Retaliation Cases

I. CARY NAILING, Appellee, v. UNC-CH, Appellant No. 9315SC1299 (Filed 20 December 1994) 1. Public Officers and Employees § 63 (NCI4th)— appeal from dismissal — failure to file petition — no jurisdiction of OAH The Office of Administrative Hearings did not have subject matter jurisdiction over petitioner’s appeal from her dismissal as an employee of UNC-CH under N.C.G.S. § 126-35 for lack of “just cause” or under N.C.G.S. § 126-36 since petitioner did not file a timely petition for a contested case hearing and thus did not follow respondent’s grievance procedure regarding the appeal from her dismissal, nor did she file a petition within 30 days after receipt of notice of the decision or action which triggered the right of appeal to commence a contested case hearing. Further, petitioner’s amendment of her prehearing statement in her original pending contested case hearing for removal of disciplinary warnings to include the issue of her termination was not equivalent to the filing of a petition as required under Article 3 of Chapter 150B to commence a contested case hearing in the OAH. Am Jur 2d, Civil Service §§ 52 et seq. Termination of public employment: right to hearing under due process clause of Fifth or Fourteenth Amendment — Supreme Court cases. 48 L. Ed. 2d 996. 2. Public Officers and Employees § 63 (NCI4th)— warnings not removed from personnel file — right of employee to appeal — status as former employee irrelevant . Petitioner had the right to appeal respondent’s action of not removing all the warnings from the personnel file and the decision that another warning could be put in place of one that was removed to the OAH, and petitioner’s status as a “former” State employee did not render her petition moot. N.C.G.S. § 126-25. Am Jur 2d, Civil Service §§ 52 et seq. Rights of state and municipal public employees in grievance proceedings. 46 ALR4th 912. On writ of certiorari to review order entered 2 August 1993 by Judge George R. Greene in Orange County Superior Court. Heard in the Court of Appeals 15 September 1994. Prior to this action, Petitioner I. Cary Nailing was an employee of Respondent University of North Carolina at Chapel Hill. On 13 April 1992, while still employed by respondent, petitioner filed a petition for a contested case hearing in the Office of Administrative Hearings (the “OAH”) alleging that she had received from respondent “a series of disciplinary warnings which were unjust and retaliatory.” The parties filed prehearing statements, and a hearing in this action was scheduled for January 1993. Thereafter, respondent notified petitioner that she had been terminated effective 28 September 1992, and petitioner attempted to amend her prehearing statement to include her termination as an issue for review. On 20 April 1993, Administrative Law Judge Becton entered a final decision finding that petitioner could not appeal her dismissal by attempting to amend her prehearing statement and that petitioner had failed to follow the proper procedure for appealing her dismissal. Judge Becton also found that since petitioner had been dismissed from employment, the issues involved in the contested' case regarding the warnings were moot. Based on these findings, Judge Becton dismissed petitioner’s petition for a contested case hearing. On 19 May 1993, petitioner filed a petition for judicial review in Orange County Superior Court. Respondent filed a motion to dismiss petitioner’s petition based on lack of subject matter jurisdiction.' On 2 August 1993, Judge George R. Greene filed an order finding that “[t]here was a continuing sequence of actions in this Contested Case[,]” the last being “the firing of [petitioner.” Further, Judge Greene found that “no earlier acts which were timely and properly contested could be ‘moot’ and no later continuing acts could be untimely nor [sic] improperly contested.” Based on these findings, Judge Greene remanded the contested case to the OAH “for a full hearing on all of the issues in this case . . . .” On 24 September 1993, respondent filed a petition for writ of certiorari with this Court, and on 13 October 1993, this Court granted respondent’s petition. Alan McSurely for petitioner-appellee. Attorney General Michael F. Easley, by Assistant Attorney General Barbara A. Shaw, for respondent-appellant. ORR, Judge. The issues raised by this appeal are whether the trial court erred in remanding this case to the OAH for a hearing on (1) whether respondent’s termination of petitioner violated petitioner’s substantive and procedural rights, and (2) the issues regarding respondent’s warnings to petitioner. Because we find that OAH lacked subject matter jurisdiction over petitioner’s case regarding her dismissal, we conclude that as to this issue, the trial court erred. On the issue of respondent’s warnings, however, we conclude that the trial court properly remanded this action for a hearing on whether the warnings should be removed from petitioner’s file. Prior to this action, petitioner was employed by respondent as a Medical Laboratory Technologist III in the Department of Pediatrics in the Cytogenetics Laboratory of respondent’s medical school. On 22 February 1991, petitioner received an oral warning regarding her conduct and work performance. Thereafter, on 6 March 1991, petitioner received a written warning concerning her work performance, which petitioner alleged was a result of her contacting the Human Resources Department “to ask for guidance about how to deal with the Oral Warning.” Subsequently, pursuant to respondent’s internal grievance procedure, petitioner filed a grievance regarding these warnings with her supervisor. Petitioner’s grievance was reviewed by the head of the Cytogenetics Laboratory and denied. Petitioner appealed the denial of her grievance to the Office of the Associate Vice Chancellor for Human Resources pursuant to Step 2 of respondent’s internal grievance procedure, and it was denied again. Petitioner then filed an appeal with the Office of the Associate Vice Chancellor for Human Resources to be heard by a panel of three Staff Grievance Committee members consisting of one faculty member and two staff employees appointed by the Chair of the Committee in accordance with Step 3 of the grievance procedure. Subsequently, on 19 September 1991, while her appeal was pending at Step 3, petitioner received two more written warnings, one warning regarding petitioner’s work performance and the other warning regarding petitioner’s unexcused absences from work. Petitioner’s grievance regarding these two warnings was denied at Step 1 and 2, and petitioner appealed to Step 3. The two grievances were consolidated at Step 3, and a hearing was held on these four warnings. Following the hearing, by letter dated 11 March 1992, Chancellor Hardin notified petitioner of his decision that the 22 February 1991 oral warning would be withdrawn; however, “ [i]f the supervisor chooses, a Report of Oral Warning for performance (the weekend rotation) and conduct (leaving work without permission) may be substituted.” Further, Chancellor Hardin notified petitioner that he agreed with the panel’s finding that the written warning of 6 March 1991 “was issued in retaliation for the earlier grievance” and informed petitioner that this warning would be withdrawn from petitioner’s file. Chancellor Hardin also notified petitioner that the 19 September 1991 warnings would remain in petitioner’s file. On 13 April 1992, petitioner filed a petition for a contested case hearing in the OAH for “[u]njust [discipline and violation of UNC-CH Rules.” Administrative Law Judge Becton entered an order directing the parties to each file a prehearing statement containing their positions with regard to the following: 1. The issues to be resolved, and the statutes, rules, and legal precedent involved; 2. A brief statement of the facts and reasons supporting the party’s position on each matter in dispute; 3. A list of proposed witnesses; 4. Whether you wish to pursue discovery. If so, the length of time required; 5. Requested location of hearing(s); 6. Estimated length of hearing; 7. If you do not have an attorney, your home and business addresses and telephone numbers; 8. The date by which you will be ready to have a hearing in this case; and 9. Other special matters. During the pendency of this action, by letter dated 29 September 1992, the Director of Cytogenetic Laboratory informed petitioner that she was terminated from her employment with respondent as of 28 September 1992 “for personal conduct reasons[.]” The letter stated that the decision to terminate petitioner’s employment was based on petitioner’s conduct on 23 September 1992 and 24 September 1992 which the letter described as constituting “verbal abuse,” “physical intimidation,” and “insubordination.” Specifically, the letter described petitioner’s conduct upon which her termination was based as follows: In September 1992, petitioner switched a “rush” case that was assigned to petitioner to Ms. Parker, a technologist who was out on sick leave, and assigned a routine case of Ms. Parker’s to petitioner. Upon finding out that petitioner had switched these cases, on 23 September 1992, the Laboratory Lead Technologist and petitioner’s direct supervisor approached petitioner about the switch. At first petitioner told these two supervisors that she had “initially made the switch because [she] had mistakenly picked up the wrong tube of patient cells and had prepared slides on Ms[.] Parker’s case . . . rather than [petitioner’s] own case.” Petitioner then assigned herself back to the previous rush case, which had almost been completed, and assigned another rush case of petitioner’s to Ms. Parker. At that time, one of the supervisors informed petitioner that a technologist out on sick leave could not be assigned a “rush” case, and petitioner “became progressively more hostile, more angry, and verbally abusive.” Petitioner raised her “assignment clip board over [her] head in a threating [sic] manner and screamed abusively at both of [the supervisors].” Thereafter, one supervisor left and the other supervisor “chose to stay in the room and talk with [petitioner] until she was sure that [petitioner] understood exactly what [her] instructions were concerning the patient assignments.” This supervisor “made it clear to [petitioner] that [she was] to start the rush case that [petitioner] had just reassigned to Ms. Parker] and at a minimum screen the case that day . . . .” On 24 September 1992, petitioner came to work and approached Ms. Parker, who was back from her sick leave, and “requested that she switch cases with [petitioner], accepting responsibility for . . . the rush case which was under discussion the day before, while [petitioner] took one of Ms[.] Parker’s more routine cases.” Further, the letter stated: You have the right to appeal this action through the University’s Dispute Resolution and Staff Grievance Procedure. A copy of the procedure is attached for your reference. You may contact the Counseling Service Department for assistance in using this procedure or, if eligible, you may file a Step 4 Appeal with the State Personnel Commission. Step 4 of the Staff Grievance Procedure states, “[i]f the Step 3 decision is unsatisfactory to the employee, the employee may appeal to Step 4, the State Personnel Commission, if eligible, according to State Personnel Commission rules.” ■ Petitioner initiated a Step 2 grievance of her dismissal as allowed by respondent’s internal grievance procedures. By letter dated 16 November 1992, respondent notified petitioner of the decision to uphold her dismissal and of the filing deadline for a Step 3 appeal. Petitioner did not, however, file a Step 3 appeal or file a petition for a contested case hearing in the OAH regarding her dismissal. Instead, petitioner moved to amend her prehearing statement in the contested case that was pending before Judge Becton in the OAH involving the four warnings to include the issue of her termination for review by the OAH. On appeal, respondent first contends that the OAH lacks subject matter jurisdiction to review petitioner’s dismissal because petitioner failed to properly file a petition for a contested case hearing in the OAH with regards to her dismissal. Petitioner is a former employee of the University of North Carolina at Chapel Hill. The University of North Carolina is expressly exempt from the administrative hearings provisions of the North Carolina Administrative Procedure Act (the “NCAPA”), see N.C. Gen. Stat. § 150B-1(f); thus, “under the plain meaning of the NCAPA, [petitioner] can be entitled to an administrative hearing to appeal [her] grievance to the OAH only by virtue of another statute.” Empire Power Co. v. N.C. Dep’t of Env’t, Health and Natural Resources, Div. of Envtl. Management, 337 N.C. 569, 579, 447 S.E.2d 768, 774 (1994). Chapter 126 of the North Carolina General Statutes gives State employees the right to an administrative hearing in the OAH for actions arising under Chapter 126. Specifically, N.C. Gen. Stat. § 126-37(a) provides, “[a]ppeals involving a disciplinary action, alleged discrimination, and any other contested case arising under this Chapter shall be conducted in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B . . . .” In the present case, the only provisions under Chapter 126 that could possibly provide petitioner with an avenue of appeal from her dismissal to the OAH are N.C. Gen. Stat. §§ 126-35, 126-36. At the time of this action, N.C. Gen. Stat. § 126-35 stated, “[n]o permanent employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” Under N.C. Gen. Stat. § 126-36, [a]ny State employee or former State employee who has reason to believe that employment, promotion, training, or transfer was denied him or that demotion, layoff or termination of employment was forced upon him in retaliation for opposition to alleged discrimination or because of his age, sex, race, color, national origin, religion, creed, political affiliation, or handicapped [handicapping] condition as defined by G.S. 168A-3 . . . shall have the right to appeal directly to the State Personnel Commission. In order for the OAH to have jurisdiction over petitioner’s appeal pursuant to N.C. Gen. Stat. §§ 126-35, -36 however, petitioner is required to follow the statutory requirements outlined in Chapter 126 for commencing a contested case. See Lewis v. North Carolina Dep’t of Human Resources, 92 N.C. App. 737, 739, 375 S.E.2d 712, 714 (1989) (“The right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.”). N.C. Gen. Stat. § 126-37(a) requires that appeals under Chapter 126 involving a contested case be conducted as provided in Article 3 of Chapter 150B. Article 3 of Chapter 150B provides: A contested case shall be commenced bv filing a petition with the Office of Administrative Hearings .... The party who files the petition shall serve a copy of the petition on all other parties .... A party who files a petition shall file a certificate of service together with the petition. A petition shall be signed by a party or a representative of the party and, if filed by a party other than an agency, shall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner’s rights and that the agency: (1) Exceeded its authority or jurisdiction;' (2) Acted erroneously; (3) Failed to use proper procedure; (4) Acted arbitrarily or capriciously; or (5) Failed to act as required by law or rule. A local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other, petitioner. N.C. Gen. Stat. § 150B-23 (emphasis added). Further, N.C. Gen. Stat. § 126-37(a) provides “that no grievance may be appealed unless the employee has complied with G.S. 126-34” which, at the time of this action, stated, [a]ny permanent State employee having a grievance arising out of or due to his employment and who does not allege discrimination because of his age, sex, race, color, national origin, religion, creed, handicapping condition as defined by G.S. 168A-3, or political affiliation shall first discuss his problem or grievance with his supervisor and follow the grievance procedure established by his department or agency. N.C. Gen. Stat. § 126-34; See Batten v. N.C. Dep’t of Correction, 326 N.C. 338, 343, 389 S.E.2d 35, 38-39 (1990). In addition to these require-merits under Chapter 126, a petition for a contested case must be filed with the OAH “as provided in G.S. 150B-23(a) no later than 30 days after receipt of notice of the decision or action which triggers the right of appeal.” N.C. Gen. Stat. § 126-38. In the present case, it is undisputed that petitioner did not follow respondent’s grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. §§ 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner’s appeal from her dismissal under N.C. Gen. Stat. § 126-35 for lack of “just cause” that does not allege discrimination. Thus, we turn to the issue of whether the OAH had jurisdiction over petitioner’s case involving alleged discrimination for her alleged handicapping condition pursuant to N.C. Gen. Stat. § 126-36. Under N.C. Gen. Stat. § 126-36, petitioner has an automatic right to appeal her dismissal to the Commission without following respondent’s internal grievance procedure. Petitioner is still, however, bound to follow the other requirements of Chapter 126 of filing a petition within thirty days after receipt of notice of “the decision or action which triggers the right of appeal” to commence a contested case in the OAH. With regard to petitioner’s receipt of notice of her dismissal, Judge Becton found: On September 29, 1992, the [Respondent sent a letter to the [petitioner notifying her of her dismissal from employment, effective September 28,1992, as a result of unacceptable personal conduct. The [Respondent hand-delivered a copy of the September 29, 1992 letter of termination to the [petitioner on October 6, 1992. Petitioner did not, however, file a petition for a contested case hearing in the OAH regarding her dismissal within thirty days from either 29 September 1992 or 6 October 1992. Instead, in October 1992, petitioner filed a motion to amend her prehearing statement to add the issue of whether respondent violated her substantive and procedural rights by terminating her employment and to add N.C.G.S. § 126-35 to the portion of the prehearing statement entitled “Statutes, Rules and Legal Precedents Involved.” As already discussed, petitioner could not proceed under N.C. Gen. Stat. § 126-35 for a “just cause” violation without first following respondent’s internal grievance procedure. Thereafter, in January, 1993, petitioner filed her second motion to amend her prehearing statement to add the issue of whether petitioner’s termination violated her substantive and procedural rights “including the right not to be discriminated against because of a handicapping condition” and to add N.C. Gen. Stat. § 126-36 to the section of the prehearing statement entitled “Statutes, Rules and Legal Precedents Involved.” Assuming arguendo that petitioner could properly amend her prehearing statement, we do not find such amendment equivalent to the filing of a petition as required under Article 3 of Chapter 150B to commence a contested case hearing in the OAH. In addition, we also find that this amendment was filed after the statutory thirty days. Because Chapter 1

