he would not have hired Carmichael as a law clerk had he known that she was pregnant, and that Carmichael’s priorities were “elsewhere,” presumably with raising a family instead of the practice of law. They said, and the hearing officer found, that Murray informed the group that he was going to tell Carmichael that there was no position available. Murray denied making these statements, but the hearing officer did not credit his testimony. Three witnesses also testified that, after Murray made his comments, McKeon seemed shocked and stated, “I’m glad you said that and not me.” The hearing officer found that, although Murray told Carmichael that there were no openings, another law clerk was under consideration as an associate attorney. Moreover, three months later Murray hired a new associate, Gary Vancini, a Rhode Island lawyer with less than one year of legal experience. Carmichael immediately confronted Murray, who insisted that Vancini was in a different category. In August, 1991, Carmichael met with Attorney Kevin O’Malley, who supervised the firm’s law clerk program. He informed her that her evaluations were excellent, that there was “not a black mark on them,” but that, due to the hiring of Vancini, there was no position available in Fall River. Carmichael was again upset. Even then she sent a copy of her resume to the firm’s named partner at its main office and asked to be considered for a position at any Wynn & Wynn office. When Carmichael left Wynn & Wynn in November, 1991, shortly before her graduation, she had heard nothing about her request. The hearing officer found that until March, 1992, Carmichael had no reason to believe that her earlier pregnancy had anything to do with the decision not to hire her. A chance encounter with William Kenney, who by then had left the firm, led her to speak to Laurie Mullen and Catherine Murphy. They relayed to her the events of the April, 1991, meeting at which Carmichael’s future at the firm had been discussed. Carmichael filed her discrimination charge shortly thereafter. The hearing officer made detailed findings concerning Wynn & Wynn’s explanation of its failure to hire Carmichael as an associate attorney. First, it said Carmichael’s performance as a law clerk had been unacceptable. The hearing officer reviewed the testimony of various attorneys who had worked with Carmichael, credited some, and discredited others. She found that Carmichael had never received substantive negative feedback during her entire employment at the firm, and that Murray’s evaluation of Carmichael was not credible and was tainted by sexism. Wynn & Wynn also claimed that Carmichael had not been offered an associate’s position because no entry-level position existed at the time. The hearing officer found otherwise: shortly after the adverse employment decision (April, 1991), Murray had in fact hired associate Gary Vancini. The hearing officer also found that when associates Mullen and Murphy left the firm in February, 1992, Carmichael was not offered either of their positions; she found those associates were “replaced by male attorneys.” Until the spring of 1992, Carmichael continued to believe that an attorney position would be offered to her if one became available. The hearing officer concluded that Carmichael had demonstrated “by direct evidence” that discriminatory animus was a “factor” in the decision not to hire her. She pointed to the array of witnesses who had testified credibly that Murray, the managing partner “ultimately responsible” for Carmichael’s hiring, had said he would inform Carmichael that there were no available openings in the face of evidence to the contrary. The hearing officer concluded that Wynn & Wynn’s failure to hire Carmichael as an attorney was the result of a determination “tainted by sex discrimination.” The decision, she said, may have resulted “in part” from concerns about Carmichael’s performance, but the unlawful considerations were the “real reason” Carmichael was not offered a position. Murray, she concluded, was responsible for the decision not to hire Carmichael, and his expressed opinions with respect to her pregnancy “reveal a bias that tainted his estimation of her potential as an attorney and that was the primary factor influencing his decision not to offer her a position.” The hearing officer also concluded that the conduct of McKeon and Murray pointed to “a pervasive attitude of sexism” that existed in the Fall River office; see part 4, infra. 2. Right to jury trial. Wynn & Wynn seeks retroactive application of our decision in Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332 (1997). The judge in the Superior Court denied the firm’s motion for a new trial, reasoning that retroactive application of Lavelle to this case was not appropriate under the standards of McIntyre v. Associates Fin. Servs. Co. of Mass., 367 Mass. 708, 712 (1975). He further concluded that, even if a new trial was warranted,'Wynn & Wynn had failed to preserve its right to a jury. We agree, but for somewhat different reasons. Prior to our decision in MacCormack v. Boston Edison Co., 423 Mass. 652, 657 (1996), we applied the three-factor analysis described in McIntyre v. Associates Fin. Servs. Co. of Mass., supra, to determine whether a rule should have retroactive application. In MacCormack, we concluded that the “issue of retroactivity may be resolved more simply.” MacCormack v. Boston Edison Co., supra at 656. To eradicate “selective temporal barriers” to the application of claims under our State Constitution in civil cases, we determined that we would give retroactive effect to a new constitutional rule, such as Lavelle, to all litigants with live claims, i.e., those litigants with cases still open on direct review. MacCormack v. Boston Edison Co., supra at 656-658. In Lavelle we applied the rule recognizing the right of a respondent in a discrimination case to a jury trial to the parties before us. See Lavelle v. Massachusetts Comm’n Against Discrimination, supra at 339. Because this case was pending on direct review at the time Lavelle was decided, it is appropriate to give retroactive effect here to that holding. But that is not the end of our inquiry because Carmichael and the commission insist that Wynn & Wynn did not, in any event, preserve its right to a jury trial. We have recognized that it would be manifestly unfair to conclude that a party waived a constitutional issue by failing to raise it before the theory on which its argument is premised “has been sufficiently developed to put him on notice that the issue is a live issue.” Commonwealth v. Bowler, 407 Mass. 304, 307 (1990). See Commonwealth v. Stokes, 374 Mass. 583, 587-588 (1978). We, therefore, must determine whether a respondent’s right to a jury trial was sufficiently developed when Wynn & Wynn could have, but did not, assert that right. We have little hesitancy in concluding that it was. The right to a trial by a jury is recognized in art. 15 of the Massachusetts Declaration of Rights. See also Mass. R. Civ. R 38 (a), 365 Mass. 800 (1974) (right of trial by jury “shall be preserved to the parties inviolate”). Presented with any claim to a trial by jury in a discrimination case under G. L. c. 151B, we consistently have recognized that right as sacred. See MacCormack v. Boston Edison Co., supra at 655 (extending the right to trial by jury to claims for unlawful retaliation); Whalen v. NYNEX Info. Resources Co., 419 Mass. 792, 794-795 (1995) (plaintiff constitutionally entitled to trial by jury for claim of employment discrimination based on physical handicap); Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 226 (1994) (“plaintiff is constitutionally entitled to a trial by jury for her claim of employment discrimination based on sex”). Our decision in Lavelle was the inevitable jurisprudential step that followed Dalis and MacCormack’, we had not intimated in any respect that a respondent in a discrimination case had no such right. Wynn & Wynn argues that it could not have asserted a jury claim before Lavelle because its right had not been recognized. But that is exactly what was done in every other case in which the right to a jury trial in a discrimination case was at issue: the party asserting the right properly preserved the issue. See Lavelle v. Massachusetts Comm’n Against Discrimination, supra at 334; MacCormack v. Boston Edison Co., supra at 654; Dalis v. Buyer Advertising, Inc., supra at 221. See also Whalen v. NYNEX Info. Resources Co., supra at 792-793;'Dean v. Springfield, 38 Mass. App. Ct. 910, 911 (1995). It required no clairvoyance to anticipate the conclusion we reached in Lavelle. Indeed, Wynn & Wynn seems to have anticipated it; it acknowledges that it intended to seek a right to a jury trial from the appellate court on appeal. The Superior Court judge was correct to conclude that Wynn & Wynn waived its right to a jury trial. 3. The discriminatory failure to hire. Wynn & Wynn’s challenge to the conclusion that it unlawfully failed to hire Carmichael may be succinctly summarized. Carmichael had the burden, it argues, to prove as part of her “prima facie” case that there was an opening for an entry-level associate attorney. Even if the hearing officer correctly concluded that Wynn & Wynn’s reasons were a pretext, it continues, Carmichael faced a further “insurmountable hurdle”: to prove as part of her prima facie case that a male entry-level associate was actually hired in her place. Wynn & Wynn misapprehends our law. In cases involvin

