Harassment Cases

NORRIS v STATE FARM FIRE & CASUALTY COMPANY Docket No. 195422. Submitted October 8, 1997, at Detroit. Decided April 10, 1998, at 9:15 A.M. Gail Norris, who suffers from rheumatoid arthritis, brought an action in the Wayne Circuit Court against State Farm Fire and Casualty Company and other State Farm companies, and Martha J. Piney, alleging claims arising out of her discharge from employment with Piney’s insurance agency. The court, Kirsten Frank Kelly, J., granted summary disposition in favor of the defendants. The plaintiff appealed with regard to the dismissal of her claims alleging unlawful discrimination in violation of the Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.\ MSA 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision. The Court of Appeals held: 1. The plaintiff established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Because the plaintiff testified regarding an alleged admission by Piney of employment discrimination based on the plaintiff’s handicap, the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792 (1973), was not applicable. The court erred in granting summary disposition on the basis that the plaintiff failed to satisfy her burdens of production under McDonnell Douglas. Therefore, the traditional burdens of proof were applicable. However, the plaintiff always bears the burden of proving that she was qualified for the position from which she was discharged. The plaintiff sustained her burden for purposes of the motion for summary disposition. A genuine issue of material fact exists regarding whether the plaintiff was qualified for the position at the time of her discharge. 2. The court did not err in granting summary disposition for State Farm with regard to the claims of unlawful discrimination and negligent supervision. 3. Except in a case involving worker’s compensation benefits, the correct standard to address respondeat superior liability is the control test, not the economic-reality test The plaintiff did not show that State Farm had the right to control the employment decisions of Piney. Because defendants State Farm were not the employer of Piney, they owed no duty to the plaintiff regarding the claim of negligent supervision of Piney. Summary disposition was properly granted in this regard. 4. The alleged conduct of the defendants was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress. The court properly granted the defendants’ motion for summary disposition regarding the claims of intentional infliction of emotional distress. Affirmed with regard to defendants State Farm, affirmed in part and reversed in part with regard to defendant Piney. Hoekstra, J., dissenting, stated that the court did not err in granting the defendants’ summary disposition with regard to the claim alleging violation of the hcra because the plaintiff did not establish that there was a genuine issue of material fact regarding whether she was qualified for the position from which she was terminated. To be qualified, the plaintiff must have been performing the job at a level that met her employer’s legitimate expectations. The defendants presented well-documented evidence that the plaintiff was not working at a level that met Piney’s expectations, the evidence that the plaintiff offered regarding her qualifications was irrelevant, the plaintiff did not present relevant evidence to show that she was doing her job well enough to rule out the possibility that she was discharged for inadequate job performance, and the plaintiff failed to prove a prima facie case of handicapper discrimination. The order of the court should be affumed. 1. Civil Rights — Employment Discrimination — Direct Evidence — Borden of Proof. Traditional burdens of proof apply and the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792 (1973), is not applicable where a plaintiff alleging unlawful employment discrimination based on the plaintiff’s handicap presents direct evidence of unlawful discrimination by the employer; nonetheless, the plaintiff always bears the burden of proving that the plaintiff is otherwise qualified for the position in question. 2. Master and Servant — Respondeat Superior — Control Test. ... The correct standard to assess respondeat superior liability in all cases except those concerning worker’s compensation benefits is the control test, not the economic-reality test. Powell & Gerisch (by Jonathan P. Gerisch), for the plaintiff. Pepper, Hamilton & Scheetz (by Robert C. Ludolph and Judith E. Coliman), for State Farm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company. Sullivan, Ward, Bone, Tyler & Asher, PC. (by A. Stuart Tompkins and Sheri B. Cataldo), for Martha J. Piney. Before: Corrigan, C.J., and Griffin and Hoekstra, JJ. Griffin, J. Plaintiff appeals as of right an order granting summary disposition in favor of defendants regarding plaintiffs claims arising out of her discharge from employment. We reverse in part and affirm in part with regard to defendant Martha J. Piney and affirm with regard to defendants State Fitrm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company. i Plaintiff, who suffers from rheumatoid arthritis, began working for defendant Martha J. Piney (Piney) in November 1994 as a probationary employee. Martha J. Piney is the owner and operator of the Piney Insurance Agency, which sells exclusively insurance policies written by defendants State Farm. On February 24, 1995, following a satisfactory three-month job performance review, defendant Piney offered and plaintiff accepted a position of regular employment as a claims specialist. However, less than three weeks later, on March 10, defendant Piney terminated plaintiffs employment for alleged poor job performance. Defendant Piney claims that the employment deficiencies noted in plaintiffs thirty- and sixty-day reviews had escalated to the extent that plaintiffs overall job performance was unsatisfactory. However, in her deposition, plaintiff alleges that at the conclusion of her March 10 meeting with defendant Piney, Piney admitted to plaintiff that the true reason for her discharge was “[i]t’s because you’re handicap [sic].” Following her discharge, plaintiff filed suit against defendant Piney and defendants State Farm, alleging a variety of claims. The lower court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). Plaintiff appeals as of right the dismissal of her claims of alleged unlawful discrimination in violation of the Michigan Handicappers’ Civil Rights Act (HORA), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision. n A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. In Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996), the Supreme Court set forth the following standards for deciding such a notion: In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10), (G)(4). In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993). In the present case, plaintiff has established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Plaintiff testified regarding an alleged admission by defendant Piney of employment discrimination based on her handicap. Because direct evidence of unlawful discrimination was presented, the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is not applicable. Harrison v Olde Financial Corp, 225 Mich App 601; 572 NW2d 679 (1997). Accordingly, the lower court erred in granting summary disposition on the basis that plaintiff failed to satisfy her burdens of production under McDonnell Douglas. As the Sixth Circuit Court of Appeals stated in Monette v Electronic Data Systems Corp, 90 F3d 1173, 1184 (CA 6, 1996): [W]hen the plaintiff has direct evidence of discrimination based on his or her disability, there is no need for a McDonnell Douglas type burden shift and traditional burdens of proof will apply. . . . Nonetheless, the disabled individual always bears the burden of proving that he or she is “otherwise qualified” for the position in question, absent the challenged job function or with the proposed accommodation. Because plaintiff presented direct evidence of unlawful discrimination, the pivotal issue is whether plaintiff submitted sufficient evidence to establish a genuine issue of material fact that she was qualified for the position from which she was discharged. Contrary to the position taken by the dissent, we conclude that plaintiff has sustained her burden for purposes of summary disposition. We are mindful that it is not the role of the court to evaluate the strength of the evidence in ruling regarding a motion for summary disposition. Rather, when deciding a motion for summary disposition that alleges no genuine issue of material fact, [a] trial court tests the factual support of a plaintiff’s claim when it rules upon a motion for summary disposition filed under MCR 2.116(C)(10). Lichon v American Universal Ins Co, 435 Mich 408, 414; 459 NW2d 288 (1990). The court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted or filed in the action. The court is not permitted to assess credibility, or to determine facts on a motion for summary judgment. Zamler v Smith, 375 Mich 675, 678-679; 135 NW2d 349 (1965). Instead, the court’s task is to review the record evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial. [Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). ] Viewing the evidence in a light most favorable to the nonmoving party, we conclude that plaintiff presented sufficient evidence for a reasonable person to conclude that she was qualified for the job from which she was discharged. In particular, in a ninety-day performance review held less than three weeks before plaintiffs discharge,, defendant Piney evaluated plaintiffs job performance as satisfactory. In light of plaintiff’s satisfactory job performance, defendant Piney thereafter offered plaintiff a regular full-time position. Piney’s February 24, 1995, offer of permanent employment to plaintiff states as follows: Gail Norris Start Date: 11/7/94 2/24/94 [sic] Three month review. I have worked with Gail for three months and two weeks now. In three months she has proven to be a quick learner, very task oriented, and very dependable. At this time I am making an offer from temporary employment to holding the position of claims specialist for my agency with the hopes that Gail will continue to develop and grow as an expert in her position and continue to strive and reach the goals that are set for this agency. Continued salary with benefit package as attached and presented at time of original start date. 2/24/95 /s/ Gail Norris 2/24/95 Is/ Martha J. Piney, agent In addition to defendant Piney’s admissions regarding plaintiffs job qualifications, plaintiff also presented the deposition testimony of coemployees who noted no change in plaintiffs job performance in the period from February 24, 1995, until her discharge. Finally, although Piney claims that plaintiff was discharged because of poor customer-service skills, plaintiff submitted evidence that there were no complaints from customers regarding her job performance. After recognizing that fact finding and assessment of credibility are inappropriate when ruling regarding a motion for summary disposition, Dzierbowicz v American Seating Co, 450 Mich 969; 544 NW2d 473 (1996); Crittenden v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), we conclude that a genuine issue of material fact exists regarding whether plaintiff was qualified for the position at the time of her discharge. m Next, plaintiff claims that the lower court committed error requiring reversal in granting summary disposition in favor of defendants State Farm with regard to plaintiffs claims of unlawful discrimination and negligent supervision. We disagree. Regarding these issues, both sides claim that the appropriate test for respondeat superior liability is the economic-reality test as set forth in McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988). Although McCarthy appears to be applicable, we hold that McCarthy was wrongly decided and therefore should not be followed. McCarthy relied on worker’s compensation cases in holding that respondeat superior liability should be decided on the basis of “the economic reality test.” However, after McCarthy, it is now well established that except for worker’s compensation benefits, the correct standard to assess respondeat superior liability is the control test, not the economic-reality test. Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232; 448 NW2d 790 (1989). Cf. Meridian Mut Ins Co v Wypij, 226 Mich App 276; 573 NW2d 320 (1997). Here, plaintiff presented evidence of the economic dependency of defendant Piney on defendants State Farm. However, plaintiff presented no evidence that defendants State Farm had any right to control the employment decisions of Piney. Absent any right of control, there is no liability of defendants State Farm for the action of defendant Piney under the doctrine of respondeat superior. Hoffman, supra; Kral, supra. Similarly, because defendants State Farm were not the employer of defendant Piney, defendants State Farm owed no duty to plaintiff regarding the claim of alleged negligent supervision of defendant Piney. See, generally, Janice v Hondzinski, 176 Mich App 49; 439 NW2d 276 (1989). For these reasons, the lower court was correct in granting summary disposition in favor of defendants State Farm. Although the lower court’s decision was based on a different rationale, we will not reverse when the lower court reaches the correct result albeit for the wrong reason. Porter v Royal Oak, 214 Mich App 478, 488; 542 NW2d 905 (1995); State Mut Ins Co v Russell, 185 Mich App 521, 228; 462 NW2d 785 (1990). IV Finally, we conclude that the lower court correctly granted defendants’ motion for summary disposition regarding plaintiff’s claims of intentional infliction of emotional distress. Assuming the facts as alleged by plaintiff to be true, defendants’ conduct was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress. Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824 (1995). For these reasons, we reverse in part and affirm in part with regard to defendant Piney and affirm with regard to defendants State Farm. Defendants State Farm may recover taxable costs. No costs in favor of plaintiff or defendant Piney, neither party having prevailed in full. Corrigan, C.J., concurred. As we noted in Durant [v Stahlin, 375 Mich 628, 646-647; 135 NW2d 392 (1965)], “there is a great difference between an inquiry to determine whether or not there is an issue of fact and a trial to decide a disputed issue of fact.” McCarthy predates MCR 7.215(H) and its predecessors, Administrative Orders 1990-6, 1994-4, and 1996-4. Accordingly, McCarthy is not preeedentially binding on this Court. Meridian addresses an employee exclusion in an insurance policy that does not define the term “employee.” The Meridian panel’s holding regarding the undefined insurance policy term is not applicable to the present case. To the extent that dicta in Meridian conflicts with our decision, we chose not to follow it and note that the Meridian panel was obligated to follow our prior decision, Hoffman v JDM Associates, Inc, supra,. Hoekstra, J. (dissenting). I respectfully dissent. I disagree with the majority’s conclusion in section n, which is that the lower court erred in granting defendants summary disposition of plaintiff’s claim brought under the Michigan Handicappers’ Civil Rights Act (HORA), MCL 37.1101 et seq.; MSA 3.550(101) et seq. I would affirm the order of the lower court granting defendants’ motions for summary disposition pursuant to MCR 2.116(C)(10) because plaintiff has not established a genuine issue of material fact about whether she was qualified for the position from which she was terminated. The majority correctly states that the lower court’s analysis was improper in this case because plaintiff presented direct evidence of discriminatory intent, namely, defendant Martha J. Piney’s alleged statement that she terminated plaintiff’s employment because of plaintiff’s handicap. When a plaintiff is able to produce direct evidence of discriminatory intent, there is no need to utilize the burden of proof analysis established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986); Harrison v Olde Financial Corp, 225 Mich App 601, 609; 572 NW2d 679 (1997). In Harrison, a race discrimination case, this Court explained how a court should instead analyze whether summary disposition pursuant to MCR 2.116(C)(10) is appropriate in cases in which a plaintiff presents direct evidence of discriminatory animus. There, this Court held the following: [W]e hold that the following principles of proof apply in a typical single-plaintiff, mixed-motive employment discrimination case. First, as with circumstantial discrimination cases, in a case involving direct evidence of discrimination, the plaintiff always bears the burden of persuading the trier of fact that the employer acted with illegal discriminatory animus. Second, whatever the nature of the challenged employment action, the plaintiff must establish evidence of the plaintiff’s qualification (or other eligibility) and direct proof that the discriminatory animus was causally related to the decisionmaker’s action. Upon such a presentation of proofs, an employer may not avoid trial by merely “articulating” a nondiscriminatory reason for its action. Under such circumstances, the case ordinarily must be submitted to

Doris Blanchette vs. School Committee of Westwood. Norfolk. December 9, 1997. - April 6, 1998. Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall, & Ireland, JJ. School and School Committee, Arbitration, Collective bargaining, Termination of employment. Arbitration, Collective bargaining, School committee, Waiver. Labor, Arbitration, Collective bargaining. Anti-Discrimination Law, Arbitration, Employment. Employment, Retaliation, Sexual harassment, Termination. Waiver. Judicial Estoppel. An employee of a school committee who filed an action alleging violation of G. L. c. 151B, § 4 (4), was not precluded from raising the issue whether the school committee unlawfully retaliated against her for filing a charge of sexual harassment with State and Federal agencies by reason of her having proceeded to arbitration on the same facts pursuant to a collective bargaining agreement that by statute and its own terms was limited to disputes concerning its own interpretation and application [179-183]; nor was the doctrine of waiver applicable to thé circumstances [183-184], The doctrine of judicial estoppel was not applicable in circumstances in which a civil plaintiff was not asserting an inconsistent position from that put forward in an arbitration proceeding under a collective bargaining agreement involving the same factual situation. [184-185] Civil action commenced in the Superior Court Department on January 10, 1996. The case was heard by Barbara A. Dortch-Okara, J., on a motion to dismiss. Leave to prosecute an interlocutory appeal was allowed in the Appeals Court by Christopher J. Armstrong, J. The Supreme Judicial Court granted an application for direct appellate review. Kay H. Hodge (Geoffrey R. Bok with her) for the defendant. Albert W. Wallis (Betty A. Gittes & Daniel S. O’Connor with him) for the plaintiff. Harold L. Lichten & Warren H. Pyle for the Massachusetts National Employment Lawyers Association & another, amici curiae, submitted a brief. Judith M. Neumann for the Massachusetts Teachers Association, amicus curiae, submitted a brief. Ireland, J. The plaintiff, Doris Blanchette, a former employee of the defendant, school committee of Westwood (committee), commenced this action in the Superior Court, alleging that the committee, in violation of G. L. c. 15IB, § 4 (4), retaliated against her by evaluating her unfairly and by failing to renew her employment because she had filed a charge of sexual harassment with the Equal Employment Opportunity Commission (EEOC) and the Massachusetts Commission Against Discrimination (MCAD). The committee moved to dismiss or for summary judgment, contending that the claims raised in this action had been fully and fairly adjudicated in an arbitration proceeding pursuant to the terms of a collective bargaining agreement (agreement) between the Westwood Teachers Association (association) and the committee. The judge denied the motion. A single justice of the Appeals Court granted the committee’s petition for leave to prosecute an interlocutory appeal, and we granted the committee’s application for direct appellate review. We now affirm. 1. Facts. Blanchette began working as a library media specialist at the Thurston Middle School (Thurston) in Westwood in September, 1990. At all relevant times, Blanchette was a member of the association, and the association had an agreement with the committee. On June 8, 1992, Blanchette complained to the superintendent of schools that she had been sexually harassed by Thurston’s principal. The superintendent investigated Blanchette’s allegations and similar allegations that other members of the association subsequently made. As a result of the investigation, the principal resigned on July 3, 1992. On August 7, 1992, Blanchette filed a charge of sexual harassment against the committee with the EEOC and the MCAD. Following an investigation, the EEOC and the MCAD dismissed Blanchette’s charge in May, 1994. In the fall of 1992, Thurston’s new principal began formal evaluations of Blanchette’s performance, pursuant to the agreement’s procedures for awarding tenure. On January 13, 1993, the principal wrote a letter to Blanchette discussing her job performance in mostly negative terms. In March, 1993, the principal completed the formal evaluation procedures and recommended to the committee that Blanchette not receive tenure. Based on this recommendation, the committee did not grant Blanchette tenure and did not renew her employment at the conclusion of the 1992-1993 school year. 2. The grievances. The association filed two grievances on behalf of Blanchette. The first grievance was filed on February 11, 1993, and concerned the principal’s letter of January 13. The association claimed that the letter violated the agreement’s evaluation procedures and was in retaliation against Blanchette because she had filed the sexual harassment charge with the EEOC and the MCAD. After the grievance was denied at each procedural level contained in the agreement, the association invoked its right under the agreement to demand binding arbitration. The second grievance was filed on May 17, 1993, and concerned the committee’s failure to renew Blanchette’s contract. The association again claimed that the decision was in retaliation against Blanchette because she had filed the sexual harassment charge. This grievance was also denied, and the association again invoked its right under the agreement to demand binding arbitration. By mutual consent, the two grievances were consolidated into a single arbitration. 