Retaliation Cases

MITAN v NEIMAN MARCUS Docket No. 212002. Submitted December 7,1999, at Detroit. Decided April 28, 2000, at 9:20 A.M. Lynette Mitán brought an action in the Oakland Circuit Court against Neiman Marcus and Jill Blake, alleging retaliatory discharge from employment in violation of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The court, David F. Breck, J., granted summary disposition for the defendants, ruling that there existed no genuine issues of material fact and the defendants were entitled to judgment as a matter of law. The plaintiff appealed. The Court of Appeals held: MCL 37.1602(a); MSA 3.550(602)(a) provides that a person shall not retaliate or discriminate against another person because that other person has opposed a violation of the act, or because that other person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under the act. In this case, the plaintiff failed to establish a prima facie case of retaliatory discharge because the complaints she filed against Blake, her supervisor at Neiman Marcus, did not suggest or imply job discrimination related to the plaintiff’s disability. Thus, the plaintiff did not show that she suffered retaliation because she had made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under the act. Affirmed. Civil Rights — Michigan Handicappers’ Civil Rights Act — Employment — Unlawful Retaliation. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Michigan Handicappers’ Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.1602[a]; MSA 3.550[602][a]). Jayne F. Cucchiara, for the plaintiff. Video, Lane, Payne & Broder, PC. (by Andrew J. Broder), for the defendants. Before: Smolensk!, P.J., and Whitbeck and Zahra, JJ. Per Curiam. Plaintiff appeals as of right from a circuit court order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10) and dismissing her claim for retaliatory discharge under the Michigan Handicappers’ Civil Rights Act (HCRA), MCL 37.1602(a); MSA 3.550(602)(a). We affirm. The trial court’s ruling on a motion for summary disposition is reviewed de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996). [Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999).] In her sole issue on appeal, plaintiff contends that genuine issues of material fact exist that preclude summary disposition of her claim of illegal retaliation under the HCRA, MCL 37.1602; MSA 3.550(602), which provides in pertinent part: A person or 2 or more persons shall not do the following: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. In construing the nearly identical provision of the Civil Rights Act, this Court stated in DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997): To establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff must show (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. In discussing the antiretaliation provision of the Civil Rights Act, this Court stated in McLemore v Detroit Receiving Hosp & Univ Medical Ctr, 196 Mich App 391, 396; 493 NW2d 441 (1992), that [r]egardless of the vagueness of the charge or the lack of formal invocation of the protection of the [Civil Rights Act], if an employer’s decision to terminate or otherwise adversely effect [sic] an employee is a result of that employee raising the spectre of a discrimination complaint, retaliation prohibited by the act occurs. Because the hcra has the same purposes and goals as the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.) Milnikel v Mercy-Memorial Medical Ctr, Inc, 183 Mich App 221, 223-224; 454 NW2d 132 (1989), we conclude that the reasoning set forth in DeFlaviis and McLemore with respect to the retaliation provision of the Civil Rights Act applies with equal force to the retaliation provision of the HCRA. Here, the evidence showed that plaintiff sent a written complaint to the human resources manager indicating that Jill Blake, her supervisor, had engaged in “job discrimination” because she would not allow plaintiff to participate in a sales promotion. While plaintiff’s complaint mentioned that she accomplished numerous sales “during limited hours due to my physical disability,” she did not suggest or imply that the alleged job discrimination was related to her disability. She sent a second written complaint indicating that Blake had engaged in “job harassment” because she had disputed whether sales plaintiff had made could be credited toward her total sales for another promotion and had called plaintiff a liar. However, because plaintiff’s complaints did not state, imply, or raise the specter that plaintiff either opposed a violation of the HCRA or “made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing” under the act, this evidence does not establish that plaintiff participated in a protected activity. Although plaintiff asserted that she raised the issue of handicap discrimination at a meeting with the human resources manager and Blake, she testified at her deposition that she admitted at the close of the meeting that Blake treated her the same as everyone else. While plaintiff denied in her affidavit having made such concession, she cannot create a factual issue by asserting the contrary in her affidavit after having given damaging testimony in her deposition. See Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 256-257; 503 NW2d 728 (1993), which recognized the principle expressed in Downer v Detroit Receiving Hosp, 191 Mich App 232; 477 NW2d 146 (1991), “that parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition.” Plaintiff having failed to make out a prima facie case of retaliatoiy discharge under the HCRA, the trial court did not err in granting defendants’ motion for summary disposition. Affirmed. After plaintiff filed her action, the hcra was renamed the Persons With Disabilities Civil Rights Act. MCL 37.2701(a); MSA 3.548(701)(a).

