Retaliation Cases

MARY WILLIAMS, Plaintiff v. BLUE CROSS BLUE SHIELD OF NORTH CAROLINA, Defendant v. ORANGE COUNTY, ORANGE COUNTY BOARD OF COMMISSIONERS, and ORANGE COUNTY HUMAN RELATIONS COMMISSION, Counterclaim Defendants No. 277PA01 (Filed 13 June 2003) 1. Statutes of Limitation and Repose— constitutionality of statute — continuing violation runs from enforcement The statute of limitations did not bar a counterclaim for a declaratory judgment that challenged the constitutionality of an Orange County anti-discrimination ordinance and its enabling legislation because the alleged wrong constitutes a continuing violation. Although Orange County asserts that the statute of limitations ran from the effective date of the ordinance or the enabling legislation, this suit and a companion case were the first two suits brought pursuant to the ordinance and BCBSNC had no certainty that it would run afoul of the ordinance until it was enforced. 2. Laches— constitutionality of statute — runs from enforcement A counterclaim challenging the constitutionality of an Orange County anti-discrimination ordinance was not barred by laches, even though it was filed five and one-half years after the ordinance was adopted and eight and one-half years after the enabling legislation and Orange County had expended large amounts of money, time, and administrative effort in the creation and enforcement of the legislation and the ordinance, because this suit and a companion case were the first two suits brought pursuant to the ordinance and BCBSNC moved expeditiously once the suits were filed. 3. Constitutional Law— North Carolina — local act — anti-discrimination ordinance The employment discrimination provision of an Orange County anti-discrimination ordinance and its enabling legislation constituted local acts within the meaning of Article II, Section 24 of the North Carolina Constitution because, using the reasonable classification test, it could not be concluded that conditions in Orange County are suspect to such an extent that the legislature could legally create a separate classification to address employment discrimination in that county only. 4. Constitutional Law— North Carolina — local act prohibition — labor and trade The employment discrimination provisions of an Orange County anti-discrimination ordinance and its enabling legislation regulated labor and trade and violated the local act provisions of the North Carolina Constitution because the effect was to govern labor practices even though the intent was to prohibit discrimination. 5. Constitutional Law— North Carolina — local act — permissive — invalid Legislation enabling an Orange County anti-discrimination ordinance was invalid (as applied to employment) as a prohibited local act regardless of whether Orange County chose to act on the legislation. A statute’s validity is judged by what is possible rather than by what has been done. 6. Counties— delegation of power from state — ordinance exceeding state and federal standard — employment discrimination Orange County did not possess the inherent authority to pass an employment discrimination ordinance under N.C.G.S. § 153A-121(a), which gives counties the power to enact ordinances protecting the health and welfare of its citizens and the peace and dignity of the county, and N.C.G.S. § 160A-174, which provides that state and federal law making an act unlawful do not preclude city ordinances requiring a higher standard of conduct. The ordinance in this case goes beyond requiring a higher standard of conduct and creates a new and independent framework for litigation which substantially exceeds the leeway permitted by these statutes. Justices Martin and Brady did not participate in the consideration or decision of this case. On discretionary review pursuant to N.C.G.S. § 7A-31, prior to a determination by the Court of Appeals, of an order for partial summary judgment entered 13 November 2000 and an amended order for partial summary judgment entered 23 January 2001 by Judge Steven A. Balog in Superior Court, Orange County. Heard in the Supreme Court 11 December 2001. Maupin Taylor & Ellis, P.A., by Thomas A. Farr, M. Keith Kapp, Kevin W. Benedict, and Terence D. Friedman, for defendantappellee Blue Cross Blue Shield of North Carolina. Coleman, Gledhill & Hargrave, PC., by Geoffrey E. Gledhill and S. Sean Borhanian; and The Brough Law Firm, by Michael B. Brough, for defendant-appellants Orange County, Orange County Board of Commissioners, and Orange County Human Relations Commission. Office of the City Attorney, by Emanuel McGirt, for City of Durham, amicus curiae. Elliot, Pishko, Gelbin <6 Morgan, P.A., by Robert M. Elliot and J. Griffin Morgan, on behalf of the North Carolina Academy of Trial Lawyers; and Seth H. Jaffe, for the American Civil Liberties Union of North Carolina Legal Foundation, Inc., amici curiae. Van Hoy, Reutlinger & Adams, by Philip Marshall Van Hoy and Stephen John Dunn, on behalf of Employers Association and Capital Associated Industries, Inc., amici curiae. Edwards, Ballard, Clark, Barrett and Carlson, P.A., by Kenneth P. Carlson, Jr., on behalf of North Carolina Society of Human Resource Management, amicus curiae. North Carolina Association of County Commissioners, by C. Ronald Aycock, Counsel and Executive Director; and S. C. Kitchen, Durham County Attorney, amicus curiae. Office of the County Attorney, by E. Holt Moore, III, for New Hanover County Human Relations Commission, amicus curiae. City of Asheville, by Robert W. Oast, Jr., City Attorney, amicus curiae. City of Durham, by Emanuel McGirt, City Attorney, amicus curiae. Moore & Van Allen, PLLC, by George M. Teague, on behalf of North Carolina Citizens for Business and Industry; and P. Andrew Ellen for the North Carolina Retail Merchants Association, amici curiae. EDMUNDS, Justice. In this action, we are called upon to determine: (1) whether the North Carolina General Assembly violated Article II, Section 24 of the North Carolina Constitution by ratifying enabling legislation permitting Orange County, the Orange County Board of Commissioners, and the Orange County Human Relations Commission (collectively, counterclaim defendants) to enact and enforce the employment provisions of an antidiscrimination ordinance entitled the Orange County Civil Rights Ordinance (the Ordinance); and (2) whether counterclaim defendants acted illegally in enacting and enforcing the employment provisions of that Ordinance. For the reasons that follow, we affirm the trial court’s grant of partial summary judgment to defendant Blue Cross Blue Shield of North Carolina (BCBSNC) and denial of summary judgment to counterclaim defendants. Pursuant to N.C.G.S. § 160A-492, the Orange County Board of Commissioners (the Board of Commissioners) in 1987 established the Orange County Human Relations Commission (the HRC). See N.C.G.S. § 160A-492 (2001) (“[t]he governing body of any city, town, or county is hereby authorized to undertake . . . human relations, community action and manpower development programs . . . [and] may appoint such human relations, community action and manpower development committees or boards and citizens’ committees, as it may deem necessary in carrying out such programs and activities”). The Board of Commissioners’ mandate to the HRC was that it (1) study and make recommendations concerning problems in the field of human relationships; (2) anticipate and discover practices and customs most likely to create animosity and unrest and to seek solutions to problems as they arise; (3) make recommendations designed to promote goodwill