3. The arbitration. The arbitration hearing began on March 10, 1994. At the outset, the committee contended that the arbitrator did not have authority to hear the association’s retaliation claims because the agreement contained no language that prohibited such retaliation. The association argued in response that the agreement incorporated by reference State and Federal antidiscrimination laws, including G. L. c. 15IB, § 4 (4), and Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994) (Title VII), which prohibit retaliation against an employee for filing a harassment charge. In an interim ruling issued on May 17, 1994, the arbitrator concluded that the retaliation claim was arbitrable. Relying on explicit references in the agreement to external law, the arbitrator determined that “the parties intended that claims of discrimination be examined in light of such external law, as well as the language of the Agreement.” On February 29, 1996, the arbitrator issued an opinion and award in which she determined that the committee had violated the agreement in its evaluation and treatment of Blanchette. On March 25, 1996, the arbitrator issued a final award, consisting of the expungement of various offending documents from Blanchette’s personnel file, reinstatement of Blanchette to her former position (in order to redo her third year and be properly and fairly evaluated for tenure), and back pay. The arbitrator offered Blanchette the option, in lieu of reinstatement, of receiving back pay as a lump-sum payment with interest.* 4. The Superior Court action. On January 10, 1996, Blanchette filed this action in the Superior Court, while the arbitration was still pending. Based on the same facts at issue in the arbitration, Blanchette claimed that the committee had violated her civil rights under G. L. c. 151B, § 4 (4), by retaliating against her for filing a charge of sexual harassment with the EEOC and the MCAD (statutory civil rights claim). The committee moved to dismiss or for summary judgment. Relying on Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), and Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234 (1995), the judge denied the motion. 5. Discussion. The committee argues that the doctrines of preclusion, waiver, and judicial estoppel prevent Blanchette from pursuing her statutory civil rights claim in a judicial forum. We address the arguments under each doctrine separately. a. Preclusion. By statute, parties to a collective bargaining agreement may include grievance procedures “culminating in final and binding arbitration” in their agreement. G. L. c. 150E, § 8. However, the grievance procedures can apply only to disputes “concerning the interpretation or application” of any such agreement. Id. Consistent with this statutory treatment, art. XVII of the agreement here states that the grievance procedures “shall be applicable only to questions of interpretation of the terms of this Agreement.” We have held that the prior submission of a claim to arbitration may have a preclusive effect on the same claim in a subsequent court action. See Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 (1992). The inquiry turns, in large part, on whether the “right” or “issue” on which preclusion is sought has been “the product of full litigation and careful decision.” Id., quoting Home Owners Fed. Sav. & Loan Ass’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968). In Alexander v. Gardner-Denver Co., 415 U.S. 36, 43 (1974), the United States Supreme Court held that an employee who had exhausted his remedies under the grievance procedures of a collective bargaining agreement was not precluded from pursuing a judicial action under Title VII, because the “rights” that concern the interpretation and application of a collective bargaining agreement are distinguishable from the statutory “rights” to be free from discrimination in the workplace under Title VII. Id. at 49-50. In particular, the Court stated that: “In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VH, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.” Id. The Court further noted that “in instituting an action under Title VII, the employee is not seeking review of the arbitrator’s decision. Rather, he is asserting a statutory right independent of the arbitration process.” Id. at 54. We reached a similar result interpreting our State antidiscrimination statute in School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 377 Mass. 392, 399 (1979), where we relied on Alexander to distinguish rights that are part of a collective bargaining process from individual rights conferred by G. L. c. 151B, § 4, including the right to equal employment opportunities. The Appeals Court discussed this distinction in more detail in Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234, 238 (1995), and concluded that the “dominant idea underlying the [Alexander] line of cases is that when Congress accords a person an independent statutory right (or in the State context, when the Legislature accords such a right), that public right ... is independent and paramount to the privately arrived at collective bargaining agreement.” The Appeals Court then held that submitting a claim of racial discrimination to arbitration under a collective bargaining agreement did not give preclusive effect to the arbitrator’s decision in a subsequent discrimination action brought before a court or specialized agency under G. L. c. 151B, § 4. Id. Applying these analyses to the instant case, the arbitrator determined that the committee “violated the Collective Bargaining Agreement with respect to its evaluation and treatment” of Blanchette. However, the arbitrator also expressly recognized that her opinion and award of February 29, 1996, pertained only to “contractual violations.” She indicated that there may have been additional “statutory violations” with respect to any “statute(s) prohibiting retaliation or reprisal” against Blanchette, but this was a “legal question” and she did not address it. Consistent with both G. L. c. 150E, § 8, and art. XVH of the agreement, the arbitrator thus did not hear Blanchette’s statutory civil rights claim, because that claim did not involve a question of interpreting the agreement. As a result, the rights on which the committee is seeking preclusion have not been the product of full litigation and carefhl decision. See Miles, supra. We thus conclude that the preclusion doctrines do not apply to Blanchette here. Blanchette is not getting a second bite of the same apple, as the committee contends. Instead, she is seeking single bites from two separate apples as she looks to enforce two different sets of rights in the respective forums that are available to her. Nothing in the preclusion doctrine prevents this. The committee attempts to distinguish this case from Alexander on the basis that the collective bargaining agreement in that case contained a general nondiscrimination clause only, while the agreement here explicitly incorporated Federal and State law. However, the committee gives us no reason why such a distinction should be of any importance. Similarly, the committee attempts to distinguish this case because Blanchette prevailed in the arbitration. We find nothing in the language of Alexander and its progeny or in our own cases that makes such a distinction, nor has the committee pointed us to any such language. The committee also urges us to abandon the principles of Alexander in favor of Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991), in which the Supreme Court held that an employee’s statutory claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (ADEA), could be submitted to arbitration and that such submission precluded a subsequent judicial review of the claims. We do not necessarily follow the interpretation of Federal antidiscrimination statutes in construing G. L. c. 151B, § 4. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-441 (1995), citing College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987). Were we persuaded that we should do so here, we note first that Gilmer appears to strike out in a different direction from Alexander. However, the Supreme Court has gone to great lengths to distinguish the two cases and to emphasize their over-all consistency, both in Gilmer, supra at 35, and in Livadas v. Bradshaw, 512 U.S. 107, 127 n.21 (1994). The distinctions that are of particular relevance here are that Gilmer involved an employee who was not covered by a collective bargaining agreement and who had signed an agreement requiring that all disputes be resolved by arbitration. Here, Blanchette was a member of a union covered by a collective bargaining agreement and the agreement, both by statute and by its own terms, was limited to disputes concerning its own interpretation and application. Accordingly, this case more closely follows Alexander than Gilmer. 8Even if we were persuaded to follow the interpretation of Federal antidiscrimination statutes in construing G. L. c. 15IB, § 4, we would agree with the United States Court of Appeals for the Eleventh Circuit that, although Gilmer may have cut back Alexander, the latter case remains the applicable standard for cases of this type. See Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519, 525 (11th Cir. 1997). b. Waiver. We note first that Blanchette did not waive her right to pursue her statutory civil rights claim in a judicial forum merely by being a member of a union that was covered by a collective bargaining agreement. Although a union has the power to waive statutory rights related to collective activity, rights of the kind protected by G. L. c. 151B, § 4, which are of a personal, and not merely economic, nature are beyond the union’s ability to bargain away. See School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 377 Mass. 392, 399 (1979), citing Alexander, supra at 51. The larger question here is whether Blanchette, by her own individual actions, waived her right to pursue her statutory civil rights claim in a judicial forum. The committee argues that Blanchette’s voluntary choice to request the association to proceed to arbitration constituted such a waiver, because Blanchette could have proceeded with her statutory civil rights claim in a judicial forum in the first place. However, the committee’s argument here is based solely on its contention that Blanchette’s statutory civil rights claim was, in fact, brought to arbitration. This contention is incorrect. See supra at 180-183. Accordingly, the committee’s argument is without merit. Blanchette may have been able explicitly and voluntarily to waive her right to pursue her statutory civil rights claim in a judicial forum. See Gilmer, supra at 26, quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). See also Alexander, supra at 52; Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347, 351-353 (1997). However, there is no evidence that Blanchette made such an explicit and voluntary waiver, nor does the committee contend that she ever did so. We thus conclude that the waiver doctrine does not apply to Blanchette here. c. Judicial estoppel. Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding. Fay v. Federal Nat’l Mtge. Ass’n, 419 Mass. 782, 787 (1995). We have never precisely defined the specific requirements for judicial estoppel and need not do so here. It is sufficient to note that in deciding whether a party should be judicially estopped, “we will look to see whether that party is seeking to use the judicial process in an inconsistent way that courts should not tolerate.” East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621, 623 (1996). At the arbitration, the association argued that the arbitrator should award the “full range” of both contractual and statutory remedies. From this, the committee concludes that it is inconsistent for Blanchette to argue now that additional remedies could be available in a different legal proceeding. Logically,.the association’s argument that the arbitrator should award the full range of statutory damages can pertain only to those damages that were within her authority to award in the first place. It was within the arbitrator’s authority to award some damages as a result of the committee’s violations of the antidiscrimination statutes, because those statutes were incorporated into the agreement. But these “statutory” damages were necessarily limited by G. L. c. 150E, § 8, and art. XVII of the agreement to the impact such violations had on Blanchette’s rights under the agreement, because the arbitrator had no authority to hear any other matters. See supra at 180. The arbitrator could not and did not hear Blanchette’s statutory civil rights claim under G. L. c. 151B, § 4 (4), see supra at 180-184, and thus could not award damages with respect to this claim. Neither Blanchette nor the association have argued to the contrary. There is thus no inconsistency in Blanchette’s looking now to a different legal proceeding for damages that were not available to her in the arbitration. Because Blanchette is not asserting an inconsistent position, the doctrine of judicial estoppel does not apply here. Larson v. Larson, 30 Mass. App. Ct. 418, 427-428 (1991). Of course, any remedies that Blanchette may receive from judicial action with respect to her statutory civil rights claim cannot be duplicative of the remedies that she may already have recieved as a result of the arbitration. See Szalla v. Locke, 421 Mass. 448, 453 (1995), and cases cited. 6. Conclusion. For the reasons stated above, the doctrines of

REMBERT v RYAN’S FAMILY STEAKHOUSE, INC Docket No. 196542. Released December 2, 1997, at 9:00 am.; vacated December 16, 1997. Before: Corrigan, C.J., and Griffin and Hoekstra, JJ. GRIFFIN, J. Plaintiff appeals as of right an order of the circuit court granting summary disposition in favor of defendants on the basis that plaintiff’s claims are barred by an agreement to arbitrate. MCR 2.116(C)(7). Were we permitted, we would affirm for the reasons set forth in Judge (now Justice) Taylor’s opinion (concurring in part and dissenting in part) in Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 291 (1997). However, pursuant to MCR 7.215(H) we must follow and apply the holding of the majority opinion in Rushton, supra, which compels us to affirm in part and reverse in part. I Contemporaneously with his hiring by defendants, plaintiff executed a contract in which he agreed to arbitrate all employment-related disputes. Unlike in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), the arbitration agreement here is clearly a contract. Accordingly, the basis found by the Supreme Court in Heurtebise for not enforcing the arbitration provision is not applicable in the present case. However, in Rushton, supra at 170, this Court in a two to one decision adopted Justice Cavanagh’s concurring opinion in Heurtebise. The Rush-ton majority held “that Meyer [the employer] cannot require its employees, as a condition of employment, to waive prospectively their right to pursue direct and immediate review of civil rights claims in a judicial forum.” The Rushton panel based its decision on Michigan’s longstanding public policy of vigorously protecting the civil rights of its citizens. Judge Taylor dissented, arguing the fundamental policy of freedom of contract. Judge Taylor also noted that Michigan’s public policy, as reflected in our arbitration act, MCL 600.5001; MSA 27A.5001, and judicial decisions, favors arbitration and other forms of alternative dispute resolution (adr). The exclusion of all prospective civil rights claims from adr would thwart these important public policy objectives. Further, as Judge Taylor noted in Rushton, supra at 177-178: [T]he whole notion of prospective waivers of important rights is not, as the majority seems to believe, inherently repugnant to our constitutional order. Indeed, it is well established that rights of a higher standing than that of forum selection, i.e., constitutional rights themselves, may be prospectively waived. . . . Given that these highly valued constitutional rights may be prospectively waived without offending public policy, how can it be seriously suggested that, without a statute or provision of the constitution prohibiting it, and, in fact, our state arbitration act allowing it, the right to have a circuit court to resolve a civil rights dispute may not be prospectively waived in favor of having such a claim adjudicated in an arbitral forum? We agree with the reasoning of Judge Taylor and would follow and adopt his opinion.* We find no support for the Rushton majority’s conclusionaiy statement that all employment contracts to arbitrate prospective civil rights claims violate public policy. As noted by Judge Taylor, important rights, even of a constitutional magnitude, may be waived, modified, or limited by contract. Indeed, the Rushton holding contradicts recent federal court decisions, which have routinely ordered employees to arbitrate a wide variety of state and federal statutory claims under the provisions of predispute mandatory arbitration agreements governing employment discrimination claims. In Gilmer v Interstate/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991), the United States Supreme Court considered whether claims arising under the Age Discrimination in Employment Act (adea), 29 USC 621 et seq., could be the subject of an enforceable arbitration agreement. The Court concluded that there was no evidence of a congressional intent to preclude arbitration of adea claims and allowed enforcement of an agreement to arbitrate such claims. Gilmer, supra at 35. In so holding, the United States Supreme Court, id. at 30, reiterated the significance of arbitration as a viable means of dispute resolution: In arguing that arbitration is inconsistent with the adea, Gilmer also raises a host of challenges to the adequacy of arbitration procedures. Initially, we note that in our recent arbitration cases we have already rejected most of these arguments as insufficient to preclude arbitration of statutory claims. Such generalized attacks on arbitration “rest on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,” and as such, they are “far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez de Quijas [v Shearson/American Express, Inc, 490 US 477, 481; 109 S Ct 1917; 104 L Ed 2d 526 (1989)]. Post-Gilmer decisions uniformly have found its rationale to be equally applicable to the arbitration of claims arising under another federal civil rights statute, title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Cosgrove v Shearson Lehman Bros, 105 F3d 659 (CA 6, 1997); Willis v Dean Witter Reynolds, Inc, 948 F2d 305, 310 (CA 6, 1991); Cremin v Merrill Lynch Pierce Fenner & Smith, Inc, 957 F Supp 1460, 1471 (ND Ill, 1997) (and cases cited therein). These cases demonstrate that “[b]y agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 628; 105 S Ct 3346; 87 L Ed 2d 444 (1985). Were we permitted, we would follow this persuasive line of authority. We apply the holding of the majority opinion in Rushton, supra, only because we are required to do so pursuant to MCR 7.215(H). II Plaintiff’s complaint alleges claims of (1) racial discrimination, (2) handicap discrimination, (3) intentional infliction of emotional distress, and (4) constructive discharge. Plaintiff’s claims of intentional infliction of emotional distress and constructive discharge are clearly covered by the arbitration contract and, therefore, the circuit court’s order subjecting these claims to arbitration is affirmed. However, pursuant to Rushton, supra, plaintiffs claims of racial discrimination and handicap discrimination may not be submitted to arbitration. Accordingly, the lower court’s order regarding plaintiff’s claims of racial discrimination and handicap discrimination is reversed. The remaining issues raised on appeal are without merit. We agree with the ruling of the lower court that plaintiff failed to sustain his burden of submitting any evidence that he was incompetent to enter into the arbitration contract. Further, we agree that the contract for arbitration is clear and unambiguous with regard to the waiver of substantive legal rights and that it applies to defendants. We also hold that summary disposition was not prematurely granted, because further discovery was not necessary for plaintiff to discover his own alleged incompetence. Summary disposition is premature if discovery of a disputed issue is incomplete; however, it is appropriate if there is no fair chance that further discovery will result in factual support for the nonmoving party. Vargo v Sauer, 215 Mich App 389, 401; 547 NW2d 40 (1996). Moreover, there must be a disputed issue before the court. Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994). After having been given approximately six months to conduct discovery with regard to the competency issue and the opportunity to supplement any evidence in this regard, the trial court properly held that plaintiff’s conclusory averments regarding his own incompetency did not raise a genuine issue of fact. SSC Associates Ltd Partnership v General Retirement System of the City of Detroit, 192 Mich App 360, 365-366; 480 NW2d 275 (1991). Finally, during oral argument, defendants argued that the present case is distinguishable from Rushton for the reason that plaintiff’s employment allegedly involved interstate commerce and, therefore, is governed by the federal arbitration act, 9 USC 1 et seq. We disagree. For the reasons stated in the Rushton majority opinion, we hold that plaintiff’s employment contract as a breadmaker at defendant Ryan’s Family Steakhouse, Inc., was not “a contract evidencing a transaction involving [interstate] commerce . . . . “ 9 USC 2. Accordingly, plaintiff’s civil rights claims are not preempted by the federal arbitration act. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. See, e.g., Detroit v A W Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944), Grazia v Sanchez, 199 Mich App 582, 584; 502 NW2d 751 (1993), McKain v Moore, 172 Mich App 243, 248; 431 NW2d 470 (1988), Marciniak v Amid, 162 Mich App 71, 76; 412 NW2d 248 (1987), Omega Constr Co, Inc v Altman, 147 Mich App 649, 655; 382 NW2d 839 (1985), and Northland Ins Co v Sny, 98 Mich App 507, 508; 296 NW2d 292 (1980). We would not adopt the unnecessary commentary contained in the footnotes. The notion of unconscionability may be an underpinning of the Rush-ton decision. On this unarticulated issue, we note that, although atypical, many employment contracts are entered into with equal bargaining strength. Furthermore, in contracts involving some corporate executives or famous sport stars, the employee, not the employer, often has the stronger bargaining position. To hold in such situations that the employee cannot contractually agree to arbitrate prospective claims, including civil rights claims, is to deny, without reason, the right to contract. While case by case we might find some employment contracts to arbitrate future claims to be unconscionable, or not arbitrable as gleaned from legislative intent, the all-encompassing rule of law created by Rushton simply goes too far.