ARSLANIAN v OAKWOOD UNITED HOSPITALS, INC (ON REMAND) Docket No. 189349. Submitted January 3, 2000, at Detroit. Decided April 21, 2000, at 9:00 A.M. Michael Arslanian brought an action in the Wayne Circuit Court against Oakwood United Hospitals, Inc., and others, alleging defamation, intentional infliction of emotional distress, interference with contract, and retaliatory discharge and gender discrimination under the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., in connection with his discharge from employment. The court, Diane M. Hathaway, J., granted summary disposition for the defendants, holding that the claims were barred by res judicata or collateral estoppel arising from arbitration of a grievance pursuant to a collective bargaining agreement. The Court of Appeals, Murphy, P.J., and Michael J. Kelly and Gribbs, JJ., in an unpublished opinion per curiam, issued October 3, 1997 (Docket No. 189349), affirmed in part, reversed in part, and remanded, holding that the arbitration proceeding barred the claims that were not based on the Civil Rights Act, but did not bar the civil rights claims of retaliatory discharge and gender discrimination. The defendants sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to the Court of Appeals for reconsideration in light of Rembert v Ryan’s Family Steak, Houses, Inc, 235 Mich App 118 (1999). 461 Mich 921 (1999). On remand, the Court of Appeals held: 1. Rembert, in which the Court of Appeals held that a predispute individual employment agreement to arbitrate statutory claims (including those based on the Civil Rights Act) is not against public policy and is enforceable, does not apply to this case where the agreement to arbitrate was part of a collective bargaining agreement, not an individual employment contract. Arbitration of civil rights claims, if mandated by a collective bargaining agreement, is inappropriate because of union control of the arbitration process and because the interests of an individual in enforcing statutory rights may be subordinated to the perceived greater interest of the bargaining unit. 2. The arbitration clause of the collective bargaining agreement in this case is not enforceable with respect to civil rights claims because the agreement lacks clear notice to employees that they would be waiving the right to adjudicate civil rights claims in a judicial forum. Such notice is a requirement of a fair arbitral process. Affirmed in part, reversed in part, and remanded. Civil Rights — Collective Bargaining Agreements — Arbitration. An employee’s right to judicial determination of a civil rights claim against an employer is not curtailed by any provision in a collective bargaining agreement mandating arbitration of statutory claims (MCL 37.2101 et seq.; MSA 3.548(101] et seq.). Allen J. Counard, P.C. (by Charles A. Butler), for the plaintiff. Dykema Gossett PLLC (by Debra M. McCulloch and Jennifer J. Howe), for the defendants. ON REMAND Before: Murphy, P.J., and Kelly and Gribbs, JJ. Murphy, RJ. In an earlier, unpublished opinion in this case, Arslanian v Oakwood United Hosps, Inc, issued October 3, 1997 (Docket No. 189349), we held that a previous arbitration proceeding, held pursuant to a collective bargaining agreement, barred plaintiff Michael Arslanian’s subsequently filed claims of defamation, intentional infliction of emotional distress, and interference with contract. However, pursuant to Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), which held that the public policy of this state entitles a plaintiff to direct and immediate review of civil rights claims in the circuit court, we further held that the previous arbitration proceeding did not bar plaintiffs additional claims of retaliatory discharge and gender discrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq.) MSA 3.548(101) et seq. Defendants sought leave to appeal this ruling, and our Supreme Court, in lieu of granting leave, remanded the matter for our reconsideration in light of Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118; 596 NW2d 208 (1999), a decision of a special panel of this Court, which in pertinent part abrogated Rushton. 461 Mich 921 (1999). On reconsideration, we affirm our previous holdings. Plaintiff worked for defendant Oakwood United Hospitals until an alleged assault on defendant Karoline McKinzie resulted in his discharge. Pursuant to the collective bargaining agreement, plaintiff filed a grievance and an arbitration hearing was held. The arbitrator denied plaintiffs grievance, finding that McKinzie’s account of the assault was truthful and that plaintiff was legitimately discharged on the basis of that assault and his prior disciplinary record. Defendants filed a motion for summary disposition in response to plaintiffs subsequently initiated circuit court action, arguing that, as a result of the arbitration proceedings, plaintiffs claims were either barred by res judicata because they were or could have been brought in the arbitration proceedings or were essentially barred by collateral estoppel because the dis-positive facts had been determined by the arbitrator. The circuit court granted defendants’ motion and, as indicated above, on plaintiff’s appeal as of right we affirmed in part and reversed in part. We are now faced with the question whether Rembert compels a conclusion contrary to our previous decision allowing plaintiff to proceed with his CRA-based discrimination and retaliatory discharge claims. We find that it does not. In Rembert, the