THOMAS v UNITED PARCEL SERVICE ALEXANDER v UNITED PARCEL SERVICE Docket Nos. 209699, 209991. Submitted October 13, 1999, at Detroit. Decided May 16, 2000, at 9:10 A.M. Troy Thomas, an African-American male, brought an action in the Wayne Circuit Court against United Parcel Service (ups) and Paul Maconchi, alleging racial and gender discrimination in violation of the state Civil Rights Act, MCL 37.2101 et seq:, MSA 3.548(101) et seq., and common-law defamation. The action was based on the termination of the plaintiff’s employment by ups for alleged dishonesty and statements by Maconchi, an employee of ups, that the plaintiff had falsified his record regarding the amount of time he had worked. The trial court, Brian K. Zahra, J., granted the defendants’ motion for summary disposition on the basis that 49 USC 41713, the preemption provision of the Federal Aviation Administration Authorization Act of 1994 (faaaa), preempts claims of race and gender discrimination brought under the state Civil Rights Act. The plaintiff appealed. (Docket No. 209699). Charles Alexander and other African-American males brought an action in the Wayne Circuit Court against the same defendants and making the same allegations. The court, Pamela R. Harwood, J., denied the defendants’ motion for summary disposition, which also alleged that the plaintiffs’ claims were preempted by the faam. The defendants appealed by leave granted. (Docket No. 209991). The appeals were consolidated. The Court of Appeals held: 1. A common-law tort claim is a state law action that can be preempted by federal law. 2. State statutes or actions having some connection with or reference to airline rates, routes, or services are preempted under a 1994 amendment of the faam commonly known as the Airline Deregulation Act (ada), 49 USC 41713(b)(1). The preempting of claims where a state statute’s effect on an airline’s rates, routes, or services is tenuous, remote, or peripheral should be approached cautiously. A state must enact or enforce a law affecting rates, routes, or services before the law is preempted by the ada. 3. A claim must be shown to be derived from the enactment or enforcement of state law and to relate to airline rates, routes, or services, either by expressly referring to them or by having a significant economic effect on them, for the claim to be preempted by the ada. 4. The plaintiffs’ race and gender are wholly unrelated to the defendants’ services or the plaintiffs’ ability to carry out duties and serve the airline industry. While the ada has a broad preemptive sweep over state Civil Rights Act claims, there must, nonetheless, be an apparent connection or relation to the airline’s routes, prices, or services in order for the preemptive provision of the ada to be applicable. No such connection or relation is presented by the plaintiffs’ claims of racial and gender discrimination. 5. The defamation claims are simply too tenuous, remote, or peripheral to be subject to preemption. The order in Docket No. 209699 must be reversed and the matter must be remanded. The order in Docket No. 209991 must be affirmed and the matter must be remanded. Gage, J., concurring with the result reached by the majority wrote separately to state that she does not believe that one’s age or physical condition has no arguable connection to an airline’s provision of services. Because issues regarding the plaintiffs’ age or physical condition are not raised in this case, the majority’s citation of decisions involving age or physical characteristics to support the proposition that age or physical characteristics is unrelated to airline services is unnecessary and should be deleted. 1. Civil Righto — Employment Discrimination — Airline Deregulation Act — Preemption. The Federal Aviation Administration Authorization Act of 1994, commonly known as the Airline Deregulation Act, does not preempt claims of race and gender discrimination in employment brought under the state Civil Rights Act (49 USC 41713; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Conflict of Laws — Airline Deregulation Act — Preemption. A state law claim can be preempted by the Federal Aviation Administration Authorization Act of 1994, commonly known as the Airline Deregulation Act, only upon a showing that the claim is derived from the enactment or enforcement of state law and that the claim relates to airline rates, routes, or services, either by expressly referring to them or by having a significant economic effect on them (49 USC 41713). O’Neal O. Wright & Assoc, P.C. (by O’Neal O. Wright and Lynette M. Bledsaw'), for the plaintiffs. Dykema Gossett PLLC (by Debra M. McCulloch and Deric J. Bomar), for the defendants. Before: Jansen, P.J., and Saad and Gage, JJ. Jansen, P.J. In these consolidated appeals, we are asked to determine if the preemption provision of the Federal Aviation Administration Authorization Act of 1994 (faaaa), 49 USC 41713, preempts claims of race and gender discrimination brought under the state Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq. In Docket No. 209699, plaintiff appeals as of right from the trial court’s order granting summary disposition in favor of defendants on the basis of preemption. We reverse. In Docket No. 209991, defendants appeal by leave granted from the trial court’s order denying their motion for summary disposition. We affirm. Plaintiffs, all African-American males, worked for defendant United Parcel Service (ups) as delivery drivers. Contrary to company practice and procedure, the drivers allegedly took an unauthorized meal break while on duty, for which each driver claimed well over two hours of time for the period they were not actually working. Defendant Paul Maconchi, an employee of UPS, allegedly defamed plaintiffs by stating they had falsified their time records. In December 1996, plaintiffs’ employment was terminated for dishonesty. In July 1997, plaintiffs brought suit against defendants. The complaints alleged racial and gender discrimination in violation of the state Civil Rights Act, and common-law defamation. Plaintiffs alleged in their complaints that white employees were not disciplined or terminated from employment for the same conduct. In each case, defendants moved for summary disposition under MCR 2.116(C)(4), alleging lack of subject-matter jurisdiction, on the ground that plaintiffs’ claims were preempted by the faaaa. We review de novo a trial court’s ruling regarding a motion for summary disposition under MCR 2.116(C)(4). James v Commercial Carriers, Inc, 230 Mich App 533, 536; 583 NW2d 913 (1998). Because a preemption determination involves legal questions of statutory interpretation, we likewise review these issues de novo. Saginaw Co v John Sexton Corp of Michigan, 232 Mich App 202, 214; 591 NW2d 52 (1998). Whether a federal statute preempts state law is a question of congressional intent. Hawaiian Airlines, Inc v Norris, 512 US 246, 252; 114 S Ct 2239; 129 L Ed2d 203 (1994); Ryan v Brunswick Corp, 454 Mich 20, 27; 557 NW2d 541 (1997). Congressional intent is to be gleaned from the text, structure, and purpose of the statute as a whole, including the manner in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law. Id., p 28. The plain meaning of a statute must be given effect unless there is reason to believe that Congress intended a more restrictive reading. Id. “Federal provisions that invalidate state law must be narrowly tailored to support a presumption against preemption of state law.” Id., p 27. State police powers should not be superseded unless