Josephine Mugnano-Bornstein vs. Robert Crowell & another. No. 96-P-204. Essex. January 9, 1997. - March 21, 1997. Present: Warner, C.J., Kaplan, & Ireland, JJ. Arbitration, Confirmation of award, Scope of arbitration, Waiver. Federal Arbitration Act. Contract, Arbitration, Employment. Employment, Sexual harassment. The broad language of a valid arbitration agreement in an employment contract (“any controversy arising out of or in connection with . . . employment or termination of employment”) put an employee on notice that she was agreeing to submit to arbitration any sexual harassment and gender discrimination claims against her employer, thereby waiving her statutory right to a jury trial on such claims. [351-353] Civil action commenced in the Superior Court Department on November 6, 1992. Motions to vacate a stay of proceedings and restore the case to the trial list, to confirm an arbitration award, and for sanctions were heard by Charles M. Graban, J. Christopher P. Litterio for the defendants. Joseph J. Machera (Dana A. Curhan with him) for the plaintiff. Shearson Lehman Hutton. Warner, C.J. The defendants, Robert Crowell and Shear-son Lehman Hutton, appeal from a Superior Court order denying their motion to confirm an arbitration award and allowing the plaintiffs motion to vacate the stay of judicial proceedings previously imposed and restore the case to the jury trial list. On November 20, 1989, the plaintiff, Josephine Mugnano-Bomstein, completed and signed an employment application containing an agreement to arbitrate any “controversy arising out of or in connection with [her] compensation, employment or termination of employment” with Shearson. She was subsequently hired as a wire operator and worked in that capacity until being fired for insubordination in November, 1990. The plaintiff commenced this action in the Superior Court on November 6, 1992, alleging sexual harassment and gender discrimination in violation of G. L. c. 93 and c. 15 IB, and common law claims for intentional infliction of emotional distress and defamation. In her complaint, she claimed that Crowell, her supervisor at Shearson, continually berated and harassed her after she became pregnant and experienced complications that caused her frequently to be absent from work. She further alleged that Crowell subjected her to additional harassment and humiliation in front of coworkers after she reported the situation to Shearson’s human resources office. Finally, she claimed that Shearson failed to take adequate steps to remedy the situation and also that it was vicariously liable for Crowell’s actions. The defendants responded to the plaintiff’s complaint by filing a motion to compel arbitration under the terms of the employment application and requesting a stay of the court proceedings pending arbitration. The judge allowed the motion, ruling that the agreement to arbitrate contained in the application for employment was enforceable. The plaintiff filed a petition requesting leave to take an interlocutory appeal, which was denied by a single justice of this court. On November 4 and 21, 1994, hearings were held before a three-member arbitration panel of the American Stock Exchange. By unanimous decision dated December 28, 1994, the plaintiffs claims were denied and the case was dismissed. Shearson, however, was ordered to pay the plaintiffs costs of arbitration. The plaintiff subsequently filed a motion in the Superior Court requesting that the previously imposed stay be vacated and the case restored to the jury trial list. The defendants opposed the motion and moved for confirmation of the arbitration award and dismissal of the case. Both parties filed memoranda supporting their positions. The judge denied the defendants’ motion, vacated the stay and restored the case to the trial fist. Citing Prudential Ins. Co. v. Lai, 42 F.3d 1299 (9th Cir. 1994), cert, denied, 516 U.S. 812 (1995), decided after the original order compelling arbitration, the judge ruled that “an employee must knowingly agree to arbitrate discrimination claims under G. L. c. 15IB in order to waive her right to trial,” and that the plaintiff “could not have known that she was waiving her statutory right to a trial on her sexual harassment and discrimination claims” when she signed the application for employment containing the arbitration agreement. On appeal, Crowell and Shearson maintain that the judge erred by refusing to confirm the arbitration award in the absence of a motion to vacate, modify or correct the award. They further argue that the judge’s reliance on Lai was misplaced, first, because the requirement of a knowing waiver of the statutory remedies afforded by Title VII and analogous State statutes has not been adopted in other jurisdictions and second, because the arbitration clause at issue here is far more specific than the agreement considered in Lai. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq. (1988), created a “body of federal substantive law of arbitra-bility, applicable to any arbitration agreement within [its] coverage.” Martin v. Norwood, 395 Mass. 159, 161-162 (1985), quoting from Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Where an arbitration agreement falls within the purview of the FAA, the act governs the arbitrability of the dispute in State or Federal court. See Carpenter v. Pomerantz, 36 Mass. App. Ct. 627, 628 n.3 (1994), citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24. Section 2 of the FAA “provides that a dispute is arbitrable if it falls within the scope of a written arbitration agreement that is otherwise valid and enforceable.” Carpenter v. Pomerantz, 36 Mass. App. Ct. at 628. Whether a particular agreement calls for arbitration is to be determined by applying general principles of contract law. See Mobil Oil Corp. v. Local 8-766, Oil, Chemical & Atomic Workers Intl. Union, 600 F.2d 322, 325 (1st Cir. 1979). “[A] party cannot be required to submit to arbitration any dispute which he has not agreed ... to submit.” Local 285, Serv. Employees Inti. Union, AFL-CIO v. Nonotuck Resource Assocs., Inc., 64 F.3d 735, 738 (1st Cir. 1995). “[(Questions of arbitrability, [however,] must be addressed with a healthy regard for the federal policy favoring arbitration” as an alternative over litigation. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24. Moreover, under the FAA, any doubts regarding arbitrability should be resolved in favor of coverage “ ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” Peerless Pressed Metal Corp. v. International Union of Elec., Radio and Mach. Workers, AFL-CIO, 451 F.2d 19, 20 (1st Cir. 1971), cert denied, 414 U.S. 1022 (1973), quoting from United Steelworkers of America v. Warrier & Gulf Nav. Co., 363 U.S. 574, 582-583 (1960). Commercial Union Ins. Co. v. Gilbane Bldg. Co., 992 F.2d 386, 388 (1st Cir. 1993). See Barnstead v. Ridder, 39 Mass. App. Ct. 934, 935 (1996). This policy obtains whether the issue being considered involves “the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Commercial Union Ins. Co. v. Gilbane Bldg. Co., supra, quoting from Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 25. Pursuant to the FAA, statutory claims may be the subject of an enforceable arbitration agreement. Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20, 26 (1991). In Gilmer, the Supreme Court decided that a claim under the Age Discrimination in Employment Act of 1967 (ADEA) was subject to compulsory arbitration pursuant to a valid arbitration agreement. Id. at 35. Several Federal Courts have agreed that employees may waive the remedies afforded under Title VII and analogous State anti-discrimination statutes pursuant to a valid arbitration agreement. See, e.g., Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229 (5th Cir. 1991); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932 (9th Cir. 1992); Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698 (11th Cir. 1992). See also Scott v. Farm Family Life Ins. Co., 827 F. Supp. 76 (D. Mass. 1993). The plaintiff here concedes that the reasoning of Gilmer is generally applicable to claims brought pursuant to Title VII and G. L. c. 15IB. She urges us to adopt the reasoning of Prudential Ins. Co. v. Lai, however, and maintains that the arbitration agreement she signed cannot be characterized as a knowing waiver of the statutory right to a jury trial of her sexual harassment and gender discrimination claims because it is unclear as to whether such claims are subject to arbitration. The plaintiff agreed to arbitrate “any controversy arising out of or in connection with [her] employment or termination of employment . . . .” She argues that the clause is vague and ambiguous because it does not specifically refer to sexual harassment or gender discrimination claims. We are not persuaded. There can be no doubt that the plaintiff’s dispute with Crowell and Shearson arose out of her employment and subsequent termination from Shearson. In her complaint, she alleged that the defendants sexually harassed and discriminated against her, inflicted emotional distress upon her and defamed her in the workplace, all because she was frequently absent as a result of her pregnancy. Moreover, the fact that an arbitration agreement is comprehensive in scope does not render it invalid. Rather, where an arbitration clause is as broad as the one at issue here, “there is a strong presumption of arbitrability.” Carpenter v. Pomerantz, 36 Mass. App. Ct. at 630, citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650 (1986). Even if we were to adopt the reasoning of Lai and impose a requirement that any waiver of the statutory remedies afforded to plaintiffs under G. L. c. 15IB must be made knowingly, we think the arbitration clause at issue here would pass muster. Unlike the clause considered in Lai, the agreement signed by the plaintiff specifically referred to employment disputes, thereby putting her on notice that she was agreeing to submit her sexual harassment and gender discrimination claims to arbitration. Moreover, although the Ninth Circuit invalidated the specific clause under consideration in Lai, it also cited Mago v. Shearson Lehman Hutton Inc., 956 F.2d at 934, in which an agreement providing for arbitration of “any controversy concerning compensation, employment or termination of employment” was found to be binding on a Title VII plaintiff, as an example of a valid agreement to arbitrate. Finally, we are not aware of any rule that requires an arbitration agreement to contain a list of the specific claims or causes of action which are subject to arbitration in order to be enforceable. Indeed, such a requirement would be unreasonable and impractical. The plaintiff also argues that the Supreme Judicial Court’s recent decision in Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994), further supports her position. In Dalis, the court held that under art. 15 of the Massachusetts Declaration of Rights, a plaintiff asserting claims of employment discrimination based on gender under G. L. c. 15IB is constitutionally entitled to a jury trial. 418 Mass, at 226. The fact that one’s right to a jury trial is constitutionally preserved in certain types of civil cases, however, does not mean that that right cannot be waived. Chase Commercial Corp. v. Owen, 32 Mass. App. Ct. 248, 251-252 (1992). Indeed, courts have upheld contractual waivers of constitutionally guaranteed rights even broader than the one involved here. Ibid. See, e.g., D.H. Over-myer Co. v. Frick Co., 405 U.S. 174, 185-186 (1972) (upholding a contractual waiver of due process rights to prejudgment notice and hearing). We hold that the arbitration agreement contained in the plaintiff’s employment application is binding with respect to those claims asserted under G. L. c. 151B. Accordingly, we remand the case to the Superior Court for the entry of a judgment confirming the arbitration award and dismissing the complaint. So ordered. The Superior Court proceedings have been stayed pending this appeal. The entire clause provides: “I hereby agree that any controversy arising out of or in connection with my compensation, employment or termination of employment shall be submitted to arbitration before the National Association of Securities Dealers, Inc., the New York Stock Exchange, Inc., or the American Stock Exchange, Inc., and be resolved in accordance with the rules then in effect, of such entities. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof. In the event I fail to abide by these terms, this section shall in no way limit or impair the Company’s other legal rights, including the right to enforce said provisions in a court of competent jurisdiction.” The plaintiff filed similar claims with the Massachusetts Commission Against Discrimination and the Federal Equal Employment Opportunity Commission on or about April 5, 1991. It does not appear that either agency took action on the complaints. Piior to the hearings, the plaintiff executed a Uniform Submission Agreement in which she agreed “to abide by and perform any award(s) rendered pursuant to this Submission Agreement and further agree[d] that a judgment and any interest due thereon, may be entered upon such award(s).” Prudential Ins. Co. v. Lai involved an agreement to arbitrate discrimination claims brought under California’s antidiscrimination laws, which are analogous to Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq. (1994). 42 F.3d at 1303 n.l. Title VII created “an array of substantive protections and remedies” with respect to claims of employment discrimination. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 463 (1982). In addition to providing State remedies for discriminatory employment practices, G. L. c. 151B, the Massachusetts antidiscrimination statute, and analogous State laws such as the ones at issue in Lai, are explicitly made part of Title VH’s enforcement scheme. Id. at 477-478. The Superior Court judge ruled that the arbitration clause at issue here is subject to the provisions of the FAA, and assumed, without deciding, that the Massachusetts Arbitration Act (MAA), G. L. c. 251, §§ 1-19, would also apply. Neither party has challenged this ruling, although the defendants correctly maintain that where the FAA and the MAA conflict, the FAA governs. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24 (“Section 2 [of the FAA] is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state . . . policies to the contrary”). The FAA has the same application to claims asserted under c. 151B as it does to Title VII claims. See Prudential Ins. Co. v. Lai, 42 F.3d at 1303 n.l. On appeal, the plaintiffs sole challenge to the validity of the arbitration clause concerns the specificity with which it describes those claims that are subject to arbitration, a question that we discuss later in this opinion. The First Circuit has yet to extend the reasoning of Gilmer to employment discrimination claims brought under either Title VII or G. L. c. 15 IB. The clause considered in Lai did not even mention employment disputes or otherwise describe the types of disputes that would be subject to arbitration. 42 F.3d at 1305. Moreover, the plaintiffs in that case had signed “U-4 forms containing agreements ‘to arbitrate any dispute, claim or controversy that ... is required to be arbitrated under the rules, constitutions or bylaws of the organizations with which I register.’ ” Id. at 1301. The plaintiffs also claimed that they were told they were only applying to take an employment test, and were not given an adequate opportunity to read the forms. Ibid. No such evidence was offered in this case.