special panel of this Court interpreted an individual employment agreement and held that predispute agreements to arbitrate statutory claims, including CRA-based claims, are not against public policy and can be enforceable. The special panel indicated that such an agreement would be valid if (1) the parties have agreed to arbitrate the claims (there must be a valid, binding, contract covering the civil rights claims), (2) the statute itself does not prohibit such agreements, and (3) the arbitration agreement does not waive the substantive rights and remedies of the statute and the arbitration procedures are fair so that the employee may effectively vindicate his statutory rights. [Id. at 156.] Ultimately, the matter was remanded to the trial court for a determination whether the plaintiffs agreement was enforceable in light of those requirements. Id. at 166. Notwithstanding this explicit abrogation of Rush-ton, which also involved an individual employment contract, a like result is not compelled in this case because here we are concerned with an arbitration clause contained in a collective bargaining agreement. In reaching its result, the special panel in Rembert analyzed the tension between two Supreme Court cases dealing with arbitration in the context of employment discrimination claims, Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), and Gilmer v Inter state/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991). In Alexander, as in the instant case, a union employee exercised the compulsory arbitration provision contained in a collective bargaining agreement. The Supreme Court held that the exercise of this provision did not preclude the employee from subsequently pursuing a title VII claim in court. Resting its decision in part on the then common view that with respect to statutory rights arbitration was inferior to traditional litigation, the Court concluded that the employee could vindicate contractual rights against discrimination at arbitration and could enforce independent statutory rights through litigation. Alexander, swpra at 50-52. Almost two decades later, the Supreme Court’s attitude toward arbitration was decidedly different. In Gilmer, the Court held enforceable an agreement to arbitrate statutory claims contained in an individual employment contract. Carefully distinguishing Alexander, the Court reasoned that the factors that in that case had militated against arbitration of civil rights claims were not applicable to a case that arose under the Federal Arbitration Act (faa), 9 USC 1 et seq., and in which an individual employment contract was at issue. Gilmer, supra at 34-35. The Court noted “several important distinctions” between the cases: First, those cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the faa, which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” [Id. at 35, quoting Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 625; 105 S Ct 3346; 87 L Ed 2d 444 (1985).] In reaching the decision that public policy supports enforcing valid arbitration clauses, the special pauel of this Court noted that the “critical distinction” between its case and Alexander was the one made salient by Gilmer, the difference between arbitration agreements arising in the context of a collective bargaining agreement and those arising out of individual employment contracts. Rembert, supra at 143. It is that same distinction that compels a contrary conclusion in the instant case. The special panel followed its analysis of Gilmer by discussing the progeny of that case, stating, “[s]ince the Court’s landmark decision in Gilmer, the vast majority of federal and state courts that have addressed this issue have followed Gilmer and held that statutory employment discrimination claims are subject to predispute compulsory arbitration by way of employment contracts.” Rembert, supra at 148. The special panel noted, however, that in the context of arbitration clauses found in collective bargaining agreements, a question still exists regarding “whether and to what extent [Alexander\ remains viable authority.” Id. at 151, n 24. Referencing a few of the cases in which parties have raised this issue, the special panel concluded, “[o]ur decision does not turn on the outcome of this controversy, and we express no opinion concerning the proper application of Gilmer to general arbitration clauses in collective bargaining agreements.” Id. at 152, n 24 (emphasis added). Accordingly, Rembert does not control the outcome of this case. Instead, we turn to those cases so addressing the question of the continuing viability of Alexander. Though to some degree a split of opinion exists among jurisdictions addressing this question, a clear majority of courts have found that Alexander remains an effective bar to compulsory arbitration of civil rights claims in the collective bargaining context. The minority view is represented by the Fourth Circuit Court of Appeals decision in Austin v Owens-Brockway Glass Container, Inc, 78 F3d 875 (CA 4, 1996). In that case, the court held that a binding arbitration clause in a collective bargaining agreement barred an employee from pursuing in a judicial forum claims brought under title VII and the Americans with Disabilities Act. Id. at 885-886. The court thus extended Gilmer, noting the difference presented by the fact that a collective bargaining agreement was at issue, but deeming this difference irrelevant. Id. at 885. A strong dissent was authored by Judge Hall, who stated that “[t]he majority