DRIVER v HANLEY Docket No. 149151. Submitted February 16, 1994, at Grand Rapids. Decided September 19, 1994, at 9:30 a.m. Maria E. Driver brought an action in the Benzie Circuit Court against William and Julia Hanley, alleging violation of the Whistleblowers’ Protection Act, retaliatory discharge, and breach of an employment contract relating to the termination of her employment after she filed a complaint with the Department of Labor that the defendants were paying her an hourly wage that was lower than the legal minimum. The court, James M. Batzer, J., removed the action to the 85th District Court after a mediation evaluation of $8,000 in the plaintiff’s favor. The district court, Brent V. Danielson, J., entered a judgment on a jury verdict for the plaintiff on all counts. The circuit court affirmed the judgment with respect to the claim under the Whistleblowers’ Protection Act, but reversed with respect to the claims of retaliatory discharge and breach of an employment contract, ruling those claims to be preempted by the Whistleblowers’ Protection Act. The defendants appealed by leave granted, and the plaintiff cross appealed. The Court of Appeals held: 1. The circuit court erred in removing the case to the district court. An action under the Whistleblowers’ Protection Act is within the exclusive jurisdiction of the circuit court. 2. The circuit court did not err in reversing the judgment with respect to the claims of retaliatory discharge and breach of an employment contract. The Whistleblowers’ Protection Act is the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer’s violation of law. Affirmed in part and reversed in part. 1. Courts — Circuit Court — Whistleblowers’ Protection Act. The circuit court has exclusive jurisdiction over actions commenced pursuant to the Whistleblowers’ Protection Act (MCL 15.363[2]; MSA 17.428[3][2]). References Am Jur 2d, Wrongful Discharge §§ 55, 216, 220. Liability for discharging at-will employee for refusing to participate in, or for disclosing, unlawful or unethical acts of employer or coemployees. 9 ALR4th 329. 2. Master and Servant — Whistleblowers’ Protection Act — Exclusive Remedy. The Whistleblowers’ Protection Act provides the exclusive remedy for a discharged employee who claims that the discharge is in breach of the employment contract and in retaliation for the employee’s report of a suspected violation of law by the employer (MCL 15.361 et seq.; MSA 17.428[1] et seq.). Robert E. Hamel, for the plaintiff. Michael E. Hall, for the defendants. Before: Taylor, P.J., and Mackenzie and M. J. Matuzak, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Taylor, P.J. Defendants appeal by leave granted the circuit court’s order affirming in part and reversing in part the district court jury verdict in favor of plaintiff. Plaintiff cross appeals that portion of the circuit court order reversing the jury verdict in her favor. We affirm in part and reverse in part. In 1985, defendants moved from a private apartment within their foster care facility to a nearby house. In anticipation of their move, they hired plaintiff to work during the night shift. At the employment interview, Mrs. Hanley provided plaintiff with a job description and informed plaintiff of various workplace rules. According to plaintiff, Mrs. Hanley stated that she would be discharged only if she could not carry out her responsibilities or follow defendants’ work rules. Plaintiff’s shift began at 9:00 p.m. and ended at 6:30 a.m. Defendants paid plaintiff $20 a night ($2.11 an hour) and $3.35 an hour when plaintiff worked the day shift. Although defendants could initially afford to pay plaintiff only $20 a night, plaintiff testified that defendants promised her a raise once they moved into their new home. While Mrs. Hanley admitted she had an unwritten policy against discharging her employees without just cause, she testified that she did not guarantee plaintiffs employment at the foster home. Mrs. Hanley’s need for employees depended on the number of residents in her foster care home. Also, Mrs. Hanley did not recall promising plaintiff a raise. Shortly after her employment began, plaintiff became concerned about the procedure for dispensing medication to the residents of the foster care home. She reported her concern to Mrs. Hanley, but defendants made no change in their procedure. Thereafter, plaintiff reported her concern to the Mental Health Licensing Bureau. A representative from the bureau visited defendant’s facility and required defendants to change their procedure. When defendants moved out of the foster care home without giving plaintiff the raise she allegedly was promised, plaintiff filed a complaint with the Michigan Department of Labor, Wage and Hour Division, reporting that she was being paid $2.11 an hour, less than the minimum wage. After receiving the Department of Labor complaint, Mrs. Hanley telephoned plaintiff and told her that defendants no longer needed her services. When plaintiff asked Mrs. Hanley if she was being fired, Mrs. Hanley responded affirmatively and stated that she could not tolerate employees going to the authorities without first coming to her. Several hours later, Mrs. Hanley again telephoned plaintiff and offered her the opportunity to finish the work week, but plaintiff declined because Mrs. Hanley would not assure plaintiff a wage increase. Plaintiff filed her complaint in circuit court alleging violation of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2), violation of the public policy against retaliatory discharge, and breach of her employment contract. After the parties received a mediation evaluation of $8,000, the circuit court removed the case to the district court because plaintiffs damages were likely to be below the $10,000 jurisdictional limit. The district court jury found in favor of plaintiff on each count and awarded $24,800 in damages. Defendants appealed to the circuit court, which reversed on the claims of retaliatory discharge and breach of an employment contract, finding that the wpa preempted them. The circuit court affirmed the district court’s judgment regarding the wpa claim, rejecting defendants’ argument that the judgment should be set aside for lack of subject-matter jurisdiction. Defendants argue on appeal that the circuit court erred in removing the case to the district court because the circuit court has exclusive jurisdiction over wpa actions. We agree. In removing plaintiffs claim to the district court, the circuit court relied on MCL 600.8301(1); MSA 27A.830K1) and MCR 4.003. According to MCL 600.8301(1); MSA 27A.8301(1): The district court shall have exclusive jurisdiction in civil actions when the amount in controversy does not exceed $10,000.00. Pursuant to MCR 4.003(A)(1), the circuit court may order an action removed to the district court if it appears that the damages may be less than $10,000, and if removal will expedite disposition of the matter. However, the wpa specifically provides for circuit court jurisdiction: An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil compliant is filed resides or has his or her principal place of business. [MCL 15.363(2); MSA 17.428(3X2).] Because § 3 of the wpa and §8301(1) of the Revised Judicature Act each appear to provide jurisdiction to a different court, we must resolve the apparent jurisdictional conflict. Where a statutory jurisdictional conflict exists, the following rule applies: "Where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other general which, if standing alone, would include the same matter and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act, as the Legislature is not to be presumed to have intended a conflict.” [Baxter v Gates Rubber Co, 171 Mich App 588, 590; 431 NW2d 81 (1988), quoting Wayne Co Prosecutor v Wayne Circuit Judge, 154 Mich App 216, 221; 397 NW2d 274 (1986).] We have previously determined that MCL 600.8301(1); MSA 27A.8301 is general in its application. Baxter, supra at 591. In contrast, § 3 of the wpa provides for circuit court jurisdiction over actions of a specific subject matter, namely, private actions for wrongful discharge or discrimination against an employee who has reported or is about to report a suspected violation of a law or regulation. MCL 15.363(2); MSA 17.428(3X2) and MCL 15.362; MSA 17.428(2). Accordingly, we hold that the specific jurisdictional grant of § 3 of the wpa takes precedence over the more general jurisdictional grant contained in § 8301 of the Revised Judicature Act. In other words, the wpa provides for exclusive circuit court jurisdiction, regardless of the amount in controversy. In her cross appeal, plaintiff claims the circuit court erred in reversing the jury verdict in her favor on the claim of breach of a just-cause employment contract. Although she acknowledges that the wpa provides the exclusive remedy for claims of retaliatory discharge, she asserts that a cause of action for breach of an employment contract is not precluded by the wpa. On the facts of this case, we disagree. It is well established that the wpa provides the exclusive remedy for an employee who has been discharged wrongfully from employment for reporting an employer’s violation of the law. Dudewicz v Norris Schmid, Inc, 443 Mich 68; 503 NW2d 645 (1993); Shuttleworth v Riverside Hosp, 191 Mich App 25; 477 NW2d 453 (1991); Branch v Azalea/Epps Home, Ltd, 189 Mich App 211; 472 NW2d 73 (1991). As a general rule, "when a statute creates a new right or imposes a new duty having no counterpart in the common law, the remedies provided in the statute for its violation are exclusive and not cumulative.” Shuttleworth, supra at 27. Because the wpa has no common-law counterpart, "the act is the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer’s violation of the law.” Id. In the instant case, plaintiffs breach of an employment contract was based solely on the fact that she reported defendants’ violations of the law. Accordingly, we conclude that the wpa provided plaintiff with an exclusive remedy and preempted her cause of action for breach of an employment contract. Affirmed in part and reversed in part.

FAULKNER v FLOWERS Docket No. 169088. Submitted May 11, 1994, at Marquette. Decided September 6, 1994, at 9:10 a.m. Deborah Faulkner and Debra Holbrook brought an action in the Luce Circuit Court against Gerald and Helen Flowers, alleging that the defendants violated the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., when they discharged the plaintiffs from employment after the plaintiffs indicated that they were going to report certain business practices of the defendants to the Internal Revenue Service. The court, Charles Stark, J., granted summary disposition for the defendants, finding it lacked subject-matter jurisdiction because the plaintiffs had filed a complaint with the Department of Labor, pursuant to the wage and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq., shortly after being fired, and the administrative proceeding was still being pursued. The plaintiffs appealed. The Court of Appeals held: A plaintiff may initiate a cause of action in the circuit court under the Whistleblowers’ Protection Act while at the same time pursuing administrative rights under the wage and fringe benefits act. The two acts provide differing remedies and encompass differing, but not conflicting, goals. The plaintiffs’ complaint satisfies the requirements of both acts. The Legislature provided overlapping remedies for an employee whose employment is terminated for reporting wage and fringe benefits violations. Reversed and remanded. Actions — Employment — Retaliatory Discharge — Whistleblowers’ Protection Act — Wage and Fringe Benefits Act. The Legislature has provided overlapping remedies for an employee whose employment is terminated for reporting wage and fringe benefits violations by an employer; the employee may initiate a cause of action in the circuit court alleging a violation of the Whistleblowers’ Protection Act while at the same time pursuing administrative rights under the wage and fringe benefits act (MCL 15.361 et seq., 408.471 et seq.; MSA 17.428[1] et seq., 17.277[1] et seq.). References Am Jur 2d, Labor and Labor Relations, § 4451; Wrongful Discharge, §§ 55-57, 216, 241. Liability for discharging at-will employee for refusing to participate in, or for disclosing, unlawful or unethical acts of employer or coemployees. 9 ALR4th 329. Employee’s protection under § 15 (a) (3) of Fair Labor Standards Act (29 USCS § 215 (a) (3)). 101 ALR Fed 220. John H. Underhill, P.C. (by John H. Underhill'), for the plaintiffs. Moher & Cannello, P.C. (by Timothy S. Moher), for the defendants. Before: Mackenzie, P.J., and Neff and R. L. Olzark, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Neff, J. Plaintiffs appeal as of right from an order of the circuit court granting summary disposition to defendants. The circuit court determined it was without subject-matter jurisdiction to hear plaintiffs’ case, which was based on the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., because plaintiffs had already initiated an administrative action with the Department of Labor pursuant to the wage and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. We reverse the order granting summary disposition to defendants and remand this case to the circuit court for further proceedings. i Plaintiffs worked at defendants’ establishment as waitresses, cooks, and bartenders. Plaintiffs were allegedly required to put all of the tips they received into a jar, so that defendants could take half of the tips for themselves. When plaintiffs allegedly challenged this practice by claiming they would report defendants to the Internal Revenue Service, they were discharged by defendants. Shortly after being fired, plaintiffs filed a complaint with the Department of Labor pursuant to the wage and fringe benefits act. Shortly thereafter, and while the administrative proceeding was continuing, plaintiffs filed the instant suit in the circuit court. ii A When reviewing a motion for summary disposition under MCR 2.116(C)(4), this Court must determine whether the pleadings demonstrate that the defendant was entitled to a judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact. MCR 2.116(G)(2) and 2.116(I)(1); Sargent v Browning-Ferris Industries, 167 Mich App 29, 33; 421 NW2d 563 (1988). B The relevant portion of the wpa, MCL 15.362; MSA 17.428(2), provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. The wage and fringe benefits act provides for the time and manner in which employees receive compensation. The provision relevant to this case, MCL 408.483(2); MSA 17.277(13X2), provides: An employee who believes that he or she is discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the department alleging the discrimination within 30 days after the violation occurs. Upon receipt of the complaint, the department shall cause an investigation to be made. If, upon the investigation, the department determines that this section was violated, the department shall order the rehiring or reinstatement of an employee to his or her former position with back pay. Defendants argued below that the trial court was without subject-matter jurisdiction to hear plaintiffs’ claim because, once plaintiffs initiated the administrative proceeding with the Department of Labor, exclusive jurisdiction vested with that administrative agency. c The court below relied primarily on this Court’s opinions in Cockels v Int’l Business Expositions, Inc, 159 Mich App 30; 406 NW2d 465 (1987), and Murphy v Sears, Roebuck & Co, 190 Mich App 384; 476 NW2d 639 (1991), in support of its determination. In Cockels, this Court dealt with whether the provision of the wage and fringe benefits act regarding retaliatory dismissals provided an exclusive or cumulative remedy with respect to the common law. See Murphy, supra at 387. It did not deal with whether that remedy provision is exclusive when a separate statutory provision is involved. In Murphy, the question before this Court was whether a plaintiff must proceed with administrative remedies pursuant to the wage and fringe benefits act where that plaintiff also had an independent common-law remedy. This Court determined that the plaintiff may follow either course, but then, in dicta, went on to state that once an employee chooses to pursue the administrative remedy, that remedy must be utilized exclusively, including an appeal to the circuit court. [Id. at 388.] Plaintiffs here, rather than basing their civil complaint on a common-law remedy, seek their remedy pursuant to the wpa, a separate statutory scheme, which itself creates new rights and imposes new duties. See Tyrna v Adamo, Inc, 159 Mich App 592, 599-600; 407 NW2d 47 (1987). Accordingly, both Cockels, supra, and Murphy, supra, are distinguishable from this case. See, e.g., Tyrna, supra at 598-599. D On appeal, both parties rely on Shuttleworth v Riverside Osteopathic Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991), wherein this Court determined that no common-law cause of action predated the wpa, and that the statute’s remedy provision was exclusive. Accordingly, this Court upheld the dismissal of the plaintiffs complaint that purported to be based on a common-law whistleblowers’ theory. Id. After this dispositive ruling was made, this Court, in dicta, also addressed whether a separate remedy was available to the plaintiff under the Michigan Occupational Safety and Health Act (miosha), MCL 408.1001 et seq.; MSA 17.50(1) et seq. Shuttleworth, supra at 28. This Court determined that the plaintiff had a separate remedy under the miosha, and then stated that "before resorting to a civil action, [the plaintiff] first must have pursued the administrative remedies contained in the miosha.” Id. Because this language is dicta, we decline to follow it. E We find this Court’s opinion in Tyrna, supra, to be most applicable here. In Tyrna, this Court determined that a plaintiff could initiate a cause of action in a civil court under the wpa, while at the same time pursuing administrative rights under the miosha. Id. at 600-601. The plaintiff in Tyrna was fired after reporting a safety violation to various local officials. Id. at 596. The plaintiff filed her miosha complaint after she was fired. Id. at 596-597. This Court began its analysis by examining the purposes behind the two statutes, noting that they overlapped, and determining that the plaintiffs reporting of the violation satisfied the requirements of both statutes. Id. at 599. This Court then held that the Legislature has provided overlapping remedies for an employee whose employment is terminated in retaliation for such reporting. The Legislature has not provided that the employee must pursue only one statutory remedy. [Id.] This Court also determined that the scope of the remedies provided by the wpa differed somewhat from those offered by the miosha. Id. at 600. Accordingly, this Court stated that "we see no reason, without further legislative direction, that plaintiff should not be able to pursue a cause of action under both statutes.” Id. at 600-601. Similarly, here, the wage and fringe benefits act and the wpa provide differing remedies and encompass differing, but not conflicting, goals. The preamble to the wage and fringe benefits act provides: An act to regulate the time and manner of payment of wages and fringe benefits to employees; to prescribe rights and responsibilities of employers and employees, and the powers and duties of the department of labor ... to provide for settlement of disputes regarding wages and fringe benefits; to prohibit certain practices by employers; to prescribe penalties and remedies. Thus, the goals of that act relate to wage and fringe benefits issues between an employee and an employer. These goals are narrower than those of the wpa. The goals of the wpa, according to this Court’s opinion in Hopkins v Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987), are "to protect the integrity of the law by removing barriers to employee efforts to report violations of the law,” and "to protect the public by protecting employees who report violations of laws and regulations.” This applies broadly to "reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States. MCL 15.362; MSA 17.428(2).” Tyrna, supra at 599. Plaintiffs’ complaint in this case, like that in Tyrna, supra, satisfies the requirements of both statutes. in We hold that the Legislature has provided overlapping remedies for an employee whose employment is terminated for reporting wage and fringe benefits violations. We find it within the legislative intent for a plaintiff to pursue a wpa cause of action even though that plaintiff has already initiated a wage and fringe benefits act administrative proceeding. The wpa provides remedies not available in the wage and fringe benefits act, cf. MCL 408.483(2); MSA 17.277(13X2) with MCL 15.364; MSA 17.428(4); see also Tyrna, supra at 600. There are no conflicts between the remedies provided, and the goals of the two statutes are complementary. In addition, if plaintiffs were to be relegated to their wage and fringe benefits act remedy, they could lose their wpa remedies if the resolution of the wage and fringe benefits act claims took longer than ninety days from the occurrence of the alleged violations. See MCL 15.363(1); MSA 17.428(3) (1). Thus, our holding here serves the beneficial purpose of allowing an harmonious reading of both statutes. See House Speaker v State Administrative Bd, 441 Mich 547, 568-569; 495 NW2d 539 (1993). Accordingly, we reverse the lower court’s determination that it lacked subject-matter jurisdiction to hear plaintiffs’ case and remand this case for further proceedings consistent with this opinion. Reversed and remanded. We do not retain jurisdiction.