Leonid Lenny Melnychenko & others vs. 84 Lumber Company. Hampden. October 9, 1996. February 18, 1997. Present: Wilkins, C.J., Abrams, Lynch, O’Connor, Greaney, Fried, & Marshall, JJ. Employment, Sexual harassment, Discrimination, Termination, Retaliation. Anti-Discrimination Law, Sex, Employment. Practice, Civil, Findings by judge. Statute, Construction. A claim alleging sexual harassment, as defined in G. L. c. 151B, § 1, and prohibited by § 4(16A), is permissible without reference to the question of gender or sexual orientation of the alleged harasser. [288-290] O’Connor, J., dissenting, with whom Lynch, J., joined. The record of a claim brought against an employer alleging sexual harassment, as defined by G. L. c. 151B, § 1(18), and prohibited by G. L. c. 151B, § 4(16A), fully warranted the judge’s findings that the plaintiffs’ male supervisor had engaged in verbal and physical conduct of a sexual nature unreasonably interfering with the three male plaintiffs’ work performance by creating an intimidating, hostile, humiliating and sexually offensive work environment [286-288]; and the record supported the judge’s further conclusion that such conduct interfered with the plaintiffs’ right to be free from unreasonable, substantial, or serious interference with privacy, as stated in G. L. c. 214, § IB [290-291], O’Connor, J., dissenting with whom Lynch, J., joined. In a claim by a discharged employee seeking damages from the former employer for the employer’s alleged retaliatory conduct in violation of G. L. c. 151B, § 4(4), the judge’s findings supported his conclusion that retaliation was not a determinative factor in the plaintiff’s discharge [293-294]; and the plaintiff did not make any showing of harm from the employer’s actions allegedly in violation of G. L. c. 151B, § 4(4A) [293-295], Civxl action commenced in the Superior Court Department on June 14, 1991. The case was heard by Daniel A. Ford, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jay M. Presser for the defendant. Charles V. Ryan (Timothy J. Ryan with him) for Leonid Lenny Melnychenko. Clifford Heaton, for Stephen LaRochelle, was present but did not argue. Mary Lisa Bonauto & Nan Evans for Gay & Lesbian Advocates & Defenders & others, amici curiae, submitted a brief. Scott Harshbarger, Attorney General, & Catherine Ziehl, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief. Tames Quill and Stephen LaRochelle. At the commencement of trial, the plaintiffs voluntarily dismissed their action against individual defendants named in the complaint, Richard Raab and Eliasel Roque. Welkins, C.J. A judge in the Superior Court ruled that Richard Raab, an employee of the defendant corporation at its West Springfield store, engaged in “sexual harassment,” as defined in G. L. c. 151B, § 1 (18), and that it did not matter what Raab’s sexual orientation was or whether Raab intended to have a sexual relationship with any of the plaintiffs, all of whom are male. The principal issue in this case is whether same-sex sexual harassment is prohibited by G. L. c. 151B, § 4 (16A), regardless of the sexual orientation of the parties. We agree with the trial judge that such conduct falls within the statutory definition of sexual harassment, and is, therefore, prohibited by G. L. c. 151B, § 4 (16A). We also consider a cross appeal from that part of the judgment that denied relief from claimed retaliatory conduct of the defendant. 1. Chapter 15 IB of the General Laws states that it is an unlawful practice for an employer, as defined in G. L. c. 151B, § 1 (5), “to sexually harass any employee.” G. L. c. 151B, § 4 (16A). Sexual harassment as defined in G. L. c. 151B includes “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” which has “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. 151B, § 1 (18) (6). The judge ruled that Raab’s “revolting and positively outrageous” conduct had the purpose or effect of unreasonably interfering with all three plaintiffs’ work performance by creating an intimidating, hostile, humiliating, and sexually offensive work environment. The judge concluded that Raab engaged in “verbal and physical conduct” of a sexual nature and that his conduct was totally unwelcome by the plaintiffs. The judge’s subsidiary findings of fact, significant portions of which we set forth in the margin, fully warranted the judge’s ultimate findings. The defendant argues that the finding that the plaintiffs were sexually harassed was clearly erroneous. The defendant bases its argument on the facts that the plaintiffs continued to “socialize” with Raab and failed to complain of Raab’s conduct, despite complaining about other employment-related events. The judge found, however, that LaRochelle and Melnychenko did complain to the defendant’s area manager and that Quill was afraid of losing his job if he complained. The record does not lead us to the definite and firm conviction that the judge was mistaken in any of his findings. See Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992); Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996). We come then to the question whether G. L. c. 151B, § 4 (16A), applies to same-sex sexual harassment, even where the perpetrator of the harassment may be a heterosexual. Relying heavily on Federal case law interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994), the defendant argues that sexual harassment is only actionable as a form of sex discrimination, and that, therefore, the only form of same-sex sexual harassment that is prohibited by G. L. c. 151B is sexual harassment perpetrated by a homosexual. The dissent, sounding the same tune, seems to assume that, if we were to follow Federal law in this case, the result would be different. That is not certain. The Federal authorities are hardly in accord on the issue of same-sex sexual harassment. In any event, we arrive at our own conclusions in construing our own statute. See Blare v. Husky Injec tion Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995); College Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163-164 (1987); Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination, 375 Mass. 160, 167 (1978). It is particularly appropriate for us to reach our own conclusions where, as here, the relevant sections of G. L. c. 15IB differ significantly from Title VII of the Federal act. Of particular importance for the disposition of this issue is the fact that the Legislature specifically defined sexual harassment and, at the same time, codified the prohibition against it. Subsection 18, defining “sexual harassment,” was inserted in G. L. c. 151B, § 1, by St. 1986, c. 588, § 2. Subsection 16A, making an unlawful practice of sexual harassment, was inserted in G. L. c. 151B, § 4, by St. 1986, c. 588, § 3. There is no parallel Federal statutory language. It is under subsection 16A that the trial judge ruled that the defendant had engaged in an unlawful practice. Sexual harassment as defined in § 1 (18), and prohibited by § 4 (16A), is not limited to conduct of a supervisor aimed at a subordinate of the opposite sex, nor is it limited to same-sex conduct only where the harasser is a homosexual. Rather, any physical or verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under G. L. c. 151B. The judge found that Raab’s conduct fell within the statutory definition and correctly concluded that the plaintiffs were entitled to recover damages as a result. The dissent is correct in noting that c. 15 IB concerns unlawful discrimination. The Legislature, in language not found in the Federal act, has defined sexual harassment so as to be included within “[discrimination on the basis of sex . . . .” G. L. c. 151B, § 1 (18). Verbal or physical conduct of a sexual nature, even if it does not include “sexual advances” or “requests for sexual favors,” comes within the statutory definition of sexual harassment. Id. Thus, sexual harassment as defined in § 1 (18) is by legislative direction a form of sexual discrimination. Contrary to the dissent’s view, nowhere is discrimination because of a victim’s sex made an essential element of a sexual harassment claim in Massachusetts. The judge also ruled that Melnychenko and Quill had proved that the defendant had interfered with their right to be free from unreasonable, substantial, or serious interference with privacy, as stated in G. L. c. 214, § IB. To avoid duplicative damages the judge awarded only one dollar to each on this claim. He based his conclusion on the facts set forth in the latter half of paragraph 9 of his findings and quoted in note 4 above. The defendant argues only that it should not be liable because Raab’s conduct in making certain announcements in the workplace about Melnychenko’s and Quill’s sexual conduct was outside the scope of Raab’s employment. There is no merit to this contention. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 165-167 (1987). Raab’s misconduct occurred at the defendant’s place of business while he held a supervisory position. There was, moreover, evidence that the defendant received complaints about Raab’s treatment of LaRochelle and Melnychenko. 2." We turn now to Melnychenko’s appeal from the judge’s determination that the defendant is not liable to him for retaliatory conduct forbidden by G. L. c. 15 IB. To present the basis of the claim of retaliation, we set forth additional findings by the judge. In October, 1990, the plaintiff Quill left the defendant’s employment. Shortly thereafter, Quill told Melnychenko that he was going to file a complaint about Raab’s conduct and asked Melnychenko to provide Quill’s attorney with an affidavit concerning events at the defendant’s store. Not long after Melnychenko provided a supporting affidavit, the defendant’s general counsel “asked him to come to the defendant’s corporate headquarters in Pennsylvania and meet with the defendant’s general counsel and chief operating officer. The defendant’s officers expressed disappointment that Melnychenko had given Quill’s attorney an affidavit without telling them because it exposed the company to liability. They told Melnychenko not to speak with either Quill or his attorney. The officers also told Melnychenko “that they would not be able to protect him or to guarantee his physical safety” at the company’s West Springfield store and that he should, therefore, accept reassignment. Melnychenko agreed and reported to the defendant’s Orange Park, Florida, store about one week after the meeting in Pennsylvania. Approximately one month later, Melnychenko wrote a hostile letter to the company’s chief operating officer complaining that the company had not fulfilled certain promises to him. About the same time, the defendant’s. Florida area manager offered Melnychenko a temporary promotion to the position of merchandising manager because Melnychenko had been doing a good job at the Orange Park store. The area manager told Melnychenko that, when the temporary job was completed, he would be in line for a comanager’s job. Because there were no guarantees, Melnychenko refused the promotion. Thereafter, the area manager received reports that (a) Melnychenko had been telling other company employees that the general counsel was a liar and that the company had broken its promises to him and (b) Melnychenko was giving a bad impression to customers. The area manager reported these facts to the chief operating officer, who concluded that Melnychenko was never going to be content as long as he worked for the defendant and advised the area manager that Melnychenko’s employment would have to be terminated. The judge made a specific finding concerning Melnychenko’s termination: The defendant “has proven by clear and convincing evidence that Melnychenko was terminated, not in retaliation for his having given the affidavit to Quill’s attorney, but because he had become a disgruntled employee who was openly expressing his negative feelings about [the company] to both customers and fellow employees and therefore was no longer an asset to the company.” The defendant’s general counsel gave the area manager a written termination agreement and told him to offer Melnychenko $5,000 if he would sign it. That agreement provided that Melnychenko could “not counsel or assist in the prosecution of claims against [the company], whether those claims are on behalf of [Melnychenko] or others, unless [Melnychenko] is under a court order to do so.” The agreement also provided that, “if any inquiries are made concerning [Melnychenko’s] termination . . . [Melnychenko] . . . will respond by indicating . . . that [Melnychenko] . . . was treated fairly by [the company] . . . and that [Melnychenko] has every reason to believe [the company] thinks highly of [Melnychenko].” The area manager told Melnychenko that “he was being terminated because he was ‘bad mouthing’ the company, and was adversely affecting the morale of store employees. He gave the termination agreement to Melnychenko and offered him $5,000.00 to sign it. Melnychenko read the agreement, and said that he was not sure he could sign because he had already given an affidavit about things that had happened in the West Springfield store. He asked if he could bring the agreement home and show it to others for their advice. [The area manager] responded that he could not, and that he had to make his mind up then and there. Accordingly, Melnychenko refused to sign the agreement, and did not receive the $5,000.00. His employment with [the company] was terminated on that day.” Melnychenko, in presenting his claim of retaliatory conduct, relies on two definitions of unlawful practices in G. L. c. 15 IB, § 4. Under § 4 (4), it is unlawful for any employer “to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or assisted in any proceeding under [§ 5].” Section 4 (4A) makes it an unlawful practice “[f]or any person to coerce, intimidate, threaten or interfere with another . . . person for having aided or encouraged any other person in the exercise or enjoyment of any . . . right granted or protected by this chapter.” In his ultimate findings and rulings the judge did not distinguish between the two subsections. Indeed, he did not cite § 4 (4). Melnychenko argues that the company violated § 4 (4) by firing him. He had the burden of proving that the company’s decision to fire him was based on its desire to retaliate against him for assisting Quill or for his complaining about Raab’s conduct. Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). The judge found that the defendant did not terminate Melnychenko either in retaliation for anything that he did, or to impede or interfere with Quill’s claim. He further found that “Melnychenko was fired because he was openly accusing [the company’s chief operating officer] of being a liar, he had written a highly inappropriate letter to [the chief operating officer], he was adversely affecting the morale of other store employees, and [the chief operating officer] understandably believed that, no matter what else [the company] did for him, Melnychenko was never going to be happy with [the company]. Accordingly, [the chief operating officer], with no input from [the company’s legal counsel], decided that Melnychenko had to be terminated.” Certainly, these findings present a nondiscriminatory reason for firing Melnychenko. Although there was evidence warranting the conclusion that the firing was retaliatory, that evidence did not compel such a finding. We, therefore, decline to overrule the judge’s conclusion that retaliation was not a determinative factor in Melnychenko’s discharge. Melnychenko argues further that the defendant violated § 4 (4A) by its treatment of him during and following the meeting in Pennsylvania. At that meeting, two officers of the company complained that Melnychenko had given an affidavit to Quill’s lawyer and told Melnychenko not to talk with Quill or his lawyer about this matter. They said that the company could not protect Melnychenko if he remained employed at the West Springfield store and that he should accept a transfer to another store. Later, in Florida; the company offered Melnychenko $5,000 to sign the termination agreement containing provisions barring Melnychenko from assisting in the prosecution of his own or anyone else’s claim against the company and mandating that he would represent, contrary to his opinion, that he had been well treated by the company. The judge concluded that the transfer to Florida, to which Melnychenko agreed, was done to remove him from an obviously unworkable situation and to rehabilitate Melnychenko’s career with the company. The judge stated: “I further find that [the general counsel’s] attempt to obtain Melnychenko’s signature on a termination agreement in exchange for $5,000.00 was merely a clumsy and poorly thought out effort to protect [the company] from liability. As misguided as the effort might have been, I do not attribute any sinister or file-gal motives to [the general counsel], and I conclude that it did not constitute a violation of G. L. c. 151B.” There was evidence that would have warranted a finding that the company attempted to “interfere” with Melnychenko for having aided Quill in the exercise of his rights protected by G. L. c. 151B. The company was unsuccessful, however, in its attempt to dissuade Melnychenko from helping Quill. Melnychenko did not sign the termination agreement which was certainly designed to interfere with the presentation and adjudication of unfair practices claims under G. L. c. 151B. The company’s instruction to Melnychenko not to speak with Quill or his attorney, and the attempt to obtain a termination agreement from Melnychenko, might have been acts designed “to coerce, intimidate, threaten, or interfere” with Melnychenko for having aided Quill. But these attempts by the defendant sought to control Melnychenko’s future conduct, and the portion of § 4 (4A) on which Melnychenko relies concerns retaliation for past assistance to a person, such as Quill, who is seeking to exercise a right under G. L. c. 151B. Melnychenko makes no showing that the defendant retaliated against him for his past assistance to Quill in a way that caused him more harm than is reflected in the damages already awarded to him. We need not, therefore, consider whether G. L. c. 151B applies to the company’s conduct in dealing with Melnychenko in Pennsylvania and Florida. 3. The judgment is affirmed. Counsel for Melnychenko and Quill are entitled to reasonable attorney’s fees and costs in connection with the defendant’s appeal. See G. L. c. 151B, § 9; Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989). LaRochelle’s brief is verbatim the same as the brief submitted by the other plaintiffs. The question of attorney’s fees and costs for LaRochelle shall be decided by a single justice of this court. Id. So ordered. We transferred the defendant’s appeal and the cross appeal to this court on our own motion. “9. Melnychenko, Quill and LaRochelle had each worked for 84 Lumber for approximately two weeks when Raab started to harass them. He grabbed all three of them by their genitals, and fondled their buttocks. He squeezed their chests, rubbed them in areas of the body commonly thought private, and touched them ‘everywhere.’ He exposed himself to Melnychenko and Quill on at least t

Appeal dismissed sua sponte for want of final appealable order—No jurisdiction to review issue of punitive damages relative to sexual harassment claim when underlying claim remains pending, despite Civ.R. 54(B) language—Court of appeals' judgment vacated in part.

JULI DENNING-BOYLES, Plaintiff v. WCES, INC., and HOWARD GEBEAUX, Defendants No. COA94-1231 (Filed 6 August 1996) 1. Intentional Infliction of Mental Distress § 2 (NCI4th)— intentional infliction of emotional distress — summary judgment improper In an action for intentional infliction of emotional distress and punitive damages, the trial court erred in entering summary judgment for defendants when plaintiff offered a forecast of evidence that the editor of the newspaper for which she worked made numerous sexual comments and advances toward her; plaintiffs psychologist stated that plaintiff experienced severe, extreme, and disabling emotional distress as a result of this conduct; and the employer was given notice of the editor’s behavior but took no action to stop it and thus ratified the employee’s acts. Am Jur 2d, Damages §§ 789-797; Employment Relationship § 248; Job Discrimination §§ 964, 966, 967; Labor and Labor Relations §§ 638, 3292; Master and Servant § 440. On-the-job sexual harassment as violation of state civil rights law. 18 ALR4th 328. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS §§ 2000e et seq.). 78 ALR Fed. 252. Individual liability of supervisors, managers, or officers for discriminatory actions — cases postdating the Civil Rights Act of 1991. 131 ALR Fed. 221. 2. Pleadings § 378 (NCI4th)— amendment of complaint to add party — denial proper The trial court did not err in refusing to allow plaintiff to amend her complaint in order to add the individual owner of a newspaper, which had employed her, as defendant, since, if the individual had any liability toward her, she knew it prior to filing suit, and adding the individual at the time of her motion would result in a delay of trial. Am Jur 2d, Damages § 824; Job Discrimination § 2545; Labor and Labor Relations § 4589; Parties § 102. Order with respect to motion for joinder of parties. 16 ALR2d 1023. Amendment of pleading as to parties or their capacity as ground for continuance. 67 ALR2d 477. Necessity of leave of court to add or drop parties by amended pleading filed before responsive pleading is served, under Federal Rules of Civil Procedure 15(a) and 21. 