fails to recognize, however, that the only difference makes all the difference.” Id. at 886. Judge Hall noted that the Supreme Court itself had made clear that Alexander was not overruled by Gilmer, and indicated that several federal courts recognized that the former decision still governs in the collective bargaining context. Id. at 887. Those courts finding to the contrary of Austin, some explicitly rejecting its reasoning, are numerous. See, e.g., Penny v United Parcel Service, 128 F3d 408, 414 (CA 6, 1997) (concluding that “an employee whose only obligation to arbitrate is contained in a collective bargaining agreement retains the right to obtain a judicial determination of his rights under a statute such as the ada”); Brisentine v Stone & Webster Engineering Corp, 117 F3d 519, 526 (CA 11, 1997) (explicitly rejecting the “result and reasoning of the Fourth Circuit” in Austin, and finding Judge Hall’s dissent more persuasive); Harrison v Eddy Potash, Inc, 112 F3d 1437, 1453 (CA 10, 1997) (adopting “the majority view . . . that Alexander and its progeny remain good law and that statutory employment claims are independent of a collective bargaining agreement’s grievance and arbitration procedures”) (citations and internal quotations omitted); Pryner v Tractor Supply Co, 109 F3d 354, 363 (CA 7, 1997) (applying Alexander and holding that “the union cannot consent for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement” [emphasis in original]); Varner v Nat’l Super Markets, Inc, 94 F3d 1209 (CA 8, 1996); Tran v Tran, 54 F3d 115 (CA 2, 1995); Krahel v Owens-Brockway Glass Container, Inc, 971 F Supp 440 (D Or, 1997); Jackson v Quanex Corp, 889 F Supp 1007 (ED Mich, 1995). We agree with this vast majority of courts and hold that Alexander still controls in the circumstances herein presented. The concerns implicated by union-negotiated predispute agreements to arbitrate center on one key issue: the tension presented by the spectre of collective representation being the only method of enforcement of distinctly individual rights. See Gilmer, supra at 35. A thorough analysis of the potential problems associated with collective representation in the enforcement of individual rights is found in Pryner, supra at 360-363. There, Chief Judge Posner ultimately posits: The essential conflict is between majority and minority-rights. The collective bargaining agreement is the symbol and reality of a majoritarian conception of workers’ rights. An agreement negotiated by the union elected by a majority of the workers in the bargaining unit binds all the members of the unit, whether they are part of the majority or for that matter even members of the union entitled to vote for union leaders — they need not be. The statutory rights at issue in these two cases are rights given to members of minority groups because of concern about the mistreatment (of which there is a long history in the labor movement, see, e.g., Steele v Louisville & Nashville RR, 323 US 192; 65 S Ct 226; 89 L Ed 173 (1944)) of minorities by majorities. We may assume that the union will not engage in actionable discrimination against minority workers. But we may not assume that it will be highly sensitive to their special interests, which are the interests protected by Title VII and the other discrimination statutes, and will seek to vindicate those interests with maximum vigor. The employers’ position delivers the enforcement of the rights of these minorities into the hands of the majority, and we do not think that this result is consistent with the policy of these statutes or justified by the abstract desirability of allowing unions and employers to cut their own deals. And we are given no reason to believe that the ability of unionized workers to enforce their statutory rights outside of the grievance machinery established by collective bargaining agreements is undermining labor relations. [Id. at 362-363.] We agree with Chief Judge Posner’s excellent summary of the potentially conflict-laden relationship that would exist were the presently minority view of the Fourth Circuit Court of Appeals in Austin to become the majority rule. In Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), Justice Cavanagh’s plurality opinion discussed competing public policies that, with respect to the adjudication of civil rights claims, on the one hand favor the enforcement of agreements to arbitrate such claims, but on the other support the historical right to their determination in a judicial forum. Justice Cavanagh wrote: [T]he judicial remedies provision in Const 1963, art 5, § 29, along with the tone of the debates that produced that provision, reveal that an aggrieved individual’s access to judicial remedies is inseparably interwoven with the substantive civil rights and was intended by the people of Michigan to be the lifeblood of keeping those substantive civil rights alive. When the civil liberty at stake is equal opportunity in the pursuit of employment, I believe that the Michigan Constitution prevents us from granting the defendant’s request to surgically sever the constitutional right to a judicial forum, hi short, I would find that an aggrieved individual’s access to a judicial forum to remedy violations of his nonnegotiable, constitutionally guaranteed, and legislatively articulated civil rights, is also a nonnegotiable state right. Accordingly, I would find that the people of Michigan and the Legislature intended to preclude prospective waivers of judicial remedies. [Heurtebise, supra