William F. King vs. Robert F. Driscoll & others. Middlesex. April 4, 1994. August 11, 1994. Present: Liacos, C.J., Abrams, Nolan, Lynch, & Greaney, JJ. Employment, Termination. Contract, Employment. Corporation, Stockholder’s derivative suit, Stockholder. Public Policy. Unlawful Interference. Malice. Practice, Civil, Attorney’s fees. Discussion of cases involving the issue whether a retaliatory discharge of an at-will employee violates public policy. [581-583] In a civil action in which an at-will employee claimed he was wrongfully terminated in retaliation for his participation as a shareholder in a derivative action against the employer, no considerations of public policy giving shareholders a right to seek redress for harms to a corporation, arising in the context of a conflict over the corporation’s internal affairs, rose to the level of importance required to justify an exception to the general rule regarding termination of at-will employees. [583-585] In a civil action in which an employee and shareholder of a closely held corporation claimed that the other shareholders breached the duty of utmost good faith and loyalty owed to him as a shareholder, the judge correctly concluded that the conduct of the defendants which caused the plaintiff to be terminated as an employee and, as a result, caused his stock to be repurchased constituted a breach of that duty. [585-587] In a civil action in which the plaintiff claimed that the defendants intentionally interfered with contractual relations, the evidence was insufficient to support a finding in favor of the plaintiff where no improper motive for the defendants’ conduct was shown. [587] The judge in a civil action correctly concluded that an officer of a corporation had been terminated without cause, under the corporation’s bylaws. [587-588] This court vacated an award of attorney’s fees to a plaintiff in a civil action that was based on rulings of the trial judge that this court reversed. [588] Civil action commenced in the Superior Court Department on June 28, 1990. The case was heard by Vieri Guy Volterra, J. The Supreme Judicial Court granted a request for direct appellate review. Richard L. Neumeier for the defendants. Morris M. Goldings {John F. Aylmer, Jr., with him) for the plaintiff. Stephen S. Ostrach, for New England Legal Foundation, amicus curiae, submitted a brief. Albert Marchant, Michael Martin, and F.S. Payne Co. Liacos, CJ. The defendants, Robert F. Driscoll, Albert Marchant, Michael Martin, and F.S. Payne Co., appeal from that portion of a judgment of the Superior Court entered against them in the plaintiff’s wrongful termination suit. The plaintiff filed a cross appeal from another part of that judgment. See p. 581 & note 5, infra. We granted the defendants’ application for direct appellate review. The primary issue presented here is whether the public policy exception to the rule that at-will employees may be terminated at any time with or without cause includes termination in retaliation for an employee’s participation in a shareholder derivative suit. We recount the facts, many of which are in dispute on appeal, as found by the trial judge sitting without a jury. See Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). Payne is a closely held Massachusetts corporation which focuses on services to the elevator industry. Until 1988, it manufactured elevators and related parts. From its origin until August, 1990, all the stock of Payne was held by a small number of shareholders and Payne’s upper-level management positions were occupied by individuals owning relatively large amounts of the corporation’s stock. In August, 1990, Payne’s stock was purchased by Northern Elevator of Toronto. Beginning in 1954, employees of Payne who purchased Payne stock were required to enter into a “buy back” agreement which allowed Payne to repurchase the stock at the end of the employees’ respective tenures at Payne. The language of the buy back agreement was ambiguous and thus Payne repurchased stock over time from departing employees at varying rates. The buy back agreement became the subject of the shareholder derivative suit relevant here. See Dynan v. Fritz, 400 Mass 230 (1987), S.C., Martin v. F.S. Payne Co., 409 Mass. 753 (1991). The plaintiff here was one of the plaintiffs in that suit. During .the relevant time period, Edward A. Fritz, Jr., was a director, shareholder and, at one time, president of Payne. Driscoll was a director, shareholder, and the president of Payne when the incidents leading to this lawsuit took place. Martin was an assistant to Driscoll, a director of Payne, but not a shareholder. Marchant was a director, shareholder, and an employee of Payne. King began his employment with Payne in 1958 and received various promotions until 1982 when he was elected by the directors to be vice president of Payne’s manufacturing division. He remained in that position until his termination in November 1987. King was a shareholder of Payne. During the 1970’s and 1980’s, various power struggles transpired within Payne, mainly between Driscoll and Robert G. Dynan, another large shareholder and Payne’s lead salesperson. After Fritz’s retirement, the corporate infighting culminated with the ascension to the Payne presidency by Driscoll. Dynan had been a director but was not reelected in 1983. Around that time, Driscoll called for Dynan’s retirement, but Dynan refused. Later, Dynan’s business traveling was restricted by Driscoll and thus Dynan’s effectiveness as a salesperson was diminished. Both Dynan and Driscoll made overtures to King seeking his support in their “war.” At one point, Driscoll suggested to King that King should be transferred to another division within Payne so that King could be groomed to succeed Driscoll as president. King, preferring to remain in the manufacturing division, declined. In the spring of 1984, Dynan asked King to join him in filing a derivative suit regarding the stock buy back plan, especially as it related to the buy back of Fritz’s stock. King initially declined but later, concluding that the suit was in the best interests of Payne, joined as a party to the derivative action. During 1980-1984, Payne’s manufacturing division was profitable. During the pendency of the derivative action from 1985 through 1987, however, the division sustained increasing losses. The judge found that Driscoll’s course of conduct during that time exhibited a purpose to undermine King’s ability successfully to manage the manufacturing division and, thus, to make the division unprofitable. Among Driscoll’s actions cited by the judge were charging the salaries of certain employees to the overhead of that division, halting a computer project designed to improve manufacturing efficiency, and restricting Dynan’s business travel for sales purposes. In 1986, Driscoll hired Martin as his assistant, and Martin contracted with a consulting firm to evaluate the manufacturing division. The judge found that, for various reasons including Martin’s past relationship with members of the consulting firm, the firm’s evaluation of the division was compromised. Although Martin resigned his employment with Payne early in 1987, he had been appointed a director and so his involvement with the corporation continued. In March, 1987, Rick Auth was hired by Driscoll as assistant to the treasurer. Auth previously had been affiliated with the accounting firm that performed services for Payne. In June 1987, a “steering committee” was formed to investigate the performance of Payne’s manufacturing division. The committee was chaired by Auth. Its members were Marchant, King, two Payne managers, and Paul Oberg of the consulting firm. The majority of the committee ultimately suggested that new management was needed in the manufacturing division — that is, King should be terminated. On November 13, 1987, at a meeting of the Payne board of directors attended by Driscoll, Martin, Marchant and Fritz, the directors voted to terminate King. Fritz abstained from this vote. At a meeting on November 30, 1987, Driscoll, in the presence of Martin, terminated King’s employment. King contends that, at this meeting, Driscoll suggested that he would not be firing King if it were not for his participation in the derivative suit. The Driscoll faction proffered several legitimate business reasons for terminating King. The group contended that King was ineffective as vice president of manufacturing and cited King’s failure to prepare a five-year plan for manufacturing as requested by Driscoll, the $250,000 loss sustained by the manufacturing division in 1986, the steering committee’s recommendation, and the consulting firm’s recommendation. The judge discussed and rejected each of these reasons. In addition, the judge made findings regarding the motives and conduct of Driscoll, Martin, Marchant, and Fritz which led him to his conclusion that the reasons asserted for King’s termination were a pretext. The judge concluded that, on his review of the totality of the evidence, King’s termination did not have a legitimate business purpose. Instead, the judge found, King was terminated in retaliation for his participation in the derivative action. Acknowledging the general rule that, as an at-will employee, King could be terminated at any time with or without cause, the judge ruled that King’s termination in retaliation for participating in a derivative suit was covered by the public policy exception to the general rule. Thus, the judge concluded, King’s termination was wrongful and actionable at law. The judge also ruled that Payne, through the actions of Driscoll, Martin, and Marchant, breached the covenant of good faith and fair dealing implied in at-will employment contracts. As to King’s claim of intentional interference with contractual relations, the judge concluded that Driscoll and Martin, but not Marchant, were liable for interfering with King’s employment' contract with Payne. In addition, the judge concluded that Driscoll and Marchant, as shareholders in a close corporation, breached the duty of utmost good faith and loyalty owed to King, another shareholder. On King’s claim that his termination violated an implied contract that he would be terminated only “for cause” and only after notice and a hearing as provided in Payne’s bylaws, the judge ruled against King. Payne had filed counterclaims against King for allegedly violating an implied covenant of good faith and fair dealing by his alleged failure to prevent and later account for a loss of inventory, his alleged premature installation and invoicing of a particular elevator project, and his alleged failure to rectify a problem with a certain type of elevator button used by Payne. The judge found in favor of King on these counterclaims. The judge also awarded King attorney’s fees. 1. Wrongful termination claim. The defendants argue that there was insufficient evidence on which the judge could have based his finding of wrongful termination, and that, in any case, there is no public policy which would prevent an employer from terminating an employee who participates in a shareholder derivative action. Because we agree with the defendants’ second argument, we need not address the first. See Wright v. Shriners Hosp. for Crippled Chidren, 412 Mass. 469, 472 (1992) (whether retaliatory discharge violates public policy question of law for the judge). As an exception to the general rule that an employer may terminate an at-will employee at any time with or without cause, we have recognized that an at-will employee has a cause of action for wrongful termination only if the termination violates a clearly established public policy. Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (wrongful termination where employee was terminated for cooperating with Customs officials in investigation of employer, even though employee was not required by law to cooperate) (noting, id. at 810, quoting Smith-Pfeffer v. Superintendant of the Walter E. Fernald State Sch., 404 Mass. 145, 149 [1989], that “redress is available for employees who are terminated ‘for asserting a legally guaranteed right [e.g. filing workers’ compensation claim]’ ”). Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416-417 (1988) (wrongful termination may be found where employee was terminated for adhering strictly to what law required). DeRose v. Putnam Management Co., 398 Mass. 205, 209-211 (1986) (termination wrongful where employee was terminated for refusing to testify falsely at trial, i.e., refusing to do what the law forbids). Cort v. Bristol-Myers Co., 385 Mass. 300, 306-307 (1982) (wrongful termination may be found where employee is terminated for refusing to provide information to employer where such request is serious or substantial interference with privacy). Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 n.6 (1981), S.C., 391 Mass. 333 (1984). This 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.” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 150. See Wright, supra at 474 (where nurse reported internal problems to high-level officials within organization, reports were internal matter, which could not be basis for pub-lie policy exception); Smith-Pfeffer, supra at 150-151 (where employee expressed disagreement with superior’s management of school, even if to do so was appropriate, socially desirable conduct, termination was not wrongful because school management was an internal matter); Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988) (termination of employee who reported false damage claims could not be wrongful because claims were an internal matter). See also Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994) (discharge of employee who threatened to reveal employer’s unfair and deceptive trade practices which were not a threat to public health or safety was not wrongful because the situation did not rise to the requisite level of public importance; it was an internal matter); Yovino v. Fish, 27 Mass. App. Ct. 442, 444-445 (1989) (termination of producer of radio program who permitted program which parodied and thus offended public officials was not wrongful because no issue of freedom of speech of employee was involved). As the above cases demonstrate, the internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception to the general rule that at-will employees are terminable at any time with or without cause. In this case, the subject of the lawsuit, the price to be paid under the stock buy back program, was an internal company matter. The mere fact that a dissatisfied shareholder could litigate the matter in a court of the Commonwealth does not transform this into an external matter involving, as the plaintiff argues, public policy. Thus, assuming that King was terminated in retaliation for participation in the derivative action, we conclude that his termination did not violate any public policy. General Laws c. 156B, § 46 (1992 ed.), conferred on King the right to participate in a derivative suit. While we often look to statutes to find pronouncements of public policy, see, e.g., Federici v. Mansfield Credit Union, 399 Mass. 592, 596-597 (1987); but see Wright, supra at 477-478 (Liacos, C.J., dissenting) (emphasizing separate common law sources of public policy determinations), it is not necessarily true that the existence of a statute relating to a particular matter is by itself a pronouncement of public policy that will protect, in every instance, an employee from termination. Even a public policy, evidenced in a particular statute, which protects employees in some instances might not protect employees in all instances. See Mistishen, supra. The statute at issue may suggest a public policy in favor of allowing shareholders to seek redress for perceived harms to the corporation. This public policy, however, which relates to the financial well being of the corporation and, by extension, its shareholders, does not rise to the level of importance required to justify an exception to the general rule regarding termination of employees at will. It may be true generally that the financial well being of a corporation affects the economy which in turn affects the well being of the citizenry, and that, therefore, shareholder derivative actions are appropriate and socially desirable conduct. Nevertheless, such a remote effect on the public, arising in the context of a conflict over internal policy matters, does not elevate King’s participation in the lawsuit to protected activity. See Mistishen, supra at 246. The fact that participation in a derivative suit is a right of a shareholder employee conferred by G. L. c. 156B, § 46, also does not change our conclusion. To date, we have acknowledged very few statutory rights the exercise of which would warrant invocation of the public policy exception. See Flesner, supra at 810. For the exercise of a statutory right to be worthy of protection in this area we believe that the statutory right must relate to or arise from the employee’s status as an employee, not as a shareholder. Cf. Mello, supra at 557 (rule of liability can be found where statute expresses Legislature’s policy concerning employees’ rights). The exerelse of the right to file a derivative action arose from King’s status as a shareholder; his termination as an employee resulting from the exercise of that right does not automatically entitle him to seek redress. 2. Breach of the duty of utmost good faith and loyalty owed to King as a shareholder. Relying on Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 586-587 (1975), and Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 848 (1976), the judge concluded that Driscoll and Marchant breached the duty of utmost good faith and loyalty to King when they terminated King’s employment with Payne. The defendants argue for reversal of this conclusion. In support thereof they offer the case of Evangelista v. Holland, 27 Mass. App. Ct. 244 (1989). Evangelista, supra at 248-249, cites to Donahue, supra at 598 n.24, for the proposition, “Questions of good faith and loyalty do not arise when all the stockholders in advance enter into an agreement for the purchase of stock of a withdrawing or deceased stockholder.” In both the Donahue and Evangelista cases, however, the controversies themselves arose from repurchase transactions of the stock of certain shareholders. Donahue, supra at 579. Evangelista, supra at 245-246. Thus, the courts deciding those cases were examining the duties of good faith and loyalty surrounding the repurchase transactions alone. Accordingly in Evangelista, where there was a valid repurchase agreement previously executed and there was no indication that, at the time of the execution of the agreement, the parties failed in their duties of good faith and loyalty, the court was warranted in stating that “ [questions of good faith and loyalty do not arise when all the stockholders in advance enter into an agreement for the purchase of stock . . . .” Id. at 248-249. Evangelista does not stand for the proposition that the existence of a buy back agreement completely relieves shareholders of the high duty owed to one another in all dealings among them. In this case, contrary to the facts of Donahue and Evangelista, the allegations of breach of the duty of utmost good faith and loyalty arose from the conduct of fellow shareholders Driscoll and Marchant during the whole series of events leading up to and including the termination of the plaintiff. The plaintiff did not aver that the terms of the repurchase constituted a breach of the duty, but in essence argued that the conduct of the defendants w

