Hostile Work Environment Cases

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

CHEN v WAYNE STATE UNIVERSITY Docket Nos. 283420 and 283575. Submitted May 12, 2009, at Detroit. Decided June 2, 2009, at 9:10 a.m. Dr. Kuo-Chun Chen brought an action in the Wayne Circuit Court against Wayne State University, seeking damages and other relief related to his treatment while working as a professor and to the University’s handling of his personal property and a patent. The plaintiff specifically alleged that he was discriminated against because of his national origin, age, and a disability and that he was retaliated against for protesting the discrimination. He also pleaded a claim and delivery count seeking the return of his personal property, a count alleging violation of the Freedom of Information Act, MCL 15.231 et seq., and a count alleging breach of contract. The plaintiff stipulated the dismissal of the counts for breach of contract and claim and delivery, and the court, Robert L. Ziolkowski, J., dismissed those claims without prejudice. The plaintiff then filed those claims in the Court of Claims. At some point, the case in the Court of Claims was consolidated with the case in the circuit court and Judge Ziolkowski heard both cases. The plaintiff was permitted to amend his complaints, but he did not state a claim based on the Freedom of Information Act. The Court of Claims then dismissed the claims of breach of contract and claim and delivery, but allowed the plaintiff to amend the complaint in the Court of Claims action to add as defendants the current chairperson and two former chairpersons of the University’s department of biological sciences and to allege gross negligence against the individuals and negligence against the University with regard to the handling of the plaintiffs property. The Court of Claims then dismissed the negligence claims against the individual defendants and, on May 16, 2006, entered an order dismissing the negligence claim against the University. The order stated that the order resolved the last pending claim in the Court of Claims and closed the case. Judge Ziolkowski dismissed the circuit court claims on March 15,2007, and denied reconsideration of that order on May 3, 2007, and May 8, 2007. The Court of Appeals dismissed the plaintiffs appeals in both cases for lack of jurisdiction because they were not timely filed. Unpublished orders of the Court of Appeals, entered August 30, 2007 (Docket Nos. 278332,278333). The plaintiff applied for leave to appeal both cases, and the Court of Appeals granted leave to appeal both the circuit court order (Docket No. 283420) and the Court of Claims order (Docket No. 283575) in unpublished orders entered August 20, 2008. The appeals were consolidated. The Court of Appeals held: 1. The consolidation of the two cases at the trial court level did not merge the two cases and both retained their separate identities. Therefore, the time to appeal each individual case is determined by reference to the final judgment or order in each case. The application for leave to appeal the Court of Claims case was not filed within one year of the May 16, 2006, final order in that case, as required by the version of MCR 7.205(F)(3)(a) in effect at the time the application was granted. Therefore, the Court of Appeals did not have the discretion to grant the application. The appeal in Docket No. 283575 must be dismissed for lack of jurisdiction. The application for leave to appeal the circuit court case, Docket No. 283420, was timely filed. 2. The plaintiff was required to show that he suffered an adverse employment action in order to establish his discrimination and retaliation claims under the Civil Rights Act, MCL 37.2202(1) and 37.2701. An adverse employment action must be materially adverse to the employee, that is, it must be more than a mere inconvenience or minor alteration of job responsibilities. Materially adverse employment actions are akin to the termination of employment, a demotion shown by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. There must be an objective basis for demonstrating that the employment action is adverse because a plaintiffs subjective impressions are not controlling. 3. There was no objective evidence presented to show that the alleged refusal to assign the plaintiff a new lab constituted an adverse employment action. 4. The plaintiff failed to present any evidence that a department chairperson’s threat to revoke the plaintiffs tenure resulted in a materially adverse change in the terms or conditions of his employment. The threat did not rise to the level of an adverse employment action. 5. There was no evidence that the changes that occurred to the plaintiffs teaching duties amounted to an adverse employment action. 6. There was no evidence that a department chairperson’s actions or omissions with regard to not restoring the plaintiffs regular graduate faculty status or allowing the plaintiff to supervise a graduate student had any effect on the plaintiffs employment. 