that is the clear and unequivocal intent of Congress, especially where state regulation of matters relating to health and safety are concerned. Id. Additionally, preemption of state law may be either express or implied. If express, the intent of Congress to preempt state law must be clearly stated in the statute’s language or impliedly contained in the statute’s structure and purpose. Id., p 28. Implied preemption may exist in the form of conflict or field preemption. Conflict preemption preempts state law that is in direct conflict with federal law or with the purposes and objectives of Congress. Id. Field preemption preempts state law where federal law so thoroughly occupies a legislative field that it is reasonable to infer that Congress did not intend for states to supplement it. Id. A common-law tort claim is a state law action that can be preempted by federal law. Id., pp 33-34. Before 1978, interstate airline travel was heavily regulated by the federal government. Federal Aviation Act of 1958, PL 85-726 (codified at 49 USC 1301 et seq., but now repealed). In 1978, Congress decided that open competition among airlines, especially in the area of rates and services, would benefit consumers and the economy. See 49 USC 1302 (recodified as 49 USC 40101). Thus, in 1978, Congress enacted the Airline Deregulation Act (ADA), 49 USC 41713(b)(1), formerly codified at 49 USC 1305, “[t]o ensure that the States would not undo federal deregulation with regulation of their own . . . .” Morales v Trans World Airlines, Inc, 504 US 374, 378; 112 S Ct 2031; 119 L Ed 2d 157 (1992). In 1994, Congress amended the ada and added subsection 41713(b)(4)(A), which states as follows: General rule. — Except as provided in subparagraph (B), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle (whether or not such property has had or will have a prior or subsequent air movement). This subsection’s language and purpose are essentially the same as the general preemption clause of the ADA, 49 USC 41713(b)(1), but applies to all cargo air transportation carriers. Thus, cases interpreting the general preemption clause of the ADA may be applied by this Court in conducting our analysis under subsection 41713(b)(4)(A). LaRosa v United Parcel Service, Inc, 23 F Supp 2d 136 (D Mass, 1998). The United States Supreme Court has considered ADA preemption in two cases. In Morales, supra, the United States Supreme Court considered whether subsection 41713(b)(1) preempted state attorneys general from enforcing state consumer protection laws regarding airline fares advertising. The United States Supreme Court held that the plain meaning of the term “relating to” in the preemption provision indicated a congressional intent to broaden the scope of preemption. Morales, supra, p 384. In other words, state statutes or actions having some “ ‘connection with or reference to’ ” airline rates, routes, or services are preempted under the ada. Id., quoting Shaw v Delta Air Lines, Inc, 463 US 85, 97; 103 S Ct 2890; 77 L Ed 2d 490 (1983). The United States Supreme Court concluded that “the obligations imposed by the [advertising] guidelines would have a significant impact upon the airlines’ ability to market their product, and hence a significant impact upon the fares they charge.” Morales, supra, p 390. Thus, the fares advertising guidelines were preempted. Id. However, the United States Supreme Court cautioned against preempting claims where the state statute’s effect on an airline’s rates, routes, or services was “ ‘tenuous, remote, or peripheral....’” Id., p 390, quoting Shaw, supra, p 100, n 21. The United States Supreme Court later addressed the ada’s preemption provision in American Airlines, Inc v Wolens, 513 US 219; 115 S Ct 817; 130 L Ed 2d 715 (1995). In Wolens, participants in American Airlines’ frequent flyer program challenged modifications to the program that devalued credits already earned by program participants. Id., pp 224-225. The frequent flyer participants argued that the modifications violated the Illinois Consumer Fraud Act and also constituted a breach of contract. Interpreting the Morales decision, the Supreme Court concluded that American Airlines’ frequent flyer program related to “rates, routes, or services.” Id., p 226. However, the Supreme Court emphasized that a state must also “enact or enforce” a law affecting rates, routes, or services before such law is preempted by the ADA. Id. The Supreme Court distinguished the consumer fraud claim from the breach of contract claim and held that the consumer fraud claim involved the enactment or enforcement of state law and, therefore, was preempted. The state’s enforcement of private contractual rights did not involve the enactment or enforcement of state law and, consequently, the Supreme Court held that the breach of contract claim was not preempted by the ADA. Id., p 228. Accordingly, for a claim to be preempted by the ADA, the following must be shown: (1) the claim must derive from the enactment or enforcement of state law, and (2) the claim must relate to airline rates, routes, or services, either by expressly referring to them or by having a significant economic effect on them. Travel All Over the World, Inc v Kingdom of Saudi Arabia, 73 F3d 1423, 1432 (CA 7, 1996). There is no dispute that plaintiffs’ claims derive from the enactment or enforcement of state law. Thus, the question before this Court is whether the state Civil Rights Act’s prohibition against racial and gender discrimination in employment “relates to” rates, routes, or services of an air carrier. This Court addressed the issue of preemption by the ADA of claims brought under the state Civil Rights Act in Gilman v Northwest Airlines, Inc, 230 Mich App 293; 583 NW2d 536 (1998). In Gilman, the plaintiff was an account executive in Northwest Airlines’ sales office and was terminated from her job, allegedly for poor performance. The plaintiff filed a three-count complaint, alleging claims of wrongful discharge, age discrimination, and gender discrimination under the state Civil Rights Act. After examining the legislative intent behind the ADA, this Court concluded that there is nothing in the language of the statute to suggest that Congress intended, nor does the case law suggest, that the preemption provision should be interpreted in such a broad and extensive maimer as to completely shelter airlines from a state action by an employee who has allegedly been discriminated against by the airline in no connection whatsoever to the services it provides. [Id., p 297.] This Court in Gilman distinguished the prior decision of Fitzpatrick v Simmons Airlines, Inc, 218 Mich App 689; 555 NW2d 479 (1996), and the Colorado Court of Appeals decision in Belgard v United Airlines, 857 P2d 467 (Colo App, 1992), by noting a particular distinction between “the effect physical abilities or characteristics have on an airline’s services and the effect one’s age or sex has on the industry.” Gilman, supra, p 300. This Court ruled that a person’s age or gender are, “for the most part, wholly unrelated to an individual’s ability to carry out duties and serve the airline industry.” Id. This Court was “unable to discern how an individual’s age or sex has any reasonable connection or relation to airline services or how a state law abridging unlawful discrimination on those bases will restrict an airline’s authority to select employees.” Id. This Court in Gilman concluded that “while the ADA has been interpreted to have a broad preemptive sweep over state Civil Rights Act claims, there must, nonetheless, be an apparent connection or relation to the airline’s routes, prices, or services, in order for the preemptive provision of the ADA to be applicable.” Id., p 303. Regardless of this Court’s decision in Gilman, defendants argue that the earlier holding in Fitzpat rick is controlling. In Fitzpatrick, this Court affirmed the trial court’s dismissal of the plaintiff’s weight discrimination claim under the Civil Rights Act on the basis of preemption under the ADA. The plaintiff was a baggage handler whose employment was terminated for failure to meet the defendant airline’s mandatory height and weight rule. This Court in Fitzpatrick cited Morales for the proposition that “the words ‘relating to’ as used in the ADA expressed a broad preemptive purpose.” Fitzpatrick, supra, p 691. This Court in Fitzpatrick relied on the Colorado Court of Appeals decision in Belgard in support of its finding of preemption. In Belgard, airline employees who had been denied jobs as pilots as a result of having undergone corrective eye surgery sued the airline, claiming that the airline violated a Colorado statute that prohibited discrimination based on a perceived physical handicap. Relying on the ADA’s dual purposes of “ ‘maintenance of safety as the highest priority’ ” and “ ‘maximum reliance on competitive market forces,’ ” the court in Belgard determined that state regulation of hiring decisions made on the basis of a job applicant’s “physical characteristics” was preempted as having a “connection with” the airline’s services. Belgard, supra, pp 470-471. On the basis of the foregoing, this Court in Fitzpatrick, supra, concluded, “ ‘[A]ny law or regulation that restricts an airline’s selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one “relating to,” the services to be rendered by the airline.’ ” [Fitzpatrick, supra, p 692, quoting Belgard, supra, p 471.] Defendants interpret Fitzpatrick as holding plaintiffs’ state law racial and gender discrimination claims to be preempted by the ADA. The trial court in Docket No. 209991 refuted this interpretation and instead ruled that Fitzpatrick was correctly decided under its facts, but that the ada’s preemption provisions do not apply to all claims under the Civil Rights Act. We agree with the trial court. Gilman is dispositive of the preemption issue presented here. Plaintiffs’ race and gender are wholly unrelated to defendants’ services. This view has also been set forth by the United States Court of Appeals for the Sixth Circuit, which recently held that “[n] either air safety nor market efficiency is appreciably hindered by the operation of state laws against racial discrimination.” Wellons v Northwest Airlines, Inc, 165 F3d 493, 496 (CA 6, 1999). The court noted, “An employee’s race, as opposed to his eyesight or physical size, has no arguable connection to safety.” Id. Moreover, unlike the regulation of marketing practices at issue in Morales, supra, or the regulation of the frequent flyer programs at issue in Wolens, supra, “ ‘whether an airline discriminates on the basis of age (or race or sex) has little or nothing to do with competition or efficiency.’ ” Wellons, supra, p 496, quoting Abdu-Brisson v Delta Air Lines, Inc, 128 F3d 77, 84 (CA 2, 1997). Consequently, the court in Wellons held that the ADA did not preempt the plaintiff’s state statutory race discrimination claim and related common-law tort claims. Accord Parise v Delta Airlines, Inc, 141 F3d 1463 (CA 11, 1998) (state statutory age discrimination claim not preempted by the ADA); Aloha Islandair, Inc v Tseu, 128 F3d 1301 (CA 9, 1997) (state statutory physical disability claim not preempted by the ADA); Abdu-Brisson, supra (state statutory age discrimination claim not preempted by the ADA). Defendants urge this Court to consider that plaintiffs’ claims are preempted because “their terminations arose out of their conduct while delivering packages,” which is the very “service” provided by ups to its customers. Although this may be relevant to whether plaintiffs can survive a motion for summary disposition on the merits of their cases, it is inappropriate for this Court to weigh defendants’ nondiscriminatory justification for discharging its employees as a basis for finding preemption. Parise, supra, p 1466. Additionally, though not ad

CHARLOTTE McLAIN, Plaintiff v. TACO BELL CORP., TAYLOR FOODS, INC., THOMAS ORR and MICHELLE RAYNOR, Defendants No. COA98-750-2 (Filed 4 April 2000) 1. Evidence— spoliation — destruction or non-production— adverse inference In a case where plaintiff-employee placed numerous entries in a company logbook during the course of her employment concerning the sexual harassment of plaintiff by two co-workers, a partial new trial must be granted on the issue of defendant Taylor Foods’ ratification of the conduct of defendant Raynor in committing a battery upon plaintiff since the trial court erred in failing to give a requested jury instruction concerning the alleged destruction or non-production of corporate records by defendant Taylor Foods, which would have allowed the jury to determine that spoliation of evidence gives rise to an adverse inference. 2. Judgments— default — pretrial motion — no prejudicial error The trial court did not commit prejudicial error in failing to grant plaintiff-employee’s pretrial motion for default judgment against a non-answering individual defendant, against whom default had been entered, in light of the interrelationship of plaintiff’s claim against the individual defendant with those against corporate defendants Taylor Foods and Taco Bell, and the requirement of a verdict against either of the individual defendants as an element of plaintiff’s claims against the corporate defendants. Appeal by plaintiff from judgment entered 6 May 1997 by Judge Ernest B. Fullwood in Onslow County Superior Court. Originally heard in the Court of Appeals 29 March 1999. An opinion was filed by this Court 18 January 2000. Defendants’ Petition for Rehearing was granted 7 March 2000 and heard without oral argument. The present opinion supersedes the 18 January 2000 opinion. Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Harold L. Kennedy III, Harvey L. Kennedy and Annie Brown Kennedy, for plaintiff-appellant. Hunton and Williams, by A. Todd Brown and Matthew R McGuire, for defendant-appellee Taco Bell Corporation. Poyner and Spruill, L.L.P., by Cecil W. Harrison, Jr. and Susanna K. Gibbons, for defendant-appellee Taylor Foods, Inc. JOHN, Judge. Plaintiff contends the trial court erred, inter alia, in failing to charge the jury on the alleged destruction or non-production of evidence by defendant Taylor Foods, Inc. (Taylor Foods). We hold that, under the circumstances sub judice, the lack of such instruction constituted reversible error entitling plaintiff to a partial new trial. Relevant facts and procedural information include the following: On 24 February 1995, plaintiff Charlotte McLain instituted claims against 1) defendants Thomas Orr (Orr) and Michelle Raynor (Raynor) for battery and intentional infliction of emotional distress based upon alleged sexual harassment, 2) defendants Taco Bell Corporation (Taco Bell) ¿nd Taylor Foods for wrongful discharge, negligent hiring and/or retention of Orr and ratification of Orr’s and Raynor’s alleged intentional misconduct, and 3) defendant Taco Bell for negligent supervision of its alleged agent, Taylor Foods. The case was tried before a jury during the 7 April 1997 Civil Session of Onslow County Superior Court. Evidence at trial tended to show the following: On 25 April 1994, plaintiff began work as assistant manager in a Jacksonville, North Carolina, Taco Bell restaurant (the restaurant) owned and operated by Taylor Foods pursuant to a franchise agreement with Taco Bell. As a manager, plaintiff was required to make daily entries in a three-ring binder with looseleaf paper referred to as the manager’s logbook (the logbook). The logbook was kept locked in the restaurant office and reviewed only by managers and Matt Clark (Clark), Taylor Foods’ district manager. Plaintiff understood from Clark that entries were mandatory so as to enable managers to record and be aware of customer complaints, crew situations and concerns arising during each shift, as well as to keep Clark and the other managers in communication with each other. Plaintiff testified that Orr, the unit manager, informed her that he and Clark regarded reading the logbook as an “everyday occasion.” At trial, plaintiff related that approximately one week following commencement of her employment, Orr and Raynor, the first assistant manager, began to make sexually suggestive statements and physical advances towards plaintiff in the restaurant. Other witnesses related similar accounts of sexual misconduct by Orr and Raynor directed towards themselves or others. Plaintiff testified she immediately began leaving notes in the manager’s logbook, seeking to speak with Clark about the actions of Orr and Raynor, and that she continued to do so throughout her employment, expressly raising the issue of sexual harassment in subsequent entries. According to plaintiff, Clark never contacted her concerning the entries, although he had informed her he reviewed the logbook “on a daily basis” and she had observed Clark reading the logbook on at least one occasion. Plaintiff further testified that following repeated instances of sexually suggestive statements by both Orr and Raynor and sexually explicit touching by Orr, the latter cornered