Retaliation Cases

Ronald A. Mitchell vs. TAC Technical Services, Inc., & others. No. 98-P-343. Middlesex. May 16, 2000. September 14, 2000. Present: Rapoza, Smith, & Gillerman, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Age. Occupational Safety and Health Administration. Practice, Civil, Summary judgment. Words, “Public policy exception,” “At-will employee.” In an employment discrimination action, the judge properly granted summary judgment in favor of the employer on the plaintiff’s age discrimination claim, where the plaintiff failed to produce evidence sufficient to establish a prima facie case, or to file an affidavit, pursuant to Mass.R.Civ.P. 56(f), that would have provided a basis for a continuance in order to conduct discovery to obtain such evidence. [92-93] In a civil action in which an at-will employee claimed that he was wrongfully terminated in retaliation for asking to examine the material safety data sheet for a hazardous chemical present in his workplace, no considerations of public policy, as evidenced by the Occupational Health and Safety Act of 1970 and its corresponding regulations, rose to the level of importance required to justify an exception to the general rule regarding termination of at-will employees; summary judgment was properly granted in favor of the employer. [95] Civil action commenced in the Superior Court Department on July 9, 1996. The case was heard by Regina L. Quinlan, J., on motions for summary judgment. Paul A. Manoff for the plaintiff. Michael P. Boudett for Polaroid Corporation & another. Amy M. Soisson for TAC Technical Services, Inc. Polaroid Corporation and David Chenard. Gillerman, J. Claiming that his employment was terminated on account of his age (count I) and that the termination was in violation of public policy and therefore wrongful (count II), the plaintiff brought this action against his employer, TAC Technical Services, Inc. (TAC); Polaroid Corporation (Polaroid), his workplace; and David Chenard, his supervisor at Polaroid. A judge of the Superior Court allowed the defendants’ motions for summary judgment. We affirm. We state the material facts, as developed in the plaintiff’s deposition and his two affidavits, in the light most favorable to the plaintiff. The plaintiff, a mold mechanic, began working as an at-will employee at Polaroid on or about April 24, 1995. The plaintiff’s job involved the use of isopropanol 99, a cleaning substance used to wipe molds. According to the plaintiff, his first supervisor, Robert Roussos, on several occasions told him that he was happy with the plaintiff’s job performance as a mold mechanic. A week or two after beginning his work at Polaroid, the plaintiff found that fumes from the isopropanol “irritated” him, and he asked Roussos for a material safety data sheet (MSDS) at that time. The plaintiff wanted to assess the “hazardous nature” of the isopropanol. Roussos said he would try to locate one. The plaintiff made the same request on a “number of occasions” thereafter. The plaintiff makes no mention in his affidavit of any additional events during the succeeding months of May and June. On Thursday, July 6, 1995, the plaintiff again asked Roussos for an MSDS on isopropanol. Roussos said he wanted to see the MSDS also; he intended to complain about the fumes as well. Later that day the plaintiff repeated his request in front of the defendant Chenard, the plaintiff’s second supervisor. Chenard was annoyed and interrogated the plaintiff in a hostile manner. Later, Chenard gave the plaintiff the wrong MSDS. The plaintiff discovered the mistake, and Chenard told the plaintiff to look for the MSDS himself. The plaintiff was unable to find it. Chenard said he would get the MSDS directly from the manufacturer. The MSDS arrived from the manufacturer very shortly thereafter and was given to the plaintiff. At about 11 a.m. on July 6 or July 7 (the record is unclear), the plaintiff left work because he “didn’t feel well.” He did not return to work the following Monday “[b]ecause the hazard still existed and I was sick when I left [work].” On the following Monday, July 10, he learned that he had been terminated either late Friday or on Monday. On July 10 or 11, he filed a “health complaint” with the Occupational Safety and Health Administration (OSHA), and met with that agency on July ll. In his affidavit dated May 8, 1997, filed in these proceedings, the plaintiff stated, “I need to conduct discovery in this matter in order to demonstrate inter alla, the age of the person that replaced me, when the actual decision was made to discharge me, who made such decision, what statements were made about such decision, what documents are in existence relative to such decision, what conversations . . . Chenard had with Roussos about my performance, etc. I need to take the depositions of . . . Chenard and Roussos.” It appears from the record before us that the plaintiff did not conduct any such discovery or take any such depositions. Discussion. The first stage of the established three-stage analysis under the Massachusetts antidiscrimination statute, G. L. c. 15IB, puts the burden on the plaintiff to establish a prima facie case of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000). In an age discrimination case, this requires the plaintiff to establish that he was (i) over forty; (ii) doing his job acceptably; (iii) fired; and (iv) replaced by a younger person. Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 n.4 (1996). The plaintiff appears to have satisfied the first three conditions, but not the fourth. As noted above, the plaintiff acknowledged that he required discovery in order to establish “the age of the person that replaced” him. The plaintiff attempted no such discovery, and he filed no affidavit pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), that could provide a basis for a continuance in order to take the needed depositions. In these circumstances the failure to file the rule 56(f) affidavit was “fatal.” See Baker v. Monga, 32 Mass. App. Ct. 450, 453 (1992). The fourth condition not having been fulfilled, the plaintiff did not survive stage one of his discrimination claim. There was no error in dismissing count I. Count II — the alleged public policy exception to the rule governing at-will employees — presents a quite different question. We start with the fact that the public policy exception to the general rule — that an at-will employee may be terminated with or without cause — is quite narrow. Merola v. Exergen Corp., 423 Mass. 461, 464 (1996). See King v. Driscoll, 418 Mass. 576, 582-583 (1994), describing instances where the exception is available, and concluding “[t]his court consistently has interpreted the public policy exception narrowly, reasoning that to do otherwise would ‘convert the general rule . . . into a rule that requires just cause to terminate an at-will employee.’ ” Ibid., quoting from Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989). The plaintiff points to the Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651 et seq. (1994) (act), as evidence of a strong Federal policy of providing a safe workplace to employees. For that reason, the argument continues, the act provides the basis for applying the public policy exception to the Massachusetts common law regarding at-will employment. More particularly, the plaintiff points to 29 C.F.R. § 1977.12(a) (1999), which discusses § 11(c) of the act. Section 11(c) of the act protects employees, inter alla, from discrimination, or discharge, occurring because of the exercise “of any right afforded by this Act.” See 29 C.F.R. § 1977.3(d). Section 1977.12(a) continues: “Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (section 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation.” Subsection (b)(1) of 29 C.F.R. § 1977.12 continues the discussion of § 11(c) of the act: “On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.” (Emphases added.) See Marshall v. Daniel Constr. Co., 563 F.2d 707, 716 (5th Cir. 1977) (“[w]hen adopting OSHA, Congress deliberately sought to achieve job safety while maintaining proper employer-employee relations”). One further regulation bears on this discussion. 29 C.F.R. § 1910.1200(g)(8) (1999) provides that employers “shall maintain in the workplace copies of the required material safety data sheets for each hazardous chemical, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).” We consider these regulations in the context of the facts alleged by the plaintiff. After his initial request, within a week or two after his arrival, to see the MSDS for isopropanol, he subsequently made several additional requests. Then, on July 6 or 7, after some difficulty, the plaintiff obtained a copy of the MSDS, and on that same day he left work because he was not feeling well. He did not return to work. On the following Monday he learned that he had been terminated. Thereupon he filed a complaint with OSHA, and met with OSHA officials on Tuesday, July 11. On these facts the plaintiff’s claim is quite narrow. He says in his brief, “Plaintiff is not claiming that he was discharged in retaliation for going to OSHA, only that he was discharged in retaliation for asking to see the MSDS sheet. Since he had a legal right to see the sheet, and since his request to see the sheet was a good faith attempt to resolve matters, prior to going to OSHA, it makes no sense to hold that his discharge was merely an internal matter.” The plaintiff offers 29 C.F.R. § 1977.12(a), quoted above, in support of this proposition. Without doubt 29 C.F.R. § 1910.1200(g)(8), quoted above, imposes on Polaroid the obligation to make the sheets “readily accessible” to its employees and, by implication, there is the corresponding “right” of an employee to see the sheets. It is a different matter to argue that the employee’s “right” to see the sheets is of sufficient public importance to require a modification of the rules governing employees at will. To put the matter in terms of 29 C.F.R. § 1977.12(b)(1): Polaroid’s obligation to make the sheets accessible to its employees did not create a corresponding right “afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. . . . [Consequently,] an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.” The employee’s remedy is to request an inspection of the workplace pursuant to section 8(f) of the act. Taking the case most favorably to the plaintiff, as we must, we do not think that the plaintiff’s “right” to examine the sheets as a result of his apprehension of “potential unsafe conditions