Hostile Work Environment Cases

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

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

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

ANTHONY SIMMONS, Plaintiff-Appellant v. CHEMOL CORPORATION, Defendant-Appellee No. COA99-385-2 (Filed 4 April 2000) 1. Employer and Employee— wrongful discharge — welder— respiratory irritation The trial court did not err by granting summary judgment for defendant on a wrongful discharge claim where plaintiff, a welder, alleged that his rhinitis, an inflammation of the nasal membrane, rendered him handicapped and that his discharge violated public policy. Plaintiffs medical records establish that his condition is temporary; a discussion of reasonable accommodation is irrelevant under the Equal Employment Practices Act, on which plaintiffs claim is based; plaintiff received evaluation scores below an acceptable level for quality of work, technical application, reliability, and punctuality; and both his supervisor and plant manager thought that plaintiffs respiratory problems had been resolved well before his termination. 2. Emotional Distress— intentional and negligent — employment termination The trial court did not err by granting summary judgment for defendant on claims for intentional and negligent infliction of emotional distress arising from an employment termination. Appeal by plaintiff from order entered 10 February 1999 and filed 11 February 1999 by Judge Russell G. Walker, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 10 January 2000. Gray, Newell & Johnson, L.L.P., by Angela Newell Gray, for plaintiff-appellant. Pinto Coates Kyre & Brown, PLLC, by Martha P Brown, for defendant-appellee. WALKER, Judge. On 15 May 1998, plaintiff filed this action alleging wrongful discharge in violation of public policy pursuant to N.C. Gen. Stat. § 143-422.2, along with a claim for negligent and intentional infliction of emotional distress. Defendant answered and moved to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on 18 June 1998, which the trial court denied on 13 August 1998. On 15 January 1999, defendant moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, which the trial court granted on 10 February 1999. Plaintiff began his employment with defendant as a general welder on or about 22 July 1996. Approximately six months later, plaintiff began suffering from a respiratory condition subsequently diagnosed as “rhinitis,” an allergic reaction characterized by the inflammation of the nasal membrane. See Kenneth G. Trestman, M.D., and Carey Howes, Medical Editor, Allergies, in Attorneys’ Textbook of Medicine par. 65.41 (3d ed. 1998). Plaintiff claims he had difficulty breathing while performing his duties at work and that the quality of his work and his attendance record suffered due to his condition. Further, he requested that defendant provide breathing masks, ceiling fans and other breathing aids that would accommodate his breathing problems; however, these requests were disregarded. Plaintiff also claims he was required to work in a chemical tank without adequate ventilation, was not allowed time off for medical treatment for his condition, and was given a poor evaluation for attendance although the absences were verified by his doctors. As a result, plaintiff contends he suffered chronic headaches, fatigue, financial problems and “significantly exacerbated breathing problems” due to defendant’s behavior. Plaintiff argues that the trial court erred in granting summary judgment to defendant on his claim of wrongful discharge. Specifically, plaintiff produced a sufficient forecast of evidence that his respiratory condition rendered him handicapped as defined in N.C. Gen. Stat. § 168A-3(4)(a) (1998 Cum. Supp.). Additionally, defendant terminated his employment because of his condition, thus violating the public policy set out in N.C. Gen. Stat. § 143-422.2 (1999). Plaintiff also claims that defendant’s indifference and failure to provide reasonable accommodations so he could perform his job constitutes intentional and negligent infliction of emotional distress. Defendant contends that plaintiff’s respiratory condition is not a handicap protected under N.C. Gen. Stat. § 143-422.2. Specifically, plaintiff’s rhinitis is a temporary condition that did not substantially limit plaintiff’s ability to breathe or work. Additionally, defendant contends that plaintiff was terminated for poor performance in his employment. In support of its motion for summary judgment, defendant submitted the affidavits of maintenance supervisor Gary Keegan and plant manager Spencer F. Foster, a job performance evaluation of plaintiff, and other documents from plaintiffs