plaintiff in the restaurant stockroom in early June 1994. Orr thereupon physically assaulted plaintiff, dropped his trousers while saying he wanted to have sexual relations with her and, upon her refusal, began masturbating, ultimately ejaculating upon plaintiffs clothing. Clark discharged plaintiff the next day on grounds she had violated numerous work regulations. Plaintiff contacted Clark’s superior, Ronnie Matthews (Matthews), vice president of operations at Taylor Foods, asserting she had not been treated fairly and accusing Orr and Raynor of sexual misconduct. Matthews met with plaintiff and Clark 8 June 1994 to discuss plaintiff’s complaints. In the presence of plaintiff and Clark, Matthews interviewed Taylor Foods employees Susan Lacy (Lacy), Deborah Rush (Rush) and Rick Morgan (Morgan), each of whom described similar incidents of sexual misconduct by Orr and Raynor. Clark related he interviewed Gina Berkner (Berkner), a current manager, who informed Clark and testified during trial that she had heard Orr and Raynor making sexually suggestive comments to other employees. On 9 June 1994, Clark terminated Orr and Raynor based in part upon the alleged sexual misconduct, and plaintiff was reinstated to her position as assistant manager. Plaintiff resigned shortly after her reinstatement. The jury returned a verdict in favor of Taylor Foods, Taco Bell and Orr, but found for plaintiff against Raynor. Judgment was entered 6 May 1997, awarding plaintiff $15,000.00. Plaintiff appeals. Only defendants Taylor Foods and Taco Bell (defendants) have responded to plaintiff’s appeal. Plaintiff contends the trial court erred in refusing to give the following requested jury instruction: I instruct you that evidence has been presented in this case which tends to show that the Defendant, Taylor Foods, Inc. either destroyed or failed to produce corporate records in its exclusive possession requested by the plaintiff in this case. If you determine this to be the case, then those [sic] would be a presumption or adverse inference against the Defendant, Taylor Foods, Inc. that the evidence withheld would have injured the Defendants, Taylor Foods, Inc.’s defense in this case. If you find that Taylor Foods, Inc. destroyed or failed to produce said corporate records, there would be a strong presumption that Taylor Foods, Inc. is liable for the intentional acts of Thomas Orr and Michelle Raynor. Plaintiff argues the trial court’s failure to instruct the jury substantially as requested constituted reversible error. Upon examination of the record and review of the applicable law, we agree. Pursuant to N.C.G.S. 1A-1, Rule 51 (1990), the trial court is “required to instruct a jury on the law arising from the evidence presented,” Lusk v. Case, 94 N.C. App. 215, 216, 379 S.E.2d 651, 652 (1989). Further, when a request is made for a specific instruction, correct in itself and supported by evidence, the trial court, while not obliged to adopt the precise language of the prayer, is nevertheless required to give the instruction, in substance at least, and unless this is done, either in direct response to the prayer or otherwise in some portion of the charge, the failure will constitute reversible error. Calhoun v. Highway Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935). Pertinent to the issue sub judice, our Supreme Court in Yarborough v. Hughes, 139 N.C. 199, 51 S.E. 904 (1905), stated the rule as follows: where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control... there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case. Id. at 208-09, 51 S.E. at 907-08. The foregoing refers to the well-established principle of “spoliation of evidence,” Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 60, at 194 (5th ed. 1998) [hereinafter Brandis and Broun on North Carolina Evidence], similar to the “rule applie[d] to the failure to call an available witness with peculiar knowledge of the fact to be established,” Yarborough, 139 N.C. at 209, 51 S.E. at 908. Application of the principle presents “a significant fact for the consideration of the jury,” id. at 210, 51 S.E. at 908, and allows strong “circumstantial prooff],” id. (citing Black v. Wright, 31 N.C. 447, 451-52 (1849)), against a party which withholds evidence in its possession because of the “supposed knowledge that the truth would have operated against [it],” id. Accordingly, “[i]f a man by his own tortious act withholds evidence by which the nature of his case would be manifested, every presumption to his disadvantage will be adopted, for where a party has the means in his power of rebutting and explaining the evidence adduced against him, if it does not tend to the truth, the omission to do so furnishes a strong inference against him.” Id. at 209, 51 S.E. at 908 (quoting Broom Legal Maxims 938 (8th Am. Ed.)); see also Rhode Island Hospital Trust National Bank v. Eastern General Contractors, Inc., 674 A.2d 1227, 1234 (R.I. 1996) (“[u]nder the doctrine omnia praesumuntur contra spoliatiorem, ‘all things are presumed against a despoiler’ ”). Notwithstanding use of the term “presumption” in Yarborough, “[i]t is doubtful if [the principle] was ever intended to mean anything except that an inference might be drawn against the spoliator.” Brandis and Broun on North Carolina Evidence § 60, at 194; see also Beers v. Bayliner Marine Corporation, 675 A.2d 829, 832 (Conn. 1996) (“rule of the majority of the jurisdictions that have addressed the issue in a civil context ... is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it”). However, the inference does not supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced. Doty v. Wheeler, 182 A. 468, 471 (Conn. 1936) (citations omitted). “Destruction of potentially relevant evidence obviously occurs along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality.” Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988). Although destruction of evidence in bad faith “or in anticipation of trial may strengthen the spoliation inference, such a showing is not essential to permitting the inference.” Rhode Island Hospital, 674 A.2d at 1234 (citations omitted); see Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (adverse inference proper where plaintiffs, although not acting in bad faith, permanently destroyed relevant evidence during investigative efforts), scad Henderson v. Hoke, 21 N.C. 119, 146 (1835) (“[i]t is sufficient if [the evidence] be suppressed, without regard to the intent of that act”); see also Hamann v. Ridge Tool Co., 539 N.W.2d 753, 756-57 (Mich. Ct. App. 1995) (“[w]hether the evidence was destroyed or lost accidentally or in bad faith is irrelevant, because the opposing party suffered the same prejudice”). However, “[i]f the evidence alleged to be withheld or destroyed is shown to be . . . equally accessible to both parties,” Gudger v. Hensley, 82 N.C. 482, 486 (1880), or “there is a fair, frank and satisfactory explanation,” Yarborough, 139 N.C. at 211, 51 S.E. at 908, for nonproduction, the principle is inapplicable and no inference arises, see id. (“ [i]t may be that the defendants will be able to show that, after due and diligent search prosecuted in good faith, they are unable to produce [the evidence] or they may in some other manner explain away any inference to be drawn from the failure” to produce the evidence). On the other hand, if... no satisfactory explanation is forthcoming, the maxim of the law will apply, and the jury must pass upon the case, aided by the [inference], giving to it such force and effect as they may think it should have under all of the facts and circumstances. Id. (citations omitted). Nonetheless, even though the adverse inference may be drawn, it is permissive, not mandatory. If, for example, the factfinder believes that the documents were destroyed accidentally or for an innocent reason, then the factfinder is free to reject the inference. Blinzler v. Marriott International, Inc., 81 F.3d 1148, 1159 (1st Cir. 1996). Bearing the foregoing in mind, we turn to an examination of the instant record. Evidence at trial concerning the logbook tended to show that plaintiff had placed numerous entries therein during the course of her employment requesting to speak with Clark. Significantly, according not only to plaintiffs testimony but also that of Lacy, examination of the logbook three days prior to the 8 June 1994 investigation revealed nineteen such entries. Moreover, on the date of the investigation, plaintiff, Lacy, Rush and Morgan each related to Matthews and Clark, as