7. The plaintiff abandoned on appeal his claims regarding merit increases and other miscellaneous adverse actions. 8. The circuit court did not err in granting summary disposition in favor of the University with regard to the claims based on discrimination and retaliation. The order in Docket No. 283420 must be affirmed. Appeal in Docket No. 283575 dismissed and order appealed in Docket No. 283420 affirmed. 1. Actions — Consolidation op Actions — Appeal op Consolidated Actions. Where two cases involve claims that could not have been brought as separate counts in a single complaint, but are nevertheless consolidated for administrative convenience, the consolidated cases are not merged and both cases retain their separate identities; a circuit court case and a Court of Claims case that are joined for trial are not merged and both cases retain their separate identities, and the time to appeal each case must be determined by reference to the final judgment or order for each case (MCL 600.6421). 2. Civil Rights — Employment Discrimination — Adverse Employment Actions. A plaintiff who brings a discrimination or retaliation claim against an employer under § 102 or § 701 of the Civil Rights Act must establish that he or she suffered an adverse employment action; what might constitute an adverse employment action in one employment context might not be actionable in another; an employment action must be materially adverse to the employee, not a mere inconvenience or minor alteration of job responsibilities in order to be actionable; there must be an objective basis for demonstrating that an employment action was adverse because an employee’s subjective impressions are not controlling (MCL 37.2202, 37.2701). Eisner & Mirer, EC. (by Jeanne Mirer and Eugene Eisner), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Donna J. Donati and Megan P. Norris), for the defendants. Before: BORRELLO, EJ., and MURPHY and M. J. KELLY, JJ. PER CURIAM. In these consolidated appeals, plaintiff Dr. Kuo-Chun Chen appeals by leave granted the trial court’s orders granting summary disposition in favor of defendant Wayne State University (the University). In Docket No. 283420, Chen argues that the trial court, which was sitting as the circuit court, erred when it dismissed under MCR 2.116(0(10) Chen’s claims of age and national origin discrimination and retaliation. In Docket No. 283575, Chen argues that the trial court, which was sitting as the Court of Claims, erred when it refused to permit him to amend his complaint to add new parties and new theories of recovery. We conclude that we lack jurisdiction to hear Chen’s claims of error in Docket No. 283575 and that the trial court did not err when it dismissed Chen’s claims in Docket No. 283420. For these reasons, we dismiss the appeal in Docket No. 283575 and affirm in Docket No. 283420. I. FACTS AND PROCEDURAL HISTORY A. BASIC FACTS This case has its origins in the progression of Chen’s career at the University over a period of more than 25 years. Chen is a citizen of the United States, but was born in China and speaks English with a Chinese accent. The University hired Chen as an associate professor for its department of biological sciences in 1968. Chen’s field of study is genetics. He became a tenured associate professor in 1971. Before joining the University’s faculty, Chen began the development of a device, which he called the Microwave Guide Exposure System (the Microwave Device), with his former roommate at graduate school. Chen completed the Microwave Device with the help of others after he joined the University. He assigned his patent rights to the University, which obtained a patent for it in 1982. The University released the patent to Chen in 1995. Chen apparently did not have any serious difficulties at the University until after Dr. Albert Siegel became the department’s chairperson in 1972. Dr. John Taylor, who joined the department’s faculty in the same year as Chen, testified that Chen apparently did not like Siegel. Taylor said that Siegel treated Chen as though he were a “pseudo molecular biologist” and believed that Chen’s courses were “out-of-date or just plain wrong.” Indeed, Taylor stated that Siegel and some other faculty members had their graduate students leave Chen’s courses. In a memo written some years after Siegel’s chairmanship, Taylor stated that Siegel tried to “change [Chen], then isolated him and then gave up.” Siegel testified that the problems he had with Chen were related to Chen’s ability to get things done on his own. Siegel explained that other professors who had inadequate space worked hard at improving their space, “got their research programs well funded and started right in working and attracting graduate students and did the best they could under the circumstances.” Siegel stated that the problem with