at 435-436.] Though the recent special panel decision includes a passage rendering the force of this reasoning negligible in the context of individual employment contracts, Rembert, supra at 131, because of the potential conflicts just alluded to, Justice Cavanagh’s words still resonate in the context of collective bargaining agreements. In accord with the vast majority of jurisdictions, we conclude that because the union asserts control in the labor arbitration process and because the interests of the individual in enforcing statutory rights may be subordinated to the perceived greater interest of the bargaining unit, mandatory labor arbitration of civil rights claims is inappropriate. See Jackson, supra at 1011 (citing Alexander, supra at 58, n 19). Moreover, as we indicated in our previous decision, the application of collateral estoppel and res judicata to plaintiffs civil rights claims would effectively contravene this conclusion. Accordingly, we hold that the trial court erred in granting summary disposition of plaintiff’s statutory discrimination and retaliatory discharge claims. Were the distinctions between an agreement pursuant to a collective bargaining agreement and one included in an individual employment contract not reason enough to support our holding in this case, we note that we would otherwise rule that plaintiff can still pursue his statutory claims because the instant agreement clearly fails to satisfy one particular factor needed to meet the requirement of a fair arbitral process. Among other things, the arbitration proceedings must include clear notice to the employee that he is waiving the right to adjudicate discrimination claims in a judicial forum. Rembert, supra at 161. It was a deficiency in this regard, the lack of a “clear and unmistakable waiver,” that led the Supreme Court in Wright v Universal Maritime Service Corp, 525 US 70; 119 S Ct 391; 142 L Ed 2d 361 (1998), to recently decline to reach the question whether a waiver provision contained in a collective bargaining agreement should be enforceable. Id. at 77, 82. There, the Court found that the union-negotiated arbitration clause at issue was “very general, providing for arb

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

Ronald Bellin vs. Frederick J. Kelley, Jr., & others. No. 97-P-2151. Middlesex. June 4, 1999. February 18, 2000. Present: Greenberg, Gillerman, & Rapoza, JJ. Further appellate review granted, 431 Mass. 1104 (2000). Criminal Offender Record Information. Labor, Polygraph test, Discharge. Statute, Construction. Section 2.04(5)(a) of 803 Code Mass. Regs., promulgated by the criminal history systems board and authorizing in certain circumstances the distribution of criminal offender record information (CORI) to any member of the public, contravenes the provisions set forth in G. L. c. 6, § 172, restricting the dissemination of CORI, and exceeds the legislative grant of authority to the board; the regulation was invalid. [577-578] Where issues of material fact remained with respect to a claim under G. L. c. 6, § 177, for wrongful dissemination of criminal offender record information, the claim was remanded for further proceedings in the Superior Court. [578-579] In a civil case, there was no evidence that an employer’s receipt of wrongfully disseminated criminal offender record information regarding an employee constituted a violation of G. L. c. 6, § 172, and summary judgment was correctly entered in favor of the employer on that claim and related tort claims. [579-580] An employer properly, under the holding of Barker v. Lawrence, 379 Mass. 322 (1979), could require or request that an employee suspected of a crime in connection with his employment take a polygraph examination administered by law enforcement officials conducting an investigation of the criminal activity, and such a request or requirement was not a violation of G. L. c. 149, § 19B(2); summary judgment was properly entered in favor of the employer on tort claims based on such an asserted violation. [580-582] Greenberg, J., dissenting. Civil action commenced in the Superior Court Department on June 28, 1995. The case was heard by Isaac Borenstein, J., on motions for summary judgment. Ira H. Zaleznik for the plaintiff. David D. DeVeau for town of Hopedale & another. George L. Dresser (Nadia R. Totino Beard with him) for Frederick J. Kelley, Jr., & another. Thomas F. Reilly, Attorney General, Pamela L. Hunt, & Peter T. Wechsler, Assistant Attorneys General, for the Attorney General, amicus curiae, submitted a brief. Kelley Consultants, Inc.; the town of Hopedale; and Wayne J. Minichielli. Gillerman, J. The plaintiff was employed by the defendant Kelley Consultants, Inc. (company), a private collection agency whose business included collecting delinquent excise taxes for cities and towns. The defendant Frederick J. Kelley, Jr. (Kelley), was the president and treasurer of the company. There had been a theft of cash at the company’s premises, and the plaintiff was suspected of being the thief. The defendant Wayne Minichielli, a Hopedale police officer investigating the theft, obtained the plaintiff’s criminal offender record information (CORI) and gave Kelley that information after the plaintiff told Minichielli that he would not take a polygraph test. Kelley then threatened the plaintiff with the loss of his position unless he took the test, and the plaintiff finally agreed. Kelley learned the test results from Minichielli and discharged the plaintiff. No