31 ALR Fed. 752. Appeal by plaintiff from judgment and order entered 21 July 1994 by Judge Donald L. Smith in Harnett County Superior Court. Heard in the Court of Appeals 23 August 1995. Brenton D. Adams for plaintiff appellant. Bain & McRae, by Edgar R. Bain and Patrick H. Pope, for defendant appellee WCES, Inc. JOHN, Judge. Plaintiff appeals entry of summary judgment precluding claims against her former employer, defendant WCES, Inc. (WCES), for intentional infliction of emotional distress and punitive damages. She also appeals denial of her motion to amend her complaint. We conclude that summary judgment was improvidently granted. Pertinent facts and background information include the following: in December 1992, plaintiff left her job as advertising manager of the Harnett County News to take a similar position with The Harnett Leader, a newspaper being established at that time in Harnett County by WCES. The same month, WCES also hired defendant Howard Gebeaux (Gebeaux) as editor of the fledgling publication. According to allegations in plaintiffs complaint, very soon after Gebeaux was hired, he “began making uninvited and unwel-comed sexual advances toward the plaintiff which increased in their frequency and intensity throughout the entire time the plaintiff was employed” by WCES. Further, although plaintiff informed William A. Johnson and Rebecca Johnson Davidson, members of the board of directors of WCES, by February 1993 that she was being sexually harassed by Gebeaux, WCES took no action to prevent further misconduct by Gebeaux. Eventually, on 4 June 1993, plaintiff resigned her position with The Harnett Leader due to “intolerable conditions” on the job and her employer’s alleged refusal to alleviate them. Plaintiff filed suit against Gebeaux and WCES 22 June 1993, claiming she had “suffered severe mental and emotional distress” as the result of sexual harassment by Gebeaux, and that she “ha[d] been required to seek medical attention for this problem.” Plaintiff sought compensatory and punitive damages for intentional infliction of emotional distress and also treble damages for unfair and deceptive trade practices under N.C.G.S. Chapter 75. Following answers by both defendants and a motion for summary judgment by WCES filed 14 March 1994, plaintiff moved on 4 April 1994 to amend her complaint to add William A. Johnson (Johnson), president and chairman of the board of WCES, as an additional defendant. On 21 July 1994, the trial court granted summary judgment in favor of WCES on plaintiffs claims of intentional infliction of emotional distress, punitive damages, and unfair and deceptive trade practices. The court certified its judgment for immediate appeal pursuant to N.C.R. Civ. P. 54(b), finding that “even though fewer than all claims have been adjudicated in this ‘final judgment,’ there is no just reason for delaying the appeal.” The trial court also denied plaintiff’s motion to amend her complaint. Plaintiff filed notice of appeal to this Court 21 July 1994. Plaintiff first contends summary judgment was improper because “plaintiff presented á forecast of evidence which raised a genuine issue of material fact concerning the liability of [WCES] for intentional infliction of emotional distress and punitive damages.” Plaintiff makes no argument regarding her claim for unfair and deceptive trade practices, and it is deemed abandoned pursuant to N.C.R. App. P. 28(a). Summary judgment is to be entered only where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C.R. Civ. P. 56(c). The burden of establishing absence of a triable issue rests with the moving party, and the facts will be viewed in a light most favorable to the non-moving party. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). “Because the forecast of evidence as to the factual basis of each [claim of intentional infliction of emotional distress] is unique, each claim must be decided on its own merits.” Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 490, 340 S.E.2d 116, 121, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The elements of intentional infliction of emotional distress are: “(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress.” Hogan, 79 N.C. App. at 487-88, 340 S.E.2d at 119. It is a question of law whether the alleged conduct on the part of defendant “may be reasonably regarded as extreme and outrageous;” however, once shown, “it is for the jury to determine . . . whether the conduct complained of is, in fact, sufficiently extreme and outrageous to result in liability.” Id. at 490-91, 340 S.E.2d at 121. The conduct must “exceed[] all bounds of decency tolerated by society.” West v. King’s Department Store, Inc., 321 N.C. 698, 704, 365 S.E.2d 621, 625 (1988). WCES makes no argument that plaintiffs evidentiary forecast was insufficient to support plaintiffs claim for intentional infliction of emotional distress against Gebeaux. Indeed, in its appellate brief WCES concedes that “[t]he only issue before the trial judge in considering defendant’s motion for summary judgment” was whether the record before the court “would entitle plaintiff to recover against WCES.” Although liability of Gebeaux is essential if WCES is to be held responsible under a theory of respondeat superior, a brief review of the record reveals an evidentiary forecast more than sufficient to take plaintiffs claims against Gebeaux to the jury. Without setting out the crudest vulgarities contained in the record, we note it indicates that Gebeaux made repeated sexual comments to plaintiff at the newspaper office on almost a daily basis. For example, plaintiff alleges that Gebeaux “many, many times” made remarks such as “I want to screw you and watch you beg for more;” that, on a Saturday when both were working, Gebeaux begged the plaintiff to go home and spend the day with him .... He would come back and forth to the plaintiffs office saying things like: “This is the last chance for the best sex you’ll ever have . . . ;” that, on 22 April, Gebeaux asked plaintiff to “go to his house” for a sexual encounter; and that, when plaintiff consistently rejected him, he accused her of having lesbian relationships. Other employees indicated Gebeaux asked plaintiff: “How’s your sex life with Ray [plaintiffs husband]? How many times a week do you have sex?” and “Where’s the best place to rent a good ‘porno movie’?” Further, Gebeaux stated to plaintiff that “I’m so sexually frustrated around you, I’ve a ‘good might’ to get you fired;” that “I like married women better. Take them home; take them to bed; and let them go;” that “[w]e could all go down to the beach and have a big orgy;” and that “[i]t turns me on when you wear your hair down like that.” Further, the affidavit of plaintiff’s clinical psychologist stated, inter alia, that plaintiff experienced “severe, extreme and disabling” emotional distress as a result of Gebeaux’s conduct, and that her prognosis was “guarded at best and may be poor if she does not receive appropriate evaluation and treatment including psychotherapy. ” Gebeaux’s evidence, consisting in part of categorical denials and in part of depicting plaintiff as initiator of conversations connoting a sexual context and of personal contact with Gebeaux, conflicted with that presented by plaintiff. However, the acts and statements of Gebeaux outlined above, in addition to numerous others found in the record, without question constitute conduct which “may reasonably be regarded,” Hogan, 79 N.C. App. at 491, 340 S.E.2d at 121, to “exceedf] all bounds of decency tolerated by society,” West, 321 N.C. at 704, 365 S.E.2d at 625, thereby placing the question of his liability in the hands of the jury. Hogan, 79 N.C. App. at 491, 340 S.E.2d at 121. As the evidentiary materials before the trial court reflect plaintiff met her burden of production regarding the individual liability of Gebeaux, we proceed to examine whether the trial court properly allowed the summary judgment motion of Gebeaux’s employer, defendant WCES. An employer may be held liable for the .torts of an employee under the doctrine of respondeat superior in circumstances where: (1) the employer expressly authorizes the employee’s act; (2) the tort is committed by the employee in the scope of employment and in furtherance of the employer’s business; or (3) the employer ratifies the employee’s tortious conduct. Stanley v. Brooks, 112 N.C. App. 609, 613, 436 S.E.2d 272, 274 (1993), disc. review denied, 335 N.C. 772, 442 S.E.2d 521 (1994). For plaintiff to have survived summary judgment as to WCES, therefore, the evidence must necessarily have tended to show that the acts of Gebeaux and the conduct of WCES “f[e]ll into one of the aforementioned categories.” Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 436, 378 S.E.2d 232, 235, disc. review allowed, 325 N.C. 270, 384 S.E.2d 513, cert. tiff presented a sufficient forecast of the evidence to move forward on the theory of ratification, and thus do not discuss the remaining categories. This Court has held that: In order to show that the wrongful act of an employee has been ratified by his employer, it must be shown that the employer had knowledge of all material facts and circumstances relative to the wrongful act, and that the employer, by words or conduct, shows an intention to ratify the act. Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122. In addition, “ [t]he jury may find ratification from any course of conduct on the part of the principal which reasonably tends to show an intention on his part to ratify the agent’s unauthorized acts.” Such course of conduct may involve an omission to act. Brown, 93 N.C. App. at 437, 378 S.E.2d at 236 (quoting Equipment Co. v. Anders, 265 N.C. 393, 401, 144 S.E.2d 252, 258 (1965)). Finally, although the employer must have knowledge of all material facts relative to its employee’s acts in order to effect ratification, [i]f the purported principal is shown to have knowledge of facts which would lead a person of ordinary prudence to investigate further, and he fails to make such investigation, his affirmance without qualification is evidence that he is willing to ratify upon the knowledge which he has. Restatement (Second) of Agency § 91, Comment e, p. 235 (1958). See also Equipment Co., 265 N.C. at 401, 144 S.E.2d at 258 (“[W]hen [principal] has such information that a person of ordinary intelligence would infer the existence of the facts in question, the triers of fact ordinarily would find that he had knowledge of such fact.” (citing Restatement (Second) of Agency, § 91, Comment c, p. 232 (1958))). Unrefuted evidence in the record indicates WCES received letters from plaintiff and Susan White, a reporter for the newspaper, in mid-February 1993 informing it that Gebeaux had been making sexual advances towards plaintiff. White included in a lengthy, detailed letter to WCES the following: I have heard [Gebeaux] make numerous comments to Juli, with respect to the clothes she might be wearing that day, her hair and just her overall looks, comments which I, as well as others who have heard them, believe to be stepping over the line and considered as sexual harassment. Since I began working with Mr. Gebeaux, I immediately noticed his attraction to Juli. The attraction became even clearer after hearing him make comments to her such as “Um, you look good today,” and “It turns me on when you wear your hair down like that.” Plaintiff wrote to WCES: Monday, February 1st Howard made the comment to me “I am so sexually frustrated by you I think I am going to get you fired.” This has not been the first time these remarks have been made . . . however, I do not want to be involved in ANY problems such as this. I will admit it has greatly affected my job performance. (emphasis in the original). WCES points to a second letter received from plaintiff, shortly after receipt of the first, in which she praised efforts of WCES in helping to resolve her problems with Gebeaux. Admittedly, plaintiff’s evidence may fairly be characterized as containing contradictions on the question of whether any representative of WCES was explicitly informed that Gebeaux’s sexual harassment of plaintiff continued after the February letter. However, plaintiffs affidavit also suggests Johnson failed to take the allegations set out in the first letter seriously. Plaintiff relates that Johnson said, upon patting her on the shoulder during a meeting soon after WCES received the first letter, “Now, Juli, this is not sexual harassment.” At the same meeting, according to plaintiff, I told W. A. Johnson and Rebecca Johnson Davidson of some of the things Howard Gebeaux had said to me, including “It turns me on when you wear your hair down,” but was interrupted by W. A. Johnson stating that was in the past and we must go on. W. A. Johnson would not allow me to continue to tell him about further acts of sexual harassment. In addition, plaintiff maintains in her affidavit that: In early April of 1993, W. A. Johnson saw flowers in my office . . . and asked who sent them. I replied, “Howard did. He’s still up to his same old tricks.” In late April of 1993, I met with Rebecca Davidson, tried to discuss sexual harassment by Howard Gebeaux, but she told me we would not discuss Mr. Gebeaux unless Howard Gebeaux was present. Moreover, plaintiff asserts that on 4 June 1993, when she and four other female employees of the newspaper went to Johnson’s office to protest the behavior of Gebeaux, plaintiff told Johnson three times that she could “no longer work with sexual harassment from Howard Gebeaux.” Plaintiff claims that after briefly hearing from the employees, Johnson told them to return to the newspaper office to await his decision on whether Gebeaux would be fired. Johnson then called Gebeaux to his office; following a discussion with Gebeaux, Johnson went to the newspaper office where he announced to the staff that Gebeaux would be staying on as editor. Johnson informed plaintiff that WCES would like her and one other employee who had protested to remain with the paper. Plaintiff alleges she said at that point, “I will no longer stay and work with sexual and mental harassment.” According to plaintiff, Johnson responded, “Gather your things and be out of the office before five o’clock.” WCES maintains it at no time received sufficient knowledge of material facts regarding Gebeaux’s sexual harassment of plaintiff so as to satisfy the first element of ratification. See Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122 (“it must be shown that the employer had knowledge of all material facts and circumstances relative to the wrongful act”). However, we believe plaintiff presented a sufficient forecast of evidence upon which a jury could find that WCES learned of facts regarding Gebeaux’s sexual harassment of plaintiff which would have led a reasonable person “to investigate further,” Restatement (Second) of Agency, supra, at p. 235, and that its failure to do so showed WCES was “willing to ratify upon the knowledge which [it had].” Id. Further, a jury could find the requisite element of intent on the part of WCES to ratify Gebeaux’s actions through its “words [and] conduct,” Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122, in declining to hear complaints from plaintiff or intervene on her behalf, or in retaining Gebeaux in the face of plaintiff’s insistence she could “no longer work with sexual harassment from Howard Gebeaux.” See Hogan, 79 N.C. App. at 492-93, 340 S.E.2d at 122 (whether manager’s actions consisting, inter alia, of “retaining [harasser] in defendant’s employ, [and] declining to intervene to prevent his further offensive behavior toward [plaintiff]” amounted to “a course of conduct signifying an intention to . . . ratify [harasser’s] acts is a question for the jury”). Finally, we briefly examine plaintiffs contention the trial court erred by refusing to permit amendment of her complaint under N.C.R. Civ. P. 15(a) in order to add Johnson as defendant. Denial of a motion to amend ordinarily is not reviewable in the absence of a clear showing of abuse of discretion. Caldwell’s Well Drilling, Inc. v. Moore, 79 N.C. App. 730, 731, 340 S.E.2d 518, 519 (1986). In the case sub judice, the trial court’s order contained the factual findings that (1) “if William A. Johnson had any liability to the plaintiff, such fact was obvious to the plaintiff as early as February of 1993, and this action was instituted without making him a party,” and (2) adding Johnson would make further discovery necessary at a point in the case where discovery was almost complete, thereby causing undue delay of the trial. We find no abuse of discretion in the court’s order. In sum, the trial court’s award of summary judgment in favor of WCES on the issues of intentional infliction of emotional distress and punitive damages, see Brown, 93 N.C. App. at 438, 378 S.E.2d at 236-37 (“existence of an outrageous act supports submission of an issue pertaining to punitive damages to the jury”), is reversed; the order denying plaintiff’s motion to amend her complaint is affirmed. Reversed in part; affirmed in part. Judges EAGLES and LEWIS concur.

QUINTO v CROSS AND PETERS COMPANY Docket No. 99057. Argued October 12, 1995 (Calendar No. 10). Decided May 14, 1996. Elena Quinto brought a civil rights action in the Wayne Circuit Court against Cross and Peters Company, her employer, alleging that her supervisor demeaned and humiliated her, made discriminatory decisions, and created a hostile work environment on the basis of her age, sex, and national origin. The court, Lucile A. Watts, J., granted summary disposition for the defendant, finding that the plaintiff failed to sufficiently document a prima facie case of hostile work environment. The Court of Appeals, Corrigan, P.J., and Gribbs and G. E. Montgomery, JJ., affirmed in an unpublished memorandum opinion (Docket No. 151198). The plaintiff appeals. In an opinion by Justice Boyle, joined by Chief Justice Brickley, and Justices Cavanagh, Riley, and Mallett, the Supreme Court held: The plaintiff failed to sufficiently support a prima facie case of hostile work environment with documentary evidence. To survive summary disposition, the plaintiff was required to present documentary evidence to the trial court that a genuine issue existed whether a reasonable person, in the totality of the circumstances, would find the supervisor’s comments to her sufficiently severe or pervasive to create a hostile work environment. The plaintiff’s affidavit did not satisfy her burden under MCR 2.116(C)(10) as the opposing party to respond with specific facts. Rather, the affidavit contained mere conelusory allegations and was devoid of detail that would permit the conclusion that there was such conduct or communication of a type or severity that a reasonable person could find that a hostile work environment existed. Affirmed. Justice Levin, dissenting, stated that the defendant’s motion for summary disposition under MCR 2.116(C)(10) did not specifically identify the issues it asserted raised no genuine issue of material fact, nor was it based on the absence of a genuine issue of material fact under subrule (C)(10). The plaintiff thus was not obliged under MCR 2.116(G)(4) to file an affidavit setting forth specific facts showing that there was a genuine issue for trial. She could properly rest on the allegations in her amended complaint without further elaboration or affidavit because a motion under subrule (C)(10) had not been filed, and the defendant’s unsworn brief did not constitute an amended or supplemental motion. Summary disposition was improvidently granted because, if all the facts alleged by the plaintiff are accepted as true, as MCR 2.116(0)(10) mandates, a genuine issue remains. The circuit court erred in relying on deposition testimony because the plaintiff’s account of factual events must be accepted as true. It is not the function of the circuit judge to weigh credibility. While one or two incidences of name-calling may not be actionable, insults that amount to ridicule and that cause intimidation are. Further, the plaintiff was not required to show before trial, to any degree of certainty, that her claim ultimately would be successful. Rather, the test is whether the kind of record that might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. Although worded without complete specificity, her complaint and affidavits clearly meet this threshold. Summary disposition may not be granted where the credibility of a witness or deponent is crucial. The defendant failed to properly put in issue whether there is a genuine issue of material fact. Neither the court nor the plaintiff was on notice of the need to respond to the motion under subrule (C)(10) with regard to the hostile work environment claim. Justice Weaver took no part in the decision of this case. Bendure & Thomas (by Mark R. Bendure and Sidney A. Klingler) for the plaintiff. Musilli, Baumgardner, Wagner & Parnell, PC. (by Ralph Musilli), for the defendant. Boyle, J. In this case, the trial court dismissed plaintiffs claim pursuant to the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., on defendant’s motion for summary disposition. We hold that the trial court properly found that plaintiff had failed to sufficiently support a prima facie case of hostile work environment with documentary evidence and therefore affirm the decision of the Court of Appeals, which upheld the findings of the trial court. FACTS Plaintiff Elena Quinto was employed by defendant Cross and Peters Company, the maker of Better Made Potato Chips, for eighteen years. Plaintiffs first amended complaint sought judgment against Cross and Peters and John Kujawski, alleging that during four years at Cross and Peters, Kujawski, her supervisor, “demeaned and humiliated” and made “discriminatory decisions” concerning her that created a hostile work environment on the basis of her age, sex, and national origin. The complaint further alleged that, on one occasion, after a co-worker made obscene gestures, Kujawski asked her what happened “in a demeaning manner” and pushed her. Plaintiff was sixty years old and held the position of potato chip inspector when she left defendant’s employ. Plaintiff filed a two-count complaint against Cross and Peters and Kujawski. In her first count, she alleged an assault and battery by Kujawski. The second count alleged that defendant created a hostile work environment by demeaning and humiliating her in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq. Summary disposition was requested on behalf of both Cross and Peters and Kujawski on both counts. The trial judge stated that the two dispositive questions were whether plaintiff’s intentional tort claim was barred by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), and whether plaintiff had established a prima facie case of age, sex; or national origin discrimination. The trial court ultimately held that no intentional tort existed to take count I, plaintiffs assault and battery claim against defendant Cross and Peters, outside the worker’s compensation act because “[t]he evidence . . . does not establish that Defendant, Cross and Peters, her employer, had actual knowledge that any injury was certain to occur . . . Summary disposition was denied with respect to Kujawski. Regarding count n, the discrimination claim, the trial court found that, accepting plaintiff’s allegations of harassment as true, there were no specific facts in plaintiff’s affidavit sufficiently severe or pervasive to create a question of fact regarding Cross and Peters’ creation of a hostile work environment. The Court of Appeals affirmed the lower court in an unpublished memorandum opinion. Plaintiff appealed to this Court. We granted leave, limited to the issue whether the trial court erred in granting summary disposition on plaintiff’s claim of discrimination under the Civil Rights Act with regard to Cross and Peters. 