KATHERINE C. KENNEDY, Plaintiff v. GUILFORD TECHNICAL COMMUNITY COLLEGE, Defendant No. 9318SC444 (Filed 19 July 1994) Public Officers and Employees § 58 (NCI4th)— “whistleblower” action — job transfer — prima facie case — legitimate reason shown by defendant — no discrediting evidence by plaintiff — summary judgment for defendant Assuming that plaintiff’s transfer to a secretarial position she considered less attractive than her former secretarial position following her protected activity of reporting employee misuse or misappropriation of state property established a prima facie showing of discrimination in her employment in violation of the “whistleblower” statutes, N.C.G.S. §§ 126-84 and 126-85, the trial court properly entered summary judgment for defendant technical college where defendant presented evidence that plaintiff’s transfer had no effect on her hours, wages, seniority, or benefits, the job descriptions for the two positions were almost identical, plaintiff’s transfer was an integral part of a larger reorganization plan, and plaintiffs former position was permanently eliminated, and plaintiff presented no specific facts tending to discredit defendant’s reorganization claim or to show that the legitimate reason offered by defendant was not its true reason but was a pretext for discrimination. Am Jur 2d, Wrongful Discharge §§ 55 et seq. Liability for discharging at-will employee for refusing to participate in, or for disclosing, unlawful or unethical acts of employer or coemployees. 9 ALR4th 329. Appeal by plaintiff from summary judgment entered 12 March. 1993 by Judge Thomas W. Ross in Guilford County Superior Court. Heard in the Court of Appeals 7 February 1994. Smith, Follín & James, by Norman B. Smith and Margaret Rowlett, for plaintiff-appellant. Hendrick, Zotian, Bennett & Blancato, by William A. Blancato, for defendant-appellee. JOHN, Judge. Plaintiff-employee filed an amended complaint in this action on 16 April 1992, claiming retaliation in violation of N.C. Gen. Stat. § 126-85 by defendant-employer following her reports of fellow-employee misuse and misappropriation of audio-visual (AV) equipment. In sum, plaintiff’s complaint stated that after she informed supervisory and investigatory personnel at defendant Guilford Technical Community College (GTCC) of employee personal use of State equipment and of State property missing from inventory, she was transferred from her position as “Audio-Visual Secretary” (AV secretary) to the position of “Library Public and Technical Services Secretary.” Plaintiff initiated her suit after unsuccessfully seeking reinstatement as AV secretary by means of an internal grievance procedure pursued with GTCC in the fall of 1991. From entry of summary judgment in favor of defendant on 12 March 1993, plaintiff appeals. We affirm the trial court. This action was brought under North Carolina’s “whistleblower” statutes, N.C. Gen. Stat. § 126-84 (1993), and N.C. Gen. Stat. § 126-85 (1993), which provide in pertinent part as follows: § 126-84. Statement of policy. It is the policy of this State that State employees shall be encouraged to report verbally or in writing to their supervisor, department head, or other appropriate authority, evidence of activity by a State agency or State employee constituting: (1) A violation of State or federal law, rule or regulation; (2) Fraud; (3) Misappropriation of State resources; or (4) Substantial and specific danger to the public health and safety. § 126-85. Protection from retaliation. (a) No head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee regarding the State employee’s compensation, terms, conditions, location, or privileges of employment because the State employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, any activity described in G.S. 126-84, unless the State employee knows or has reason to believe that the report is inaccurate. (Emphasis added). A court ruling upon a motion for summary judgment must view all the evidence in the light most favorable to the nonmovant (here, plaintiff), see, e.g., Durham v. Vine, 40 N.C. App. 564, 566, 253 S.E.2d 316, 318-19 (1979), overruled in part on other grounds, Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992), accepting all her asserted facts as true, Railway Co. v. Werner Industries, 286 N.C. 89, 98, 209 S.E.2d 734, 739 (1974) (citation omitted), and drawing all reasonable inferences in her favor. Whitley v. Gubberly, 24 N.C. App. 204, 207, 210 S.E.2d 289, 291 (1974) (citations omitted). However, once the moving party presents an adequately supported motion, the opposing party must come forward with specific facts (not mere allegations or speculation) that controvert the facts set forth in the movant’s evidentiary forecast. Roumillat, 331 N.C. at 63-64, 414 S.E.2d at 342; Moore v. Fieldcrest Mills, 36 N.C. App. 350, 353, 244 S.E.2d 208, 210 (1978), aff’d, 296 N.C. 467, 251 S.E.2d 419 (1979); see also N.C.R. Civ. R 56(e) (1990), which provides in part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added). Both parties correctly point out that our courts have issued no published decisions interpreting or applying G.S. §§ 126-84 and 126-85. Thus the question of whether the general principles just enunciated are applicable to actions commenced under these statutes has not been definitively answered. However, the parties direct our attention to related cases involving discrimination and retaliation claims brought under 42 U.S.C. §§ 2000e el seq. (Title VII) and 42 U.S.C. § 1983 (Section 1983) and suggest our analysis of the case sub judice should follow that utilized by courts in considering Title VII and Section 1983 claims. Noting that the procedures adopted by courts in these cases closely parallel the customary summary judgment analysis set out above, we elect for purposes of this appeal to adopt the parties’ recommended reasoning. Plaintiff relies upon a decision from the federal court for the principle that a prima facie case of retaliation (based upon a violation of first amendment rights) in “whistle-blowing” circumstances is properly considered composed of the following elements: “(1) [plaintiff] engaged in protected activity, (2) followed by an adverse employment action, and (3) the protected conduct was a substantial or motivating factor in the adverse action.” McCauley v. Greensboro City Bd. of Educ., 714 F. Supp. 146, 151 (M.D.N.C. 1987) (citations omitted) (plaintiff claimed she was retaliated against, in violation of Title VII and 42 U.S.C. § 1981 and § 1983, for filing race and sex discrimination charges with the E.E.O.C.). The McCauley court then observed that although “[t]he analysis for retaliatory acts which violate . . . Title VII is similar, . . . the Plaintiff must prove ‘but for’ instead of ‘motivating factor’ causation in her prima facie case.” Id. (citation omitted). The case cited by plaintiff continues by stating that upon presentation of a prima facie case of retaliation based upon first amendment rights, “the burden shifts to the defendant to show that it would have taken the same action even in the absence of the protected conduct.” Id. at 153. Stated otherwise, “the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse [employment] action.” Melchi v. Burns Int’l Sec. Servs. Inc., 597 F. Supp. 575, 582 (E.D. Mich. 1984) (construing Michigan’s “Whistleblowers’ Protection Act”); see also Heerdink v. Amoco Oil Co., 919 F.2d 1256, 1260 (7th Cir. 1990), cert. denied, 501 U.S. 1217, 115 L.Ed.2d 996 (1991). An articulated reason is not “legitimate,” and so does not overcome the presumption of discrimination arising from plaintiff’s prima facie showing, unless it has “a rational connection with the business goal of securing a competent and trustworthy work force.” Harris v. Marsh, 679 F. Supp. 1204, 1285 (E.D.N.C. 1987), aff’d in part, rev’d in part on other grounds by Blue v. U.S. Dept. of Army, 914 F.2d 525 (4th. Cir. 1990). Finally, if the defendant-employer meets its burden, the plaintiff must then come forward with evidence to show “that the legitimate reason was a mere pretext for the retaliatory action.” Melchi, 597 F. Supp. at 582 (relying on language from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 36 L.Ed.2d 668, 679 (1973)); thus, “a plaintiff retains the ultimate burden of proving that the [adverse employment action] would not have occurred had there been no protected activity” engaged in by the plaintiff. Id. at 583. Courts have referred to this as requiring a showing by plaintiff of “but-for” causation, id., creating an affirmative obligation on plaintiff’s part to produce evidence countering that produced by the employer on its motion for summary judgment. Furthermore, if at that point “plaintiff has no evidence whatsoever of pretext, the continued litigation of plaintiff’s case can be frivolous despite the existence of a prima facie case.” Blue v. U.S. Dept. of Army, 914 F.2d 525, 536 (4th Cir. 1990) (citation omitted). We begin our analysis of the case sub judice by assuming arguen-do (but explicitly not deciding) that when viewed in the light most favorable to plaintiff, the evidence before the trial court established a prima facie case of discrimination with respect to conditions of plaintiff’s employment in retaliation for having engaged in the protected activity of reporting employee misuse or misappropriation of State property. In this context, however, we note parenthetically defendant’s strong arguments against consideration of plaintiff’s transfer to a secretarial position in the Learning Resources Center’s library as “discrimination” with respect to her compensation, terms, conditions, location or privileges of employment. See G.S. § 126-85. GTCC emphasizes uncontested evidence demonstrating that plaintiff’s transfer had no effect on her hours, her wages, her seniority, or her privileges and benefits, and only minimal impact on her location (requiring a move from third to first floor), and that the written job description for her new secretarial position was virtually identical to the description for her former one. Defendant further counters plaintiffs suggestion that the transfer interrupted a “reclassification” of her former job which had been in progress for some time by pointing out she was unable to offer any evidence supporting that assertion. For instance, defendant continues, she presented no factual information establishing that her desired reclassification had been approved by the appropriate personnel, that funding for it was or would ever be available, or that being transferred would necessarily have an adverse effect upon any decision made about the reclassification. Furthermore, plaintiff stated she was primarily dissatisfied with her new job because she perceived it manifested less responsibility and she felt “isolated” and “bored.” However, GTCC observes that she had worked fewer than three weeks when she requested a transfer to another department, and during that time she was in the process of being trained. Moreover, she began her work in the library during the “slow” period when school was not in session. Finally, defendant argues it is uncontroverted that secretarial help was greatly needed in the library, and that within time and after training plaintiff would have been given a broader range of responsibilities there. On the other hand, the duties she had performed as the part-time AV secretary had been divided among student workers and another employee, and the job itself eliminated following her departure therefrom. Nonetheless, assuming arguendo plaintiffs transfer to a position she considered less attractive following reports to college authorities of employee misconduct constituted a prima facie showing of “discrimination,” we proceed to an examination of defendant’s evidence presented to the trial court. Defendant moved for summary judgment pursuant to Rule 56 on 12 February 1993, and supported its motion with numerous affidavits as well as various attached memoranda. Included was the affidavit of Beverley Gass (Gass), current Dean and former Director of the Learning Resources Center (the LRC), which houses the AV department as well as the library and the Office of the Director of Education and Faculty/Staff Development. Other affidavits presented were those of Scott Burnette (Burnette), lead technician of the AV department, and Dr. Delores Parker (Dr. Parker), Vice-President for Academic Affairs and Student Development at GTCC, as well as Randy Candelaria (Candelaria) and Martha Davis (Davis), GTCC librarians. Defendant’s materials established that plaintiffs transfer to the library was part of a campus-wide reorganization, which directly affected the LRC in numerous respects. Considered cumulatively, defendant’s affidavits show the following: In the beginning of 1991, Lundee Amos (Amos) was the Director of Education and Faculty/Staff Development; in the summer of 1991, she was appointed to the position of Dean of GTCC’s Greensboro campus. On 1 August 1991, Robin Brewington (Brewington) became the Director of Educational Development (part of the LRC staff); in that role, Brewington assumed many of Amos’ earlier duties. Marlene Matthews (Matthews) had been Amos’ secretary before the latter became Dean, and since Amos’ former responsibilities had been given to a person working within the LRC, Matthews was also transferred to the LRC. Matthews is a full-time secretary with a ten-month contract of employment. With the transfer of Matthews, the LRC had three secretaries on staff — Betty Jones (Jones, Gass’ personal secretary), plaintiff, and Matthews. Plaintiff and Jones both worked on the third floor, where Brewington’s office was also located. Because Matthews was familiar with much of the work that had been assigned to Brewington upon Amos’ promotion, Brewington strongly desired that Matthews function as her secretary. Accommodating that wish meant that Matthews would also be situated on the third floor of the LRC. At that time, Gass began discussing the most efficient allocation of secretarial resources with various department heads of the LRC— in particular, Brewington and the LRC’s two librarians, Candelaria and Davis. Candelaria and Davis had been in need of secretarial assistance for several months, and occasionally asked Jones for help. However, as even plaintiff conceded in her deposition, because Gass herself had recently been promoted to Dean of the LRC, Jones was “swamped” with work, making reliance on her impractical. Gass first suggested the creation of a “secretarial pool” for the entire LRC building, but as Brewington wanted closer personal assistance from Matthews, this idea was not acceptable. Ultimately, Gass decided that Matthews would be situated on the third floor and assigned to Brewington; in addition, she would be available to perform secretarial tasks for the AV department should the need arise. Jones was to continue as Gass’ personal secretary, also remaining on the third floor. Plaintiff was transferred to the first-floor library to provide secretarial services for the librarians. The job of AV secretary was thereafter eliminated and not re-established, plaintiffs former duties having been parcelled out and assigned to others. However, the job description for the newly created secretarial position (Library Public and Technical Services Secretary) was virtually identical to that of the AV secretary. Included with Dr. Parker’s affidavit was a copy of GTCC’s policy regarding reorganization, which provides: The President reserves the right to make changes in job status through reorganization or reassignment of personnel (includes promotion and transfers ... as defined in procedures). All other promotions or transfers of employees will be considered upon request initiated by the employee or appropriate supervisory personnel. Dr. Parker elaborated by noting that each department’s dean has the right to “reassign or reorganize” clerical personnel (such as secretaries) within his or her department. Thus, it was Gass’ discretionary duty to decide where to place each secretary within the LRC. Dr. Parker approved plaintiff’s transfer after “full investigation],” because “in [her] opinion it was the most efficient allocation of resources within the LRC.” Furthermore, Dr. Parker found there to be “no need to reestablish the position [of AV secretary] and it would be inefficient to do so.” Candelaria and Davis both indicated that because no classes were held in August, it was a “slow” month in the library. Nonetheless, secretarial help was greatly needed, and they were in the process of training plaintiff for further duties when she sought a transfer to the Guided Studies department. During the few weeks plaintiff was in the library, she occupied the same office space Jones had when serving as Gass’ secretary before they both relocated to the third floor in 1988. This area was connected to Candelaria’s (plaintiff’s new supervisor’s) office. We hold defendant met its burden of countering any prima facie showing of plaintiff by establishing a “legitimate explanation for the challenged action,” Carrv. F.W. Woolworth Co., No. 91-541-CIV-5-BO, slip op. at 9 (E.D.N.C. Sept. 23, 1992) — specifically, that plaintiff’s transfer to the LRC library was an integral part of a larger reorganization plan, well within the realm of Gass’ discretionary power to make assignments for the secretarial personnel working at the LRC. In response to defendant’s well-supported motion, plaintiff offered nothing more than speculation regarding her supervisors’ motives. She presented no specific facts tending to discredit defendant’s reorganization claim or to show “that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Melchi, 597 F. Supp. at 582 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L.Ed.2d 207, 215 (1981)). Indeed, in her deposition testimony, she acknowledged the verity of all the factual information presented in the affidavits submitted by defendant regarding the appointments, relocations, and resultant work loads of various staff and faculty members. Plaintiff produced no factual information tending to refute defendant’s contention that her transfer was simply a sensible managerial decision, or to show that it was instead the result of retaliation for her “whistleblowing” activities in the AV department. The only evidence offered by plaintiff arguably supporting her assertion of retaliation was deposition testimony of Brewington to the effect that Gass and Burnette had said they wanted plaintiff out of the AV department. Upon further inquiry therein, however, Brewington’s responses indicated those comments were reflective of personality conflicts between plaintiff and her co-workers; Brewington did not believe the statements were connected in any way with a desire to retaliate against plaintiff for reporting misuse or misappropriation of AV equipment. Accordingly, we hold that defendant’s motion for summary judgment was amply supported by evidence establishing a legitimate reason for plaintiff’s transfer to a substantially similar job in the LRC. Plaintiff then failed to meet her burden of coming forward with a showing that defendant’s stated reasons were simply a p