at the workplace” so clearly created a “right afforded by the act” that the courts of this Commonwealth are bound to recognize that “right” as “a source of well-defined public policy sufficient to modify the general at-will employment rule,” Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474 (1992) (Massachusetts regulation regarding the responsibilities of a registered nurse is an insufficient source of public policy to modify the general at-will employment rule), nor does it “rise to the level of importance required to justify an exception to the general rule regarding termination of employees at will.” King v. Driscoll, 418 Mass. at 584. Judgment affirmed. The complaint alleges that TAC is an employment agency, that Polaroid was a client and agent of TAC, and that the plaintiff was employed by TAC. In his deposition the plaintiff testified that Roussos then told him, “He’s going to get rid of you.” (The statement apparently was intended to refer to Chenard.) If not otherwise admissible, the hearsay statement, being merely Roussos’s personal opinion as to how others at Polaroid would be expected to act, does not fall within the exception described in Ruszcyk, v. Secretary of Pub. Safety, 401 Mass. 418, 420, 423 (1988) (a statement by an employee “concerning a matter within the scope of his . . . employment”). The plaintiff did not obtain an affidavit from Roussos, nor did he take Roussos’s deposition. Hearsay in an affidavit is “unacceptable to defeat summary judgment,” Madsen v. Erwin, 395 Mass. 715, 721 (1985), and the reasoning underlying that rule —• the desirability of avoiding a futile trial for lack of competent evidence — is equally applicable to the hearsay testimony in a deposition. See Flesner v. Technical Communications Corp., 410 Mass. 805, 817 (1991). While the record is unclear exactly when the plaintiff was terminated, there does not appear to be anything in the record to suggest that the termination occurred after Polaroid became aware that the plaintiff had filed a complaint with OSHA. The plaintiff’s brief to this court reiterates that the plaintiff had “hoped” that through discovery he would show that a younger man replaced him.

SUSAN F. JOHNSON, Plaintiff v. THE TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant No. COA99-676 (Filed 29 August 2000) 1. Employer and Employee— retaliatory discharge — failure to renew employment contract The failure to renew an employment contract qualifies as a retaliatory action in violation of the Retaliatory Employment Discrimination Act under N.C.G.S. § 95-240(2) because it constitutes an adverse employment action. 2. Employer and Employee— retaliatory discharge — employee filed workers’ compensation claim The trial court did not err by granting summary judgment in favor of defendant employer as to plaintiff employee’s claims that she was discharged by her employer in retaliation for filing a workers’ compensation claim, because: (1) the evidence does not suggest that defendant failed to renew plaintiff’s contract in order to forestall the filing of another workers’ compensation claim since plaintiff’s second injury was not work-related; and (2) defendant entered into three additional contracts with plaintiff after she filed a workers’ compensation claim, and defendant’s refusal to renew plaintiff’s contract was not close in time to her workers’ compensation claim. 3. Disabilities— qualified individual — teacher at a jail— wheelchair — banned from jail — anonymous allegations of illegal misconduct The trial court erred by directing verdict on claims under the Americans with Disabilities Act against plaintiff employee who sat in a wheelchair and taught literary skills to inmates at a jail because viewing the evidence in the light most favorable to plaintiff reveals that plaintiff was a qualified individual under 42 U.S.C. § 12111(9) to teach at the jail, even though plaintiff was banned from the jail after the program director confirmed anonymous allegations of plaintiff’s illegal conduct, since: (1) defendant decided not to renew plaintiff’s contract before the anonymous phone calls of plaintiff’s misconduct were received and before plaintiff was banned from the jail; and (2) an employer may not rely on evidence of employee misconduct which is acquired after the employment decision in question to defend the employment decision. 4. Disabilities— qualified individual — teacher at a jail— wheelchair — poor attendance The trial court erred by directing verdict on claims under the Americans with Disabilities Act against plaintiff employee who sat in a wheelchair and taught literary skills to inmates at a jail because viewing the evidence in the light most favorable to plaintiff reveals that plaintiff was a qualified individual under 42 U.S.C. § 12111(9) to teach at the jail, even though defendant alleges that plaintiff had poor attendance at her job, since: (1) plaintiff was able to teach three out of five employment periods without incident, and one employment period in which she missed only two weeks out of twelve weeks of classes; (2) it was only during one employment period that plaintiff missed a significant number of classes; (3) plaintiffs absences were due solely to complications related to her disability and did not establish a clear pattern of absenteeism; (4) following her significant period of absence during the third employment period, defendant did not express that the extended absence was disruptive or excessive and even offered her two additional periods of employment; and (5) plaintiffs employment relationship with defendant did not end solely because of excessive absenteeism. 