448 Mich 868 (1995). i MCR 2.116 is modeled in part on Rule 56(e) of the Federal Rules of Civil Procedure. As pointed out by Justice Brennan in Celotex v Catrett, 477 US 317; 106 S Ct 2548; 91 L Ed 2d 265 (1986), the initial burden of production is on the moving party, and the moving party may satisfy the burden in one of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second,, the moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim. If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. [477 US 331 (citations omitted).] In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dis-positive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993). Plaintiff alleged that her supervisor, John Kujawski, created a hostile work environment contrary to the Civil Rights Act, MCL 37.2101 et seq.] MSA 3.548(101) et seq., by “continually” demeaning her in front of coemployees. Although the main thrust of defendant’s initial motion was the exclusive remedy issue, defendant also briefly addressed the hostile work environment claim. Plaintiff’s brief in reply responded to defendant’s claim that summary disposition should be granted in respect to the discrimination claim. Defendant’s responsive brief asserted that plaintiff had failed to provide specific facts to support allegations of discriminatory treatment. It referenced exhibits, attached deposition testimony and other evidence that refutes Plaintiff’s claims of alleged discrimination by Defendant Kujawsld resulting in the creation of a hostile working environment. Plaintiff has come forth with no evidence to establish a genuine issue of factual dispute; therefore, Defendant’s motion for Summary Disposition should be granted. Whatever the procedural peculiarities of the prior pleading and responses, it is clear that at the time of hearing on November 1, 1991, the parties knew that the civil rights claim was in issue. After the hearing and before the decision, plaintiff filed a reply brief and an affidavit in support, disputing the credibility of the deposition testimony regarding whether Ms. Quinto had been pushed by her supervisor. The affidavit also contained allegations regarding plaintiffs discrimination claim, stating in pertinent part: 9. . . . [M]y supervisor, John Kujawski, had continually harassed me by demeaning and humiliating me in front of fellow employees. 10. His conduct included comments regarding my age, my sex, my national origin and my ability to speak English. 11. That all of these incidents took place while I was at work. 12. That I reported these incidents to my superiors at work. Thus, the narrow issue before us is whether the affidavit raised a genuine issue of material fact sufficient to permit a reasonable jury to find a hostile work environment. The trial court concluded that plaintiff failed to present specific facts to support a prima facie case of discrimination. In particular, it found that plaintiffs allegations, taken as true, did not “rise to the level of severity necessary to sustain an actionable claim of hostile environment discrimination” against Cross and Peters. The Court of Appeals agreed. A We have not had occasion to address whether a claim of discrimination based on hostile environment, when the allegations of discrimination involve conduct or communication that is not “of a sexual nature,” is encompassed by the Civil Rights Act. MCL 37.2103(i)(iii); MSA 3.548(103)(i)(iii); Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993). Nor do we decide that issue today. Rather, we assume without deciding that plaintiff is within the class protected and that a hostile environment claim may be maintained on conduct involving a plaintiffs gender, age, or national origin. In Radtke, supra at 382-383, we set forth the five elements necessary to establish a prima facie case of discrimination based on hostile work environment: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of [her protected status]; (3) the employee was subjected to unwelcome . . . conduct or communication [involving her protected status]; (4) the unwelcome . . . conduct was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. MCL 37.2103(h); 37.2202(l)(a); MSA 3.548(103)(h); 3.548(202)(l)(a). Our review centers on the third and fourth elements — whether Kujawski’s actions involved conduct or communication involving her protected status, and whether the conduct toward plaintiff was intended to, or in fact did, substantially interfere with her employment or created an intimidating, hostile, or offensive work environment. Under Radtke, whether a hostile work environment was created by the unwelcome conduct “shall be determined by whether a reasonable person, in the totality of circumstances, would have perceived the conduct at issue as substantially interfering with the plaintiff’s employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.” 442 Mich 394. Consequently, to survive summary disposition, plaintiff had to present documentary evidence to the trial court that a genuine issue existed regarding whether a reasonable person would find that, in the totality of circumstances, Kujawski’s comments to plaintiff were sufficiently severe or pervasive to create a hostile work environment. B There is no serious claim that plaintiff was not on notice of the need to respond to the (C)(10) motion with regard to count H or that the motion was prematurely filed or prematurely granted. Despite plaintiffs burden to respond with “specific facts showing that there is a genuine issue for trial,” MCR 2.116(G)(4), plaintiff responded with conclusory allegations. At the stage where all that was before the court with respect to count n was the deposition testimony and the affidavit of the plaintiff, the only evidence of record supporting the plaintiffs claim of discrimination by Cross and Peters was inadequate under this standard. Had plaintiff testified in conclusory form at trial that her supervisor’s conduct was “continually” demeaning and humiliating regarding her age, sex, national origin, and ability to speak English, a reasonable jury could not have found from a preponderance of the evidence that the comments were of a type, severity, or duration to have created an objectively hostile work environment. Plaintiff’s affidavit disclosed no specific instances of ethnic, sexist, or “ageist” remarks hostile to a protected class from which an inference of a hostile work environment could be drawn. It did not describe with particularity when, where, or how plaintiff was harassed. Although, as the trial judge recognized, a single act by an employer may so poison the environment as to constitute discrimination, it does not follow that allegations of a push without evidence of conduct or communication violative of the act presents a claim to submit to a jury. Plaintiffs affidavit conclusorily states that Kujawski subjected her to harassing comments regarding her age, sex, national origin, and ability to speak English. As a consequence, the trial court properly found that plaintiff did not establish the existence of a genuine issue of material fact on an essential element of her claim. In conclusion, we hold that once defendant supported its motion for summary disposition under MCR 2.116(C)(10) with documentary evidence, plaintiff, as the opposing party, had the duty to rebut with documentary evidence defendant’s contention that no genuine issue of material fact existed. Plaintiff’s affidavit did not satisfy her burden as the opposing party; rather, it constituted mere conclusory allegations and was devoid of detail that would permit the conclusion that there was such conduct or communication of a type or severity that a reasonable person could find that a hostile work environment existed. The Court of Appeals properly affirmed the trial court’s grant of summary disposition in favor of defendant. Brickley, C.J., and Cavanagh, Riley, and Mallett, JJ., concurred with Boyle, J. Kujawski is now deceased. The only defendant before this Court is Cross and Peters. Issued February 17, 1994 (Docket No. 151198). Although writing in dissent, Justice Brennan did “not disagree with the Court’s legal analysis.” 477 US 329. On this point, his views harmonized with the majority. See 477 US 322-324. The deposition testimony of three co-workers and two upper-level employees indicated that defendant KryawsM treated plaintiff the same as everyone else, that he was a tough but fair boss, and that, if anything, it was plaintiff who was antagonistic and hypersensitive. The following deposition testimony from Senoia Waters, a co-worker, is relevant. Q. Did [plaintiff] have any problems with Mr. KujowsM [sic]? A. Not as I know of. Q. Was he [KujawsM] a tough guy to get along with at all? A. None of them are, no. Q. Was he an aggravating guy in any way? A. No. Q. Would he try and aggravate people? A. No. Q. Would John [Kujawsld] at any time get frustrated with [plaintiff]? A. Frustrated — you can get frustrated with all of us. Q. When he would get frustrated, would he — how would he respond? . . . Was he somebody who yelled? . . . A. No, he didn’t yell. When we were making him angry and not doing what we was supposed to do, he got frustrated with all of us, but it was never at the point where he would yell at you or none of that land of stuff, no. Co-worker Warner Scott stated: Q. Had he [Kryawsld] had any problems with Mrs. Quinto up to this point that you’re aware of? A. I’m sure he have [sic]. Q. Why do you say you’re sure he had? A. Because she’s just a bossy lady. She’s bossy. Q. Have you seen them argue before? A. No, not — I can’t say I have. A. She [plaintiff] always talk in — sometimes she talk in Italian and nobody understands her. She don’t talk English that well to me and she gets mad sometimes because you don’t understand that. Q. Was he [Kujawsld] ever tough with Mrs. Quinto? A. He was tough with all of us. Q. Was he ever sarcastic? Do you know what that means? A. Yeah, I know what it means. He wasn’t to me, no. Q. Was he to Mrs. Quinto? A. I don’t believe so. Q. Was he ever antagonistic with Mrs. Quinto? A. I don’t think so. Q. Was he a demanding boss? A. He’s demanding. Q. Did John Kujowski [sic] treat all the employees the same? A. Yes. Q. Was he fair? A. Very fair. Co-worker Rene Meservey stated: A. . . . She [plaintiff] had been in so many arguments with so many people. Q. . . . Was this kind of an argumentative lady or what, or was she the butt of everybody’s jokes? A. Yeah, or she would be afraid somebody was talking about her or picking on her or something like that, which especially — well, I can say, you know, a black person, because she was extremely prejudiced. Q. . . . [S]he had difficulty speaking English from what I understand. A. Yes. Q. Would anybody make fun of her or taunt her or anything like that? A. No, but I know she was always worried about that. ... It was just stuck in her head that people were talking about her. Why, I don’t know. That’s the type of woman she was, I guess

Karen A. Green vs. Wyman-Gordon Company. Worcester. January 9, 1996. May 3, 1996. Present: Liacos, C.J., Wilkins, Abrams, Lynch, O’Connor, Greaney, & Fried, JJ. Anti-Discrimination Law, Sex, Employment. Employment, Discrimination, Sexual harassment. Massachusetts Commission Against Discrimination. Statute, Construction. Civil Rights, Availability of remedy. Workers’ Compensation Act, Exclusivity provision, Emotional distress. Emotional Distress. Negligence, Emotional distress. The remedies and procedures of G. L. c. 15 IB, the employment discrimination act, are exclusive where applicable, and operated to bar a claim of sexual harassment in the workplace brought under G. L. c. 214, § 1C [554-557], as well as claims arising out of the same facts brought under the Massachusetts Civil Rights Act, G. L. c. 12, § 111, and the Massachusetts Equal Rights Act, G. L. c. 93, § 102 [557-558], Common law claims for negligent failure to investigate and to correct, negligent training and supervision, and breach of contract arising from alleged sexual harausment in the workplace were barred by the exclusivity provisions of G. L. c. 15IB, the employment discrimination act [558], and common law claims for intentional and negligent infliction of emotional distress arising from the same circumstances were barred by the exclusivity provision of G. L. c. 152, the workers’ compensation act [558-561]. Civil action commenced in the Superior Court Department on April 19, 1994. The case was heard by Daniel F. Toomey, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Mary A. Barker (April H. Babbitt with her) for the plaintiff. Richard C. Van Nostrand (Michael G. Donovan with him) for the defendant. Cynthia L. Amara & Stephen S. Ostrach, for New England Legal Foundation, amicus curiae, submitted a brief. Robert S. Mantell, for Massachusetts Chapter of the National Employment Lawyers Association, amicus curiae, submitted a brief. Lynch, J. The plaintiff, Karen A. Green, alleges that she was sexually harassed over a three-year period while employed by the defendant, Wyman-Gordon Company. The defendant terminated Green’s employment in June, 1992. In April, 1994, Green brought suit against the defendant in the Superior Court, alleging violations of G. L. c. 214, § 1C (1994 ed.), the Massachusetts Civil Rights Act, G. L. c. 12, § 11I (1994 ed.) (civil rights act), and the Massachusetts Equal Rights Act, G. L. c. 93, § 102 (1994 ed.) (equal rights act). Her action included common law claims for negligent failure to investigate and to correct, negligent training and supervision, intentional and negligent infliction of emotional distress, and breach of contract. The trial judge allowed the defendant’s motion for summary judgment on all counts. The plaintiff appealed. We granted the defendant’s application for direct appellate review and now affirm. The summary judgment record demonstrates the following (see Judson v. Essex Agric. & Technical Inst., 418 Mass. 159, 162 [1994]): The defendant hired the plaintiff in February, 1985. Starting in June, 1989, until her termination in June, 1992, the plaintiff was subjected to multiple instances of sexual harassment while she was employed in several different departments. While employed in the housekeeping department, Green was threatened and harassed by a coworker using obscene language and sexual slurs. The defendant held a meeting and issued a warning to the coworker, but refused Green’s requests to change her work schedule. After the plaintiff was assigned to another department, she was subjected to lewd and obscene remarks and gestures from another coworker. In addition, she was exposed to posters of naked and partially clothed women on the walls and ceiling of the work area. After Green reported to her supervisors that she was being harassed, a meeting was held, but the defendant took no action against the coworker. Although Green was permitted to change shifts for about one week, she was forced to return to the shift with the offensive coworker. About two weeks later, the plaintiff was terminated from her employment. As a result of the harassment, the plaintiff suffered severe emotional distress. 1. Background. In order to analyze the plaintiff’s claims properly, we need to examine the legislative and judicial response to the problem of sexual harassment in the Massachusetts workplace. This court first addressed the issue of sexual harassment in College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 162 (1987). In that case, the court decided that sexual harassment was a form of discrimination and that the plaintiff’s claim was cognizable under G. L. c. 151B, § 4 (1) (1994 ed.). Id. In O’Connell v. Chasdi, 400 Mass. 686, 693 & n.9 (1987), however, the provisions of G. L. c. 151B (1994 ed.) did not apply because the plaintiff’s employer had fewer than six employees. See G. L. c. 151B, § 1 (5). The court nevertheless decided that the plaintiff had a claim under the civil rights act on the rationale that art. 1 of the Massachusetts Declaration of Rights created a right to be free from sexual harassment in the workplace. O’Connell v. Chasdi, supra at 693. On December 9, 1986, before this court’s decisions in College-Town and O’Connell v. Chasdi were published (but while they were pending in this court), the Massachusetts Legislature enacted St. 1986, c. 588, entitled “An act prohibiting sexual harassment.” Chapter 588 amended G. L. c. 151A (unemployment compensation), G. L. c. 151B (employment discrimination), G. L. c. 151C (education), and G. L. c. 214 (equity jurisdiction). The legislation added a definition of sexual harassment to G. L. c. 151B, § 1, see St. 1986, c. 588, § 2, and added subsection 16A to § 4, declaring it to be an unlawful practice under c. 151B for an employer “to sexually harass any employee.” St. 1986, c. 588, § 3. In addition, the statute added G. L. c. 214, § 1C, which states: “A person shall have the right to be free from sexual harassment, as defined in chapter one hundred and fifty-one B and one hundred and fifty-one C. The superior court shall have the jurisdiction in equity to enforce this right and to award damages.” St. 1986, c. 588, § 6. In this case and two other cases decided today, we have an opportunity to revisit sexual harassment claims in this new statutory context. 2. Statutory claims. Employees who are victims of sexual harassment by their employers or their agents have a remedy under G. L. c. 15IB, §§ 4 (16A) and 5. The plaintiff did not file a complaint with the Massachusetts Commission Against Discrimination (MCAD) within the six-month statutory time period. See G. L. c. 151B, § 5. The plaintiff argues that her failure to file such a claim does not preclude her from bringing a sexual harassment suit in the Superior Court under G. L. c. 214, § 1C. Therefore, we must determine whether, by enacting G. L. c. 214, § 1C, the Legislature intended to create a duplicative remedy for victims of sexual harassment, such that a plaintiff may either seek relief initially by filing a complaint with the MCAD, or bypass the MCAD entirely and file a suit directly in the Superior Court. We conclude that the exclusive statutory remedy for the plaintiff in this case was that provided by c. 15IB, for the reasons set out below. We ordinarily construe statutes to be consistent with one another. St. Germaine v. Pendergast, 411 Mass. 615, 626 (1992). We assume that the Legislature was aware of existing statutes when enacting subsequent ones. LaBranche v. A.J. Lane & Co., 404 Mass. 725, 728 (1989). Thus, we attempt to interpret statutes addressing the same subject matter harmoniously, “so that effect is given to every provision in all of them.” 2B Singer, Sutherland Statutory Construction § 51.02, at 122 (5th ed. 1992). See St. Germaine v. Pendergast, supra (construing exclusivity provisions of workers’ compensation act). With these general principles in mind, we must examine the administrative scheme created by c. 15IB and determine the reach of its exclusivity provisions. General Laws c. 151B, § 9, provides, in relevant part: “[A]s to acts declared unlawful by section four, the procedure provided in this chapter shall, while pending, be exclusive.” We have interpreted this broad exclusivity provision to embody a legislative intent “to subject all discrimination claims to some administrative scrutiny.” Charland v. Muzi Motors, Inc., 417 Mass. 580, 585 (1994). Accordingly, where c. 15IB applies, a person may not evade its procedural requirements by recasting a discrimination claim as a violation of the equal rights act, see id. at 586, or the civil rights act, see Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 543 (1987). Applying this rationale, we have declined to create new common law remedies for employment discrimination which would allow claimants to sidestep c. 15IB’s administrative prerequisites. See Melley v. Gillette Corp., 19 Mass. App. Ct. 511 (1985), S.C., 397 Mass. 1004 (1986). Cf. Comey v. Hill, 387 Mass. 11, 20 (1982) (claimants may bring common law claims against employers which are grounded in tort and contract principles established prior to adoption of c. 15 IB). Against this background, we see no basis to except claims of sexual harassment from the broad and comprehensive remedial scheme provided in c. 15 IB absent an explicit statutory authorization. We do not believe that G. L. c. 214, § 1C, contains such an authorization. Accordingly, we agree with the defendant that, in this case, c. 15IB’s remedies and procedures are exclusive and bar the plaintiffs claim under G. L. c. 214, § 1C. See 2B Singer, Sutherland Statutory Construction § 51.02, at 121 (5th ed. 1992) (“In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in [the] prior statutes”). This interpretation serves the legislative purpose by preserving the integrity of the administrative scheme. As we noted in the Charland case: “Chapter 15 IB reflects the [Ljegislature’s balancing of competing interests. Employees are protected against certain types of [unlawful action]. Employers are protected from unnecessary litigation by a relatively short statute of limitations, see ch. 15IB § 5 (six months), and a mandatory conciliation process.” Charland v. Muzi Motors, Inc., supra at 583, quoting Crews v. Memorex Corp., 588 F. Supp. 27, 29 (D. Mass. 1984). Indeed, the simultaneous amendment of c. 15IB to add sexual harassment in employment to the list of unfair practices indicates a legislative intent to reinforce the administrative scheme, not weaken it. See St. 1986, c. 588, § 3. See also 2A Singer, Sutherland Statutory Construction § 46.05, at 103-104 (5th ed. 1992). It is also noteworthy that these sections were added at a time when it was unclear whether any existing statute or constitutional provision provided a remedy for victims of sexual harassment. Added support for this construction comes from the legislative history of G. L. c. 214, § 1C. Prior to enactment, eight different versions of the law were proposed. Two of those bills contained the following language: “The filing of a complaint under chapter 15IB shall not be a prerequisite to filing a complaint under this section in the superior court.” 1986 House Doc. No. 488 at 2. 1986 House Doc. No. 3136 at 2. The above-quoted sentence was omitted from the statute as enacted, and was in fact, “the only pertinent deletion before Section 1C became law.” Clarke v. Kentucky Fried Chicken of Cal., Inc., 57 F.3d 21, 26 (1st Cir. 1995). Deletions of limiting language from predecessor bills is normally presumed to be intentional. Id., citing Russello v. United States, 464 U.S. 16, 23-24 (1983), and Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 700 (1st. Cir.), cert. denied, 115 S. Ct. 298 (1994). See also 2A Singer, Sutherland Statutory Construction § 48.04, at 325 (5th ed. 1992). The plaintiff argues that we render G. L. c. 214, § 1C, a “near nullity” if we do not construe it to provide a duplicative remedy. We disagree. First, G. L. c. 214, § 1C, ensures that all employees are protected against sexual harassment in the workplace, whether or not their employers fit within the definition in c. 15IB. Thus, employees who cannot file claims with the MCAD because of limited size of the workforce, see G. L. c. 15IB, § 1 (5) (employers of fewer than six employees not included) are protected by § 1C. Second, the statute provides exclusive jurisdiction in the Superior Court for any sexual harassment claim that is brought in the courts because either (a) the employer is not covered by c. 15IB; or (b) the claimant has satisfied the procedural prerequisites for a c. 15IB claim and has chosen to pursue the case in court. See Clarke v. Kentucky Fried Chicken of Cal., Inc., supra at 26. Therefore, we affirm the motion judge’s conclusion that the plaintiffs G. L. c. 214, § 1C, claim is barred. See id. Accord Johnson v. Plastic Packaging, Inc., 892 F. Supp. 25, 31 (D. Mass. 1995); Desrosiers v. Great Atl. & Pac. Tea Co., 885 F. Supp. 308, 313-314 (D. Mass. 1995). For the reasons stated above, the plaintiffs claims under the civil rights act and the equal rights act are similarly precluded. See Charland v. Muzi Motors, Inc., supra at 586. Where, as here, c. 15IB applies, its comprehensive remedial scheme is exclusive, in the absence of an explicit legislative command to the contrary. Otherwise, “[t]o permit such duplication of remedies would allow claimants to bypass the procedural prerequisites defined by the [Legislature in [G. L. c. 15IB], crippling the effectiveness of this specific statutory remedy for discrimination in employment.” Bergeson v. Franchi, 783 F. Supp. 713, 721 (D. Mass. 1992). 