and harmony among groups in the County irrespective of their race, color, creed, religion, ancestry, national origin, sex, affectional preference, disability, age, marital status or status with regard to public assistance; (4) monitor complaints involving discrimination; (5) address and attempt to remedy the violence, tensions, polarization, and other harm created through the practices of discrimination, bias, hatred, and civil inequality; and (6) promote harmonious relations within the county through hearings and due process of law.... Orange County Civil Rights Ordinance, art. II, sec. 2.1(a), at 1 (effective 1 January 1995) [hereinafter Ordinance]. Thereafter, the HRC advertised and conducted public hearings on discrimination in the areas of employment, housing, and public accommodation and determined that discrimination in those areas existed in Orange County on the basis of race, color, religion, sex, national origin, age, disability, familial status, marital status, sexual orientation, and veteran status. See Ordinance, art. II, sec. 2.1(b), (c). As a result of these findings, the Board of Commissioners requested that the North Carolina General Assembly adopt enabling legislation allowing Orange County to enact a comprehensive civil rights ordinance. In response, the General Assembly ratified chapter 246 of the 1991 Session Laws on 10 June 1991, effective that same day. Act of June 10, 1991, ch. 246, sec. 6, 1991 N.C. Sess. Laws 456, 460. This legislation was passed both to aid Orange County in addressing the concerns raised by the HRC and to authorize Orange County to create or designate a commission to assist in the implementation of the Ordinance. Section 6 of chapter 246 authorized the Board of Commissioners to adopt an ordinance to be referred to either as a “Civil Rights Ordinance” or a “Human Rights Ordinance.” Id. On 23 March 1993, the Board of Commissioners adopted a resolution requesting that the Orange County delegation to the General Assembly introduce a rewrite of the 1991 legislation to provide for “local administration of federal and [s]tate laws prohibiting discrimination on the basis of race, color, religion, sex, national origin, age, disability, marital status, familial status, and veteran status.” The General Assembly made the requested amendments by enacting section 14 of chapter 358 of the 1993 Session Laws, effective upon ratification on 16 July 1993. Act of July 16, 1993, ch. 358, sec. 14, 1993 N.C. Sess. Laws 1158, 1169. After the General Assembly passed this enabling legislation, the Board of Commissioners, on 6 June 1994, adopted the Ordinance. On 18 April 1995, the Board of Commissioners adopted another resolution requesting from the General Assembly an amendment to the enabling legislation authorizing the HRC to serve as a deferral agency for cases deferred by the Equal Employment Opportunity Commission (EEOC) and the Department of Housing and Urban Development (HUD), pursuant to planned “worksharing agreements” with those agencies. These agreements would authorize transfer by the EEOC to Orange County of employment discrimination complaints filed with it originating in the county and transfer by HUD to Orange County of housing discrimination complaints arising in the county. Accordingly, the General Assembly enacted section 2, chapter 339 of the 1995 Session Laws, effective upon ratification on 28 June 1995. Act of June 28, 1995, ch. 339, sec. 2, 1995 N.C. Sess. Laws 802, 803. In its current form, the Ordinance is an antidiscrimination law applicable only in Orange County and administered by counterclaim defendants. The employment provisions of the Ordinance provide in pertinent part: (a) It is unlawful for an employer: (1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to that individual’s compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, disability, familial status, or veteran status. Ordinance, art. IV, sec. 4.1(a)(1), at 9 (effective 1 January 1996). The Ordinance is enforceable by a private cause of action that permits those affected to recover injunctive relief, back pay, and compensatory and punitive damages up to $300,000. Ordinance, art. VIII, sec. 8.3.2, at 50-53; art. X, at 54-55. Different sections of the Ordinance prohibit discrimination in employment, housing, and public accommodations, as well as the infliction of bodily injury or property destruction on account of the factors listed above. The employment discrimination provision of the Ordinance became effective 1 January 1996 and applies to all employers engaged in an industry affecting commerce who have fifteen or more employees in Orange County. Ordinance, art. Ill, at 4. Specifically excepted employers include the State of North Carolina and the United States. Id. at 4-5. The Ordinance provides that when the HRC receives individual complaints of employment discrimination, it may begin its investigation by requesting a statement of the employer’s position regarding the allegations. Ordinance, art. VIII, sec. 8.1, at 39-42. HRC may also issue subpoenas to obtain documents and materials from the employer. Id. After completing its investigation, the HRC issues either a finding of cause to believe discrimination occurred or a finding that reasonable cause does not exist. Ordinance, art. VIII, sec. 8.2, at 42-46. If the HRC finds cause to exist, attempts are made to resolve the complaint by conference, conciliation, and/or persuasion. Ordinance, art. VIII, sec. 8.1, at 42. If these efforts fail, the HRC issues a right-to-sue letter, Ordinance, art. VIII, sec. 8.2, at 45, allowing the complainant to litigate the matter in the Superior Court, Orange County, within one year of receipt of the letter, Ordinance, art. X, at 54. As an alternative if cause is found to exist, the HRC itself can instead choose to litigate the employment discrimination claim before a state administrative law judge (ALJ). Ordinance, art. VIII, sec. 8.2(j)(l), at 45. In such a case, the employer has no opportunity to opt out of the administrative process and demand a jury trial in state court. Ordinance, art. VIII, sec. 8.3.1(a), at 46. Any decision by the AU is automatically reviewed by a three-member panel of the HRC commissioners. Ordinance, art. VIII, sec. 8.3.l(j)(l), at 48. A reviewing panel has the discretion to review all aspects of the AU’s findings, including findings of fact, credibility determinations, and legal findings, and may affirm, modify, or reverse the ALJ’s recommended decision. Id. In the case at bar, plaintiff Mary Williams filed claims with the HRC and the EEOC alleging discrimination on the grounds that she had been forced to resign from her employment with BGBSNC because of her age and sex, and also alleging that BCBSNC had retaliated against her for filing the discrimination claim. Following an investigation, the HRC found reasonable cause to believe that BCBSNC had discriminated against plaintiff based on her age and gender, and issued a right-to-sue letter. Plaintiff filed the suit giving rise to the instant appeal in Superior Court, Orange County, on 23 March 1999, claiming that BCBSNC fired her because of her age and also in retaliation for filing a claim of discrimination with the HRC and the EEOC. Specifically, plaintiff alleged four causes of action: (1) that BCBSNC wrongfully discharged plaintiff because of her age, in violation of North Carolina public policy as set forth in the Equal Employment Practices Act (EEPA), N.C.G.S. ch. 143, art. 49A (2001), and the Ordinance; (2) that BCBSNC wrongfully discharged plaintiff because she filed a charge of age discrimination