Chen was that he “was not of that nature. He didn’t try to help himself.” Chen testified at his deposition that Taylor was apparently jealous of Chen’s achievements and status and alleged that Taylor used his position to impede Chen’s efforts at the University. Specifically, Chen noted that Taylor was apparently bothered by the fact that the University hired Chen as an associate professor whereas the University hired Taylor as an assistant professor. Although Chen started as an associate professor, Taylor eventually surpassed Chen and became a full professor. In addition, in 1974, Taylor replaced Siegel as the department’s chairperson. Taylor testified that he was not jealous of Chen and that he and Chen were originally friends. He stated that they spent a significant amount of time together when they first joined the University. Taylor also stated that he supported Chen by acting as an intermediary in the acquisition of devices for Chen’s lab. Taylor testified that, after he became the department’s chairperson, he met with Chen and recognized that Chen had inadequate lab space. Taylor stated that he tried to help Chen by moving him to a better lab and also tried to obtain funds to modernize Chen’s lab. However, he was unable to help Chen because Chen’s “tastes were always better than what I could afford” and Chen would not compromise. Taylor stated that he eventually gave up trying to help Chen. Chen also testified that Taylor was biased against him because of his Chinese national origin, which was shown by the fact that Taylor referred to him as being “Chinese Mafia.” Taylor admitted that he had used the phrase “Chinese Mafia,” but said that he did not direct it at Chen. Taylor explained that Chen had asked him for assistance in a business matter involving his brother-in-law, who lived in Taiwan. Taylor stated that he referred Chen to a friend who was Chinese for help with the business matter. Taylor said that his friend called him and indicated that Taylor and Chen might want to avoid dealings with Chen’s brother-in-law. After that, Taylor stated that he would use the phrase “Chinese Mafia” in connection with discussions concerning Chen’s brother-in-law. Dr. David Adamany, who was the University’s president, testified that Taylor was a productive researcher and that he was appointed to chair the department in an effort to strengthen the department’s research program. Adamany stated that faculty members who were not active researchers resisted Taylor’s efforts. He stated that the relations between Taylor and those faculty members eventually deteriorated to the point that the department was no longer able to make progress on improving research. Dr. Robert Arking testified that he was a full professor in the department and that he had served on various committees. He stated that Taylor had favorites on the faculty and that Chen was not one of them. Arking said that the faculty committee eventually asked Taylor to step down as chairperson because of issues with hiring, the budget, and faculty relations. About 1980, Chen requested a promotion to full professor. Chen testified that Taylor handled the request and deliberately refused to submit Chen’s request to the faculty. Chen admitted that there was an advisory committee that considered his request, but stated that Taylor controlled this committee. Arking testified that it was possible to get promoted without the support of the chairperson, but that it would be more difficult. Taylor stated that the committee considered Chen’s promotion to full professor in 1980 and 1981 and decided not to recommend promotion to the faculty in both years. Taylor stated that he did not oppose Chen’s promotion. Chen testified that he also had a condition that caused an irregular heartbeat. According to Chen, starting in about 1980, the stress of his job triggered problems with his condition. Chen stated that this condition sometimes interrupted his work and that he even collapsed once during class and had to be rushed to the hospital. Chen testified that Taylor was aware of his condition. He ultimately had the condition surgically corrected in 1991. In 1987, Siegel again briefly served as the chairperson for the department. During that time, Siegel wrote a memo to Chen noting that Chen had made a conscious decision to stop researching and advising Chen that, for that reason, he would have to teach more classes. Siegel testified that after he assigned Chen more classes, there was a constant stream of complaints by undergraduate students concerning the students’ ability to understand Chen. On the basis of these complaints, Siegel recommended that Chen seek help at the University’s English Language Institute, but Chen refused. Siegel stated that Chen did not acknowledge a problem and blamed the students. Dr. Stanley Gangwere replaced Siegel as the department’s chairperson later in 1987. Gangwere testified that Taylor was a controversial