Judith Rideout & another vs. Crum & Forster Commercial Insurance & others. Suffolk. April 4, 1994. May 11, 1994. Present: Lucos, C.J., Abrams, Nolan, Lynch, & Greaney, JJ. Insurance, General liability insurance, Coverage, Construction of policy. Employment, Discrimination, Termination. Anti-Discrimination Law, Termination of employment, Sex. Words, “Occurrence.” Plaintiffs who obtained a final judgment against their former employer in an action to enforce orders of a commissioner of the Massachusetts Commission Against Discrimination awarding damages for sex discrimination could not prevail on their claims for declaratory relief and to reach and apply the proceeds of the employer’s insurance policies, where the policies excluded coverage for injuries “expected or intended from the standpoint of the insured,” and where the intentional acts of discrimination and retaliation found by the commissioner implied that the employer intended the harm that resulted, thus the policies did not provide coverage for the employees’ injuries. [760-764] Civil action commenced in the Superior Court Department on April 24, 1990. The case was heard by Elbert Tuttle, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Martin J. Alperen for the plaintiffs. J. Kenneth Griffin for the defendants. Scott Harshbarger, Attorney General, & George P. Napolitano, Special Assistant Attorney General, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Marilyn Thomas. United States Fire Insurance Company and North River Insurance Company. Nolan, J. The plaintiffs, Judith Rideout and Marilyn Thomas, appeal from a Superior Court judge’s dismissal of their action to reach and apply insurance proceeds pursuant to G. L. c. 214, § 3 (1992 ed.), and for declaratory relief pursuant to G. L. c. 231A (1992 ed.), against the defendant insurance companies. The Massáchusetts Commission Against Discrimination (MCAD) found that the plaintiffs’ former employer, Hub Manufacturing Company, Inc. (Hub), had unlawfully discriminated against them on the basis of their sex and had ordered Hub to pay damages. Then, in an enforcement action brought in the Superior Court, the plaintiffs obtained a final judgment against Hub. The plaintiffs then brought this action to collect the amount of the enforcement judgment from the defendants, which insured Hub during the time of the discriminatory acts. Concluding that the relevant insurance policies of the defendants failed to cover the plaintiffs’ claims, the judge allowed the defendants’ motion for summary judgment. The plaintiffs appealed. We transferred this case to this court on our own motion. We affirm. On May 12, 1981, the plaintiffs filed complaints against Hub with the MCAD alleging that Hub discriminated against them in the terms and conditions of their employment. More specifically, the plaintiffs alleged that Hub discriminated against them, in violation of G. L. c. 151B and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., by denying them equal pay, the opportunity to work overtime, and promotions on account of their gender. Shortly thereafter, Hub laid off the plaintiffs as part of a general short-term layoff. When they were not recalled, the plaintiffs amended their complaints on September 17, 1981, to include charges of retaliation. The cases were consolidated for public hearing by agreement of the parties. A public hearing was conducted at the MCAD offices on October 22, November 7 and 8, 1985. On March 15, 1988, a MCAD hearing commissioner found that Hub had unlawfully discriminated and retaliated against the plaintiffs and ordered Hub to pay the plaintiffs damages. The pertinent findings of the commissioner are as follows. In 1980, Hub, which was primarily involved in the business of manufacturing swimming pools, hired the plaintiffs as general floor workers and sealers. At all times relevant, Archie Taylor supervised Hub’s day-to-day business operations and was responsible for personnel matters, including job assignments, hiring, and firing. At Hub, there was a disparity between pay rates and pay increases of men and women employees who performed the same work. The pay disparity had no correlation with the seniority of the employees. Taylor denied the plaintiffs the opportunity to work overtime because of their gender, stating that men needed the overtime work to support their families. Taylor failed to transfer the plaintiffs to higher paying positions because of their gender, stating that “[n]o woman has ever worked in this department and never will ... I only hire men, and women would distract them.” After the plaintiffs requested transfers and filed complaints with the MCAD, Taylor retaliated against the plaintiffs by reassigning them to the most menial, repetitive, and isolated tasks within the company. The reassignments caused the plaintiffs to feel angry, frustrated, humiliated, and embarrassed throughout the remainder of their employment. The plaintiffs were then laid off during the summer of 1981 at the time of the general layoff. On laying off the plaintiffs, Taylor stated that the plaintiffs “under no circumstances would ever be hired back because they are a couple of troublemakers.” Taylor failed to recall the plaintiffs, although he rehired other laid-off employees, in retaliation for their filing the complaints. Based on these findings, the hearing commissioner held that the plaintiffs had proved that Hub disparately treated them on the basis of their sex in violation of G. L. c. 151B, § 4(1), and had retaliated against them in violation of G. L. c. 151B, § 4 (4). The commissioner then ordered Hub to pay damages to the plaintiffs for lost wages and emotional distress. The damages for emotional distress were awarded to compensate the plaintiffs for the emotional harm suffered due to Hub’s acts of retaliation. On March 7, 1986, without having paid the plaintiffs the amount of the MCAD order, Hub ceased operations and assigned its assets to creditors. In December, 1988, the plaintiffs sought to enforce the MCAD order against Hub and two successor corporations pursuant to G. L. c. 151B, § 6 (1992 ed.), in the Superior Court. On April 27, 1989, summary judgment was granted in favor of the two successor corporations. Hub defaulted and, on February 2, 1990, the plaintiffs obtained a final judgment against Hub. Pursuant to this judgment, the court ordered Hub to pay Rideout the sum of $45,519.50, interest in the sum of $47,674.02, and costs and to pay Thomas the sum of $45,306, interest in the sum of $47,450.48, and costs. The defendants insured Hub during the period that the acts of discrimination occurred. On March 30, 1990, the defendants denied coverage for the plaintiffs’ claims. On April 24, 1990, the plaintiffs instituted this action in the Superior Court. On cross motions for summary judgment, the Superior Court judge allowed the defendants’ motion for summary judgment, concluding that the policies in issue did not cover the plaintiffs’ claims. General Laws c. 214, § 3 (9), provides the Superior Court with jurisdiction over “[ajctions to reach and apply the obligation of an insurance company to a judgment debtor . . . under [a] policy insuring a judgment debtor against liability for loss or damage on account of bodily injury ... or on account of damage to property, in satisfaction of a judgment covered by such policy . . . .” An insurer may avail itself of any defense which it would have against the insured. Lombardi v. Lumbermens Mut. Casualty Co., 361 Mass. 310, 311 (1972). Where the policy provides no coverage, an insurer has no obligation to pay a judgment against its insured. Connolly v. Bolster, 187 Mass. 266, 270-271 (1905). The critical question is whether the final judgment against Hub is one covered by the defendants’ policies. All the policies in issue are policies for comprehensive general liability insurance containing identical coverage provisions. Section II of the policies extended liability coverage to Hub, providing that the defendants would pay on Hub’s behalf “all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury or (B) property damage to which this insurance applies, caused by an occurrence . . . .” Thus, the defendants’ obligation to indemnify the insured Hub is contingent on the plaintiffs having suffered bodily injury or property damage caused by an “occurrence.” The definitional section applicable to Section II defines “occurrence” as “an accident . . . which results in bodily injury or property damage neither expected or intended from the standpoint of the insured.” The basis of the plaintiffs’ claims against Hub were allegations of disparate treatment. The MCAD commissioner found that Hub discriminated against the plaintiffs in denying them equal pay, overtime opportunities, and promotions on the basis of their gender. Additionally, the MCAD found that Hub retaliated against the plaintiffs for filing their discrimination complaints. Based on these findings, the commissioner awarded the plaintiffs damages for lost wages and emotional distress. General Laws c. 175, § 47, Sixth, provides that “no company may insure any person against legal liability for causing injury, other than bodily injury, by his deliberate or intentional crime or wrongdoing.” Coverage is barred under this section only “if an intentionally committed, wrongful act was also done deliberately or intentionally, in the sense that the actor knew that the act was wrongful.” Andover Newton Theological Sch., Inc. v. Continental Casualty Co., 409 Mass. 350, 352 (1991). However, the policies must be determined to provide coverage before a court need determine whether the coverage is barred by § 47, Sixth. We now turn to whether the policies in question cover the plaintiffs’ claims. The defendants contend that the policies in question did not cover any of the damages awarded because the discriminatory acts of Hub do not constitute an occurrence, as that term is defined by the policies, because Hub intended or expected to deprive the plaintiffs of their wages and cause them emotional distress. The policies in issue defined “occurrence” as including an “accident . . . which results in bodily injury or property damage neither expected or intended from the standpoint of the insured” (emphasis added). We have stated that “[g]enerally, an injury ‘which ensues from the volitional act of an insured is still an ‘accident’ within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur.’ ” Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 399 (1990), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984). However, “[t]he insured need not intend to cause the exact extent of the injury which results, in order for the exclusion to apply.” Newton v. Krasnigor, 404 Mass. 682, 685 (1989). The resulting harm “concerns the type of harm inflicted . . . and not the extent of the harm actually sustained.” Id. at 686. 1. Damages for lost wages resulting from discrimination. As noted above, the MCAD commissioner awarded the plaintiffs damages for lost wages, part of which were to compensate for Hub’s discrimination in terms of pay, overtime, and promotions. We now decide whether Hub intentionally caused or was substantially certain to cause the plaintiffs to lose wages. The plaintiffs argue that Hub negligently or recklessly discriminated against them. They further argue that, if we conclude that Hub intentionally discriminated against them, that there is no evidence that Hub intended the resulting harm. The plaintiffs’ first argument ignores the MCAD’s finding that Hub intentionally discriminated against them on the basis of their sex. The MCAD order, which is the basis of the final judgment that the plaintiffs are seeking to enforce, makes clear that Hub’s liability is based solely on its discriminatory disparate treatment, which entails a discriminatory intent. Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 699 (1992). The plaintiffs’ second argument also fails. The findings of the MCAD demonstrate that Hub discriminated against the plaintiffs knowing that the amount the plaintiffs received in wages would be adversely affected. We hold that Hub’s acts of discrimination against the plaintiffs, in denying equal pay, overtime work, and promotions, imply an intent to cause loss of wages. Hub’s discrimination resulting in lost wages to the plaintiffs was not a covered “occurrence,” as defined by the policies in question. 2. Damages for lost wages resulting from retaliation. The MCAD commissioner also awarded damages for lost wages resulting from Hub’s retaliation in permanently laying off the plaintiffs. The MCAD commissioner found that Hub intentionally failed to recall the plaintiffs after they were laid off in retaliation for filing complaints with the MCAD. As a matter of law, a retaliatory discharge implies an intent to cause loss of wages. The award for lost wages was not covered by the policies. 3. Damages for emotional distress resulting from retaliation. The MCAD also awarded damages to compensate the plaintiffs for the emotional harm they suffered due to Hub’s retaliation against them for filing their complaints. The MCAD found that Taylor became angry when the plaintiffs complained about the discrimination and that he immediately reassigned the plaintiffs to ignoble and isolated tasks in the company in order to retaliate. Furthermore, the MCAD found that these acts of retaliation caused the plaintiffs to feel angry, frustrated, humiliated, and embarrassed. In order for the emotional harm suffered by the plaintiffs resulting from the acts of retaliation of Hub to be deemed accidental, Hub must not have intended to cause the harm nor have been substantially certain that such harm would occur. The judge concluded that Hub either intended or was substantially certain that the plaintiffs would suffer emotional harm when it reassigned them to menial positions and failed to recall them. We agree. The MCAD’s findings make apparent that Hub at least knew with substantial certainty that the plaintiffs would suffer emotional harm when it retaliated against them for filing their complaints. 4. Conclusion. Because Hub, in discriminating against the plaintiffs because of their gender and retaliating against them because of their complaints, intended or was substantially certain that the plaintiffs would suffer the types of harm they did suffer, the plaintiffs’ claims do not constitute an “occurrence” under the policies in question. The plaintiffs’ arguments that coverage exists under other provisions of the policies are unpersuasive. The judgment of the Superior Court denying the plaintiffs’ motion for summary judgment and allowing the defendants’ motion for summary judgment is affirmed. Judgment affirmed. The defendants also contend that there is no coverage because the damages awarded are not because of bodily injury or property damage, as defined in the policies. Furthermore, they argue that the plaintiffs’ claims are barrred by the policies’ employee exclusion, which excludes from coverage bodily injury to an employee arising out of the course of employment. In addition, they argue that the judgment is not enforceable against them because they have been prejudiced by the late receipt of the plaintiffs’ claim and by Hub’s failure to cooperate. Because we decide in favor of the defendants on other grounds, we do not address these contentions. These arguments do not warrant extended discussion since they require an imaginative reading of the policies and a disregard of the facts and applicable law. The plaintiffs contend that certain language extending coverage to defamation and violations of the right to privacy provides coverage for their claims. It is entirely clear from the MCAD’s order that Hub’s liability is based solely on discrimination and not on defamation or invasion of privacy. Likewise, the plaintiffs’ argument that Hub negligently allowed its employee Taylor to discriminate against them fails to comport with the record. The MCAD order solely imposed liability against Hub derivatively for Taylor’s actions. Incredibly, the plaintiffs also argue that coverage is provided by certain policy language extending bodily injury coverage to intentional acts in reasonable defense of persons or property. Assuming that the plaintiffs were injured bodily and that Hub discriminated against the plaintiffs in order to protect male employees, liability for sex discrimination can never be held to be reasonable. Another argument wrongly assumes that coverage is bestowed if the claims are not barred by the policies’ employee exclusion. The plaintiffs’ other arguments are contingent on their claims being “occurrence[sj,” and need not be discussed.

Barbara Mistishen vs. Falcone Piano Company, Inc., & another. No. 92-P-1225. Essex. November 4, 1993. -March 21, 1994. Present: Brown, Perretta, & Kass, JJ. Contract, Employment. Public Policy. Employment, Termination. An employer’s discharge of an employee from her at-will employment in retaliation for her complaints to her supervisor that their employer’s warranty practices were unfair and deceptive did not violate public policy, where the employee did not claim that the employer’s wrongdoing put the consumer in harm’s way or otherwise presented a threat to public health or safety; where there were no material facts in dispute, summary judgment was correctly entered for the employer. [244-246] Civil action commenced in the Superior Court Department on March 20, 1991. The case was heard by Margot Botsford, J., on a motion for summary judgment. Paul A. Manoff for the plaintiff. David C. Casey for the defendants. George Brambilla. Perretta, J. For purposes of determining whether it was error to allow the defendants’ motion for summary judgment, we assume it true that the defendant Falcone Piano Company, Inc. (Falcone), discharged the plaintiff, a piano tuner, from her at-will employment in retaliation for her complaints to her supervisor, the defendant Brambilla, that Falcone’s warranty practices were unfair and deceptive. Concluding that the plaintiffs discharge does not violate public policy, we affirm the judgment. 1. The facts. When first hired by Falcone in August, 1988, the plaintiff’s duties as a piano service technician included various piano assembly tasks, as well as keyboard regulation, tuning, and final preparation of pianos for customers. About two years later, Falcone promoted the plaintiff to the position of marketing technician. Her responsibilities in that position involved preparing pianos for customers, maintaining the pianos in Falcone’s showroom, and performing service calls on pianos in customers’ homes, frequently in respect to warranty work. As a marketing technician, the plaintiff began to notice what she believed to be defects in the pianos that Falcone was preparing to sell and in pianos that she serviced in customers’ homes. The plaintiff found what she thought to be problems, mostly loose tuning pins, in about forty to fifty pianos. She also disapproved of the repair technique used by Falcone to tighten the tuning pins. Taking her complaints about perceived defects and poor workmanship to Brambilla, the plaintiff asked that the pianos either be repaired or that she be allowed to inform customers of defects in the pianos. Brambilla and his supervisor told the plaintiff that she should inform them and not customers as to the existence of any defects and that they would deal with any problems if and when a customer came forward with a complaint about a piano. On March 5, 1991, Brambilla asked the plaintiff to prepare a piano that was to be sold on March 7. On March 6, the plaintiff was late for work, because of personal business, and Brambilla discharged her. It is the plaintiff’s claim that the true reason for her discharge was her effort to have Fal-cone honor its warranties and repair its defective pianos. There are no material facts in dispute because Falcone, while denying the existence of any imperfections in its pianos, accepts the plaintiff’s allegations solely for the purpose of challenging the complaint on summary judgment. 2. Discussion. “[A]n at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.” DeRose v. Putnam Mgmt. Co., 398 Mass. 205, 210 (1986). The “issue whether there was a public policy violation is a question of law for the judge. . . .” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 151 (1989), citing Mello v. Stop & Shop Cos., 402 Mass. 555, 561 n.7 (1988). The plaintiff argues that because her complaints implicated Falcone’s violation of a statute, G. L. c. 93A, she engaged in conduct protected by public policy. Although the term “public policy” is amorphous, see Petermann v. International Bhd. of Teamsters, Local 396, 174 Cal. App. 2d 184, 188 (1959), the public policy exception to the at-will employment rule has been made available to employees discharged for performing important public deeds. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 149-150; Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991). While the importance of a public deed is not determined on the sole basis of whether the law absolutely requires its performance, ibid., such a mandate would bespeak a legislative determination of the importance of the act to the public. Under c. 93A, unfair acts and practices can range from the annoying to the disastrous. Considering the breadth and flexibility of the coverage provided by the statute, see Schubach v. Household Fin. Corp., 375 Mass. 133, 137 (1978), we think it significant that the Legislature chose to create new private and public remedies for consumers without imposing any obligation on employees to report unfair or deceptive acts by their employers. Whether there is public importance in employee complaints about c. 93A violations by their employers must be determined on the basis of the act claimed to be unfair, and deceptive. See Mello v. Stop & Shop Cos., 402 Mass. at 560 n.6, where the court assumed without deciding that “whistleblowing based on a reasonable, good faith (but erroneous) belief that the employer is violating the law should be protected in particular instances” (emphasis supplied). The underlying act, which the plaintiff believed to be unfair and deceptive and which she identified as having prompted her to “blow the whistle,” was that Falcone was in breach of its warranties, that it was selling “bargain basement pianos” while professing that they were of superior quality. The plaintiff does not claim that Falcone’s wrongdoing put the consumer in harm’s way or otherwise presented a threat to public health or safety. To the contrary, she concedes in her brief that Falcone, but for its representations, did nothing that the law forbids: “Falcone would be perfectly free under . . . c. 93A to manufacture and distribute poorly crafted cheap pianos as long as it did not represent or warrant that it was doing something else.” While the act performed by the plaintiff might be viewed by some as appropriate and socially desirable, it fell far short of the level of importance necessary to warrant a conclusion that her discharge violates public policy. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 151; Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 475-476 (1992). Compare Flesner v. Technical Communications Corp., 410 Mass. at 810-811. The plaintiff’s claim that she was acting in furtherance of honesty and fairness in the marketplace does not elevate her disagreement with Falcone concerning internal matters, the manner in which it honored its warranties, into protected activity. “[I]f the present facts should be held to qualify a discharged employee for relief, then a new practical definition might have to be given to employments theoretically terminable at will.” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 151, quoting from Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 667 (1981). Judgment affirmed. The plaintiffs claim against Brambilla for tortious interference with her employment is also based upon the allegation of retaliatory discharge.