employment file. These show that: (1) On 30 May 1997, plaintiff was reprimanded by Keegan for plaintiffs excessive personal phone calls during working hours; (2) On 5 June 1997, plaintiff was counseled for his failure to work required overtime; (3) On 29 August 1997, plaintiff was again reprimanded for personal phone calls during working hours and was informed that any further violation of this policy would result in his suspension or possible termination; and (4) Plaintiffs 4 September 1997 performance evaluation resulted in an overall score below the acceptable standard. Defendant claims that plaintiffs poor quality, of work, lack of progress, and failure to meet minimum quality standards within his department were the reasons for his termination on 16 September 1997. Summary judgment should be granted only “if 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. Gen. Stat. § 1A-1 Rule 56(c) (1999). The party moving for summary judgment bears the burden of establishing the lack of any triable issue and may meet this burden by (1) proving that an essential element of the opposing party’s claim is nonexistent; (2) showing through discovery that the opposing party cannot produce evidence to support an essential element; or (3) showing that the opposing party cannot surmount an affirmative defense. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). In North Carolina, absent an employment contract for a definite period of time, “both employer and employee are generally free to terminate their association at any time and without reason.” Gravitte v. Mitsubishi Semiconductor America, 109 N.C. App. 466, 472, 428 S.E.2d 254, 258, disc. review denied, 334 N.C. 163, 432 S.E.2d 360 (1993). An exception to the employment-at-will doctrine exists when an employee is discharged in contravention of public policy. Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). “At the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). The Equal Employment Practices Act of North Carolina (the Employment Act) provides in pertinent part: It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of. .. handicap. .. . N.C. Gen. Stat. § 143-422.2 (1999). The Employment Act does not define “handicap” and thus we turn to other North Carolina statutes relating to the same subject matter to determine legislative intent. McCullough v. Branch Banking & Trust Co., Inc., 136 N.C. App. 340, -S.E.2d-(2000). The North Carolina Handicapped Persons Protection Act (NCHPPA), N.C. Gen. Stat. § 168A-1 et seq., defines a “handicapped person” as: any person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. N.C. Gen. Stat. § 168A-3(4)(a) (1998 Cum. Supp.). Effective 1 October 1999, the NCHPPA was re-titled the North Carolina Persons with Disabilities Protection Act and amended such that “person with a disability” is generally substituted for “handicapped person” throughout the chapter. However, since plaintiff’s claim was filed before the amendment took effect, the terminology of the NCHPPA will be used. “Physical or mental impairment” is defined in part as “any physiological disorder or abnormal condition, . . .caused by. . . illness, affecting one or more of the following body systems: [. . .] respiratory. . . .” N.C. Gen. Stat. § 168A-3(4)(a)(i). “Major life activities” includes “breathing.” N.C. Gen. Stat. § 168A-3(4)(b). “Any disorder, condition or disfigurement which is temporary in nature leaving no residual impairment” is specifically excluded from the meaning of “physical or mental impairment.” N.C. Gen. Stat. § 168A-3 (4) (a) (iii) (C). Medical records of the plaintiff dated 21 November 1997 state: [Plaintiff] [q]uit vaccine around September [1997] when [he] lost [his] job. [He] had been welding inside “tanks” with fume exposure irritating to [his] nose. [He] is still welding now but outdoors and [he] says the sniffing has stopped. [His] chest feels fine and [he] feels well. Impression: Allergic and irritant rhinitis, now improved. Another medical record dated 12 March 1997 states in part: “He has a lot of sniffing, he is irritated, but I think his infection is over....” Affording plaintiff the required inferences, Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (all inferences drawn in favor of non-movant in deciding motion for summary judgment), plaintiff’s medical records establish that his condition is temporary and therefore excluded from the statutory definition of “physical impairment.” Furthermore, plaintiff is unable to establish that he was “handicapped” under elements (ii) or (iii) of section 168A-3(4). Plaintiff also argues that he is a “qualified handicapped person” as defined by N.C. Gen. Stat. § 168A-3(9). However, since one’s status as a “qualified