chairperson and, for that reason, he tried to “separate” himself “from any association” with Taylor’s policies. Chen testified that Taylor appeared to have a good relationship with Gang-were. Chen further testified that, from the beginning, Gangwere refused to support him and Chen opined that this must have been the result of Taylor’s influence over Gangwere. Gangwere stated that Taylor did not advise him and that he had official and unofficial complaints about Chen by students concerning their ability to understand Chen’s English. In 1988, the University began a renovation and construction project. To accommodate the renovations, the department temporarily rearranged the lab and office assignments for the faculty. Gangwere asked Chen to vacate his current lab and office so that Taylor could occupy it along with some adjacent space that Chen had requested earlier. Gangwere temporarily assigned Chen space in the natural sciences building. Because the new lab space was smaller, Gangwere gave Chen, as he did every professor, the option of placing some of his property in storage for the duration of the renovation. Chen elected to have his Microwave Device placed into storage. Chen disliked the new lab and refused to use it. He indicated that the lab was too small and had large vent fans that made it unacceptable for use as a lab. Arking testified that Chen’s new lab was very small, but had adequate utilities and could be used for research. Gang-were testified that almost every professor lost space during the renovation period. Indeed, Dr. Dwight Freeman testified that he too was moved during the renovation and that he was moved into an old dealership from the 1920s that was “abysmal.” The University hired Dr. E Dennis Smith to replace Gangwere as the department’s chairperson in 1989. Chen stated that Smith did not show much interest in him and, from this, he concluded that the previous chairpersons — Taylor, Siegel, and Gangwere — must have influenced Smith to form a negative opinion about him. Chen testified that Smith brought in new professors without regard to their ability to teach specific courses because it was hoped that these teachers would bring in grant money. However, when these professors failed to obtain the expected grant money, Smith assigned some of Chen’s teaching responsibilities to these professors. Chen said that Smith criticized Chen’s accent and indicated that he had received student complaints. Chen stated that he thought Smith wanted to take his tenure away and get rid of him. Smith testified that he had numerous student complaints about Chen’s ability to communicate. As a result, Smith decided to sit in on one of Chen’s classes. Smith wrote a memo describing his review of the class. In the memo, Smith stated that Chen appeared to know the material well but the students appeared to have trouble following the lecture. Smith also noted frustration on the part of students who attempted to pose questions to Chen. Smith testified that he advised Chen to get help from the language institute and suggested using more visual aids in teaching the course. In 1991, the University finished its construction of its biological sciences building. Smith assigned Chen office and lab space, but Chen refused to use either room. Chen claimed that the office was contaminated from the use of radioactive isotopes in the rooms. However, Chen did not investigate whether the rooms were unusable and did not ask to have them decontaminated. Instead, Chen continued to use the office temporarily assigned to him during the renovations. Smith testified that the room at issue likely was not radioactive, but had only been used for some sort of radiometric counter. He also stated that, had Chen brought up the issue with him, he would have followed up on the problem. Smith said that he thought that Chen had just given up on research. Smith also testified that he was aware that Chen refused to move and had continued to use his old office. Chen later obtained permission from Linda Van Thiel to use another office in the same building that housed his current office. Van Thiel testified that Chen wanted the office for additional space. The office was part of a suite of offices in Room 309. She stated that the agreement was informal and that she never got permission or told anyone about the arrangement. She also testified that she informed Chen that if a particular funding request came through, the space would be renovated into a computer lab. She said that she informed Chen when the funding finally came through. In July 1994, Dr. Jack Lilien replaced Smith as the chairperson. Shortly after the change, Chen sent Lilien a letter notifying Lilien that he felt he was not in a position to do research and requesting help. Chen later had a meeting with Lilien. Chen testified that he told Lilien about his past unfair treatment by previous chairpersons and told him that he did not have an office or space for research. Chen said that he initially got along well with Lilien. Lilien testifie