Martin B. Kraft vs. Police Commissioner of Boston. Suffolk. November 1, 1993. March 10, 1994. Present: Liacos, C.J., Nolan, Lynch, O’Connor, & Greaney, JJ. Police, Assignment of duties, Authority of police chief, Firearms. Public Employment, Police. Contempt. Practice, Civil, Contempt, Appeal. In a contempt proceeding brought by a discharged police officer who had been reinstated pursuant to court order to his former position, the judge correctly concluded' that the police commissioner had acted in good faith in the exercise of his managerial discretion in requiring the officer to demonstrate his fitness to carry a service revolver and that the commissioner was not thereby in contempt of the previous reinstatement order. [239-241] A litigant who failed to assert any right to submit live testimony at a hearing on a complaint for contempt waived any such rights. [241] In a civil action, a party was not entitled to raise an issue for the first time on a second appeal, where he could have, but did not, raise the issue the previous time the matter was appealed. [242] Civil action commenced in the Superior Court Department on October 31, 1988. After review by this court, 410 Mass. 155 (1991), further proceedings were had before John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Harold• L. Lichten for the plaintiff. Susan M. Prosnitz, Special Assistant Corporation Counsel, for the defendant. O’Connor, J. The plaintiff, Martin B. Kraft, was appointed a Boston police officer in 1983 and served with an unblemished record for several years. In 1988 the defendant police commissioner terminated Kraft’s employment after discovering that, in completing application forms for the police officer position, Kraft had failed to disclose that he had been hospitalized for mental illness. At the time of his discharge, Kraft was a detective in the drug control unit. Kraft brought an action in the Superior Court challenging his discharge, and a judge determined that the commissioner’s action had been unlawful. After that determination was made, the judge conducted a hearing on damages incurred through January 16, 1990. The parties agreed that from that date forward Kraft would be placed on administrative leave with a rate of pay of a detective with the same rank and title he had held before his employment was terminated. After the completion of the hearings, the judge ordered the defendant to “reinstate [the] plaintiff ... to his former position as a detective assigned to the Drug Control Unit, without loss of benefits or seniority.” A few weeks later the judge amended the order to require the defendant to “reinstate [Kraft] to the position, by rank, title, and salary, of detective [not necessarily assigned to the drug unit] without loss of benefits or seniority.” The judge also awarded Kraft damages for “lost wages, benefits, overtime and paid detail during this period and damages for emotional distress” “up to and including January 16, 1990,” and attorney’s fees and costs. The judge stayed Kraft’s reinstatement to active duty, pending appeal. On May 15, 1991, this court affirmed the judgment. Kraft v. Police Comm’r of Boston, 410 Mass. 155 (1991) (Kraft I). The plaintiff appeals and the defendant cross appeals from an order that the judge issued on January 29, 1992, approximately eight months after this court’s decision. Kraft I. We transferred the case to this court on our own initiative. The January 29 order was in response to the plaintiff’s “Petition for Contempt: and/or Motion to Clarify and Enforce Judgment.” The facts relevant to the plaintiff’s petition, taken from the judge’s written findings, are as follows: “On June 13, 1991 [the] plaintiff returned to active duty. After a week of training at the Boston Police Academy, [the] plaintiff was assigned to the Identification Unit of the Department with the same rate of pay he was earning while on administrative leave. At this time [the] plaintiff was denied recertification for use of a department service revolver, despite [the] plaintiffs request for recertification. [The] [p]laintiff was informed that in order to be recertified for use of a handgun, he would have to take a psychological test and undergo an examination by the police department psychologist. After consulting with his attorney, the plaintiff complied with these requests. “On August 16, 1991 [the] plaintiff was provided a copy of the police department psychologist’s report. The report recommended that [the] plaintiff not be reinstated to the position of police detective and that he not be certified for use of a firearm. On August 19, 1991 counsel for [the] plaintiff was informed by counsel for the defendant that the plaintiff would not be recertified for use of a service revolver and that he would remain in his present assignment in the Identification Unit. The Identification Unit does not offer any opportunity for overtime work and, without a service revolver, [the] plaintiff has been unable to obtain other available overtime and paid detail work.” The judge did not hear testimony in connection with the plaintiffs petition. However, he was provided with numerous materials including an aEdavit of the plaintiffs counsel, an aEdavit of the plaintiff with the police department psychologist’s report and other exhibits attached, and the reports and curriculum vitae of a psychologist and a psychiatrist of the plaintiffs choosing. In his aEdavit, the plaintiff disputed several factual assertions bearing on his medical history as described in the department psychologist’s report. Also, in response to an assertion in the department psychologist’s report, he disputed that he had “ever tr[led] to ‘beat the test’ on any test given to [him] by a licensed psychologist or psychiatrist.” Repetition here of the contents of the psychologists’ and psychiatrist’s reports is unnecessary. It is enough to say that the department psychologist expressed an opinion that, in light of the plaintiffs being “unwilling or unable to be truthful when the truth may cast a negative light on him” and the plaintiffs mental health and substance abuse history, the plaintiff “is ... an unacceptable risk.” The department psychologist declined to recommend Kraft for reinstatement to the position of police detective, and he advised that Kraft “should certainly not have his firearm returned to him, nor should he be given a permit to carry a firearm at this time.” The psychologist chosen by the plaintiff, on the other hand, was highly critical of the department psychologist’s report, and concluded that Kraft “has made a remarkable recovery from the impediments of an early childhood and young adulthood” and “is capable of performing his job as Detective with the Boston Police Department,” including the carrying of a weapon. The psychiatrist’s report, too, was favorable to the plaintiff. The psychiatrist concluded that “Mr. Kraft is fit to be a police officer and it is safe for him to carry a gun.” By his “Petition for Contempt: and/or Motion to Clarify and Enforce Judgment,” the plaintiff seeks a judgment that, by refusing to recertify him to use a service revolver and by limiting him to “non-detective” services in the identification unit, thereby depriving him of an opportunity for overtime work and paid details, the defendant police commissioner violated the order of the Superior Court judge, affirmed in Kraft I, supra, that the plaintiff be reinstated to the position of detective. The plaintiff seeks an adjudication of contempt or, as an alternative if such an adjudication should be denied, a new order more clearly requiring the commissioner to re-certify him to carry a service revolver and to receive assignments customarily given to detectives. Only in that way, the plaintiff contends, will he be “made whole” following the unlawful termination of his employment as the judge’s prior order contemplated. Following oral argument on the petition and the submission of briefs by counsel, the judge awarded Kraft $38,668.73 in damages for the period from January 17, 1990, to August 19, 1991, the period the plaintiff was on administrative leave, plus interest, and ordered that the plaintiff’s petition be dismissed. Kraft appeals from the dismissal of his petition. The police commissioner cross appeals from the award of damages. In his memorandum of decision explaining his reason for dismissing the petition, the judge focused on “the well-recognized authority of the Boston Police Commissioner to determine the fitness of an officer to perform his duties including the fitness of an officer to carry a firearm. Nolan v. Police Comm’r of Boston, 383 Mass. 625, 630 (1981). See St. 1962, c. 322, § 1 (14); G. L. c. 41, § 98; Boston v. Boston Police Patrolmen’s (Ass’n), Inc., 8 Mass. App. Ct. 220, 225-227 (1979) (a ‘compendium of legislation’ regulating who shall carry a firearm and under what conditions ‘demonstrates a clear policy statement by’ the Legislature that ‘the carrying of firearms is to be controlled by specified officials’).” In addition, the judge noted that “it is also clear that a police commissioner may require an officer returning to active duty to undergo a psychiatric examination before reissuance of a firearm. Nolan, supra at 626 and 629 n.4; Boston, supra at 227.” The judge continued as follows: The “[pjlaintiff has suggested that the defendant’s requirement that he undergo a further psychiatric examination was undertaken in retaliation for his success in bringing his discrimination claim [Kraft I]. [The] [pjlaintiff has failed, however, to make a prima facie showing of retaliation. Radvilas v. Stop & Shop, Inc., 18 Mass. App. Ct. 431, 439-440 (1984). Absent a showing that the defendant has ‘abused his managerial powers,’ this Court has no authority to interfere with the defendant’s administrative prerogative to decide who shall carry a firearm. Boston, supra at 227.” “To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command.” United Factory Outlet, Inc. v. Jay’s Stores, Inc., 361 Mass. 35, 36 (1972). Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 411 (1992). In this case, the police commissioner was commanded to “reinstate [Kraft] to the position ... of detective,” that is, to restore Kraft to the position from which he had been unlawfully removed. The commissioner was not commanded, however, to put Kraft in a better, more protected, position than he had been in before he was discharged. As the cases and statutes on which the judge relied establish, until his employment was terminated Kraft’s right to carry a service revolver, and therefore to perform police functions requiring possession of such a weapon, was subject to the police commissioner’s determination that he was fit to do so, and. that discretionary decision could properly have been aided by mandated psychiatric or psychological testing. On reinstatement, Kraft’s rights were subject to the same managerial prerogatives of the police commissioner. Thus, in the absence of a showing that, in requiring the psychological testing and in refusing recertification, the commissioner was engaged in pretext or device motivated by hostility toward the plaintiff rather than by a desire to fulfil his managerial responsibilities, see Mayor of Somerville v. Caliguri, 8 Mass. App. Ct. 335, 339 (1979), there was no inconsistency between the order of reinstatement and the commissioner’s conduct, and contempt was not established. It is apparent from the judge’s memorandum that he was satisfied that the materials submitted to him did not constitute a “prima facie showing” that the police commissioner’s insistence on psychological testing and his decision to deny recertification to the plaintiff had been motivated by concerns other than public safety. Stated another way, it is apparent that the judge concluded that, without assessing credibility but rather viewing the evidence contained in the affidavits and experts’ reports in their light most favorable to the plaintiff, it could not fairly be inferred that the police commissioner’s conduct was other than a good faith exercise of managerial discretion. The issue before the judge was not whether the plaintiff was fit to carry a service revolver. That decision was for the police commissioner to make. The issue before the judge was only whether the commissioner’s decision was made in a good faith effort to fulfil his statutory managerial function. If it was, there was no contempt of the Superior Court order. If it was not, contempt was established. We think the judge was correct in determining that no prima facie showing of pretext or device had been made. If the submitted materials are accepted in their light most favorable to the plaintiff, it has not been shown that, in requiring psychological testing or in relying on the department psychologist’s report despite the challenges to it, the police commissioner was not concerned with public safety but instead was motivated by a desire to retaliate or by other unlawful considerations. The plaintiff argues on appeal that the judge committed prejudicial error by not taking live testimony. We disagree. No contention was made below, nor is it made here, that, had the judge permitted live testimony, the plaintiff could have produced evidence in addition to the materials submitted to the judge that would have warranted a finding that the commissioner’s conduct was unlawfully motivated. Indeed, after submitting the materials to which we have referred, the parties engaged in oral arguments and submitted briefs without any suggestion that live testimony would be appropriate. The plaintiff waived any right he may have had to an evidentiary hearing involving live testimony. Milano v. Hingham Sportswear Co., 366 Mass. 376, 379 (1974) (“A defendant in a contempt proceeding may, of course, waive his right to an evidentiary trial. .'. . Such a waiver may result, in effect, from a failure to assert rights in the trial court in a manner which permits effective appellate review” [citations omitted]). We are satisfied that the judge’s order, affirmed in Kraft I, was a clear and unequivocal command, thus obviating the need for a “clarification” as sought by the plaintiff in lieu of, or in addition to, an adjudication of contempt. We also are satisfied, however, that the plaintiff has failed to show a “clear and undoubted disobedience” of that command. United Factory Outlet, Inc. v. Jay’s Stores, Inc., supra. No contempt has been proven. Thus, the judge’s order dismissing the plaintiff’s petition was correct. We turn very briefly to the police commissioner’s cross appeal. The commissioner challenges the award of compensation for the period Kraft was on administrative leave, that is, from January 17, 1990, to August 19,' 1991, when, as the judge concluded, the commissioner “lawfully removed [Kraft] from his street assignment.” The commissioner- argues that damages for that period should not have included compensation for loss of overtime or detail pay since such an award requires undue speculation. The commissioner had the opportunity to raise that question in his initial appeal (Kraft I) but did not do so and therefore waived a right of review at this stage of the proceedings. Judgment affirmed. In a reply brief to the Superior Court dated December 6, 1991, Kraft complained that the police commissioner had made factual assertions in his brief that were unsupported by the submitted materials. He stated, “All of these allegations are false, or at the very least disputed by [the] plaintiff. No affidavit or other evidence has been submitted by the defendant to support these spurious allegations. If such factual assertions are relevant they must be resolved after evidentiary hearing.” It is apparent from the judge’s memorandum of decision that he did not rely on the referenced factual assertions but instead considered whether the submitted material made a prima facie showing of retaliation or any other form of contempt.