representatives of Taylor Foods, instances of sexual misconduct by both Orr and Raynor towards themselves and/or other employees. Matthews thereupon directed Clark to retrieve from the restaurant any materials pertinent to the allegations of sexual harassment. While at the restaurant, Clark also interviewed Berkner who reported observing both Orr and Raynor make sexual statements and advances towards other employees. Clark returned to the investigation site approximately one to two hours later with various materials, including the logbook. Plaintiff and Lacy viewed the logbook at that time and discovered that no entries by plaintiff requesting to speak with Clark were to be found. Plaintiff and Lacy informed Matthews they had counted nineteen such entries three days earlier, all directed to Clark and requesting to speak with him, some expressing concern over sexual harassment by Orr and Raynor. Lacy as well as plaintiff further described the logbook as two to three inches thick and containing between one and two hundred pages when they had examined it, whereas it was barely one-half inch thick and held approximately fifty pages when delivered to Matthews by Clark. Clark denied having removed any pages prior to returning to the investigation site. Plaintiff also testified she reviewed the logbook during pre-trial discovery and found it contained only twenty to twenty-five pages at that time and was missing documents she had seen 8 June 1994, the date of the investigation. Clark explained that, following 8 June 1994, he had “removed everything [from the logbook] that [he] felt was pertinent to Mr. Orr and Ms. Raynor’s termination and... put those in his file,” and “threw everything else away,” including “a lot” of plaintiffs and other managers’ notes. It is thus undisputed that Clark became aware of plaintiff’s sexual harassment allegations 8 June 1994 upon hearing her statement as well as those of Rush, Morgan and Berkner. In addition, prior to going to the restaurant during the investigation, Clark also was aware of plaintiff’s assertion that she had made numerous logbook entries which might be of significance in supporting her allegations. It is also noteworthy that Clark conceded he personally had destroyed a portion of the contents, although he denied any “pertinent” material was missing. As described in the testimony of plaintiff and Lacy, the logbook entries allegedly lost or destroyed by Clark would have been relevant to the allegations of plaintiff against Taylor Foods. Offered into evidence in the format described by plaintiff and Lacy, the logbook would have established that Clark was on notice of sexual harassment of plaintiff by Orr and failed to act upon such knowledge, thereby defeating defendants’ contention they lacked knowledge of plaintiff’s complaints or of Orr’s actions. Without doubt under such circumstances, were the jury to find that Clark, whether in bad faith or not, misplaced, suppressed or destroyed the logbook pages described in the testimony of plaintiff and Lacy, such determination reasonably would permit the jury to infer, “giving to [the inference] such force and effect as they may think it should have under all of the facts and circumstances,” Yarborough, 139 N.C. at 211, 51 S.E. at 908, that “the document[s], if produced, would probably militate against,” id. at 210, 51 S.E. at 908, Taylor Foods. As one court has observed, [t]he proponent of a “missing document” inference need not offer direct evidence of a coverup to set the stage for the adverse inference. Circumstantial evidence will suffice. Blinzler, 81 F.3d at 1159. The evidence sub judice, both direct and circumstantial, tended to show suppression and destruction by Taylor Foods of documents capable of “rebutting and explaining the evidence adduced against [it],” Yarborough, 139 N.C. at 209, 51 S.E. at 908, without a “fair, frank and satisfactory explanation,” id. at 211, 51 S.E. at 908, sufficient to preclude instruction on the adverse inference. Accordingly, the trial court committed reversible error in failing, upon plaintiff’s tender of “a specific instruction... supported by evidence,” Calhoun, 208 N.C. at 426, 181 S.E. at 272, “to give the instruction, in substance at least,” id., and, as in Yarborough, “there must be a new trial,” Yarborough, 139 N.C. at 211, 51 S.E. at 908. Notwithstanding, defendants interject that Taylor Foods “produced all documents from the manager’s logbook that were in its possession when litigation was initiated,” and that it was not on notice the destroyed documents were relevant prior to institution of the suit. The former assertion is in no way dispositive of the issue in question. As to the latter contention, we believe the evidence that Clark, as representative of Taylor Foods, was “aware of circumstances that [we]re likely to give rise to future litigation,” Blinzler, 81 F.3d at 1158-59, on 8 June 1994 and also that the logbook was relevant to plaintiff’s allegations and needed to be preserved, was sufficient to allow the jury’s consideration of the adverse inference. First, it appears defendants correctly argue that in order to qualify for the adverse inference, the party requesting it must ordinarily show that the “spoliator was on notice of the claim or potential claim at the time of the destruction.” Robert L. Tucker, The Flexible Doctrine of Spoliation of Evidence: Cause of Action, Defense, Evidentiary Presumption, and Discovery Sanction, 27 U. Tol. L. Rev. 67, 79 (1995). While notice of the importance of certain documents may ordinarily be derived from institution of suit, see Yarborough, 139 N.C. at 208, 51 S.E. at 907 (“complaint itself was sufficient notice to the defendants of

SCHELL v BAKER FURNITURE COMPANY COLLINS v BAKER FURNITURE COMPANY Docket Nos. 113598, 113599. Decided March 16, 2000. On applications by the defendant for leave to appeal, the Supreme Court, in lieu of granting leave, affirmed the judgment of the Court of Appeals. Ronda Schell brought an action in the Kent Circuit Court against Baker Furniture Company, her former employer, alleging harassment by a fellow employee and wrongful discharge. Sandra Collins also brought an action against Baker Furniture, her employer, in the Kent Circuit Court, alleging similar harassment. Each case was assigned to a different judge, and each proceeded through discovery and pretrial motions. The plaintiffs were deposed, motions for summary disposition were argued and decided, and scheduling conferences were held. In Collins, the circuit court conducted a settlement conference, and, when agreement was not reached, a trial date was set. A settlement conference took place in Schell, and a trial was scheduled. Before either trial, Dennis C. Kolenda, Chief Judge of the court, notified the parties that additional settlement conferences would occur. The same attorney represented both plaintiffs. He arranged with defense counsel to conduct both conferences on the same date. Although plaintiffs’ counsel appeared, neither plaintiff appeared personally. Because they failed to appear, the chief judge dismissed the cases. The Court of Appeals, Markey, P.J., and Griffin and Whitbeck, JJ., consolidated the cases and reversed the dismissals, noting that no court rule specifically authorizes settlement weeks; the cases were advancing normally, had been the subject of prior settlement conferences, and had not been plagued by the plaintiffs avoiding conferences or ignoring orders of the court; the analogous dismissal sanction for discovery violations, MCR 2.313(B)(2)(c), is to be applied only in extreme cases; MCR 2.401(G) provides that failure to appear is grounds for dismissal under MCR 2.504(B), and the latter rule is phrased in terms of a party’s motion to dismiss, not a judge ordering dismissal sua sponte; and the mediation results should have remained confidential under MCR 2.403(N)(4) and should not have played a role in the decisions whether to dismiss or whether to reinstate. The Court of Appeals also questioned the authority of the chief judge to enter the dismissal orders in cases that were properly assigned to other judges. 232 Mich App 470 (1998) (Docket Nos. 194794, 194795). The defendant seeks leave to appeal. In a unanimous opinion per curiam, the Supreme Court held: The decision whether to dismiss these cases should have been made by the assigned judges rather than the chief judge. Accordingly, the orders of dismissal must be set aside. 