Thomas O’Connor Constructors, Inc. vs. Massachusetts Commission Against Discrimination & another. No. 07-P-831. Norfolk. March 3, 2008. - September 9, 2008. Present: Grasso, Armstrong, & Rubin, JJ. Anti-Discrimination Law, Employment, Race. Employment, Discrimination. Massachusetts Commission Against Discrimination. Damages, Emotional distress. Emotional Distress. This court concluded that an employer who was on notice of unlawful discriminatory acts by its supervisor, directed toward an employee of a subcontractor at a unitary work site, and who failed to take reasonably adequate remedial action was liable under G. L. c. 15 IB, § 4(4A); further, this court declined to resolve the contours of an employer’s derivative liability under § 4(4A) for acts of discrimination directed at nonemployees by its own personnel without regard to the employer’s awareness of those acts. [554-560] Rubin, J., concurring in the judgment and dissenting in part. In the circumstances of an action for employment discrimination based on race, the repeated, offensive, and racist remarks of the job site superintendent of a general contractor were sufficiently severe or pervasive to create a hostile work environment for the plaintiff, an African-American employee of a subcontractor and, without any remedial action by the general contractor upon learning of the conduct, permitted recovery against that entity. [560-561] A Superior Court judge properly determined that the record in an employment discrimination action supported the Massachusetts Commission Against Discrimination’s award of emotional distress damages to the plaintiff. [561] Civil action commenced in the Superior Court Department on March 3, 2006. The case was heard by Charles J. Hely, J. James F. Grosso for the plaintiff. Beverly I. Ward for the defendant. Mitchell S. Possick, for the intervener, was present but did not argue. Jarvis Aldridge, intervener. Grasso, J. Thomas O’Connor Constructors, Inc. (O’Connor), appeals from a judgment of the Superior Court affirming a decision and order of the Massachusetts Commission Against Discrimination (MCAD) on a claim brought by Jarvis Aldridge, an African-American employee of Rustic Fire Protection (Rustic). The MCAD ordered O’Connor to pay Aldridge $50,000 in emotional distress damages on account of offensive racial remarks made to or about Aldridge on four different occasions by Paul Daley, O’Connor’s job site superintendent. The MCAD also ordered O’Connor to pay a $10,000 civil penalty and to conduct annual training sessions for a period of five years. On appeal, O’Connor asserts that (1) imposition of liability on O’Connor under G. L. c. 151B, § 4(4A), for the racially offensive remarks of Daley, is error where no employment relationship existed between O’Connor and Aldridge and O’Connor neither knew nor had reason to know of Daley’s remarks; (2) Daley’s remarks were insufficiently severe and pervasive to create a racially hostile work environment; and (3) the evidence was insufficient to support an award of emotional distress damages. We affirm, albeit on grounds different from those relied on by the MCAD. We conclude that O’Connor is directly liable for tolerating the hostile work environment created by Daley where it had notice of Aldridge’s claim but failed to remedy or take sufficient corrective action and, instead, returned Daley to supervise the work site. 1. Background. On December 7, 1998, Aldridge filed a complaint with the MCAD against O’Connor claiming that he was an employee of O’Connor and that Daley, a supervisor, had engaged in unlawful discrimination on the basis of race and color in violation of G. L. c. 15IB, § 4(1). The alleged unlawful discrimination consisted of Daley’s use of racial epithets when talking with or about Aldridge. A hearing officer concluded that Daley made the racially offensive remarks alleged; that Aldridge was not the employee of O’Connor, but of Rustic; and that notwithstanding the absence of an employment relationship with Aldridge or liability under § 4(1), O’Connor was liable under G. L. c. 151B, § 4(4A), on account of Daley’s interference with Aldridge’s right to a non-hostile work environment. The hearing officer awarded Aldridge $25,000 in emotional distress damages and ordered O’Connor to pay a $10,000 civil penalty and to conduct annual training sessions for all of its employees, managers, and supervisors for a period of five years. On review, the MCAD affirmed the hearing officer’s findings of fact and conclusions of law, but deemed the award of emotional distress damages inadequate and vacated it. The MCAD also modified the annual training order by hmiting its application to managers and supervisors. On remand, the hearing officer awarded $50,000 to Aldridge for emotional distress damages and the MCAD affirmed. A judge of the Superior Court affirmed the MCAD decision and order and this appeal followed. 