criminal charges were ever brought against the plaintiff for the theft. The plaintiff brought suit, asserting claims against the company and Kelley for wrongful termination of employment, for violation of G. L. c. 149, § 19B(2) (set out in note 11, infra), for wrongfully subjecting him to a lie detector test, and for violation of the Massachusetts Civil Rights Act, G. L. c. 12, § 11I. He also brought claims under G. L. c. 6, § 177, against the company, Kelley, Minichielli, and the town of Hopedale alleging the wrongful dissemination of the plaintiff’s CORI in violation of G. L. c. 6, § 172; a claim against Minichielli for tortious interference with the employment relationship; claims against Minichielli and Hopedale for invasion of privacy and civil rights violations (G. L. c. 12, § 11I); and a claim against the town under G. L. c. 258, § 2. Defendants Hopedale and Minichielli and the defendant company and Kelley filed motions for summary judgment, Mass.R.Civ.P. 56, 365 Mass. 924 (1974). Both motions were allowed, and the plaintiff has appealed. We state the material facts in more detail. During the weekend of August 1, 1992, Kelley’s office at Evergreen Avenue in Hopedale was broken into, and about $7,000 in cash was stolen. On August 3, 1992, Minichielli, a police detective employed by the town, was dispatched to conduct an investigation. A preliminary check for fingerprints and other evidence of the crime yielded nothing significant. Minichielli suspected that it was an inside job because the intruder seemed to know where the money was. He asked Kelley for a list of employees and ran a background check on all of them. He discovered that the plaintiff had a prior criminal record. On September 23, 1992, Minichielli met with Kelley and disclosed this information. Kelley told Minichielli that he was concerned about the plaintiff’s possible involvement in the break-in because he was late for work on the morning after the break-in and appeared to be very nervous. On September 28, 1992, Minichielli contacted the plaintiff and asked him to come to the police station. At the interview, Minichielli read the plaintiff his Miranda rights and told him that he was a prime suspect in the investigation. In response, the plaintiff denied any involvement in the break-in and theft. Several days later, Minichielli asked the plaintiff to take a lie detector test. He told the plaintiff that if he did not take the test “he [Minichielli] was going to tell. . . Kelley that [the plaintiff] had a record and [the plaintiff] would be fired.” The plaintiff refused to take the test. Later, the plaintiff and Kelley talked. Kelley told the plaintiff (according to the plaintiff’s deposition testimony) that because the plaintiff had “refused to take a lie detector test” and since he “had a record,” the plaintiff was “through” unless he took the lie detector test. The plaintiff then agreed to take the test — an agreement he would not have made (we infer favorably to the plaintiff) unless faced with the sanction of loss of his job if he refused. The plaintiff took the test, which was administered at the State police barracks in Southborough. He did poorly when asked key questions concerning his whereabouts on the date of the break-in. The plaintiff was fired shortly after Kelley learned that the results of the test were unfavorable. The police investigation ended without anyone being charged with the theft. 1. The CORI Act claim against all defendants. General Laws c. 6, § 172 (as amended through St. 1990, c. 319, §§ 7-12), of the CORI Act, see note 2, supra, permits the dissemination of criminal record information “only to (a) criminal justice agencies; (b) such other agencies and individuals required to have access to such information by statute . . . ; and (c) any other agencies and individuals where it has been determined [by the criminal history systems board (board), see c. 6, § 168,] that the public interest in disseminating such information to these parties clearly outweighs the interest in security and privacy.” Access under clause (a) is limited to “that necessary for the actual performance of the criminal justice duties of criminal justice agencies . . .”; access under clause (b) is limited to “that necessary for the actual performance of the statutory duties of agencies and individuals . . .”; and access under clause (c) is limited to “that necessary for the actual performance of the actions or duties sustaining the public interest.....” Further as to clause (c), the board may act only upon the favorable vote of a two-thirds majority of the members present and voting determining and certifying that “the public interest in disseminating such information to such party clearly outweighs the interest in security and privacy.” In sum, the focus of clauses (a), (b), and (c) is to limit and tightly control the persons and agencies to whom CORI may be made available. Plainly excluded from these three approved groups is the undifferentiated public. The underlying legislative purpose is to protect the privacy and security of those whose criminal record may no longer be relevant to current decisions regarding such persons. Thus G. L. c. 6, § 171, first par. (as inserted by St. 1972, c. 805, § 1), provides, inter aha, that the board shall promulgate regulations “(c) assuring the security of criminal offender record information from unauthorized disclosures at all levels of operation.” The second paragraph of § 171 provides: “The board shall cause to be initiated for