5. Disabilities— teacher at a jail — wheelchair—no presumption of non-discrimination for employer Defendant employer was not entitled to a directed verdict on plaintiff employee’s claims under the Americans with Disabilities Act based on the presumption of non-discrimination that arises when the same person who hired plaintiff also fired her. Appeal by plaintiff from judgment entered 23 December 1997 by Judge Henry V. Barnette and judgment entered 18 December 1998 by Judge Narley L. Cashwell in Superior Court, Durham County. Heard in the Court of Appeals 14 March 2000. Glenn, Mills & Fisher, P.A., by Stewart W. Fisher and Caitlyn Fulghum, for plaintiff-appellant. Haywood, Denny & Miller, L.L.P., by George W. Miller, Jr. and George W. Miller, III, for defendant-appellee. Patterson, Harkavy & Lawrence, L.L.P., by Burton Craige, for the North Carolina Academy of Trial Lawyers and the American Civil Liberties Union of North Carolina Legal Foundation, amici curiae. TIMMONS-GOODSON, Judge. The present case arises out of Susan F. Johnson’s (“plaintiff’) charges of discrimination filed against Durham Technical Community College (“defendant” or “Durham Tech”) under the Retaliatory Employment Discrimination Act and the Americans with Disabilities Act. Plaintiff appeals adverse rulings that resulted in a denial of her claims. Plaintiff taught literacy skills to inmates at the Durham County Jail Annex. She obtained the job by signing a contract with Durham Tech as a part-time instructor of a basic skills course. Pursuant to the contract, plaintiff taught from November of 1993 until mid-February of 1994. Over a two-year period, plaintiff and defendant entered into seven more contracts, for employment periods which lasted for a term of one to three months, depending on the length of the literacy course. Plaintiff is unable to walk without crutches as a result of having contracted polio as a child. Prior to moving to North Carolina, she taught Latin in Troop County, Georgia. In 1986, plaintiff applied for and received permanent partial disability from her post as a teacher in Georgia and permanent total disability from the Federal Government. In order to teach her class at the jail annex, plaintiff drove to the jail in her own car, entered on crutches, transferred into a wheelchair she kept at the jail, and taught class from the wheelchair. On 8 June 1994, plaintiff fell from her crutches while opening a security door at the jail, breaking a vertebra in her spine. She filed for workers’ compensation benefits on 10 June 1994 and received payment for medical bills and temporary total disability. On 2 January 1995, plaintiff returned to the jail to teach under her fourth employment contract period. Following her fall, plaintiff used her wheelchair exclusively because walking was more difficult. From her home, plaintiff was lifted in her wheelchair onto a public transport van which drove her to the jail. She then rolled into the jail annex and taught her class from her wheelchair. In February of 1995, plaintiff fell in a bathtub at home and broke her leg. She returned to the jail approximately two weeks later and continued to teach from her wheelchair with her leg in a cast. Administrators at Durham Tech grew increasingly concerned about the possibility plaintiff would suffer another accident at the jail, exposing Durham Tech to liability. Additionally, the administrators were concerned about plaintiffs absences as a result of her injuries and her requirements of accommodations such as having guards at the jail assist her to open and close doors. On 16 June 1995, plaintiff met with Russ Conley (“Conley”), the Director of the Adult and Basic Skills program at Durham Tech. Conley proposed that plaintiff teach on campus rather than at the jail at the expiration of her contract. Conley stated that having plaintiff teach at the jail “could prove to be a liability for Durham Tech.” Conley discussed the possibility of plaintiff teaching students with disabilities and mental illnesses. Plaintiff refused the transfer, stating that she had no special education training. Conley informed plaintiff on 16 June 1995 that she would not be returning to the jail and that he had already hired someone to replace her. On 21 June and 24 June 1995, the Dean of Adult and Continuing Education at Durham Tech, Art Clark, received anonymous phone calls alleging that plaintiff used drugs, gave drugs to inmates, carried a loaded weapon, supplied inmates with bullets, and had sex with inmates. Larry Haverland (“Haverland”), Deputy Director for Inmate Programs, testified that he corroborated some of the anonymous charges against plaintiff on 23 June 1995. Haverland did not know who had conducted the informal investigation of the anonymous charges or whether that individual was reliable. The corroborated charges were that plaintiff had taken contraband into the jail in the form of “possibly lighters or matches