with the HRC and the EEOC, in violation of North Carolina public policy as set forth in the EEPA and the Ordinance; (3) that BCBSNC discharged plaintiff because of her age, in violation of the Ordinance; and (4) that BCBSNC discharged plaintiff in retaliation for filing a complaint with the HRC in violation of the Ordinance. BCBSNC removed the suit to the United States District Court for the Middle District of North Carolina, asserting that plaintiffs claims raised substantial questions of federal law. On 29 July 1999, the federal court remanded the case to Superior Court, Orange County, holding that because plaintiff had chosen to assert only state law claims, she was entitled to proceed in state court. After the trial court on 1 November 1999 approved BCBSNC’s motion to add a counterclaim, BCBSNC filed its amended answer and counterclaim. This new filing contained a declaratory judgment action (denominated as the counterclaim), asserting that the enabling legislation and the Ordinance violated Article II, Section 24(l)(j) of the North Carolina Constitution, which prohibits “any local, private, or special act or resolution . . . [r]egulating labor, trade, mining, or manufacturing.” N.C. Const, art. II, § 24(l)(j). On 31 July 2000, BCBSNC filed a further amended answer and first amended counterclaim, adding a claim that the Ordinance denied BCBSNC equal protection of the law. Beginning on 6 November 2000, the trial court heard cross-motions for summary judgment. BCBSNC’s motion was based upon a claim that the Ordinance’s employment discrimination provisions were unconstitutional, while counterclaim defendants’ motion argued that the Ordinance was constitutional in its entirety but that, even if it were not, BCBSNC was precluded from attacking the Ordinance based on the affirmative defenses of laches and the statute of limitations. After hearing arguments and reviewing the parties’ briefs, the trial court on 13 November 2000 entered an order declaring the employment provisions of the Ordinance to be in violation of Article II, Section 24 of the North Carolina Constitution, and in violation of the equal protection guarantees of the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. The trial court also enjoined counterclaim defendants from enforcing the unlawful employment discrimination provisions of the Ordinance as well as any civil rights investigations and civil actions thereunder. Pursuant to the request of counterclaim defendants, and with the consent of BCBSNC, the trial court on 23 January 2001 amended its order to certify its decision for interlocutory appeal under Rule 54(b) of the North Carolina Rules of Civil Procedure and section 1-277 of the North Carolina General Statutes. N.C. R. Civ. P. 54(b); N.C.G.S. § 1-277 (2001). Counterclaim defendants filed notice of appeal on 19 February 2001. This Court allowed discretionary review on 19 July 2001, prior to determination by the Court of Appeals pursuant to section 7A-31. N.C.G.S. § 7A-31 (2001). As a preliminary matter, we observe that the only issues before us pertain to the employment provisions of the enabling legislation and the Ordinance. Because the parties had no occasion to brief or argue the constitutionality of the provisions of the enabling legislation and the Ordinance relating to housing and public accommodation and because the following analysis consequently focuses only on the employment provisions, we express no opinion as to the legality of any aspect of either the enabling legislation or the Ordinance unrelated to employment. We first consider whether the trial court erred in concluding that BCBSNC’s declaratory judgment action against counterclaim defendants was not barred by the statute of limitations. Summary judgment may be granted in a declaratory judgment proceeding, N. C. Farm Bureau Mut. Ins. Co. v. Briley, 127 N.C. App. 442, 444, 491 S.E.2d 656, 657 (1997), disc. rev. denied, 347 N.C. 577, 500 S.E.2d 82 (1998), where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law,” N.C.G.S. § 1A-1, Rule 56(c) (2001). “When the statute of limitations is properly pleaded and the facts of the case are not disputed[,] resolution of the question becomes a matter of law and summary judgment may be appropriate.” Marshburn v. Associated Indem. Corp., 84 N.C. App. 365, 369, 353 S.E.2d 123, 126, disc. rev. denie

MARK JAMES BRACKETT, Plaintiff v. SGL CARBON CORPORATION, Defendant No. COA02-965 (Filed 3 June 2003) 1. Pleadings— 12(b)(6) motion to dismiss — consideration of documents not attached to complaint — motion not converted to summary judgment A motion to dismiss for failure to state a claim was not converted into a motion for summary judgment where the court considered documents not attached to the complaint. Those documents were referred to in the complaint and formed the procedural basis for the complaint. 2. Employer and Employee— retaliatory discharge — time limit for claim The 180-day time limit for filing a Retaliatory Employment Discrimination Act claim with the North Carolina Department of Labor is mandatory even though there is no express statutory consequence for failing to file within the time limit. 3. Statutes of Limitations and Repose— retaliatory discharge — time limits for filing There is no merit in the argument that the 3-year limitations period of N.C.G.S. § 1-52 should control the 180-day filing limit of the Retaliatory Employment Discrimination Act. 4. Employer and Employee— retaliatory discharge — motion to amend — additional claim — responsive pleading not filed — futile motion The trial court properly denied plaintiff’s motion to amend his complaint to assert an additional claim under the Retaliatory Employment Discrimination Act based on an alleged post-complaint incident of discrimination where the original claim was time-barred and plaintiff failed to file his additional claim with the N.C. Department of Labor before seeking to add it to his complaint so that allowance of the amendment would have been futile. 5. Employer and Employee; Workers’ Compensation— wrongful discharge — assertion of workers’ compensation rights— amendment of complaint — responsive pleading not filed— motion not futile A plaintiff may state a claim for wrongful discharge in violation of public policy based upon an allegation that the dismissal resulted from an assertion of rights under the Workers’ Compensation Act, and plaintiff was entitled to amend his complaint to add such a claim as a matter of right before defendants had filed a responsive pleading. The trial court could not properly deny as futile the motion to amend on the ground that plaintiff was a union employee who could only be dismissed for just cause rather than an at-will employee and thus could not sue in tort for wrongful discharge under Trexler v. Norfolk S. Ry. Co., 145 N.C. App. 466, where the terms of the purported collective bargaining agreement were not before the court. Appeal by plaintiff from orders entered 25 February 2002 and 8 March 2002 by Judge Kimberly S. Taylor in Burke County Superior Court. Heard in the Court of Appeals 16 April 2003. Mark James Brackett, pro se, for plaintiff-appellant. Parker, Poe, Adams & Bernstein, L.L.P., by Jonathan M. Crotty and John B. Anderson, for defendant-appellee. MARTIN, Judge. Plaintiff filed this action alleging defendant’s violation of the North Carolina Retaliatory Employment Discrimination Act (“REDA”). Plaintiff sought compensatory and punitive damages and injunctive relief. According to the allegations of the complaint, plaintiff alleges he developed skin lesions on his