employees of all agencies that maintain, receive, or are eligible to maintain or receive criminal offender record information a continuing educational program in the proper use and control of such information.” See Commonwealth v. Vickey, 381 Mass. 762, 765 (1980) (§ 171 reveals “the legislative purpose to protect individuals from unnecessary and overbroad dissemination of criminal record information”). Minichielli does not attempt to justify his dissemination of the plaintiff’s CORI to Kelley under the provisions of § 172. Rather, he relies on the provisions of a regulation of the board, 803 Code Mass. Regs. § 2.04(5) (1995), which is captioned, “Authorization for Public Dissemination of CORI” (emphasis supplied). Subparagraph (a) provides: “A criminal justice agency with official responsibility for a pending criminal investigation or prosecution may disseminate CORI that is specifically related to and contemporaneous with an investigation or prosecution.” The plaintiff responds that the regulation was in excess of the authority granted by the Legislature.’ General Laws c. 6, § 168, third par. (as appearing in St. 1979, c. 702, § 2) — cited by the board as authority for the promulgation of the regulation — gives the board the authority to “promulgate regulations regarding the collection, storage, access, dissemination, content, organization, and use of criminal offender record information” (emphasis supplied). However, the authority granted to the board under § 168 may not be exercised in a manner that conflicts with the intent of the Legislature as expressed in § 172. Section 172, as we have seen, provides for carefully restricted groups of persons and agencies to whom CORI may be released. In addition to that limitation, § 172 makes it clear that each disclosure by an agency is important. Thus, the fourth paragraph of § 172 requires each agency to maintain “a listing of the agencies or individuals to which it has released or communicated such information”’(emphasis supplied). These listings are subject to periodic review by the board to determine whether there has been a violation of law. There is no showing in this case that Kelley’s name was added to the list maintained by the Hopedale police department. Further still, the sixth paragraph of § 172 provides that “any person” may request conviction data, but each such request must be made to the board for approval. There is no showing in this case that such a request, if made by Minichielli individually, was approved by the board. Section 2.04(5)(a) of 803 Code Mass. Regs., on the other hand, provides for the dissemination of CORI without limitation except only that the CORI dissemination must be “specifically related to and contemporaneous with an investigation or prosecution.” The effect is to authorize the distribution of CORI to any member of the public so long as the CORI dissemination is connected to an ongoing investigation. This broad grant of authority to each criminal justice agency simply and completely undoes the carefully drafted limitations imposed by the provisions of § 172 regarding authorized recipients of CORI. The consequence must be that the regulation exceeds the legislative grant of authority to the board and is invalid. See Simon v. State Examiners of Electricians, 395 Mass. 238, 249 (1985) (“The duty of this court is to interpret the statute according to the intent of the Legislature and common sense. We are not simply to provide our imprimatur for regulations that the examiners might be able to defend on an excessively broad reading of the statute”). Here the regulation of the board “is not supported by the language of the statute, the context from which it arose, . . . or the legislative policy on which the statute is based.” Ibid. We must measure Minichielli’s conduct, then, against the standard of c. 6, § 172, not 803 Code Mass. Regs. § 2.04(5)(a). On that basis, Minichielli’s distribution of the plaintiff’s CORI to Kelley did not fall within the protection of clauses (a), (b), or (c), of c. 6, § 172. It does not follow, however, that Minichielli is necessarily liable to the plaintiff under G. L. c. 6, § 177 (see note 4, supra). General Laws c. 258, § 10(a) (inserted by St. 1978, c. 512, § 15), provides that no claim based on an act or omission of a public employee may be maintained when the employee exercised “due care” in the execution of any regulation of a public employer (i.e., here, the board) whether or not the regulation is valid. That is to say, there can be no “willful violation” of § 172 (the prerequisite of an action for damages under § 177) by Minichielli if he was acting with due care under 803 Code Mass. Regs. § 2.04(5)(a), which was not an invalid regulation when he acted. Whether Minichielli acted with due care in making CORI available to Kelley is a question of fact that must be resolved at trial, see Doe v. Blandford, 402 Mass. 831, 836 (1988), and this claim must be remanded to the Superior Court. Further, as to the plaintiff’s CORI Act claim under § 177 against Kelley and the company, the plaintiff argues that Kelley had no right to use the plaintiff’s CORI in discharging him. Bynes v. School Comm. of Boston, 411 Mass. 264, 270-271 (1991), precludes recovery by the plaintiff. In Bynes the court held that to prove a violation of G. L. c. 6, § 172, the plaintiff must show that the individual or agency receiving CORI was “in violation of the statute and at fault,” id. at 271. There is no evidence in this case (just as there was none in Bynes) that Kelley or the company, in receiving plaintiff’s CORI information, violated the CORI Act and was at fault in doing so. See ibid. Whether Kelley’s use of the plaintiff’s CORI violates other legal constraints is discussed infra. 