or something” and that plaintiff had visited an inmate at another prison. Haverland testified that a teacher does not violate jail rules by visiting an inmate at another prison. Plaintiff was not asked to answer the charges of the anonymous caller until after she filed charges of discrimination against Durham Tech in the fall of 1995. On 26 June 1995, Conley approached plaintiff at the jail annex and informed her that her position would end on 28 June 1995 when her contract expired. Plaintiff was not offered another teaching contract with Durham Tech. During the week before trial, Durham Tech identified the anonymous caller as Cynthia Wilson (“Wilson”), a nursing aide who had worked in plaintiff’s home. At trial, plaintiff denied Wilson’s charges. Two nursing aides who assisted plaintiff at the same time as Wilson testified that they had never seen any signs of drug use or improper conduct by plaintiff. Plaintiff initiated charges of discrimination with the North Carolina Department of Labor under the Retaliatory Employment Discrimination Act and with the Equal Employment Opportunity Commission under the Americans with Disabilities Act. After exhausting her administrative remedies, plaintiff filed a complaint alleging that defendant had removed her from its employment in violation of state and federal law. On 23 December 1997, Judge Henry V. Barnette of the Superior Court, Durham County partially allowed defendant’s Motion for Summary Judgment, dismissing plaintiff’s claims brought pursuant to the North Carolina Retaliatory Employment Discrimination Act, but denying summary judgment as to plaintiff’s cause of action brought pursuant to the Americans with Disabilities Act. Specifically, Judge Barnette denied plaintiff’s Motion for Summary Judgment as to whether plaintiff was a “qualified individual with a disability” for purposes of the Americans with Disabilities Act. On 18 December 1998, Judge Narley L. Cashwell of the Superior Court, Durham County granted defendant’s Motion for Directed Verdict as to plaintiff’s claim under the Americans with Disabilities Act. Plaintiff appeals. On appeal, plaintiff argues that the trial court erred in: (I) granting defendant’s Motion for Summary Judgment as to plaintiff’s claims under the Retaliatory Employment Discrimination Act; and (II) directing a verdict against plaintiff as to her claims under the Americans with Disabilities Act. I. RETALIATORY DISCRIMINATION ACT CLAIM By her first assignment of error, plaintiff argues that the trial court erred in granting defendant’s Motion for Summary Judgment as to plaintiff’s claims under the Retaliatory Employment Discrimination Act. We cannot agree. Summary judgment is proper where there is no genuine issue as to any material fact. Alltop v. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885 (1971). An issue is genuine where it is supported by substantial evidence. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). A genuine issue of material fact is of such a nature as to affect the outcome of the action. Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504 (1983). The moving party bears the burden of establishing the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425 (1970). The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). As a general principle, summary judgment is a drastic remedy which must be used cautiously so that no party is deprived of trial on a disputed factual issue. Billings v. Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975), aff’d, 290 N.C. 502, 226 S.E.2d 321 (1976). The North Carolina Retaliatory Employment Discrimination Act (“REDA”), enacted in 1992, prohibits discrimination against an employee who has filed a workers’ compensation claim. N.C. Gen. Stat. § 95-240, et. seq. (1999). In pertinent part, the Act provides: (a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following: (1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following: a. Chapter 97 of the General Statutes. N.C. Gen. Stat. § 95-241 (1999). REDA replaced North Carolina General Statutes section 97-6.1, the purpose of which was to promote an open environment in which employees could pursue remedies under the Workers’ Compensation Act without fear of retaliation from their employers. Abels v. Renfro Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992), aff’d in part, rev’d in part, 335 N.C. 209, 436 S.E.2d 822 (1993). The former law merely protected employees against discharge and demotion. N.C. Gen. Stat. § 97-6.1(a) (repealed 1992). By enacting REDA, however, the General Assembly expanded the definition of retaliation to include “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” N.C. Gen. Stat. § 95-240(2) (1999). In a claim brought pursuant to the former provision, section 97-6.1(a), this Court stated that an employee bears the burden of proof in retaliatory discharge actions. Morgan v. Musselwhite, 101 N.C. App. 390, 399 S.E.2d 151 (1991). “The statute does not prohibit all discharges of employees who are involved in a workers’ compensation claim, it only prohibits those discharges made because the employee exercises his compensation rights.” Id. at 393, 399 S.E.2d at 153 (citation omitted). Furthermore, our appellate courts indicated in applying the former provision that a plaintiff