arm due to burns sustained at work during 1998. He reported these injuries to defendant in the fall of 1999, took medical leave, and requested that defendant pay for surgical removal of the lesions. He was released to return to work by the company doctor on 1 December 1999. Plaintiff alleged that on 2 December 1999 he was falsely accused by defendant of working for another employer during his leave. Defendant terminated plaintiffs employment, denied liability for his alleged injuries, and refused to pay for his medical expenses. On 2 June 2000, plaintiff filed a REDA claim against defendant with the North Carolina Department of Labor (“NCDOL”), alleging he was fired because he reported an on-the-job injury. Plaintiff received a “right-to-sue” letter from the NCDOL on 22 June stating that it was dismissing plaintiff’s complaint due to his failure to file the REDA claim within 180 days of the alleged discriminatory discharge as required by statute. Plaintiff was subsequently reinstated by defendant on 28 August 2000 and returned to work. Based on the right-to-sue letter, plaintiff filed the instant civil action in Burke County Superior Court on 20 September 2000. On 22 November 2000, defendant filed a “Motion for Judgment as a Matter of Law,” citing G.S. § 1A-1, Rules 12(b)(6) and 56(b), asserting plaintiff’s claim is time-barred. Eleven months thereafter, plaintiff filed a Motion to Amend seeking to allege that defendant had, since plaintiff’s return to work, committed an additional discriminatory act under REDA. Before the motions were heard, plaintiff filed a Supplemental Motion For Leave to Amend on 21 February 2002, in which he also sought to allege a common law claim for wrongful discharge. Plaintiff appeals from the trial court’s orders dismissing his complaint with prejudice and denying his Motion to Amend and Supplemental Motion for Leave to Amend. By his assignments of error, plaintiff asserts the trial court erred in (1) granting defendant’s motion and dismissing plaintiff’s complaint and (2) denying plaintiff’s motions to amend his complaint. Plaintiff first asserts that although he filed his REDA claim with the NCDOL over 180 days after the alleged discriminatory discharge, his claim should not have been dismissed. We note at the outset that the trial court appears to have proceeded under Rule 12(b)(6) in dismissing plaintiff’s complaint. Although the trial court must have necessarily considered plaintiff’s administrative complaint and/or right-to-sue letter, documents not attached to the complaint, in ruling on the motion, because plaintiff referred to these documents in the complaint and they form the procedural basis for the complaint, the trial court did not convert the motion into one for summary judgment by doing so. See Scott v. United Carolina Bank, 130 N.C. App. 426, 428, 503 S.E.2d 149, 151 (1998) (consideration of trust indenture referred to in complaint did not convert 12(b)(6) motion to one for summary judgment), disc. review denied, 350 N.C. 99, 528 S.E.2d 584 (1999); Brooks Distributing Co. v. Pugh, 91 N.C. App. 715, 717-18, 373 S.E.2d 300, 302 (1988) (consideration of contracts presented by defendants at pre-trial conference which were subject of action did not convert motion to one for summary judgment), reversed on other grounds, 324 N.C. 326, 378 S.E.2d 31 (1989). To determine whether a complaint is sufficient to survive a Rule 12(b)(6) motion to dismiss, the court must ascertain “ ‘whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.’ ” Pursuant to Rule 12(b)(6), a complaint should be dismissed “ ‘if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim.’ ” Plummer v. Community General Hosp., 155 N.C. App. 574, 576, 573 S.E.2d 596, 598 (2002) (citations omitted). G.S. § 95-242, a provision of REDA, states in pertinent part: (a) An employee allegedly aggrieved by a violation of G.S. 95-241 may file a written complaint with the Commissioner of Labor alleging the violation. The complaint shall be filed within 180 days of the alleged violation .... N.C. Gen. Stat. § 95-242(a) (2002) (emphasis added). Citing Commissioner of Labor v. House of Raeford Farms, 124 N.C. App. 349, 477 S.E.2d 230 (1996), disc. review improv. allowed, 347 N.C. 347, 492 S.E.2d 354 (1997), plaintiff contends the 180-day statutory time limit should not be strictly construed. Plaintiff relies, in particular, on the Court’s statement that: Generally, “statutory time periods are . . . considered to be directory rather than mandatory unless the legislature expresses a consequence for failure to comply within the time period.” Mandatory provisions are jurisdictional, while directory provisions are not. Id. at 353-54, 477 S.E.2d at 233 (citations omitted). Because G.S. § 95-242(a) provides no express consequence for failure to file a REDA claim with the NCDOL within 180 days, plaintiff asserts the time limit is merely “directory, not mandatory.” Plaintiffs reliance on House of Raeford Farms is misplaced. House of Raeford Farms dealt with a claims processing time limit imposed on the NCDOL, the agency responsible for reviewing REDA claims under the statute. In declaring the time limit was not mandatory, the Court specifically expressed concern about interpreting the statute to allow agency delay to prejudice the claims of private citizens, id. at 356, 477 S.E.2d at 234, and cited similar decisions regarding statutory time limits on the actions of governmental authorities processing private claims. See, e.g., Brock v. Pierce County, 476 U.S. 253, 90 L. Ed. 2d 248 (1986); State ex rel. Utilities Comm. v. Empire Power Co., 112 N.C. App. 265, 435 S.E.2d 553 (1993), disc. review denied, 335 N.C. 564, 441 S.E.2d 125 (1994). Thus, we decline to extend the rationale of House of Raeford Farms to the filing time limit at issue in the present case. Although there is no express statutory consequence for failing to meet the 180-day time limit set forth in G.S. § 95-242(a), case law precedent indicates the limit is a mandatory one. For example, G.S. § 95-243 contains a time limit provision similar to the one at issue: (a) An employee who has been issued a right-to-sue letter . . . may commence a civil action in the superior court.... (b) A civil action under this section shall be commenced by an employee within 90 days of the date upon which the right-to-sue letter was issued.... N.C. Gen. Stat. § 95-243 (2002) (emphasis added). In Telesca v. SAS Inst., Inc., 133 N.C. App. 653, 516 S.E.2d 397, disc. review denied, 351 N.C. 120, 540 S.E.2d 749 (1999), this 90-day limit was interpreted as mandatory, though the statute contains no express consequence for failure to meet the deadline. In addition, 42 U.S.C. § 2000e-5(e) uses similar language to describe the time for filing charges of employment discrimination under Title VII of the Civil Rights Act of 1964: (1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred .... 42 U.S.C. § 2000e-5(e)(1) (2003) (emphasis added). In Amtrak v. Morgan, the United States Supreme Court declared this 180-day limitation to be mandatory, holding that “a claim is time barred if it is not filed within [this] time limit[].” 