2. The polygraph test. The plaintiff claims that he was wrongly coerced by Kelley and the company to take a lie detector test which was administered by the Massachusetts State Police. At issue is G. L. c. 149, § 19B(2), which we set forth in the margin. The judge concluded that there was no violation of § 19B(2), and we agree. In Baker v. Lawrence, 379 Mass. 322 (1979), a case involving an investigation by the head of a police department into a theft from a store alleged to have been committed by police officers in the course of their duties, the court discussed and analyzed § 19B in some detail. We follow that analysis. The first sentence of § 19B(2) forbids all employers, public and private, to impose polygraph tests on their employees, or to request their employees to undergo such tests. The second sentence creates an exception to the first sentence. “The situation plainly within the exception is one where a law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is permitted, i.e., not forbidden, to administer a polygraph test to that employee. If, then, the employee refuses or indicates hesitance to submit to the test at the agency’s request, the employer (relieved of the prohibition of the first sentence of § 19B [now § 19B(2), see note 12, supra]) may request that the employee do so, with implied job sanctions if the employee finally declines.” Baker v. Lawrence, 379 Mass. at 327. See Local 346, Intl. Bhd. of Police Officers v. Labor Relations Commn., 391 Mass. 429, 440-442 (1984) (union’s acquiescence to police department’s demand for submission of its employees to lie detector test is not required under § 19B, citing Baker v. Lawrence, supra). The plaintiff would distinguish Baker: he argues that it applies only to an employee who is under investigation for having committed a crime “while on the job.” We see no basis for imposing this limitation on Baker. Baker itself eschewed such a limitation. See id. at 327 n.8: “We have dealt here with the core meaning of the excepting language of § 19B [i.e., investigation of criminal acts alleged to have been committed by employees in connection with the duties of employment]. We are not called on to explicate any possible ampler meaning.” Plainly, there must be a sufficient nexus between the crime under investigation and the suspect’s employment so that pressure by the employer on the employee to take the test may be correctly seen, not as an act of a vigilante, but as a reasonable effort by the employer to maintain an honest work force and a working environment secure against criminal incursions. See Baker v. Lawrence, 379 Mass. at 329 n.11 (the legislative intent was “to balance the privacy interests of employees against the legitimate needs of certain criminal investigations”). In Baker, the crime (theft of property from a store) was allegedly committed in the course of performing the employees’ duties; here, the suspected crime was a robbery, allegedly by an off-duty employee, of company assets on the company’s premises. The victim in Baker was a third party; the victim in this case was the company itself. As we see it, the case for applying the § 19B(2) exception is at least as compelling as it was in Baker. We conclude that neither Kelley nor the company violated G. L. c. 149, § 19B(2). The plaintiff’s claim against Kelley and the company for an unlawful termination of his at-will employment thus also fails, as does his claim for a violation of civil rights. We sum up the results of the plaintiff’s appeal. There having been no violation of G. L. c. 6, § 172, or of G. L. c. 149, § 19B(2), by Kelley or the company, the ordér granting summary judgment for those defendants is affirmed. That portion of the order granting summary judgment to Minichielli and the town on the claim for violation of G. L. c. 6, § 172 (count IV), is reversed, and that claim will be remanded for further proceedings. Because G. L. c. 258, § 1(c), prohibits the claim against the town for invasion of privacy, the entry of summary judgment for the town on that claim may stand. Because the ruling that there was no violation of G. L. c. 6, § 172, was the sole basis for the grant of summary judgment to Minichielli and the town on the claim for violation of the Civil Rights Act, G. L. c. 12, § 11I (count VII), and to Minichielli on the claims for tortious interference with the employment relation (count V) and invasion of privacy (count VI) and because the other issues raised by the defendants have not been ruled on below, the order insofar as it grants summary judgment on those claims is reversed, and the claims will be remanded to the Superior Court for further proceedings. Therefore, the judgment insofar as it dismisses the claims against Minichielli and the town of Hopedale in count IV for violation of G. L. c. 6, § 172, dismisses the claim against Minichielli in count VI, and dismisses counts V, VII, and VIII is reversed. The judgment insofar as it dismisses the claims against Kelley and Kelley Consultants, Inc., and the claim against the town of Hopedale in count VI for invasion of privacy is affirmed. So ordered. General Laws c. 6, §§ 167-178B (the CORI Act), and the regulations promulgated thereunder, regulate the collection and dissemination of an individual’s criminal re