2. Facts. We summarize the facts found by the hearing officer. O’Connor was the general contractor on a project for renovation of two buildings at the University of Massachusetts at Lowell (UMass-Lowell). Rustic was a subcontractor at the project, responsible for installation of a new sprinkler and fire protection system. Besides Rustic, two other subcontractors worked on the project. Daley, who was the job site superintendent, served as O’Con-nor’s chief spokesperson and authority at the project. His responsibilities entailed overseeing of the work of the subcontractors, including coordinating and assisting in scheduling of the work. Daley unlocked and opened doors to various areas of the job site, and occasionally gave keys to the subcontractors and their employees, including Aldridge. Daley did not assign work to Rustic’s employees, order supplies on their behalf, supervise them, or tell them what to do. Ron Russell, Rustic’s foreman, directly supervised and provided materials to Rustic’s employees, including Aldridge. When Russell was on vacation, Aldridge served as acting supervisor. Aldridge received compensation only from Rustic for his work on the project. From November 27, 1997, until the end of August, 1998, Daley and Aldridge interacted without difficulty. Thereafter, on four separate occasions, Daley made racially offensive remarks to or about Aldridge or James Lucas, an African-American who worked for O’Connor as a laborer. Specifically, on August 27, 1998, in the presence of Russell and Aldridge, Daley referred to Lucas as a “fucking dumb nigger.” When Aldridge asked Daley if he knew what the word meant, Daley responded, “It’s a phrase used in the Holocaust with reference to Jews.” Upon being told that the slur referred to “black people,” Daley laughed. A few weeks later, on September 21, in the presence of Aldridge alone, Daley again referred to Lucas as a “fucking dumb nigger.” Aldridge turned and walked away. The next day, during the lunch break and following a conversation about sports, Daley referred to Aldridge as a “black bastard” in the presence of Russell and other pipefitters. Although angered by the remark, Aldridge did not respond. Finally, on September 24, 1998, while Daley and Russell were driving to New Hampshire, Daley complained to Russell that Aldridge reaped the benefits of a prevailing wage job because he is a “fucking nigger.” On returning to the job site, Russell told Aldridge of Daley’s remark. Aldridge became visibly upset. Russell also told Rustic’s project manager, Chad Duboc, of Daley’s comments. Aldridge informed John Duboc, Rustic’s owner, about Daley’s remarks and requested that he (Aldridge) be removed from the work site. John Duboc told Aldridge that Rustic needed him at the project and denied his request to work elsewhere. Aldridge wrote a letter, dated September 30, 1998, and addressed “To Whom It May Concern,” detailing the four incidents. He gave the letter to Lucas and then to a union business agent in the hope that the letter would find its way to O’Connor, which it did. Joseph Vogel was O’Connor’s project manager for the UMassLowell project. Vogel visited the work site one or two times per week. In October, 1998, upon hearing that Daley had made racial comments to Aldridge, Vogel went to the work site and asked Aldridge, “Jarvis, what’s going on?” Aldridge responded angrily, “There’s nothing wrong with being a black man.” Aldridge told Vogel that he should “read the letter” and that he (Aldridge) would be pressing charges against O’Connor. Vogel told Aldridge that he would “get to the bottom of it.” Daley was away on his honeymoon when Vogel began his investigation. When Daley returned, Vogel told him not to report to the job site. On October 19, Vogel and other O’Connor officials met with Daley to discuss the charges. Daley adamantly denied making any racial slurs. Vogel then spoke with Russell and with Lucas, one of O’Connor’s own employees. Russell corroborated Aldridge’s account, advising Vogel that he would “back his man.” Lucas denied ever being directly subjected to discrimination in any form by Daley; but when O’Connor presented Lucas with a written statement to that effect, Lucas refused to sign the document. O’Connor concluded its investigation without again speaking with Aldridge, without disciplining Daley, and without notifying Aldridge of the results of its investigation or that Daley would be returned to the work site. In its internal investigation summary, O’Connor took the position that “[sjince the specific situation is not known at this time, we will wait until a ‘claim’ is actually in house and review before taking action. (The term claim in house is referencing an ‘official action’ generated against O’Connor ... — this might not happen at all).” O’Connor reassigned Daley to the project job site. Daley had been off the site for