536 U.S. 101, 108-09,153 L. Ed. 2d 106, 119 (2002) (“ ‘strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law’ ” (citations omitted)). We believe the 180-day time limit for filing a REDA claim with the NCDOL should be similarly construed. Thus, we hold the 180-day time limit for filing a REDA claim with the NCDOL is mandatory. Plaintiff’s remaining argument that where the time limits of REDA conflict with G.S. § 1-52, § 1-52 should control, is clearly without merit. See N.C. Gen. Stat. § 1-52(2) (2003) (civil action must be commenced within three years “[u]pon a liability created by statute, . . . unless some other time is mentioned in the statute creating it”). Because plaintiff’s administrative REDA complaint and right-to-sue letter show clearly that plaintiff filed his REDA claim with the NCDOL over 180 days after the alleged discriminatory discharge, the trial court did not err in concluding that plaintiff’s complaint failed to state a claim under REDA and the dismissal of that claim with prejudice is affirmed. Plaintiff next argues the trial court erred in denying his motions for leave to amend the complaint by adding (1) a REDA claim based on alleged retaliatory conduct by defendant after the original complaint was filed and (2) a claim for wrongful discharge in violation of public policy based on the original alleged discriminatory discharge. “A party may amend his pleading once as a matter of course at any time before a responsive pleading is served .... Otherwise a party may amend his pleading only by leave of court. . . ; and leave shall be freely given when justice so requires.” N.C. Gen. Stat. § 1A-1, Rule 15(a) (2003). In contrast, “[u]pon motion of a party the court may, . . . upon such terms as are just, permit him to serve a supplemental pleading setting forth . . . occurrences or events which may have happened since the date of the pleading sought to be supplemented . . . .” N.C. Gen. Stat. § 1A-1, Rule 15(d) (2003). Plaintiff’s motion to amend to assert an additional REDA claim based on an alleged post-complaint incident of discrimination falls under Rule 15(d). A trial court’s decision to grant or deny a motion to serve supplemental pleadings is reviewable only for abuse of discretion. Miller v. Ruth’s of North Carolina, Inc., 69 N.C. App. 153, 316 S.E.2d 622 (1984). Aside from failing to meet any of the time limitations discussed above, without a right-to-sue letter issued by the Commissioner of Labor, a plaintiff may not file a civil action for an alleged violation of REDA. N.C. Gen. Stat. § 95-243(e) (2003). Because plaintiff failed to file his additional REDA claim with the NCDOL before seeking to add it to the instant complaint, the trial court properly determined that granting plaintiff leave to add it to the complaint would be futile and denied the motion. See North Carolina Council of Churches v. State, 120 N.C. App. 84, 461 S.E.2d 354 (1995) (noting that motion under either Rule 15(a) or (d) may be denied if proposed amendment futile). Plaintiff’s motion seeking to add to his complaint a' claim for wrongful discharge in violation of public policy based on the original discriminatory discharge is properly considered under Rule 15(a). See Williams v. Rutherford Freight Lines, Inc., 10 N.C. App. 384, 391-92, 179 S.E.2d 319, 325 (1971) (“amendments [under Rule 15(a)] relate to occurrences, transactions and events that could have been, but for some reason were not, alleged in the pleadings sought to be amended”). As such, because defendants had yet to file a responsive pleading and the trial court had yet to rule on defendant’s Rule 12 motion when plaintiff made the motion to amend, it would appear that plaintiff was entitled to amend the complaint as a matter of right. See Johnson v. Bollinger, 86 N.C. App. 1, 7, 356 S.E.2d 378, 382 (1987) (motion to dismiss is not responsive pleading, though trial court’s dismissal of complaint terminates right to amend). Nonetheless, the trial court denied the motion to amend as futile. North Carolina follows the at-will employment doctrine, which dictates that “in the absence of a contractual agreement . . . establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.” Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997), reh’g denied, 347 N.C. 586, 502 S.E.2d 594 (1998). One of the few exceptions to this doctrine is the public policy exception. There is no specific list of what actions constitute a violation of public policy. However, wrongful discharge claims have been recognized in North Carolina where the employee was discharged (1) for refusing to violate the law at the employers request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy. Ridenhour v. IBM, 132 N.C. App. 563, 568-69, 512 S.E.2d 774, 778, disc. review denied, 350 N.C. 595, 537 S.E.2d 481 (1999). Wrongful discharge in violation of public policy is a tort claim, Paquette v. County of Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 718 (2002), disc. review denied, 357 N.C. 165, — S.E.2d - (1 May 2003), and to prevail on this claim, an employee must “pleadf] and provfe] that the employee’s dismissal occurred for a reason that violates public policy.” Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 693, 575 S.E.2d 46, 51 (2003). Recently, in Salter, this Court analyzed whether “a claim of wrongful discharge based upon North Carolina public policy of not punishing employees for exercising their statutory rights under the Workers’ Compensation Act was tenable . . . .” 155 N.C. App. at 697, 575 S.E.2d at 54. Although the Court concluded that it arguably was, it did not decide the issue definitively because the evidence proffered by the plaintiff in that case would not have sustained the claim. Id. Now that the issue is squarely before us, we agree with the reasoning of Salter on this issue. Pursuing one’s rights under the Workers’ Compensation Act, G.S. §§ 97-1 et seq. (2003), is a legally protected activity. See N.C. Gen. Stat. § 95-241(a)(1)a. (2003); (former) § 97-6.1 (repealed 1991). “[P]ublic 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) (plaintiffs stated claim for wrongful discharge in violation of public policy where allegedly forced to work for less than minimum wage in violation of state Wage and Hour Act). Moreover, the statutory remedy available for violation of this public policy does not “diminish the rights or remedies of any employee ... at common law.” N.C. Gen. Stat. § 95-244 (2002). Therefore, a plaintiff may state a claim for wrongful discharge in violation of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers’ Compensation Act. The statute of limitations for such a claim is three years. N.C. Gen. Stat. § 1-52(5) (2003). The transcript of the hearing indicates the trial court decided plaintiffs amendment would be futile in light of this Court’s decision in Trexler v. Norfolk S. Ry. Co., 145 N.C. App. 466, 550 S.E.2d 540 (2001). Defendant asserts that Trexler stands for the principle that employees who are employed pursuant to union agreements are not at-will employees and therefore cannot sue in tort for wrongful discharge. However, in Trexler, the exact terms of the plaintiffs union agreement were cited as evidence that he could only be fired for just cause and was thus not an at-will employee. Id. at 471-72, 550 S.E.2d at 543. In the present case, although defendant asserted in its legal memorandum to the trial court and argued at the hearing that plaintiff was a union employee subject to discharge only for just cause under a collective bargaining agreement, plaintiff did not stipulate to this statement and neither party offered the collective bargaining agreement into evidence. Since the terms of the purported union agreement were not before the trial court, they could not have provided a proper basis for denying the motion to amend and dismissing the complaint. See Hankins v. Somers, 39 N.C. App. 617, 620, 251 S.E.2d 640, 642 (trial court “should rely only on material that would be admissible at trial in ruling on” motion to dismiss or for judgment), disc. review denied, 297 N.C. 300, 254 S.E.2d 920 (1979). The trial court could only have made its ruling on the basis of defendant’s characterization of an agreement not in evidence or a misunderstanding of the scope of Trexler. In either event, plaintiff’s motion to amend the complaint by adding a claim for wrongful discharge in violation of public policy may not have been futile and the denial of the motion could not have been the result of a reasoned decision. Therefore, we reverse the trial court’s denial of plaintiff’s motion to amend by adding a claim for wrongful discharge and remand this matter for further proceedings consistent with this opinion. Affirm