1. A chief judge has the specific authority and responsibility to act in accordance with each separate provision of MCR 8.110. In promulgating the rule, however, it was also intended that a chief judge have the authority to employ creative and energetic means to improve the delivery of justice to the citizens who come before the court. The opinion of the Court of Appeals reflects the assumption that a chief judge is unable to take measures not specifically authorized by the court rule. However, chief judges are invested with the authority to take measures not prohibited by the letter or spirit of the court rules. The Chief Judge of the Kent Circuit Court had authority to announce a “settlement week,” during which an intense effort would be made to resolve as many of the court’s pending cases as possible. The chief judge likewise had authority to summon attorneys and litigants to conferences to be held for that purpose, and to require personal attendance by individual litigants and by persons with authority to settle cases on behalf of corporate litigants. 2. Pursuant to MCR 8.111, these cases were originally and properly assigned to judges of the circuit court. In the absence of a proper reassignment order under MCR 8.111, the cases remained assigned to the circuit judges to whom they were first assigned. The chief judge should not have entered dispositive orders in these cases. Substantive or dispositive rulings in individual cases are not exercises of administrative authority. Further, adherence to the approach set forth in MCR 8.111 enhances personal judicial accountability and assures litigants that rulings are made by a judge who is familiar with the substance and circumstances of each case. Affirmed. Harold S. Sawyer for the plaintiffs-appellees. Warner, Norcross & Judd, L.L.P. (by Paul T. Sorensen and Brian J. Mastemalc), for the defendant-appellant. Per Curiam. The plaintiffs sued the defendant employer, alleging sexual harassment in the workplace. However, the circuit court dismissed the cases because the plaintiffs failed to appear personally at a settlement conference. The Court of Appeals reversed the dismissals, and remanded the cases for further proceedings. For the reasons stated below, we affirm the judgment of the Court of Appeals. i Plaintiff Ronda Schell was an employee of defendant Baker Furniture Company. She explains that she worked primarily “in its so-called ‘rubbing’ department where final finishing of furniture is done.” Plaintiff Sandra Collins also worked at Baker Furniture; she states that she was “employed in various production work capacities.” In March 1994, Ms. Schell sued Baker Furniture, alleging that she had been harassed by a fellow employee who was “constantly, without either invitation or provocation, addressing the plaintiff by profane and abusive names and descriptions in the feminine gender to an extent that repeatedly reduced the plaintiff to tears and extreme emotional disturbance.” She further alleged that her requests for help from the employer resulted in her being wrongfully discharged. Her complaint sought monetary damages, presumably reflecting lost wages and other harm. Two weeks after Ms. Schell filed her complaint, Ms. Collins sued Baker Furniture. Ms. Collins alleged that she “was constantly addressed by obscene names and adjectives to the point of being reduced to tears and near hysteria.” She too sought monetary damages. The plaintiffs were represented by the same attorney, but the suits were assigned to different judges of the Kent Circuit Court. Each case proceeded through discovery and pretrial motion practice: The plaintiffs were deposed; motions for summary disposition were argued and decided; scheduling conferences were held. In Collins, the circuit court conducted a settlement conference in June 1995. Agreement was not reached, however, so the court set an April 1996 trial date. Such a settlement conference took place in July 1995 in Schell, with the court scheduling a June 1996 trial. In January 1996, the chief judge of the Kent Circuit Court sent out notices regarding a “settlement week conference.” The parties were told in Schell that a ninety-minute conference would occur on the afternoon of Monday, March 11, 1996. A similar conference would take place in Collins on the morning of Tuesday, March 12, 1996. Each notice stated these conditions: 1. Counsel and/or the parties shall be prepared to negotiate in good faith effort to reach a fair and reasonable settlement. 2. Clients and persons with authority to settle shall be present at the settlement conference. 3. The parties shall submit a joint settlement conference statement (see attached form), setting forth both the undisputed and disputed facts and issues of the case. The joint settlement conference statements shall be filed with the Court Administrator’s office by February 26, 1996. In addition, the parties shall submit a copy of the mediation summary and evaluation under MCR 2.403 at the same time and place as the joint settlement conference statement, if mediation has been held. 4. Failure to prepare for, attend, or meaningfully participate in this settlement conference may result in the imposition of sanctions. 5. The parties and counsel shall advise the Assignment Clerk’s office of any attorneys of record whose names do not appear on this order. 6. Settlement conferences shall not be adjourned except for good cause and only by the Chief Judge. 7. Trial date presently scheduled remains on. The attorney representing the plaintiffs arranged with the attorney for Baker Furniture to conduct both conferences on Monday, March 11, 1996. On that date, Baker Furniture’s attorney was present, along with two representatives of the client, one of whom had traveled from Wisconsin. However, plaintiffs’ counsel was alone—neither plaintiff appeared personally at the hearing. Because the plaintiffs failed to appear, the chief judge dismissed the two cases. The orders cited MCR 2.401(G), set forth below: (G) Failure to Attend; Default; Dismissal. (1) Failure of a party or the party’s attorney to attend a scheduled conference, as directed by the court, constitutes a default to which MCR 2.603 is applicable or grounds for dismissal under MCR 2.504(B).[] (2) The court shall excuse the failure of a party or the party’s attorney to attend a conference, and enter an order other than one of default or dismissal, if the court finds that (a) entry of an order of default or dismissal would cause manifest injustice; or (b) the failure to attend was not due to the culpable negligence of the party or the attorney. The court may condition the order on the payment by the offending party or attorney of reasonable expenses as provided in MCR 2.313(B)(2). Each plaintiff filed a motion to set aside the dismissal and reinstate the case. At the joint hearing, plaintiffs’ counsel attempted to explain why they had been absent. The account was not entirely consistent, and was contradicted in some respects by the attorney for Baker Furniture. However, the basic situation was captured in the chief judge’s written opinion: Plaintiffs’ counsel acknowledges that both of his clients knew that a conference was scheduled, when and where it was, and its purpose. While the conference in Ms. Collins’s case had been advanced one day by agreement of the attorneys, it is conceded that Ms. Collins knew of the new date and time. Neither plaintiff appeared because their counsel took it upon himself to countermand the Court’s notices. Because of other proceedings in these cases, namely: motions, which he thought might affect the settlement conferences, plaintiffs were told by their counsel not to appear unless they heard otherwise from him. Unfortunately for them, by the time counsel concluded that the other proceedings would not forestall the settlement conferences, he was unable to reach his clients. The chief judge denied the motion, saying that it would be “unprincipled” to set aside the dismissals. He explained that litigants are bound by actions of their attorneys—“otherwise, evasion of rulings and rules would be rampant.” The chief judge found culpable negligence on the part of counsel, MCR 2.401(G)(2)(b), and said that there was no injustice in light of the low mediation evaluation. Finally, the chief judge wrote of the value of the “settlement week” process, and the importance of maintaining its integrity: This year’s Settlement Week was equally successful [as a 1994 settlement week], resulting 55% of the cases summoned [sic], including several which would have taken 6-8 weeks to try and which settled for very large sums of money. Not dealing sternly with plaintiffs’ failures to appear would undermine the effectiveness of an extremely useful tool for preserving access to the courts. It is not merely a matter of expediting settlements or docket control. Good docket management and settlements open up time for those cases which need it. Both plaintiffs appealed. The Court of Appeals consolidated the cases and reversed the dismissals. 