fails to make out a case of retaliatory action where there is no close temporal connection between the filing of the claim and the alleged retaliatory act. See Shaffner v. Westinghouse Electric Corp., 101 N.C. App. 213, 398 S.E.2d 657 (1990); Morgan, 101 N.C. App. 390, 399 S.E.2d 151. As a preliminary matter, we must address the issue of whether the failure to renew an employment contract may qualify as a retaliatory action in violation of REDA. As stated above, in enacting REDA, the General Assembly broadly defined retaliatory action as “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action N.C.G.S. § 95-240(2) (emphasis added). As the failure to renew an employee’s contract produces the adverse result of terminating her employment, the plain language of the statute suggests that non-renewal of an employment contract falls within the scope of REDA. Furthermore, while our appellate courts have not spoken on this issue, we find persuasive authority from other jurisdictions holding that the failure to renew an employment contract may constitute actionable conduct. See, e.g., Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977); Perry v. Sinderman, 408 U.S. 593, 33 L. Ed. 2d 570 (1972); Kramer v. Logan County School District No. R-l, 157 F.3d 620 (8th Cir. 1998); Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998); Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, reh’g denied, 660 F.2d 497 (5th Cir. 1981); Daly v. Exxon Corp., 63 Cal. Rptr. 2d 727 (Cal. Ct. App. 1997). We therefore hold that the failure to renew an employment contract constitutes an adverse employment action for purposes of REDA. We now address plaintiff’s argument that a genuine issue of material fact existed as to whether defendant took retaliatory action against her because she filed a workers’ compensation claim or threatened to do so. See N.C.G.S. § 95-241. In the present case, plaintiff filed a workers’ compensation claim on 10 June 1994 after she broke a vertebra in her spine while opening a security door at the jail annex. Defendant entered into three new contracts with plaintiff after she filed the claim. Plaintiffs final contract with Durham Tech expired on 28 June 1995, over a year after she filed for compensation. Plaintiff argues that she was terminated after a second injury similar to the employee in Abels, 335 N.C. 209, 436 S.E.2d 822, and that a discharge following a second injury is sufficient to show that an employee was discharged to prevent the filing of a workers’ compensation claim. However, plaintiffs second injury occurred in the home when she fell in a bathtub on 11 February 1995 and broke her leg. Durham Tech would not have anticipated a workers’ compensation claim based on plaintiff’s second injury as it was not work related. In contrast to Abel, the circumstantial evidence in the case sub judice does not suggest that defendant failed to renew plaintiff’s contract in order to forestall the filing of a workers’ compensation claim. Defendant entered into three new contracts with plaintiff after she filed a workers’ compensation claim, and defendant’s refusal to renew plaintiff’s contract was not closely temporally related to her workers’ compensation claim in that it took place over a year after she filed for compensation. See Shaffner, 101 N.C. App. 213, 398 S.E.2d 657. We conclude that there was no genuine issue of material fact as to whether defendant took retaliatory action against plaintiff because she filed a workers’ compensation claim or threatened to file one. As such, we hold that the trial court did not err in granting defendant’s Motion for Summary Judgment on plaintiff’s claims under the REDA. II. AMERICANS WITH DISABILITIES ACT CLAIM By her second assignment of error, plaintiff argues that the trial court erred in directing a verdict against her on her claims under the Americans with Disabilities Act. We agree. In deciding whether to direct a verdict at the close of all of the evidence, “the trial court must determine whether the evidence, when considered in the light most favorable to the nonmovant, is sufficient to take the case to the jury.” Southern Bell Telephone and Telegraph Co. v. West, 100 N.C. App. 668, 670, 397 S.E.2d 765, 766 (1990), (citations omitted), aff’d, 328 N.C. 566, 402 S.E.2d 409 (1991) (citations omitted). If there is more than a scintilla to support a plaintiff’s case, the motion must be denied. Edwards v. West, 128 N.C. App. 570, 495 S.E.2d 920, cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998). “Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and submit the case to the jury.” Id. at 573, 495 S.E.2d at 923 (citation omitted). The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (1994), provides in pertinent part: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a) (1994). To prevail on an ADA claim, the plaintiff must prove that: (1) she has a disability as defined by the ADA; (2) she is qualified for the job; and (3) she was unlawfully discriminated against by an employer because of her disability. Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997). Under the ADA, the term “disability” is defined as “a physical. . . impairment that substantially limits one or more of the major life activities of such individual[.]” 42 U.S.C. § 12102(2)(A)