John E. Mole vs. University of Massachusetts & others. No. 00-P-735. Suffolk. March 20, 2002. May 8, 2003. Present: Grí->nbrrg, Lenk, & Cowin, JJ. Further appellate review granted, 439 Mass. 1109 (2003). University of Massachusetts. Civil Rights, Termination of employment. Employment, Discrimination, Retaliation, Termination. Anti-Discrimination Law, Termination of employment, Prima facie case. Public Employment, Termination. Limitations, Statute of. Practice, Civil, Prima facie case, Statute of limitations. In a civil action brought by a tenured professor against the defendant university and individual defendants, alleging that the professor’s support of his wife’s sexual harassment complaint against the university inspired unlawful retaliation resulting in reductions in salary and ultimately in termination of his appointment, the judge erred in granting a motion for a directed verdict in favor of the defendants, where evidence of adverse employment actions that were unavailable as a basis for the plaintiff’s claims by virtue of the applicable statutes of limitations could be used to support an inference that subsequent acts that were not time-barred were a product of discrimination, and therefore, the evidence was sufficient to permit the jury to find a causal connection between the professor’s support of his wife’s complaint and the subsequent adverse employment decisions. [38-47] Greenberg, J., dissented. In a civil action brought by a tenured professor against the defendant university and individual defendants, alleging that the professor’s support of his wife’s sexual harassment complaint against the university inspired unlawful retaliation resulting in reductions in salary and ultimately in termination of his appointment, the professor’s administrative complaint was sufficient to satisfy the jurisdictional prerequisites of 42 U.S.C. § 2000e-3(a) (2000) and G. L. c. 15IB, and the fact that the professor was subsequently subjected to a more significant effect of the allegedly unlawful retaliation did not alter the fact that the retaliation issue had been fairly placed before the Massachusetts Commission Against Discrimination [47-48]; further, the professor’s claim under 42 U.S.C. § 1983 (2000) was not preempted by his claim under 42 U.S.C. § 2000e-3(a), where the professor adequately pleaded interference with his right under the First Amendment to the United States Constitution of intimate association with his wife [48]. Civil action commenced in the Superior Court Department on August 5, 1994. A motion for summary judgment was heard by Barbara J. Rouse, J., and the case was heard by Charles T. Spurlock, J. John Foskett for the plaintiff. Christopher J. Campbell for the defendants. Michael R Czech, Frank J. Chlapowski, and Michael A. Bratt. Cowin, J. The plaintiff, formerly a tenured professor at the University of Massachusetts Medical Center, brought proceedings against the University of Massachusetts (University) and various University employees in which he alleged that his support of his wife’s sexual harassment complaint against a department head inspired unlawful retaliation resulting first in reductions in his salary, then in termination of his appointment. Following pretrial rulings that narrowed the issues (and from which there have been no appeals), the case was tried to a jury for six days. At the close of the plaintiff’s case, the judge directed verdicts in favor of the defendants Michael A. Bratt and Michael P. Czech. At the close of all the evidence, the judge directed verdicts in favor of the remaining defendants Frank J. Chlapowski and the University. Following the entry of judgments in accordance with the directed verdicts, the plaintiff appealed. Applying the standard applicable to directed verdicts, see Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 488 n.14 (2000), we conclude that there was sufficient evidence both of a prima facie case and of pretext on the part of the defendants to require submission of the case to the jury, and we accordingly reverse. 1. Prior proceedings. On May 2, 1993, the plaintiff filed with the Massachusetts Commission Against Discrimination a complaint of unlawful retaliation for engaging in a protected activity, i.e., supporting his wife’s sexual harassment complaint. Following the required waiting period, see G. L. c. 151B, § 9, the plaintiff sought relief in the Superior Court under various civil rights statutes, specifically: (1) G. L. c. 151B, §§ 4(4), 4(4A) and 4(5); (2) Title VII, 42 U.S.C. § 2000e-3(a) (2000); and (3) 42 U.S.C. § 1983 (2000). He also sued for breach of contract and declaratory relief. Each of his statutory claims was asserted against all of the defendants: Michael P. Czech, former chair of the biochemistry and molecular biology department; Frank P. Chlapowski, acting chair; Michael A. Bratt, provost of the medical center; and the University itself. A judge of the Superior Court ruled that the “continuing violation” doctrine was inapplicable and granted summary judgment in favor of the defendants on those portions of the G. L. c. 15 IB claim that sought redress for conduct occurring prior to November 2, 1992 (the then applicable limitation of six months prior to the filing of the plaintiff’s complaint with the Massachusetts Commission Against Discrimination). Likewise, the judge granted the defendants summary judgment with respect to the plaintiff’s allegations under Title VII of conduct occurring prior to September 2, 1992 (240 days prior to the filing with that commission, 42 U.S.C. § 2000e-5[5]). The judge, in addition, granted summary judgment for the University on the plaintiff’s § 1983 claim, ruling that the University was not a “person” subject to liability thereunder. Finally, the judge allowed the defendants’ motion for summary judgment on the plaintiff’s claims for breach of contract and declaratory judgment. The remaining claims went to trial, resulting in the directed verdicts in question. 2. Material facts. “The question before us [in reviewing such a ruling] is . . . whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff[].’ ” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. at 488 n.14, quoting from Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 520 (1992). Therefore, we state what the jury could have found, treating the evidence, as well as the reasonable inferences therefrom, in the light most favorable to the plaintiff. The plaintiff and his wife, Jacqueline Anderson-Mole, each the holder of a doctoral degree in biochemistry, were engaged in research at the University of Alabama at Birmingham when they accepted an offer from the defendant Czech to join the biochemistry and molecular biology department (department) at the University of Massachusetts Medical Center (medical center). The plaintiff joined as an associate professor, was subsequently granted tenure, and thereafter was granted a full professorship. Anderson-Mole joined the department on a non-tenure track. They brought with them valuable equipment and supplies as well as grants that they used to support their research work and salaries over the next several years. At the medical center, they founded and operated as codirectors the Protein Chemistry Core Facility (PCF), a research facility that, among other things, isolated and sequenced proteins and amino acids for other researchers at the medical center and other institutions. For several years, the PCF was funded in part by the Diabetes and Endocrinology Research Center (DERC), an organization of scientists at the medical center (of which Czech was a member), that in turn received grants awarded by the National Institutes of Health. The plaintiff also received funding from the Scientific Council, a group of scientists composed of one representative from each medical center department. At the material times, faculty members at the medical center were evaluated on the basis of teaching, service and research. In 1983, Czech and the defendant Chlapowski, then an associate professor, gave the plaintiff’s teaching strongly positive evaluations. In recommending tenure for the plaintiff with “great enthusiasm,” Czech referred to him as an “exceptionally talented faculty member” and a “truly distinguished investigator,” and remarked on his “solid teaching performance,” “well respected research program,” and “outstanding service” as PCF director. Following these reviews, the plaintiff was granted tenure in 1984. He was elevated to the rank of full professor in 1987, again following enthusiastic recommendations by Czech and Chlapowski and a unanimous vote by the department’s personnel action committee. Between 1981 and 1989, the plaintiffs salary was consistently increased; he was appointed to various department committees by Czech, who confirmed that he was active and productive thereon; and he received no negative faculty evaluations regarding his performance. By 1989, the plaintiff carried the second highest teaching load in the department. In that year, Czech took a leave of absence from the position of chair of the department, his duties being assumed by Chlapowski in an acting capacity. Although on leave as chair, Czech continued to participate in faculty evaluations. During budget hearings in 1989, the Scientific Council discussed a proposal to save money by merging the plaintiff’s PCF with a neighboring peptide synthesis core facility. Various concerns regarding the operations of the PCF, including alleged difficulties encountered in working with the plaintiff, were expressed. A subcommittee was appointed to investigate and make a recommendation regarding continued funding of the PCF. On February 8, 1990, the subcommittee recommended consolidation of the two laboratories and a public search for a new director of the combined facility. On February 28, 1990, Anderson-Mole submitted to James Wells, the medical center’s equal employment opportunity compliance officer, an informal complaint of sexual harassment against Czech. The plaintiff supported his wife’s complaint. During that academic year (September, 1989, to June, 1990), the plaintiff was relieved of the majority of his teaching duties, the stated reason for which was the need to give younger faculty members teaching experience. During the summer of 1990, both the plaintiff and Anderson-Mole sought appointment as head of the new combined PCF-pepti.de synthesis core facility. Neither was a finalist for the position. In August, 1990, Aaron Lazare, then chancellor of the medical center, informed Czech that a female faculty member had submitted an informal complaint of sexual harassment against him. There was some evidence that, at the time, Anderson-Mole was the only female faculty member of the department. Czech informed Chlapowski of the complaint, also indicating to Chlapowski that Czech was already aware of a rumor that such a complaint existed (notwithstanding that complaints of this nature were understood to be confidential). On October 4, 1990, the plaintiff received, for the first time, a negative performance evaluation for the period July, 1989, to June, 1990, signed by Czech and Chlapowski. The evaluation reported that the plaintiff had been relieved of certain teaching assignments because of “consistently negative oral and written evaluations of his teaching efforts” by students. In addition, Chlapowski, in his capacity as acting department chair, now refused to appoint the plaintiff to membership on any department committees, despite the fact that the plaintiff asked to be included. By December, 1990, relations between the plaintiff and other faculty truly began to disintegrate, with the plaintiff, in the course of a faculty meeting, attacking Chlapowski’s credentials and performance as acting chair and referring to him as “Czech’s stooge.” In January, 1991, Anderson-Mole, again with the plaintiff’s support, filed with the equal employment opportunity compliance officer a formal charge of sexual harassment against Czech. Despite the confidentiality that normally attends such complaints, the officer informed Chlapowski that Anderson-Mole had filed a formal charge of sexual and professional harassment. Chlapowski erroneously believed that the charge had been leveled at himself, subsequently refusing to accept the plaintiff’s statement that the charge was directed at Czech only. By early 1991, Czech also learned that the formal complaint had been submitted. On April 24, 1991, Chlapowski filed a formal charge of scientific misconduct against the plaintiff. This arose following the negative evaluation of the plaintiff dated October 4, 1990, when the plaintiff requested that Chlapowski review certain of the plaintiff’s publications for which the plaintiff believed he had not received due credit. The review disclosed six papers listed by the plaintiff as “accepted for publication” or “in press” that had not subsequently been published, as well as articles that the plaintiff had coauthored that were published but that he had failed to list. Following normal medical center procedures, the associate dean of scientific affairs convened an investigating panel that concluded that, while the plaintiff’s conduct had been “sloppy and inappropriate,” no scientific misconduct had occurred. While most of the data contained in the six articles in question did get published, the associate dean officially reprimanded the plaintiff for “repeated inappropriate reporting of scientific achievements.” In May, 1991, the DERC voted to discontinue funding of the PCF effective December 1, 1991. The plaintiff had attempted to rebut various grounds on which the decision was apparently based, but to no avail. On May 29, 1991, Chlapowski wrote to the Scientific Council, another funding source for the PCF, requesting that the council “officially come to closure with regard to the relationship of [the plaintiff]” and that it do so “as soon as possible.” In June, 1991, the council voted to discontinue all funding for the PCF. On July 8, 1991, the plaintiff wrote to Chlapowski requesting department funding for the PCF. Chlapowski requested both a formal application and written answers to a number of questions regarding the PCF. Alleging that responses would require countless hours gathering information within and outside the medical center, and that Chlapowski had given no assurance that the application would be approved, the plaintiff did not pursue the request. In August, 1991, the medical center informed Anderson-Mole that her contract