3. Common law claims. Insofar as the plaintiff’s common law claims are merely recast versions of her sexual harassment claims under c. 151B, they are barred by that statute’s exclusivity provision. See Charland v. Muzi Motors, Inc., supra at 586; Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985). We acknowledge, however, that not all of the plaintiff’s common law claims are barred under c. 15IB. See Comey v. Hill, supra at 20. The defendant argues, however, that those common law claims not barred by c. 15IB, notably the claims for intentional and negligent infliction of emotional distress, are barred by the exclusivity provision of the workers’ compensation act, G. L. c. 152, § 24 (1994 ed.). We agree. Common law actions are barred by the exclusivity provision of the workers’ compensation act where: “the plaintiff is shown to be an employee; his condition is shown to be a ‘personal injury’ within the meaning of the [workers’] compensation act; and the injury is shown to have arisen ‘out of and in the course of . . . employment.’ ” Foley v. Polaroid Corp., 381 Mass. 545, 548-549 (1980) (Foley I), quoting G. L. c. 152, § 26 (1994 ed.). The plaintiff’s common law claims meet this test. It makes no difference that the emotional distress results from a fellow employee since the injury is still compensable under the workers’ compensation act. See Anzalone v. Massachusetts Bay Transp. Auth., 403 Mass. 119, 124 (1988); Foley I, supra at 550. See also G. L. c. 152, § 1 (7A) (1994 ed.) (intentionally inflicted emotional harm compensable under workers’ compensation act, even when result of bona fide personnel action). An employer may be vicariously liable for emotional distress intentionally inflicted by one employee on another. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 167 (1987). However, we need not decide whether the employer was either directly or vicariously liable, since, in either case, the injuries would be compensable under the workers’ compensation act. Accordingly, the motion judge correctly dismissed the plaintiffs claim for intentional infliction of emotional distress. The plaintiffs negligent infliction of emotional distress claim also must fail. The plaintiff argues that recent amendments to the definition of “personal injury” permit her to recover for negligently inflicted emotional distress that is the result of a “bona fide, personnel action.” The plaintiff argues that the language of the amendment set out in the margin somehow revives common law actions resulting in emotional distress, where that distress is not inflicted intentionally. Thus, goes the argument, if the defendant’s bona fide personnel actions unintentionally caused the plaintiffs emotional injuries, then those injuries are not “compensable” under the workers’ compensation act, the exclusivity provision does not apply, and the plaintiff can bring a common law action for negligent infliction of emotional distress. We do not agree. The intent of the amendment was to reverse the result in Kelly’s Case, 394 Mass. 684 (1985), where we permitted an employee to recover for emotional distress associated with a threatened layoff and transfer. See Robinson’s Case, 416 Mass. 454, 458-459 (1993). See generally L. Locke, Workmen’s Compensation § 10.5, at 270-271 (Nason & Wall Supp. 1995). The plaintiff purports to turn this intention on its head, presuming that the Legislature, in cutting off an avenue of recovery for employees under the workers’ compensation act, intended to open up a previously closed common law route. We see no reason to attribute such paradoxical intentions to the Legislature, especially where the result would “negate the intended purpose of the Workers’ Compensation Act to provide a uniform, statutory remedy for injured workers, in contrast to a piecemeal, tort-based system.” Catalano v. First Essex Sav. Bank, 37 Mass. App. Ct. 377, 380 (1994). See Clarke v. Kentucky Fried Chicken of Cal., Inc., supra at 29. There is no question that an action for negligent infliction of emotional distress that is not the result of a bona fide personnel action is barred by the exclusivity provision of the workers’ compensation act. See Foley I, supra at 552. Assuming that the plaintiffs emotional injuries were the result of bona fide personnel actions, however, there is still no basis for recovery. “[I]t would strain credulity and common sense to presume that the Legislature chose to limit employers’ collective liability under the workers’ compensation scheme, only to expose individual employers to greater liability in common law negligence suits based on bona fide personnel actions.” Clarke v. Kentucky Fried Chicken of Cal, Inc., supra at 29. See Catalano v. First Essex Sav. Bank, supra. The result we reach here is not inconsistent with our decisions concluding that plaintiffs may recover for emotional injuries sustained in connection with claims that are not barred by the exclusivity provisions of the workers’ compensation act. See Flesner v. Technical Communications Corp., 410 Mass. 805, 814 n.9 (1991); Foley v. Polaroid Corp., 400 Mass. 82, 93 (1987) (Foley II); College-Town, supra at 169; Foley I, supra at 552. In those cases we concluded that emotional distress damages are not barred where the underlying claim is not barred. Furthermore, we concluded that underlying common law claims survived where “physical or mental harm is incidental, and is not an indispensable ingredient” of the claim. Foley I, supra. For example, in Foley I, we concluded that claims for defamation, malicious prosecution, and violation of civil rights were not compensable under the workers’ compensation act and so were not barred. Id. at 552-554. See Madden’s Case, 222 Mass. 487, 492 (1916) (claims for libel, malicious prosecution, false imprisonment, invasion of privacy, alienation of affection, seduction, false arrest, and “kindred tortious acts” not compensable). On the other hand, where “mental harm is the essence of the [claim],” it is an indispensable ingredient, and th

Marlyn Guzman vs. Lazar Lowinger. Middlesex. January 9, 1996. May 3, 1996. Present: Liacos, C.J., Wilkins, Abrams, Lynch, O’Connor, Greaney, & Fried, JJ. Employment, Discrimination, Sexual harassment. Anti-Discrimination Law, Sex, Employment. Civil Rights, Availability of remedy. Statute, Construction. General Laws c. 214, § 1C, inserted by St. 1986, c. 588, § 6, provides the exclusive statutory remedy for a claim of sexual harassment brought against an employer of fewer than six employees, and bars recovery for the same conduct under the Massachusetts Civil Rights Act, G. L. c. 12, § 111. [571-573] Civil action commenced in the Superior Court Department on July 7, 1592. A motion for summary judgment was heard by James F. McHugh, III, J., and the case was tried before him. The Supreme Judicial Court granted an application for direct appellate review. Thomas C. Cameron for the plaintiff. Thomas J. Chirokas (Lazar Lowinger with him) for the defendant. Lynch, J. The plaintiff, Marlyn Guzman, brought this action against her former employer, the defendant, Lazar Lowinger, to recover for injuries arising out of Lowinger’s alleged sexual harassment of the plaintiff in 1992. The plaintiff brought statutory claims under G. L. c. 214, § 1C (1994 ed.), and the Massachusetts Civil Rights Act, G. L. c. 12, § 111 (1994 ed.) (civil rights act). She also brought common law claims for assault and battery, intentional infliction of emotional distress, and wrongful termination. Before trial, the defendant moved for summary judgment on all counts. The judge granted the motion as to the civil rights act claim. After a trial on the other claims, a jury awarded the plaintiff $6,500 for intentional infliction of emotional distress, and found for the defendant on all the other counts. The plaintiff appeals from the judge’s dismissal of the civil rights count. We granted the plaintiff’s application for direct appellate review and now affirm. Taking the facts in the light most favorable to the plaintiff, the record indicates the following: Marlyn Guzman was employed as a bilingual legal secretary by the defendant for four months in 1992. The defendant is a practicing attorney with fewer than six employees. While the plaintiff was working for the defendant, he is alleged to have engaged in unwanted, unprovoked, and inappropriate behavior, including physical assaults and offensive verbal comments of a sexual nature, which led the plaintiff to believe that she had to choose between giving in to the defendant’s demands for a sexual relationship, or quitting her job. As a result of the harassment, the plaintiff suffered severe emotional distress; eventually, she felt compelled to leave the defendant’s employ. The Legislature hás provided a comprehensive remedial scheme for victims of sexual harassment in the workplace in G. L. c. 151B, § 4 (16A), and G. L. c. 214, § 1C, inserted by St. 1986, c. 588, §§ 3 and 6, respectively. As we noted in Green v. Wyman-Gordon Co., ante 551 (1996), and Doe v. Purity Supreme, Inc., ante 563 (1996), where G. L. c. 151B applies, its procedural prerequisites may not be bypassed by reconstituting a sexual harassment claim as a violation of the civil rights act or the Massachusetts Equal Rights Act, G. L. c. 93, § 102 (1994 ed.), or as a new common law claim. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994). Here, the defendant has fewer than six employees and so is not an employer subject to the provisions of G. L. c. 151B. Nevertheless, as the judge correctly recognized, the claim falls squarely under G. L. c. 214, § 1C, which permits employees such as the plaintiff to bring suit in the Superior Court for damages rising from sexual harassment in employment. Just as G. L. c. 151B provides an exclusive remedy for sexual harassment claims against employers with six or more employees, G. L. c. 214, § 1C, provides the exclusive remedy for such claims against employers of fewer than six employees. In neither case does an independent and duplicative right exist to pursue such claims under the civil rights act. In O’Connell v. Chasdi, 400 Mass. 686 (1987), this court allowed a plaintiff to pursue a sexual harassment claim against her employer under the civil rights act, where the employer was not covered by c. 151B. Id. at 693-694. Where no other underlying common law or statutory right was implicated, the court found a right to be free from sexual harassment in art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Amendments. Id. The crucial difference between O’Connell v. Chasdi, supra, and the instant case is the passage of St. 1986, c. 588, § 6, after the underlying action in O’Connell had been filed. By adding G. L. c. 214, § 1C, the Legislature provided that which was missing in O’Connell: a statutory right to be free from sexual harassment. Where, as here, G. L. c. 151B does not apply, an employee may bring a claim under G. L. c. 214, § 1C. Indeed, the plaintiff did bring such a claim in this case. Having lost at trial on this claim, she now seeks to retry the same claim under the auspices of the civil rights act. We perceive no indication that the Legislature intended to create such a duplication of remedies for sexual harassment claimants. See Charland v. Muzi Motors, Inc., supra. It is true that the result we reach creates somewhat of an anomaly. Employees of larger concerns must pursue their claims first at the Massachusetts Commission Against Discrimination (MCAD), while employees of smaller scale employers can bypass the MCAD and bring their actions directly in the Superior Court. While we are at a loss to perceive in the statutory framework a reasoned basis for this distinction, neither is there any basis for concluding that the Legislature intended to provide two remedies for the same claim. We conclude therefore that, in enacting St. 1986, c. 588, the Legislature created a comprehensive scheme for adjudicating claims of sexual harassment in the workplace. Where, as here, G. L. c. 214, § 1C, applies to a claim of sexual harassment, it is the exclusive statutory remedy and therefore bars recovery under the civil rights act. See Green v. Wyman-Gordon Co., supra. Judgment affirmed. Although the judge stated that he was dismissing the claim, he appears to have been ruling on the defendant’s motion for summary judgment. The plaintiff argues that the standard for a motion to dismiss should apply. We need not resolve the issue since the defendant is entitled to judgment as matter of law under either standard. The defendant’s actions alleged included: grabbing the plaintiff by the hips and pulling her onto his lap; taking hold of both of the plaintiff’s hands while talking to her; putting his arm around her; and stating that she should “dump her boyfriend,” that the plaintiff’s “ruby lips” were driving him crazy, that her engagement ring meant nothing to him, and that she needed a “real man” like the defendant. On one occasion, the defendant allegedly told the plaintiff, “If [I] were younger, [I would] eat [you] in such a way [as to] leave no leftovers for [your] boyfriend.”

Edward G. Clement, Jr. vs. Rev-Lyn Contracting Company & another No. 95-P-50. Suffolk. February 15, 1996. April 24, 1996. Present: Armstrong, Gillerman, & Ireland, JJ. Unlawful Interference. Contract, Employment. Employment, Termination. Practice, Civil, Instructions to jury. A corporation could not be held vicariously liable for wrongful interference with the employment of one of its own employees based on the tortious conduct of one of its supervisory employees. [323-324] At the trial of a claim for wrongful interference with employment, the judge’s erroneous instructions to the jury with respect to the legal standard governing the plaintiffs termination from employment by the defendant and his failure to instruct properly on the plaintiffs burden of proof in the circumstances presented required that the defendant be granted a new trial on that claim. [324-326] Civil action commenced in the Superior Court Department on May 18, 1989. The case was tried before Hiller B. Zobel, J. Howard G. Guggenheim for the defendants. David F. Cavers, Jr., for the plaintiff. Ralph L. Beaudoin Gillerman, J. From September, 1986, until the termination of his employment on August 8, 1988, Edward G. Clement, Jr., was an estimator and foreman for Rev-Lyn Contracting Company (corporation). The corporation, forty-nine per cent of which was owned by the defendant Ralph L. Beaudoin, was in the marine contracting business. In the action Clement brought against the corporation and Beaudoin, the jury, answering special questions, found that Beaudoin wrongfully interfered with Clement’s employment by the corporation, and that Beaudoin’s wrongful interference was the proximate cause of Clement’s damages in the amount of $45,000. The jury also found that Beaudoin had slandered Clement, that the slanderous remarks were not privileged, but that Clement suffered no damages as a result of the slanderous remarks. Following the verdict of the jury, the judge, over the defendant’s objection, allowed Clement’s motion to amend the complaint by adding the corporation as a party defendant to the count regarding wrongful interference. Thereafter, judgment was entered against both defendants on the wrongful interference claim, and subsequently the defendants’ motions for new trial and for judgment notwithstanding the verdict were denied. The defendants filed a timely notice of appeal. We conclude that the judgment against the corporation must be reversed and the claim of wrongful interference against the corporation dismissed, and that there must be a new trial of the claim against Beaudoin as a result of an error in the judge’s instructions to the jury on the wrongful interference claim. 1. The judgment against the corporation. Clement acknowledges that his task of preserving the judgment against the corporation requires “departing from the usual rule” that malicious interference by a supervisory employee will not be imputed to the employer. See Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663 n.3 (1981); Riseman v. Orion Research, Inc., 394 Mass. 311, 314 (1985); Mailhiot v. Liberty Bank & Trust Co., 24 Mass. App. Ct. 525, 528 (1987). See also Saint Louis v. Baystate Med. Center, Inc., 30 Mass. App. Ct. 393, 404 (1991). Clement makes the argument that if liability can be imposed on an employer who terminates an at-will employee in violation of clearly established public policy, see Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988), then vicarious liability should be imposed when an at-will employee is discharged with actual malice by a supervisor acting within the scope of his or her employment. To permit the existing distinction, the argument runs, is merely to select violations of public policy as more deserving of protection than malicious acts of supervisory employees — a choice that cannot rationally be defended. We will not enter that debate, and consider the result in this case controlled by the cases cited above, all of them relatively recently decided. See also Smith- Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 150 (1989). The judge was in error in entering judgment against the corporation. 2. The judge’s instruction regarding Beaudoin. The judge’s instructions to the jury regarding the claim of intentional interference reduced the issue of the validity of Clement’s termination to the question whether Beaudoin did it “in a reasonable way.” The defendant objected, citing Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992). The judge’s instructions were not consistent with Wright v. Shriners Hosp. for Crippled Children, supra, and if the error injuriously affected the substantial rights of Beaudoin, there must be a new trial. See Timmons v. Massachusetts Bay Transp. Authy., 412 Mass. 646, 652 (1992). In an action for intentional interference with contractual relations, the plaintiff must prove that the defendant intentionally interfered with the plaintiff’s business relationship with a third person and that such intentional interference was improper in motive or means. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816 & n.8 (1990); Melo-Tone Vending, Inc. v. Sherry, Inc., 39 Mass. App. Ct. 315, 316, 318 (1995). See Restatement (Second) of Torts §§ 766-767 (1979). Where, as here, the termination is by a supervisor acting within the scope of his responsibilities, the supervisor (Beaudoin) “was privileged to act as he did,” but the plaintiff may prevail if he proves that the supervisor “acted out of malevolence, that is, with ‘actual’ malice.” Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663 (1981). See also Wright, supra at 476 (there is a right to fire an at-will employee unless the termination is “for a spiteful, malignant purpose, unrelated to the legitimate corporate interest”); Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 432-433 (1987). While Clement presented evidence (and the jury found) that at a meeting on August 9, 1988, Beaudoin grossly slandered Clement in the presence of other employees without justification, and while Clement also presented evidence that Beaudoin, at the August 9 meeting, threatened Clement with physical violence if he showed up for work the next day (all of which was sufficient to warrant the finding that Beaudoin acted with a malignant purpose), there was also evidence presented by Beaudoin that he did not act out of a “spiteful, malignant purpose, unrelated to the legitimate corporate interest,” see Wright, supra at 476. Beaudoin’s evidence, if credited by the jury, could be sufficient to warrant the finding that Beaudoin acted to benefit the corporation. Where, as here, there is evidence that Beaudoin acted both from malicious motives and a motive related to the corporation’s legitimate interests (see note 9, supra), the plaintiff has the burden of proving that Beaudoin’s “actions were unrelated to any legitimate corporate interest.” Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993). The jury should have been instructed regarding the need to determine whether the plaintiff had carried his burden of proving that Beaudoin acted with a malignant purpose, unrelated to any legitimate corporate interest, and a suitable special question to that end could have been framed. By lowering the threshold of liability from a “spiteful, malignant purpose” to conduct that was merely unreasonable, the judge improperly diminished the plaintiffs burden of proof to the material disadvantage of Beaudoin. Beaudoin is entitled to a new trial on the claim against him for causing the termination of Clement’s at-will employment. The judgment with respect to Rev-Lyn Contracting Company is reversed, and judgment is to enter dismissing the complaint as to that defendant. The judgment against Beaudoin on count II is reversed, and the case is remanded to the Superior Court for further proceedings on that count. So ordered. The remaining fifty-one per cent was owned by Rosemary Kelly. Neither party claims any error regarding the slander claim. The corporation was already a defendant on the slander count. The defendant had filed a motion for a directed verdict at the close of the evidence. We have also considered Clement’s suggestion that because the corporation was a small enterprise owned entirely by Beaudoin and Rosemary Kelly, the new rule he proposes — if limited to close corporations — would be quite narrow in scope. We are unpersuaded by the argument, for what is at stake is the risk of converting the existing rule regarding at-will employees into a rule requiring just cause for terminating such employees. See Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 475 (1992). Beaudoin, relying on the same facts, argues that the judge erred in denying his motion for judgment notwithstanding the jury’s verdict. That is, Beaudoin claims that, with forty-nine per cent of the stock, he was the employer and, therefore, he cannot be liable for tortious interference with his own contract. We reject that argument as well; Beaudoin fails to advance any sound reason for disregarding the corporate entity. The full statement by the judge to the jury was, “The question is did he do it in a reasonable way.” In response, a juror asked whether it is “[wjrongful based on what we consider is reasonable or wrongful based on what the law says is reasonable?” The judge replied, “On what you think is reasonable.” Beaudoin testified, without objection, to his authority to hire and fire. Beaudoin testified that Clement cost the corporation a quarter of a million dollars, that Clement had taken much too long in performing the contract at Osterville, that Clement used unnecessary equipment which cost the company a lot of money, and that Beaudoin wanted Clement out of the corporation because of poor job performance.