two weeks while on his honeymoon and an additional two weeks while the matter was investigated. Upon seeing Daley back at the job site, Aldridge packed up his tools and left work that, in his words, he loved — a job with “good money” and at which he worked with “good people” — because he could no longer tolerate working there while Daley was present. The hearing officer credited the testimony of Aldridge and his wife that at the time of the racial remarks, Aldridge began coming home from work very disturbed and angry. He confided to his wife that his attitude was in response to Daley’s racial slurs. Aldridge experienced physical manifestations of distress. He lost weight and had difficulty sleeping. He became withdrawn and isolated; he stopped playing with his children, ceased communicating with his wife, and locked himself in his room to avoid contact with them. Aldridge’s outlook improved temporarily when Daley was away, but the withdrawn behavior returned when Daley returned to the job site. 3. Liability of O’Connor. The working arrangement that serves as backdrop to the present claim is commonplace in large construction projects where a general contractor and specialized subcontractors interact at a common work site. Aldridge’s claim is unusual, however, in that he sought recovery not against Rustic, his employer, or even against Daley, the perpetrator, but against O’Connor, the general contractor, on account of Daley’s racially offensive remarks. The MCAD did not rest its decision on G. L. c. 151B, § 4(1), under which Aldridge brought his claim. The hearing officer found, and the parties do not challenge, that Aldridge was an employee of Rustic, but not of O’Connor. Absent such an employment relationship, the MCAD concluded that O’Connor could not be liable to Aldridge under § 4(1), either directly or derivatively, for the acts of its supervisor, Daley. Instead, the MCAD ruled that O’Connor was liable to Aldridge under G. L. c. 151B, § 4(4A), inserted by St. 1989, c. 722, § 14, which makes it an unlawful practice: “For any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter . . . .” Guided by one of its decisions that imposed liability on a direct perpetrator of discrimination not part of the employment unit, the MCAD interpreted G. L. c. 151B, § 4(4A), so as to make O’Connor liable for Daley’s actions regardless of its knowledge. See Modern Continental/Obayashi v. Massachusetts Commn. Against Discrimination, 445 Mass. 96, 105 (2005) (Modern Continental) (statute to be interpreted liberally to effectuate purpose of eliminating workplace discrimination). The MCAD reasoned that O’Connor and Aldridge were “person[s]” as defined in G. L. c. 151B, § 1(1), inserted by St. 1946, c. 368, § 4, and that the right to work in an environment free from unlawful racial harassment is among the rights encompassed by the statute. Moreover, relying on College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156,163-167 (1987) (College-Town) (employer hable under § 4[1] for intentional acts of its supervisory personnel regardless of its notice of those acts), it concluded that O’Connor could be held hable under § 4(4A) for the acts of Daley regardless of its knowledge of those acts. We agree with the MCAD that O’Connor could not be liable to Aldridge under § 4(1) because there was no employment relationship between O’Connor and Aldridge. Indeed, no Massachusetts appellate decision ever has interpreted § 4(1) to apply to an action brought by or against someone outside the employment unit. See Modem Continental, 445 Mass, at 97, 105 (declining to read G. L. c. 151B in manner that would absolve employer of all responsibility to its own employee for hostile work environment attributable to actions of subcontractor). We also agree with the MCAD that O’Connor, the general contractor, is liable to Aldridge, the employee of a subcontractor at the work site, under § 4(4A). Where on the present facts we conclude that O’Connor is liable to Aldridge for failing to remedy a racially hostile work environment of which it had notice, we need not resolve the more difficult question whether O’Connor could be liable under § 4(4A) solely on account of Daley’s remarks without regard to its awareness of those remarks. Although no Massachusetts appellate decision ever has interpreted § 4(4A) to make an employer liable to someone other than its employee, the statutory language admits of such a result. General Laws c. 151B, § 4(4A), makes it unlawful for “any person” to “coerce, intimidate, threaten, or interfere with another person” in the exercise or enjoyment of rights granted under the chapter. O’Connor, Aldridge, and Daley are all “persons” as defined in G. L. c. 151B, § 1(1), and the right to work in an environment free from unlawful racial harassment is unquestionably among the rights encompassed by the statute. In our view, the present problem lies in the application of § 4(4A) not to acts