for the 1991-1992 academic year would be her last. Furthermore, Chlapowski informed Anderson-Mole that, upon the expiration of her contract, she was not to enter the plaintiff’s laboratory or, for that matter, the premises of the medical center in general. In addition, Chlapowski demanded that, during the final year of the contract, the plaintiff pay one hundred percent of Anderson-Mole’s salary, as well as her accrued vacation time, rather than the eighty percent that he had previously paid (the department bearing the remaining twenty percent). The plaintiff filed a grievance on the salary issue and prevailed. By the end of November, 1991, the plaintiff’s funding had been completely eliminated. On December 13, 1991, Czech and Chlapowski issued another negative evaluation of the plaintiff’s performance, this time for the period July, 1990, to June, 1991, in which they expressed a lack of comprehension as to how the plaintiff could remain as a faculty member. In January, 1992, Chlapowski refused to approve the plaintiff’s application for a grant from the Alzheimer’s Foundation. The reasons for the refusal are disputed, although the plaintiff suggests that Chlapowski’s stated reason was pretextual. Throughout 1992 and early 1993, Chlapowski demanded that the plaintiff contract his research activities from the three laboratory rooms that he had previously enjoyed into a single laboratory room. Despite the plaintiff’s request that the change be delayed until completion of his grievance on the subject, the change was implemented. On February 10, 1993, Chlapowski submitted an even more negative performance appraisal of the plaintiff for the period July, 1991, to June, 1992. In the evaluation, he recommended that, absent significant improvements in productivity, the plaintiff’s salary be reduced by 17.5 percent in the year thereafter. He also stated that the plaintiff had filed no grant applications, an observation that the plaintiff contested. Czech did not sign this evaluation, and claims that he did not participate in the review. However, the review incorporated by reference the previous year’s review on which Czech did collaborate. In addition, it employed plural references (“we continue to be deeply concerned;” “our conclusion remains the same”), suggesting that Chlapowski intended to reflect Czech’s opinion as well as his own. On May 2, 1993, the plaintiff filed a complaint with the Massachusetts Commission Against Discrimination alleging that the defendants retaliated against him because of his support of his wife’s sexual harassment charge. This filing also served as a filing with the United States Equal Employment Opportunity Commission. The plaintiff also filed a grievance, claiming that it was a conflict of interest for Chlapowski to evaluate him. At the request of the grievance committee, Chlapowski withdrew from the evaluation process and a three-member, ad hoc personnel action committee was appointed to conduct future evaluations of the plaintiff. Although the plaintiff was entitled to select one member of the ad hoc committee, with that member joining in the selection of the third, he declined to make a choice. The department members then selected two of their number to serve, with those two choosing a third. As so constituted, the ad hoc committee included Dr. Thomas Miller, a close friend of Chlapowski who had had a recent conflict with the plaintiff. The ad hoc committee conducted three evaluations of the plaintiff. In its report of June 9, 1994, for the period July 1, 1992, to April 1, 1994, the committee accused the plaintiff of being deliberately unproductive, having performed no research and making no genuine attempts to obtain funding. It voted to reduce his annual salary by 17.5 percent, recommended that his laboratory space be taken away entirely, and threatened him with an additional 17.5 percent reduction the following year if his performance did not improve. In its 1995 report for the period April 1, 1994, to March 31, 1995, the committee in fact reduced the plaintiff’s salary by a second 17.5 percent. The committee evaluated the plaintiff a final time on July 10, 1996, for the period April 1, 1995, and following, and then resigned, stating that it was a waste of time to evaluate someone who was not doing anything. In 1996, Edward Bresnick, a vice chancellor for research who had succeeded to the position of the plaintiff’s evaluator, requested that Chlapowski document his concerns about the plaintiff. By letter dated August 21, 1996, Chlapowski accused the plaintiff of a complete lack of productivity, “incorrigible and unethical” behavior, and the improper use of his university computer for personal matters. In 1997, medical center Chancellor Aaron Lazare commenced termination proceedings against the plaintiff. Czech and Chlapowski gave information used by the University in connection with these proceedings, and in 1998, they testified at the hearings. After the hearings concluded, Lazare requested that Czech review a transcript of the plaintiff’s testimony. On February 5, 1999, Czech wrote to Lazare, discrediting the plaintiff’s testimony and claiming that he had received tenure under “false pretenses.” Ultimately, the University’s board of trustees, acting on Lazare’s recommend

JOHNNY E. BREWER v. CABARRUS PLASTICS, INC. No. 560A01 (Filed 2 May 2003) Civil Rights; Employer and Employee— racial discrimination— retaliatory discharge — instructions The decision of the Court of Appeals holding that there was reversible error in the trial court’s instructions in an action in which plaintiff alleged that defendant employer discriminated against him on the basis of race and as retaliation for filing a complaint with the EEOC is reversed for the reasons stated in the dissenting opinion that the trial court’s instructions using the phrases “on account of’ and “because of’ when stating the law to be applied in a pretext case did not constitute reversible error. Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 146 N.C. App. 82, 551 S.E.2d 902 (2001), reversing a judgment entered 18 May 1999 and an order denying a motion for a new trial signed 17 July 1999 by Judge W. Erwin Spainhour in Superior Court, Cabarrus County, and remanding for a new trial. On 19 December 2001, the Supreme Court granted defendant’s discretionary review of an additional issue. Heard in the Supreme Court 8 April 2003. Julie H. Fosbinder; and Ferguson, Stein, Chambers, Wallas, Adkins, Gresham & Sumter, P.A., by John W. Gresham, for plaintiff-appellee. Robinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot and James H. Bingham, Jr., for defendant-appellant. The American Civil Liberties Union of North Carolina Legal Foundation, by Seth H. Jaffe, amicus curiae. . Plaintiff also appealed from an order entered by the trial court on 14 May 1999, excluding from trial the prior testimony of a witness. The issue pertaining to this order was not addressed by the Court of Appeals. PER CURIAM. For the reasons stated in the dissenting opinion, we reverse that portion of the decision of the Court of Appeals; we also conclude that our order allowing defendant’s petition for discretionary review of an additional issue was improvidently allowed. The result in the Court of Appeals did not require it to reach other issues properly preserved and raised on appeal. Because we now reverse the Court of Appeals’ decision as to the only issue it addressed, on remand, that court should also consider plaintiff’s remaining issues. REVERSED IN PART; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED IN PART.