Lisa A. Prader vs. Leading Edge Products, Inc. No. 94-P-476. Worcester. November 2, 1995. January 19, 1996. Present: Brown, Kass, & Porada, JJ. Federal Labor Standards Act. Labor, Discharge. Public Policy. Employment, Termination, Sexual harassment. Practice, Civil, Affidavit. In a civil action the judge correctly ordered summary judgment for the defendant employer where the plaintiff asserted no facts in support of her claims that she was discharged in violation of the anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. § 215 (a) (3) [617-618], or for a reason contrary to public policy [618-619], or that she was subject to sexual harassment in her work place [619-620]. The judge in a civil action did not err in refusing to strike, on hearsay grounds, portions of an affidavit submitted in support of a motion for summary judgment where a copy of the affiant’s deposition was filed that clarified the statements in the affidavit. [620] Civil action commenced in the Superior Court Department on October 15, 1992. The case was heard by Charles J. Hely, J., on a motion for summary judgment. James M. Parker for the plaintiff. Howard M. Brown for the defendant. Porada, J. After the plaintiff was fired by the defendant, she filed a complaint in the Superior Court alleging wrongful termination on the grounds that her discharge constituted a violation of the Fair Labor Standards Act, 29 U.S.C. §§ 215(a) (3) and 216(b) (1988), and the public policy which permits an employee to report an alleged criminal violation by her employer to the police. She also claimed that her employer’s conduct violated the Massachusetts sexual harassment law, G. L. c. 214, § 1C. The defendant filed a motion for summary judgment based on the ground that the plaintiff failed to meet her burden of proof that the employer’s conduct constituted a violation of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The Superior Court judge agreed and entered judgment for the defendant. The plaintiff appeals, claiming: (1) that she had produced sufficient evidence at the summary judgment stage to meet her burden and (2) that the judge erred in failing to allow her motion to strike parts of an affidavit submitted by the defendant in support of its motion for summary judgment. We affirm. 1. Federal Labor Standards Act claim. The plaintiff asserts that the defendant violated the anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. § 215(a) (3). Under § 215(a) (3) of the Act, if the immediate cause or motivating factor of a discharge is the employee’s assertion of statutory rights, then the discharge of the employee constitutes a violation even if other grounds for discharge exist. If the employee’s assertion of statutory rights is not the motivating factor, however, then the discharge is not unlawful. Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th Cir. 1992). Here, the only fact asserted by the plaintiff to support her claim was that she was one of eight employees who received back pay awards for overtime work following an investigation by the Department of Labor. The defendant averred, however, that none of the other employees who received back pay awards was fired and that the plaintiff was fired because of numerous complaints from customers and staff about her uncooperative attitude. The defendant’s reason for firing the plaintiff was buttressed by a written performance evaluation by the plaintiff’s immediate supervisor some months prior to her receipt of the back pay award which, although in general favorable to the plaintiff, stated that the plaintiff needed improvement in the following categories: attitude, tact, communication and courtesy. Accordingly, the plaintiff failed to meet her burden of demonstrating a causal link between her discharge and her receipt of back pay. See Hoeppner v. Crotched Mountain Rehabilitation Ctr., Inc., 31 F.3d 9, 14 (1st Cir. 1994) (conclusory allegation of retaliation unsupported by specific facts is insufficient to survive summary judgment). 2. Public policy claim. The plaintiff claims that her employment was terminated on October 23, 1991, because of a complaint for assault and battery that she filed against her supervisor, Margaret Cardamone, with the Westborough police department. She alleges that on September 27, 1991, the two of them got into a verbal confrontation at work and as she started to walk away, Cardamone grabbed her arm, started to shake it, and uttered obscenities at her. The plaintiff reported the incident to management and the police. There is no dispute that the plaintiff was an at-will employee of the defendant. As such, her employment could be terminated at any time for any reason or for no reason at all. Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 n.6 (1981). Relief may, however, be had in some circumstances where an at-will employee’s termination is contrary to public policy. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). “Redress is available for employees who are terminated for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Ibid. Another public policy basis for imposing liability is where there has been retaliation for the performance of an important public deed. See Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991). The plaintiff has not specified which of the categories of public policy violation her situation falls into. Arguably, it falls into the category of assertion of her legally guaranteed rights. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass, at 149. Nevertheless, assuming she could not be fired for reporting the incident to the police, it is not enough for her to assert that she was fired for that reason. She was required to produce evidence sufficient to meet her burden of proving a causal relationship between the two events. Although she alleged that she told two other employees that she had filed a police report against Cardamone, there was no evidence that those individuals played any role in the decision to fire her nor was there evidence that the president of the defendant corporation, who made the decision to fire the plaintiff because of her uncooperative attitude, was even aware that she had filed a police report. Absent such evidence, the claim fails. Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 704 (1992). 3. Sexual harassment claim. The plaintiff alleges that the excessive use of profanity in the defendant’s work place, particularly from Cardamone, resulted in a sexually hostile work place and, thus, constituted a violation of G. L. c. 151B, § 1(18). Here, the plaintiff’s claim fails, because she produced no evidence that those remarks constituted sexual harassment as defined by the statute or were directed to her based on her sex. See Lipsett v. Rive-Mora, 669 F. Supp. 1188, 1199 (D. P.R. 1987), and cases collected therein. Although the words used by Cardamone do have an explicit sexual connotation, their meaning and usage is not limited to that connotation. Her words amounted to no more than crass garden-variety expletives; they were not sexual commands or lurid innuendos. While scenarios can exist in which explicit sexually charged language alone constitutes harassment, see, e.g., Moffett v. Gene B. Glick Co., 621 F. Supp. 244, 269-270 (N.D. Ind. 1985), the “culture of profanity” in existence at the defendant’s work place, although offensive to the plaintiff, simply was not a form of sexual harassment. Cf. Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673 (1993). As one Federal court astutely observed, “Title VII is not a clean language act. . . .” Scott v. Sears, Roebuck & Co., 798 F.2d 210, 213 n.2 (7th Cir. 1986), quoting from Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983). We similarly conclude that G. L. c. 151B, § 1(18), does not mandate “clean language” in the work place. 4. Motion to strike. The plaintiff claims the motion judge erred in refusing to strike portions of an affidavit of the defendant’s manager of human resources filed by the defendant in support of its motion for summary judgment. The plaintiff claims those portions should have been struck as hearsay. We conclude that any deficiencies in the affidavit were cured by the defendant’s filing with the court a copy of the manager’s deposition which clarified the statements contained in her affidavit. Judgment affirmed. Sexual harassment is defined as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have 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. 151B, § 1(18), as amended through St. 1986, c. 588, § 2. The plaintiff complains that the supervisor referred to her as a “cocksucker” and “a fucking . . . .”

PATRICIA GRAHAM, Plaintiff-Appellant v. HARDEE’S FOOD SYSTEMS, INC., Defendant-Appellee No. 9418SC449 (Filed 16 January 1996) 1. Judgments § 268 (NCI4th); Trial § 226 (NCI4th)— second dismissal against employee — derivative claims against employer barred Plaintiff’s second voluntary dismissal against defendant employee operated to bar her derivative claims against defendant employer, including a claim for negligent supervision and retention. N.C.G.S. § 1A-1, Rule 41(a)(1)(h). Am Jur 2d, Dismissal, Discontinuance, and Nonsuit §§ 73-77. What dismissals preclude a further suit, under federal and state rules regarding two dismissals. 65 ALR2d 642. 2. Labor and Employment § 68 (NCI4th)— constructive wrongful discharge — insufficient evidence The North Carolina courts have not yet adopted the tort of constructive wrongful discharge. Assuming the existence of such a cause of action, the trial court did not err by dismissing plaintiff’s claim where there was no evidence of intolerable conditions deliberately created by the employer to force plaintiff to leave her job. Am Jur 2d, Job Discrimination §§ 1091-1099; Wrongful Discharge § 8. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Circumstances in Title VII employment discrimination cases (42 USCS secs. 2000e et seq.) which warrant finding of “constructive discharge” of discriminatee who resigns employment. 55 ALR Fed. 418. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS secs. 2000e et seq.). 78 ALR Fed. 252. 3. Negligence § 6 (NCI4th)— negligent infliction of emotional distress — insufficient evidence Plaintiffs claim against her former employer for negligent infliction of emotional distress must fail where plaintiff’s second dismissal of her claim against a district manager relieved the employer of liability under a theory of ratification of the district manager’s improper conduct, and plaintiff presented no evidence of extreme and outrageous conduct by the employer. Am Jur 2d, Fright, Shock, and Mental Disturbance § 44.5; Wrongful Discharge § 159. Liability of employer, supervision or manager for intentionally or recklessly causing employee emotional distress. 52 ALR4th 853. Appeal by plaintiff from order entered 2 December 1993 by Judge Russell G. Walker in Guilford County Superior Court. Heard in the Court of Appeals 21 March 1995. Plaintiff filed suit 3 June 1991 against defendants Hardee’s Food Systems, Inc. (Hardee’s) and Ronald Rogers, a Hardee’s district manager, for assault and battery, intentional infliction of emotional distress, wrongful termination, and negligent hiring and retention of an employee. Plaintiff based her claims upon alleged sexual advances, untoward comments, and uninvited touchings made by Rogers. Plaintiff took a voluntary dismissal without prejudice as to both defendants on 27 November 1991. Plaintiff refiled against both defendants on 4 November 1992, asserting the same causes of action as the earlier complaint, with the addition of a claim for punitive damages. After extensive discovery, Hardee’s moved for summary judgment. Before the hearing on Hardee’s motion, plaintiff voluntarily dismissed her claim against Rogers. The trial court granted Hardee’s motion for summary judgment on all claims in an order filed 2 December 1993. From this order, and an earlier order granting Hardee’s motion to suppress plaintiff’s changes to deposition testimonies, plaintiff appeals. Joseph Edward Downs and Jeffrey S. Lisson, for plaintiff - appellant. Blakeney & Alexander, by W T Cranfill, Jr., and Michael V. Matthews, for defendant-appellee. McGEE, Judge. The crucial issue in this case is whether plaintiff’s second voluntary dismissal against Ronald Rogers operates to bar her derivative claims against Hardee’s. We hold that it does and affirm the granting of summary judgment for Hardee’s. “[A] notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim.” N.C.R. Civ. P. 41(a)(l)(ii). Such a dismissal is with prejudice, and it operates as a disposition on the merits and precludes subsequent litigation in the same manner as if the action had been prosecuted to a full adjudication against the plaintiff. Barnes v. McGee, 21 N.C. App. 287, 289, 204 S.E.2d 203, 205 (1974). As our Supreme Court has said: “It is fundamental that a final judgment, rendered on the merits, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and privies, in all other actions involving the same matter. . . . (W)hen a fact has been agreed upon or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed.” Masters v. Dunstan, 256 N.C. 520, 523-24, 124 S.E.2d 574, 576 (1962) (citations omitted). Since plaintiff twice dismissed her claims against Rogers, this served as an adjudication in his favor upon the merits. Plaintiff is precluded from retrying these issues or calling into question any alleged wrongdoing by Rogers in her action against Hardee’s based upon the conduct of Rogers. Plaintiff argues the trial court erred in granting summary judgment for Hardee’s on her claims of negligent supervision and retention, wrongful discharge, negligent infliction of emotional distress, and punitive damages, claiming these actions are independent of her claims against Rogers. However, contrary to plaintiffs contentions, each of these claims as presented by plaintiff is dependant upon the alleged tortious conduct of Rogers. Since Rogers has been adjudicated not liable for the alleged conduct as a result of plaintiff’s second voluntary dismissal of her claims against him, the remaining claims against Hardee’s must also fail. As to plaintiff’s first claim, before an employer will be held liable for the tort of negligent retention and supervision of an employee, “plaintiff must prove that the incompetent employee committed a tor-tious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee’s incompetency.” Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 495, 340 S.E.2d 116, 124, disc review denied, 317 N.C. 334, 346 S.E.2d 141 (1986). The only tortious conduct by an employee of Hardee’s that plaintiff has alleged is the acts of Rogers which were the basis of her claims against him. As a result of the second dismissal of her claims against Rogers, it has been judicially determined that Rogers is not liable for any tortious conduct. Therefore, plaintiff has not shown that an employee of Hardee’s committed a tortious act and this cause of action fails. Plaintiff next argues the trial court erred in dismissing her claim for wrongful discharge. Plaintiff admits she quit her job and was never fired by Hardee’s. However, she claims Hardee’s is liable for wrongful discharge because they made her working conditions “intolerable,” resulting in a “constructive discharge.” We first note that North Carolina courts have yet to adopt the employment tort of constructive discharge. The Fourth Circuit Court of Appeals, which does recognize constructive discharge as a cause of action, has said that a plaintiff alleging constructive discharge “must demonstrate that the employer deliberately made working conditions intolerable and thereby forced [the plaintiff] to quit.” E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir. 1992). “Deliberateness exists only if the actions complained of ‘were intended by the employer as an effort to force the employee to quit’ ”. Id. (Citations omitted). Assuming, arguendo, we accept the existence of a cause of action for constructive discharge, the record on appeal contains no evidence of intolerable conditions deliberately created by Hardee’s to force plaintiff to leave her job. “[W]hen the moving party presents an adequately supported motion [for summary judgment], the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment.” Connor Co. v. Spanish Inns, 294 N.C. 661, 675, 242 S.E.2d 785, 793 (1978). We note plaintiff has made several unsuccessful attempts to have additional materials added to the record which she claims contain evidence of acts by Hardee’s to create intolerable working conditions. However, the transcript shows these materials were not properly tendered for consideration on defendant’s motion for summary judgment and were not considered by the trial court. They are not part of the official record, and therefore, are not properly before us and we may not consider them. See N.C.R. App. P. 9 (“[R]eview is solely upon the record on appeal and the verbatim transcript of proceedings. . . .”) The only forecast in the record of intolerable conditions is the allegations contained in the complaint. Further, the record contains no evidence these alleged conditions were deliberately created or allowed to continue by Hardee’s in an attempt to force plaintiff to quit. Plaintiff has no cause of action under a theory of constructive discharge. Even if plaintiff could prove a constructive discharge, in order to state a claim for a wrongful discharge as an at-will employee, she would still have to prove the discharge was in contravention of North Carolina public policy or statute. See Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989). The only allegations made by plaintiff which could show a violation of public policy or statute involve the claims against Rogers for which it has been judicially determined he is not liable. Since plaintiff cannot prove a constructive discharge, and she was never fired by Hardee’s, her claim for wrongful discharge fails. Likewise, plaintiff’s claim for negligent infliction of emotional distress must also fail. As plaintiff admits in her brief, her second dismissal of Rogers relieved Hardee’s of liability under a theory of ratification of Roger’s conduct. To show an independent cause of action against Hardee’s, plaintiff needed to present facts showing Hardee’s engaged in extreme and outrageous conduct intended to cause, and which did in fact cause, severe emotional distress. See Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1, 7, 437 S.E.2d 519, 522 (1993), disc. review denied and appeal dismissed, 336 N.C. 71, 445 S.E.2d 29 (1994). As discussed above, plaintiff, as the non-movant, must come forward with facts to counter a proper motion for summary judgment. The official record contains no factual evidence showing Hardee’s engaged in extreme or outrageous conduct. The only forecast of evidence concerning Hardee’s conduct is the allegation in the complaint that Hardee’s “sanctioned, condoned, and ratified Rogers’ improper, illegal, and tortious conduct.” Since plaintiff presented no evidence of éxtreme and outrageous independent acts of Hardee’s, summary judgment for defendant on plaintiff’s claim for negligent infliction of emotional distress was proper. Plaintiff’s brief did not contain an argument concerning her assignment of error involving the grant of defendant’s motion to suppress changes to deposition testimony, and this assignment of error is deemed abandoned. N.C.R. App. P. 28(a). Because of our holding, we need not discuss plaintiff’s remaining assignments of error and arguments. The trial court’s grant of summary judgment in favor of Hardee’s is affirmed. Affirmed. Judges JOHNSON and COZORT concur.