of which O’Connor was aware but to acts of O’Connor’s employees of which O’Connor was not aware. We acknowledge that, generally speaking, a corporation is a legal entity that must act through agents and employees. Nevertheless, we are concerned that broad application of this principle in the context of § 4(4A) could produce untoward results not contemplated by either the language or the intent of that subsection. Unlike the language of § 4(1), as appearing in St. 1989, c. 516, § 4, which contemplates derivative liability by making it unlawful for “an employer, by himself or his agent,” to engage in discriminatory practices, the language of § 4(4A), by contrast, omits any reference to agents and speaks only to the direct liability of a “person.” Nor does the tort doctrine of respondeat superior dictate vicarious liability under § 4(4A). “[RJespondeat superior is the proposition that an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment” (emphasis supplied). Dias v. Brigham Med. Assocs., 438 Mass. 317, 319-320 (2002). See Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 198 (2003). A discrimination action under G. L. c. 151B is, however, a statutorily created right, not a common-law tort. See Jancey v. School Comm. of Everett, 421 Mass. 482, 500-501 (1995) (despite historical connection statute prohibiting discrimination may have with common-law tort or contract claims, “acts of discrimination — whether intentional or unintentional — do not thereby become torts”). That principles of vicarious liability operate differently, and that caution is in order in applying such principles throughout the various subsections of G. L. c. 151B, § 4, is evident from College-Town, 400 Mass, at 163-167. There, the court considered the scope of an employer’s vicarious liability under § 4(1) for discrimination in the workplace arising from the acts of its agent. Taking note that language of § 4(1) “prohibits discrimination by ‘an employer, by himself or his agent,’ ” the court concluded that the Legislature had made clear its intent to impose vicarious liability under that section. Id. at 165, quoting from G. L. c. 151B, § 4. “It is clear that the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority.” College-Town, supra. Guided by the Legislature’s expressed intent, and without resolving the extent to which “G. L. c. 151B, § [4(1)], imposes an affirmative obligation on an employer to ensure that its workplace is not pervaded by harassment based on race, color, religious creed, national origin, sex, or ancestry, regardless of [its] source,” the court held that the employer was “vicariously liable for the acts of its agents — its supervisory personnel.” Ibid. Significantly, in our view, College-Town limited the employer’s vicarious liability under § 4(1) to the acts of its supervisory personnel, not those of all of its workers, as would have been the case in a common-law tort. We note, as well, that the considerations relied on in College-Town for holding an employer vicariously liable under § 4(1) for its supervisor’s discriminatory actions either do not exist, or exist with diminished force in the context of a claim under § 4(4A) by a person like Aldridge who is not part of the employment unit. When the claimant is not part of the employment unit, the supervisor does not exercise direct supervisory authority over him. Nor does harassment by the supervisor carry the same implied threat of punishing resistance through exercise of supervisory powers as exists within the employment unit. See id. at 165-166. Likewise absent is the concern regarding the anomaly that a notice requirement creates when the perpetrator is also the supervisor to whom notice would be given by an employee. See id. at 166-167. When the claimant is not part of the employment unit, no chain of command considerations restrict his ability to notify those with the ability to rectify the problem. Indeed, as was done here, he is free, if not obliged, first to approach his own employer, which has an obligation to protect its employee, whether by notifying the perpetrator’s employer or by removing the claimant from the situation should notification or other protective measures prove unsuccessful. See Modem Continental, 445 Mass, at 108-109. Likewise, as was done here, the claimant is free to provide notice of the discrimination to those in the corporate hierarchy of the perpetrator’s employer and seek protection from them. We are concerned that application of principles of vicarious liability enunciated in College-Town for a claim under § 4(1), to a claim under § 4(4A), would render an employer strictly and immediately hable for discrimination directed at nonemployees that it had no opportunity to control. Such liability would arise regardless of the employer’s knowledge of the discrimination, regardless of the remedial steps taken upon learning of the discrimination, and regardless even of the existence of