232 Mich App 470; 591 NW2d 349 (1998). In its opinion, the Court of Appeals noted that MCR 2.401(F) and 2.401(G) give the court discretion to dismiss a case when a plaintiff fails to appear for a settlement conference, but the Court concluded: Dismissal is the harshest sanction that the court may impose on a plaintiff. Even though the court rules permit the imposition of this sanction in appropriate circumstances, we do not believe that it is either mandated or warranted in the cases at bar. [232 Mich App 475 (emphasis in original).] The Court of Appeals offered several bases for its decision. First, no court rule specifically authorizes settlement weeks. 232 Mich App 475-476. Second, these cases were advancing normally, had been the subject of prior settlement conferences, and had not been plagued by the plaintiffs avoiding conferences or ignoring orders of the court. 232 Mich App 476. Third, the analogous dismissal sanction for discovery violations, MCR 2.313(B)(2)(c), is to be applied “only in extreme cases.” 232 Mich App 477. Fourth, MCR 2.401(G) provides that failure to appear is “grounds for dismissal under MCR 2.504(B),” and the latter rule is phrased in terms of a party’s motion to dismiss, not a judge ordering dismissal sua sponte. 232 Mich App 478-479. The Court of Appeals made two additional points. It said that the mediation results should have remained confidential under MCR 2.403(N)(4) and should not have played a role in the decisions whether to dismiss or whether to reinstate. 232 Mich App 479-480. The Court of Appeals also questioned the authority of the chief judge to enter the dismissal orders in cases that were properly assigned to other judges. 232 Mich App 480-481. The defendant has applied to this Court for leave to appeal. n The Court of Appeals indicated that there is no court rule authorizing “settlement week conferences.” It is true that no rule uses that phrase, but such a conference is certainly authorized by rule. MCR 2.401(A) provides: Time; Discretion of Court. At any time after the commencement of the action, on its own initiative or the request of a party, the court may direct that the attorneys for the parties appear for a conference. The court shall give reasonable notice of the scheduling of a conference. More than one conference may be held in an action. Moreover, “the possibility of settlement” and “other matters that may aid in the disposition of the action” are expressly listed as suitable subjects for discussion at a pretrial conference. MCR 2.401(C)(1)(g), (Í). MCR 2.401(A) speaks of a conference to be attended by “the attorneys for the parties.” Further, MCR 2.401(F) allows the court to direct that the parties also attend. Thus, the circuit court had the authority to call the settlement conference and to require that the parties attend. m While the court (i.e., the assigned judge) had the authority to direct the settlement conference, this case presents the question whether the chief judge had authority to issue such a directive for cases pending before other judges of the court. The authority of a chief judge is set forth in MCR 8.110, which this Court adopted in 1985 and refined in a series of amendments. Subrule (C) concerns the duties and powers of a chief judge. In pertinent part, it provides: (1) A chief judge shall act in conformity with the Michigan Court Rules, administrative orders of the Supreme Court, and local court rules, and should freely solicit the advice and suggestions of the other judges of his or her bench and geographic jurisdiction. . . . (2) As the presiding officer of the court, a chief judge shall: (a) call and preside over meetings of the court; (b) appoint committees of the court; (c) initiate policies concerning the court’s internal operations and its position on external matters affecting the court; (d) meet regularly with all chief judges whose courts are wholly or partially within the same county; (e) represent the court in its relations with the Supreme Court, other courts, other agencies of government, the bar, the general public, and the news media, and in ceremonial functions; and (f) counsel and assist other judges in the performance of their responsibilities. (3) As director of the administration of the court, a chief judge shall have administrative superintending power and control over the judges of the court and all court personnel with authority and responsibility to: (a) supervise caseload management and monitor disposition of the judicial work of the court; (b) direct the apportionment and assignment of the business of the court, subject to the provisions of MCR 8.111;[] (c) determine the hours of the court and the judges; coordinate and determine the number of judges and court personnel required to be present at any one time to perform necessary judicial administrative work of the court, and require their presence to perform that work; (d) supervise the performance of all court personnel, with authority to hire, discipline, or discharge such personnel, with the exception of a judge’s secretary and law clerk, if any; (e) coordinate judicial and personnel vacations and absences, subject to the provisions of subrule (D);[] (f) supervise court finances, including financial planning, the preparation and presentation of budgets, and financial reporting; (g) request assignments of visiting judges and direct the assignment of matters to the visiting judges; (h) effect compliance by the court with all applicable court rules and provisions of the law; and (i) perform any act or duty or enter any order necessarily incidental to carrying out the purposes of this rule. The provisions of MCR 8.110(C) are set forth at length because they represent an instance in which the whole exceeds the sum of the parts. A chief judge has the specific authority and responsibility to act in accordance with each separate provision of the rule. In promulgating the rule, however, we also intended that a chief judge have the authority to employ creative and energetic means to improve the delivery of justice to the citizens who come before the court. The opinion of the Court of Appeals reflects the assumption that a chief judge is unable to take measures not specifically authorized by the court rule. 232 Mich App 475-476. We instead have invested chief judges with the authority to take measures not prohibited by the letter or spirit of the court rules. For these reasons, the chief judge of the Kent Circuit Court had authority to announce a “settlement week,” during which an intense effort would be made to resolve as many of the circuit’s pending cases as possible. The chief judge likewise had authority to summon attorneys and litigants to conferences to be held for that purpose, and to require personal attendance by individual litigants and by persons with authority to settle cases on behalf of corporate litigants. MCR 8.110(C)(3)(a)-(b), (i). IV The next question is whether the chief judge had the authority to enter dispositive orders in these cases, which had been assigned to other judges of the circuit. Again we turn to the court rules, in this instance MCR 8.111. The relevant portions are these: (B) Assignment. All cases must be assigned by lot, unless a different system has been adopted by local court administrative order under the provisions of subrule 8.112.[] Assignment will occur at the time the case is filed or before a contested hearing or uncontested dispositional hearing in the case, as the chief judge directs. Civil actions must be assigned within appropriate categories determined by the chief judge. The chief judge may receive fewer assignments in order to perform the duties of chief judge. (C) Reassignment. If a judge is disqualified or for other good cause cannot undertake an assigned case, the chief judge may reassign it to another judge by a written order stating the reason. To the extent feasible, the alternate judge should be selected by lot. The chief judge shall file the order with the trial court clerk and have the clerk notify the attorneys of record. The chief judge may also designate a judge to act temporarily until a case is