handicapped person” must be “preceded by a determination that one is a ‘handicapped person,’ ” plaintiff is not “a qualified handicapped person” either. Gravitte, 109 N.C. App. at 470, 428 S.E.2d at 257. Additionally, plaintiff’s concern with the defendant’s alleged failure to provide reasonable accommodations to the plaintiff is misplaced. Had plaintiff filed a claim under N.C. Gen. Stat. § 168A-11, which provides a civil cause of action under the NCHPPA, such a discussion may have been appropriate. However, since plaintiff’s claim is based on wrongful discharge in violation of public policy under N.C. Gen. Stat. § 143-422.2, a discussion of reasonable accommodations under N.C. Gen. Stat. § 168A-3(9) and (10) is irrelevant. Plaintiff also contends that he was terminated because of his respiratory condition resulting from his employment. In support of his contention, plaintiff cites his performance evaluation which states that at times his work was excellent and “the only area in which he received less than satisfactory was in attendance.” Plaintiff also states that “his supervisor” told him he was being terminated due to his respiratory condition. However, the affidavit of plaintiffs supervisor, Gary Keegan, states in part: 3. Mr. Simmons was terminated from his employment on September 16, 1997 for poor job performance. Mr. Simmons’ continued lack of progress in being able to tackle projects, learn basic mechanical repair, refusal to work required overtime and failure to meet minimum quality standards within the department led to his dismissal. The day before his termination, Mr. Simmons left work and refused to work overtime to complete a mechanical repair which he had started. The “Supervisor Summary” section of the plaintiff’s 4 September 1997 performance evaluation states: Anthony’s overall work and attendance record needs improvement. At times, Anthony can be an excellent employee and team player, and at other times he will fall short of acceptable standards. Increased consistency of excellent work and a better attendance record can bring Anthony into the acceptable range. Plaintiff received below acceptable standard scores for his quality of work, technical application, and reliability and punctuality. The evaluation noted “numerous absences” and “numerous lateness [sic].” Additionally, the report stated “Anthony is very apprehensive about working on weekends and late during the week. These areas need work.” Plaintiff was terminated approximately eight months after he first complained of experiencing breathing problems. Both Keegan’s and Foster’s affidavits state that they thought plaintiff’s respiratory problems had completely resolved well before his termination. In sum, defendant has established that plaintiff is unable to prove that he is handicapped and that he was terminated based upon the alleged handicap. These being essential elements of his claim, summary judgment for defendant on the claim for wrongful discharge was proper. Plaintiff also argues that the trial court erred in granting summary judgment to defendant on his claims for intentional and negligent infliction of emotional distress. In an action for intentional infliction of emotional distress, the essential elements are “(1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quoting Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)). An action for negligent infliction of emotional distress requires a showing that defendant negligently engaged in conduct, which was reasonably foreseeable to cause, and did in fact cause, plaintiff to suffer severe emotional distress. Fields v. Dery, 131 N.C. App. 525, 526, 509 S.E.2d 790, 791 (1998), disc. review denied, 350 N.C. 308,-S.E.2d-(1999). Whether or not conduct constitutes extreme and outrageous behavior is initially a question of law for the court. Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App. 579, 586, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). To establish the essential element of extreme and outrageous conduct, the conduct must go beyond all possible bounds of decency and “be regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats, . ...” Id. Viewing the evidence in the light most favorable to the non-moving party, the plaintiff is unable to establish a showing of extreme and outrageous conduct on the part of defendant. Furthermore, plaintiff’s forecast of evidence fails to support a claim of negligent infliction of emotional distress. Accordingly, the trial court did not err in granting summary judgment to defendant on the claims of intentional and negligent infliction of emotional distress. Affirmed. Chief Judge EAGLES and Judge WYNN concur.

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