MICHAEL P. CONKLIN v. CAROLINA NARROW FABRICS COMPANY No. 9223SC1279 (Filed 1 February 1994) Labor and Employment § 75 (NCI4th)— retaliatory discharge — workers’ compensation claim — 12(b)(6) motion denied A complaint alleging retaliatory discharge for filing a workers’ compensation claim was sufficient to withstand a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6) where N.C.G.S. § 97-6.1 was operative at the time plaintiff filed his complaint; plaintiffs allegation that he had been discharged because he had instituted a workers’ compensation claim in ' good faith brought his claim within the purview of N.C.G.S. § 97-6.1; the defense in N.C.G.S. § 97-6.1(c) for a discharge due to failure to meet work standards unrelated to the workers’ compensation claim did not apply because plaintiff alleged that he was unable to continue his work because of his injury; the exception in N.C.G.S. § 97-6.1(e) for discharge on the basis of disability preventing employees from carrying out the duties for which they are employed applies only to permanent partial or total disability; and, while plaintiff alleged receipt of some disability payments, his complaint does not aver that he received compensation for either of those disabilities and therefore does not allege an unconditional affirmative defense. Am Jur 2d, Workers’ Compensation §§ 39 et seq. Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 ALR4th 1221. Appeal by plaintiff from order entered 25 September 1992 by Judge Julius A. Rousseau, Jr. in Alleghany County Superior Court. Heard in the Court of Appeals 27 October 1993. Plaintiff Michael P. Conklin brought this suit on 25 March 1992, claiming that his former employer, defendant Carolina Narrow Fabrics Company, violated N.C. Gen. Stat. § 97-6.1 (1991) by discharging him without just cause and solely because he pursued workers’ compensation benefits. On 21 April 1992, defendant filed a motion to dismiss the complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (1990). The trial court entered an order on 25 September 1992, dismissing the complaint. Plaintiff appeals from the order of dismissal. George E. Francisco for plaintiff-appellant. Petree Stockton, by Barbara E. Ruark, for defendant-appellee. McCRODDEN, Judge. In this appeal, we decide whether the trial court properly dismissed plaintiffs claim of retaliatory discharge when the complaint alleged a workers’ compensation injury, inability to work, and dismissal on the basis of that disability. More specifically, the complaint avers that, while employed by defendant on 24 April 1991, plaintiff injured his back as he helped lift two steel beams weighing 200 pounds. He thereafter received disability and medical benefits under the Workers’ Compensation Act. The complaint further alleges that on 20 August 1991, plaintiff’s treating physician allowed him to return to work, but he was unable to perform the duties of his job due to the pain from his back injury. Plaintiff then contacted his boss, informing him that “he could not do the job.” Defendant subsequently terminated plaintiff from his employment. In considering a motion to dismiss for failure to state a claim, the trial court must accept as true all allegations of fact. Amos v. Oakdale Knitting Co., 331 N.C. 348, 351, 416 S.E.2d 166, 168 (1992). Dismissal is generally inappropriate except in those instances where the face of the complaint discloses some insurmountable bar to recovery, such as an unconditional affirmative defense which defeats the claim asserted or facts which deny the right to any relief on the alleged claim. Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970). A trial court should not dismiss a complaint for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which he could prove in support of the claim. Id. The ability of an employer to chill an employee’s exercise of his or her rights under the Workers’ Compensation Act through retaliatory discharge or demotion motivated our legislature to enact N.C.G.S. § 97-6.1. See Henderson v. Traditional Log Homes, 70 N.C. App. 303, 305, 319 S.E.2d 290, 292, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984). This statute, operative at the time plaintiff filed his complaint (subsequently repealed effective 1 October 1992), provides: “No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the North Carolina Workers’ Compensation Act . . . .” It does not, however, prohibit all discharges of employees who are involved in workers’ compensation claims; it prohibits only a discharge made because the employee exercised his compensation rights. Morgan v. Musselwhite, 101 N.C. App. 390, 393, 399 S.E.2d 151, 153, disc. review denied, 329 N.C. 498, 407 S.E.2d 536 (1991). Plaintiff’s complaint stated that “the defendant-corporation discharged the plaintiff because the plaintiff instituted, in good faith, a proceeding under the North Carolina Workers’ Compensation Act and requested benefits pursuant to that Act.” This allegation is sufficient to bring his claim within the purview of N.C.G.S. § 97-6.1. Defendant, nonetheless, contends that dismissal of plaintiff’s complaint was proper due to the existence of statutory defenses set out in N.C.G.S. § 97-6.1 (c) and (e). Section 97-6.1 (c) states that an “employer shall have as an affirmative defense to this section . . . [the employee’s] failure to meet employer work standards not related to the Workers’ Compensation Claim.” Defendant may not avail itself of this provision, however, because, if the employee’s failure to meet the defendant’s work standards was due to the injury which was the subject of the workers’ compensation claim, his failure to meet these standards was related to his workers’ compensation claim. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 352, 363 S.E.2d 215, 218, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988). Since plaintiff’s complaint alleges that he was “unable to continue working at his job because of the pain resulting from his back injury,” he alleges facts sufficient to defeat application of the subsection (c) defense. N.C.G.S. § 97-6.1 (e), also argued by defendant, creates another narrow exception to the prohibition stated in subsection (a), reading: The failure of an employer to employ, either in employment or at the employee’s previous level of employment, an employee who receives compensation for permanent total disability, or a permanent partial disability interfering with his ability to adequately perform work available, shall in no manner be deemed a violation of this section. Hence, pursuant to section 97-6.1 (e), an employer may discharge an employee on the basis of the employee’s disability which prevents him from carrying out the duties for which he is employed. Johnson v. Builder’s Transport, Inc., 79 N.C. App. 721, 723, 340 S.E.2d 515, 517 (1986). This subsection, however, applies only to employees who have received compensation for “permanent total disability” or “permanent partial disability,” terms that have distinct meanings under the North Carolina Workers’ Compensation Act, N.C. Gen. Stat. §§ 97-29, -31 (1991), but which are not the only types of disability for which a claimant may receive compensation. While plaintiff’s complaint does allege that plaintiff received some disability payments, it does not aver that he received compensation for either type of disability required by subsection (e), and, it does not, therefore, allege an unconditional affirmative defense that would justify a Rule 12(b)(6) dismissal. In view of the foregoing, we are compelled to rule that plaintiff’s complaint alleging retaliatory discharge was sufficient to withstand a Rule 12(b)(6) motion to dismiss. This ruling does not foreclose summary judgment for defendant upon a showing that it has paid compensation for permanent total disability or permanent partial disability. Reversed. Judges LEWIS and WYNN concur.

Steven G. Draghetti vs. Stanley J. Chmielewski. Hampden. October 4, 1993. January 26, 1994. Present: Liacos, C.J., Wilkins, Abrams, Nolan, Lynch, O’Connor, & Greaney, JJ. Libel and Slander. Public Officer. Damages, Libel. Unlawful Interference. Emotional Distress. At a civil trial, the plaintiff's claim of defamation was properly submitted to the jury where the statements in question, imputing to the plaintiff an intention to commit a crime, were susceptible of a defamatory meaning. [811-812] Statements published in a newspaper that were susceptible of a defamatory meaning were properly submitted to the jury at the trial of a defamation claim, even though they were not direct quotations. [812-813] An employer has no conditional privilege to publish defamatory statements about an employee to a newspaper of general circulation [813-814]; nor did the employer, a chief of police, have a conditional privilege arising from his official duties to report internal investigations to the press [814]; nor was there a conditional privilege arising from any “common interest” of the police chief and citizens who read the newspaper [814]. This court declined to address an issue raised for the first time on appeal. [814-815] Damages awarded in a defamation case were not excessive. [815-816] At the trial of a claim of unlawful interference with contractual relations, the plaintiff introduced sufficient evidence of interference through either improper means or improper motive, and the defendant’s motion for a directed verdict was correctly denied. [816-817] At the trial of a claim of unlawful interference with advantageous business relations, there was no error in the nature, scope or form of the jury verdict form, where the judge’s clear and correct instructions on the parties’ burdens of proof and on the defense of justification enabled the jury to understand their duty in answering the questions that appeared on the form. [818-819] Damages for emotional harm were properly awarded in a civil action on a claim for unlawful interference with contractual relations based on defamation, where such harm was foreseeable; nor were the damages excessive. [819] Civil action commenced in the Superior Court Department on December 21, 1989. The case was tried before George C. Ready, Jr., J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David A. Robinson (Thomas S. Locke & Christopher C. Johnson with him) for the defendant. Stewart T. Graham, Jr., for the plaintiff. Abrams, J. The defendant, Stanley J. Chmielewski, appeals from a jury verdict in favor of the plaintiff, Steven G. Draghetti, on claims of defamation and interference with business and contractual relations. At issue on the defamation claim was whether Draghetti’s defamation claim should have been submitted to the jury because statements attributed to Chmielewski in a newspaper article were not direct quotations. At issue on the claims for interference with business and contractual relationships was the sufficiency of the evidence. We transferred the appeal to this court on our own motion. We affirm. In his complaint, Draghetti alleged causes of action for unlawful interference with contractual relations (count I); unlawful interference with advantageous business relations (count II); defamation (count III); and intentional infliction of emotional distress (count IV). Chmielewski moved for a directed verdict on all counts. A judge in the Superior Court allowed the motion on count IV. The jury found Chmielewski liable on the defamation claim in the amount of $50,000, and on the claims for interference with business and contractual relations in the amount of $32,760. Chmielewski moved for a new trial, or in the alternative, for a remittitur of damages. The judge denied Chmielewski’s motions. Chmielewski appeals. Facts. Steven G. Draghetti is a police officer in the town of Agawam. In 1987, Draghetti also had a second part-time job as an instructor at the Massachusetts Criminal Justice Center (academy), the Commonwealth’s regional police training academy. Stanley J. Chmielewski is chief of police in Agawam. On March 17, 1987, Draghetti injured his back while on duty as a police officer. His physician recommended four days’ rest. On March 19, 1987, Draghetti was scheduled to teach a class at the academy. He arranged for a substitute teacher. Because the teacher was inexperienced, Draghetti attended the class in order to lend assistance, should the substitute need help. Police officers are forbidden to work while on the injured roster. Draghetti submitted no payment voucher for the March 19 class. The substitute teacher was paid for teaching at the academy that day. Agawam police Captain Richard Light received a report that Draghetti was at the academy in uniform on March 19. He ordered an investigation and reported the incident to Chmielewski. On March 23, 1987, Light informed Draghetti that he had dropped the investigation because there was no evidence of a conflict of interest. On March 31, 1987, Chmielewski wrote a letter to the director of the academy which stated, in relevant part: “Dra-ghetti . . . has a problem with scheduling his time between his responsibilities at the Agawam Police Department and the Academy. It is for this reason that I feel for the best of all concerned you replace him as an instructor as soon as possible.” Shortly thereafter, the academy replaced Draghetti as an instructor. In 1989, the district attorney’s office for the Hampden district commenced an investigation into the allegations that another Agawam police officer, Lieutenant Robert Campbell, received payment both for teaching and for police duty for the same shift. At that time, the district attorney’s office also investigated the earlier allegations against Draghetti. In March, 1989, a reporter for a local newspaper talked with Chmielewski with regard to the district attorney’s investigation of Draghetti and Campbell. An article appeared in the March 23, 1989, edition of the Springfield Union-News, which the plaintiff alleged defamed him in the headline and first two paragraphs. Six months later, a different Union-News reporter interviewed Chmielewski, and a second article appeared on September 26, 1989. At trial, Draghetti testified that the two Union-News articles caused him emotional stress. Other officers ridiculed him at work. At home, he began having marital troubles. As of the trial date in January, 1991, Draghetti had not resumed teaching at the academy. Defamation, Chmielewski contends that the defamation claim should not have been submitted to the jury because the statements were not defamatory and did not accuse Draghetti of any wrongdoing. Chmielewski further argues that, since the articles contained no direct quotations from him, he should not be held responsible for their impact. The test whether a publication is defamatory is whether, in the circumstances, the writing discredits the plaintiff “in the minds of any considerable and respectable segment in the community.” Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 751 (1980), quoting Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975). Where a communication is susceptible of both a defamatory and nondefamatory meaning, a question of fact exists for the jury. Jones v. Taibbi, 400 Mass. 786, 792 (1987). The March 23 article states that Chmielewski “confirmed that the allegations against . . . Draghetti were referred to the district attorney’s office after being checked out by the department.” Chmielewski’s statements could reasonably be understood to convey the message that the police department had investigated allegations against Draghetti and found sufficient cause to refer them to the district attorney for criminal investigation. In fact, the internal investigation revealed that there was insufficient cause to warrant a criminal investigation. The September 26 article reported, “Chmielewski said there was evidence that Draghetti . . . intended to collect pay for teaching at the Academy while on duty.” Collecting pay for teaching while on duty is a crime. Chmielew-ski’s statements reasonably could be understood to mean that there was evidence that Draghetti intended to commit a crime. There was no such evidence. Imputation of a crime is defamatory per se. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975). Thus, Chmielewski’s statements were susceptible of a defamatory meaning. Chmielewski argues that the statements were not direct quotations. Chmielewski is not immune from liability-dimply because the statements were not direct quotations. “Defamation is the publication of material by one without a privilege to do so which ridicules or treats the plaintiff with contempt.” Correllas v. Viveiros, 410 Mass. 314, 319 (1991). Presence of quotation marks is not an element of the tort, and is not required. Chmielewski does not claim that his remarks were deliberately altered by the reporters. At trial, he did not recall exactly what he had said or if he had spoken to reporters at all. Two reporters testified that they interviewed Chmielewski, and that the articles accurately reported statements he made to them. The statements reported in the articles were susceptible of a defamatory meaning. We conclude that the judge properly denied Chmielewski’s motion for a directed verdict. b. Conditional privilege. Chmielewski maintains that, even if the articles defamed Draghetti, the statements were conditionally privileged. He offers three bases for the privilege: (1) the statements were reasonably necessary to serve the police department’s legitimate interest in Draghetti’s fitness to perform his job; (2) the statements were made by a public official while performing his official duties; (3) Chmielewski and the citizens who read the Union-News had a common interest in the communications. Chmielewski asserts that as police chief he had a right, even a duty, to speak to the press about Draghetti. We do not agree. In those cases in which we have held that an employer has a conditional privilege to make defamatory statements, the statements were published to a narrow group who shared an interest in the communication. In none of the cases did the employer publish the defamatory statements to a newspaper of general circulation. The judge properly rejected Chmielewski’s requested jury instruction. At oral argument, defense counsel conceded that, although the chief of police has broad powers of regulation, that does not include regulation through the newspapers. Similarly, a police chief has no official duty to report internal investigations to the press. The conditional privilege to publish defamatory material is designed to allow public officials to speak freely on matters of public importance in the exercise of their official duties. Mulgrew v. Taunton, 410 Mass. 631, 635 (1991). See W. Prosser & W. Keeton, Torts § 115, at 830 (1984). In Mulgrew, we said that a police chief had a conditional privilege to inform a committee of the city council about a police officer’s past performance because “[t]he public has an interest in having a police force comprised of competent and able individuals.” Mulgrew v. Taunton, supra. Chmielewski was not communicating with individuals charged with the responsibility of police administration, as was the defendant in Mulgrew. Statements made by Chmielewski during the original investigation of Draghetti might have been privileged if made to persons concerned with the investigation. Last, Chmielewski asserts that he and the citizens who read the Union-News share a “common interest” in the communication which entitles him to a qualified privilege. Such a distortion of the meaning of the “common interest” privilege would create a privilege for virtually all newsworthy statements. We conclude that Chmielewski’s remarks to the Union-News were not conditionally privileged. c. Draghetti’s status as a public figure. Chmielewski seeks to raise the issue, for the first time on appeal, of Draghetti’s status as a public figure. The issue of plaintiffs status as a public figure was neither pleaded nor argued to the court below. Chmielewski concedes he did not raise this issue at trial. Chmielewski’s trial strategy was to try the case on the theory of conditional privilege and justification. “The theory of law on which by assent a case is tried cannot be disregarded when the case comes before an appellate court for review of the acts of the trial judge.” Santa Maria v. Trotto, 297 Mass. 442, 447 (1937). Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 n.25 (1991). Chmielewski asserts that the judge should have raised the public figure issue sua sponte. We do not agree. It is not a judge’s function to be the trial strategist for any litigant. The judge was not required to interfere with trial counsel’s strategy. Dissatisfaction with a trial strategy that did not achieve the result desired by a litigant is not trial error by a judge. The issue of Draghetti’s status as a public figure was not raised and thus is not before us. Damages. Chmielewski challenges the jury’s $50,000 defamation award as excessive. Damages in a defamation case are limited to actual damages, which are compensatory for the wrong that has been done. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 860 (1975). Actual injury includes not only out-of-pocket expenses, but also harm inflicted by impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Id. at 861. The articles were published in a newspaper of general circulation throughout the area. In essence, they accused Draghetti, a police officer, of a crime. Draghetti testified that he was ridiculed by his colleagues, a strong indication that his reputation had been damaged. He experienced emotional distress, which resulted in marital stress and physical symptoms. There was no error. Unlawful interference. Chmielewski challenges the sufficiency of the evidence on Draghetti’s claim of unlawful interference with contractual relations. A plaintiff must prove that: (1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant’s interference, jn addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions. See G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991). See also United Truck Leasing Corp. v. Geltman, 406 Mass. 811 (1990). In reviewing the denial of Chmielewski’s motion for a directed verdict, we must view the evidence in the light most favorable to Draghetti. Uloth v. City Tank Corp., 376 Mass. 874, 876 (1978). Draghetti claims that Chmielewski knowingly interfered with his contract with the academy through both improper means and improper motive. The alleged improper means was the March 31, 1987, letter containing the false statement that Draghetti “has a problem with scheduling his time between his responsibilities at the Agawam Police Department and the Academy.” As a result of the letter, the director of the academy terminated Draghetti’s employment. Chmielewski contends that the letter could not be considered improper means because he could have ordered Dra-ghetti directly to stop teaching. Chmielewski relies on Wilmarth v. Georgetown, 28 Mass. App. Ct. 697 (1990), which held that municipal supervisors have broad authority over the off-duty private employment of police officers. Wilmarth made clear, however, that supervisors may impose only those conditions which are not unreasonable. Wilmarth v. Georgetown, supra at 702. Supervisors do not have blanket authority to interfere with the contractual relations of their employees. Even if Chmielewski could have accomplished the same result by proper means, he may not use the improper means of misrepresentation. See Restatement (Second) of Torts § 767 (a) comment c (1977). Chmielewski himself testified that he knew Draghetti had no scheduling conflict when he wrote to the academy. The letter made it appear that Draghetti was neglecting his duties at the police department in order to teach at the academy. That was false, and Chmielewski knew it to be false. There was sufficient evidence from which a jury could find that Chmielewski misrepresented Draghetti’s “scheduling problem.” With respect to Chmielewski’s improper motive, there was evidence of “strained relations” between Draghetti and Chmielewski prior to March, 1987, due to Draghetti’s union activities. Moreover, a physical confrontation between Dra-ghetti and Chmielewski nearly developed after Draghetti’s testimony on behalf of a police officer whom Chmielewski had suspended. Chmielewski treated Draghetti more severely than another officer who had actually been teaching while on duty. From this evidence, a jury could have concluded that Chmielewski’s decision to write the director of the academy was based on retaliation or ill will toward Draghetti, rather than the good of the police department. There was sufficient evidence that Chmielewski’s conduct was based on an improper motive. Justification. Chmielewski objected to the omission, on the jury verdict form, of a question on justification on the issue of interference with advantageous relations. The “nature, scope, and form of special questions submitted to a jury pursuant to Mass. R. Civ. P. 49 (a) .. . are matters within the discretion of the trial judge.” Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 802 (1987), quoting Everett v. Bucky Warren, Inc., 376 Mass. 280, 291 (1978). We view the questions submitted to the jury in light of the instructions given by the judge. Id. The judge properly instructed the jury that the plaintiff had the burden of proving that the defendant’s conduct was intentional and improper. The judge’s instruction on justification also was correct. The judge instructed the jurors on Chmielewski’s burden of proof on the affirmative defense of justification. Chmielewski does not argue that the instructions were incorrect or unclear. The instructions enabled the jury to understand their duty in answering the questions on the verdict form. Id. at 802. Charles L. Hazelton & Son v. Teel, 349 Mass. 617, 620 (1965). Emotional distress. Last, Chmielewski contends that Draghetti cannot recover for emotional harm or loss of self-esteem on his unlawful interference claim. Massachusetts cases have followed the rule of the Restatement in allowing such damages if they were foreseeable. See Restatement (Second) of Torts § 774A (1) (c) (1977) (damages may include emotional distress or actual harm to reputation if they are reasonably expected to result from the interference); Mailhiot v. Liberty Bank & Trust Co., 24 Mass. App. Ct. 525, 528 (1987); Gould v. Kramer, 253 Mass. 433, 440 (1925). Given the nature of the defamatory statements, it was foreseeable that Draghetti would be scorned by other police officers. The damages, including those for emotional distress, were not excessive in the circumstances. Judgment affirmed. The judge limited recovery on counts I and II to a single recovery. The headline stated: “County probes 2 Agawam police on double-dipping allegations.” The article read, in relevant part: “The Hampden County District Attorney’s office is investigating allegations that a ranking town police officer and a patrolman were paid for teaching at the regional police academy while they were on duty and also being paid by the town. Police chief Stanley Chmielewski yesterday confirmed that the allegations against Lt. Robert D. Campbell and Officer Stephen Draghetti were referred to the district attorney’s office after being checked out by the department.” The article published on September 26, 1989, read, in relevant part, as follows: “A second officer, Patrolman Stephen Draghetti, had also been investigated on similar charges. Chmielew

PEGGY S. BRYANT, Plaintiff v. THALHIMER BROTHERS, INC. and SCRUGGS COLVIN, Defendants No. 9121SC814 (Filed 21 December 1993) 1. Intentional Infliction of Mental Distress § 2 (NCI4th)— statute of limitations — acts more than three years before claim filed Evidence of sexual harassment and retaliation which occurred more than three years prior to the filing of plaintiff’s claim against her supervisor and employer for intentional infliction of emotional distress did not constitute evidence of complete and separate torts but was evidence of elements of the claim itself and was not barred by the three-year statute of limitations. Furthermore, plaintiff’s claim was not barred by the statute of limitations where she presented evidence of specific incidents which occurred within three years of the filing of her claim and of medical treatment for emotional distress that she received during that time as a result of her supervisor’s conduct. Am Jur 2d, Fright, Shock, and Mental Disturbance § 17. 2. Evidence and Witnesses § 1174 (NCI4th) — summary judgment hearing —statements by attorney — not judicial admissions Statements made by plaintiff’s counsel to the trial court during a summary judgment hearing to the effect that plaintiff was not seeking damages for events occurring more than three years before the complaint was filed did not constitute judicial admissions and were not binding on the plaintiff in the subsequent trial. Am Jur 2d, Evidence §§ 597, 615, 665. 3. Intentional Infliction of Mental Distress § 3 (NCI4th) — sufficiency of evidence against supervisor — employer’s ratification of supervisor’s acts Plaintiff’s evidence of conduct and intent was sufficient for submission to the jury of plaintiff’s claim against her former supervisor for intentional infliction of emotional distress where it tended to show that when plaintiff rebuffed sexual advances by defendant supervisor, he began treating plaintiff unfairly, repeatedly threatened her and her job, and created situations in which she could not effectively do the work assigned to her; plaintiff received unfavorable evaluations, was required to hire staff persons she felt were unqualified, and was called names such as “Nazi,” “Rambo,” and “Gestapo” by defendant supervisor; and defendant supervisor’s conduct caused plaintiff to seek medical attention from two doctors and to resign from her job. Furthermore, the evidence supported plaintiff’s claim that defendant employer ratified the acts of defendant supervisor so that the employer was liable for his actions where it tended to show that plaintiff submitted twenty-two complaints about her supervisor to the employer’s personnel manager and held conversations with other management personnel about defendant’s conduct; plaintiff’s discussions with management personnel which she thought were held in confidence were reported to defendant supervisor; management personnel told plaintiff that complaints of that nature were not welcome from employees; nothing was ever done about defendant supervisor’s conduct toward plaintiff; plaintiff was told that she had a bad attitude and was placed on probation; and plaintiff thereafter resigned her job. Am Jur 2d, Fright, Shock, and Mental Disturbance § 17. 4. Jury § 68 (NCI4th)— jury less than twelve —stipulation — excusal of jurors for “guilty” rather than “innocent” reasons Where the parties in an action for intentional infliction of emotional distress stipulated at the beginning of the trial that the trial could proceed with a jury of ten persons if necessary, the trial court did not abuse its discretion in the denial of defendants’ motions for a mistrial and a new trial because the verdict was rendered by a ten-person jury after the trial court excused two jurors who had read a newspaper article reporting that the court had allowed defendants’ pretrial motion to suppress evidence of the individual defendant’s sexual involvement with other women employed by defendant employer. There was no merit to defendants’ argument that their agreement to a jury of ten persons was only to allow the trial to proceed in the event of illness or emergency of jurors, an “innocent” reason, and not to allow a jury of less than twelve for the “guilty” reason that two jurors had read a newspaper article about evidence excluded by pretrial motion, since an agreement to have a verdict by less than twelve jurors does not depend on whether the jurors are excused for an “innocent” rather than a “guilty” reason. Am Jur 2d, Jury § 124 et seq. Appeal by defendants from judgment entered 25 January 1991 in Forsyth County Superior Court by Judge James A. Beaty, Jr. Heard in the Court of Appeals 15 September 1992. This action arises out of a female employee’s complaints against a male supervisor at Thalhimer Brothers in Winston-Salem. Plaintiff was employed by Thalhimers from September 1982 until her resignation in February 1987. The plaintiff filed suit on 5 December 1989, seeking damages for intentional infliction of emotional distress, wrongful termination, and negligent retention. The complaint alleged that the defendant Scruggs Colvin, who was employed by Thalhimers as the regional manager in loss prevention in 1984, began harassing her sexually in early 1985. The plaintiff further alleged that when she rebuffed the sexual advances of her supervisor, he began treating her unfairly in an attempt to force her resignation. From 1986 until her resignation, the complaint alleged that he repeatedly threatened her and her job, while creating situations in which she could not effectively do the work assigned to her. She received unfavorable evaluations, she was required to hire staff persons that she felt were unqualified, and she was called names such as “Nazi”, “Rambo”, and “Gestapo” by the defendant. Plaintiff contended that during this period she complained to supervisory personnel with the corporation about these incidents of harassment and retaliation. The defendants’ answer denied the material allegations of the complaint and raised, inter alia, the affirmative defense of the three-year statute of limitations. The defendants asserted that the statute barred recovery for damages for events which occurred prior to 5 December 1986. Defendants moved for summary judgment on that basis. The motion was denied on 15 November 1990. Just prior to trial, the defendants filed motions in limine seeking to exclude evidence of Defendant Colvin’s prior sexual relationships with other employees of Thalhimers and to exclude evidence of events that was barred by the statute of limitations. Additionally, they filed a motion to compel admissions based on representations made by plaintiff’s counsel during the earlier summary judgment hearing to the effect that the plaintiff was not seeking damages for events occurring prior to 5 December 1986. The motion to exclude the evidence of past relationships was allowed, while the motion to exclude the incidents prior to December 1986 and the motion to compel admissions were denied. Jury selection was completed on 9 January 1991. The next day, an article appeared in the Winston-Salem Journal which reported the evidence of the prior sexual relationships of Defendant Colvin and that it had been excluded from the trial. Two of the jurors had read the article and were excused by the judge. Three other jurors were aware of the article, and one juror had been told by her husband not to read the article. Defendants moved for a mistrial, having produced evidence that the plaintiff’s counsel had released the excluded evidence to the newspaper. That motion was denied. The trial proceeded with ten jurors. At the close of plaintiff’s evidence, defendants moved for a directed verdict which was denied and subsequently renewed at the close of all the evidence. At that time, the trial court allowed the motion with respect to the wrongful termination claim. The claim for intentional infliction of emotional distress went to the jury on 23 January 1991. The trial judge denied the defendants’ request for an instruction on the three-year statute of limitations. The following day, the jury returned a verdict for the plaintiff of $25,000.00 in compensatory damages and $225,000.00 in punitive damages. On 1 February 1991, the defendants filed motions for judgment notwithstanding the verdict and a new trial. These motions were denied by the trial judge. Defendants appeal from the judgment entered upon the jury verdict. Kennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III, Harvey L. Kennedy and Annie Brown Kennedy, for plaintiff-appellee. Haynsworth, Baldwin, Johnson and Greaves, P.A., by Charles P. Roberts III and Gregory P. McGuire, for defendant-appellants. ORR, Judge. We note at the onset that we are in our discretion addressing the merits of the defendants’ first argument pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. The issue has not been raised properly. As a result of incorrect pagination, the page stating the argument and referencing the assignment of error has been omitted. Ordinarily, if a party fails to include references to the assignment of error, the question is deemed abandoned and will not be considered on appeal. However, “[t]o prevent manifest injustice to a party, or to expedite a decision in the public interest . . .”, Rule 2 allows us to waive this requirement and proceed to the merits. See State v. Shelton, 53 N.C. App. 632, 635, 281 S.E.2d 684, 688 (1981), appeal dismissed and cert. denied, 305 N.C. 306, 290 S.E.2d 707 (1982). I. The defendants have raised eight assignments of error for review by this Court. Initially, we address those issues which revolve around the applicable statute of limitations and the exclusion of evidence of conduct of Defendant Colvin which occurred prior to 5 December 1986. Defendants first contend that the trial court committed reversible error in denying their motions for directed verdict and judgment notwithstanding the verdict because the plaintiff’s claim arising out of the defendants’ conduct prior to 5 December 1986 was barred by the three-year statute of limitations applying to claims of intentional infliction of emotional distress. Secondly, they argue that plaintiff’s counsel made admissions during the arguments on preliminary motions that effectively foreclosed plaintiff seeking damages for events occurring prior to 5 December 1986. Third, they argue that the trial judge committed error in refusing to instruct the jury on the applicable statute of limitations. Finally, they assert that the trial court’s denial of the defendants’ motion in limine to exclude evidence of events prior to 5 December 1986 was reversible error. We hold that the evidence of conduct occurring prior to the 5 December 1986 date was not evidence of complete and separate torts, but rather was evidence of the elements of the claim itself and therefore, was not barred by the statute of limitations. Accordingly, we overrule the defendants’ assignments of error based on the statute of limitations. A. The defendants assert that the plaintiffs claim for intentional infliction of emotional distress is barred by the three-year statute of limitations found at N.C. Gen. Stat. § 1-52(5). See also Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683 (1990), aff’d in part and reversed in part on other grounds, 331 N.C. 73, 414 S.E.2d 22 (1992). It is well settled in North Carolina that in determining whether the evidence is sufficient to withstand a motion for a directed verdict, the plaintiff’s evidence must be taken as true and all the evidence must be viewed in the light most favorable to her, giving her the benefit of every reasonable inference which may be legitimately drawn therefrom, with conflicts, contradictions, and inconsistencies being resolved in the plaintiffs favor. Hornby v. Pennsylvania National Mutual Casualty Insurance Co., 62 N.C. App. 419, 303 S.E.2d 332, cert. denied, 309 N.C. 461, 307 S.E.2d 364 (1983). Where more than a scintilla of evidence has been presented by the plaintiff which supports each element of his prima facie case, a directed verdict should be denied. Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991). A motion for a judgment notwithstanding the verdict is essentially the renewal of the directed verdict motion, and the standards are the same. Miller v. Cannon Motors, Inc., 40 N.C. App. 48, 257 S.E.2d 925 (1979). Both motions serve to test the sufficiency of the evidence presented at trial, first after the plaintiff’s case in chief and then again after the jury’s decision. In order to prove a claim for intentional infliction of emotional distress, the plaintiff is required to show that the defendant (1) engaged in extreme and outrageous conduct, (2) which was intended to cause and did cause (3) severe emotional distress. Hogan v. Forsyth Country Club, 79 N.C. App. 483, 340 S.E.2d 116, review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The tort may also lie where a “defendant’s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress.” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 330 (1981). The statute of limitations for the tort of intentional infliction of emotional distress is three years. Id. at 444, 276 S.E.2d at 330. “Civil actions can only be commenced . . . [within the three-year period], after the cause of action has accrued, . . . .” N.C. Gen. Stat. § l-15(a) (1983). The recent decision by the North Carolina Supreme Court, Waddle, 331 N.C. 73, 414 S.E.2d 22, held that where the plaintiff could not show that “any of the specific incidents” took place within the statutory period, she could not survive a motion for summary judgment. In Waddle, suit was filed on 20 April 1988. Both plaintiffs alleged intentional infliction of emotional distress in response to repeated harassment and sexual innuendoes by the defendant Sparks. The purported harassment began sometime in 1983. Both the defendants pleaded the statute of limitations as an affirmative defense in their answer and moved for summary judgment on that basis after depositions of the plaintiffs were taken. The co-plaintiff, Simpson, could not produce evidence of any specific acts of harassment within three years of the filing of the suit. “Not only could she not remember a day or month when any of defendant’s alleged comments of a sexually suggestive nature occurred, but she also failed to recall the year they occurred.” Waddle, 331 N.C. at 86, 414 S.E.2d at 29. “If plaintiff Simpson could have testified that any of the specific incidents with Sparks occurred as late as February of 1986, her evidentiary forecast . . . would have been sufficient to survive a summary judgment motion based on the statute of limitations.” Id. at 87, 414 S.E.2d at 29. The issue in Waddle, as to the plaintiff Simpson, was whether there was sufficient evidence of each element of the tort to create an issue for the jury to decide at trial. Simpson could not show any evidence of one of the elements of the tort, and therefore, summary judgment was appropriate. However, the Court in no way suggested that the prior occurrences would have been excluded at trial, nor was the issue of exclusion of evidence before the Court. Moreover, in the case at bar, there were two incidents occurring on or after 5 December 1986. Therefore, there was sufficient evidence to create an issue to be decided at trial, certainly when combined with evidence of the incidents of alleged conduct which took place in 1985. The defendants rely on the rule of Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, which established that three years is the applicable statute of limitations for claims of intentional infliction of emotional distress and that evidence of the defendants’ intentional torts against the plaintiff which took place prior to the applicable limitations period may not be considered in determining damages. However, both the law and the facts of Dickens are distinguishable from the case at bar. In Dickens, the plaintiff alleged intentional infliction of emotional distress in his complaint which was filed more than one year and less than three years after the incident complained of took place. The action arose out of a single occurrence during which the defendant not only committed an assault and battery (governed by the one-year statute of limitations of G.S. § 1-54(3)) against the plaintiff, but also made significant threats of future harm. The defendant argued that the action was only one for assault and battery, although cast as one for intentional infliction of emotional distress. They further argued that even if the plaintiff had alleged a cause of action for emotional distress, that it, too, was governed by the one-year statute. The Supreme Court disagreed, finding that the more general language of G.S. § 1-52(5) controlled the intentional infliction claim and that the plaintiff’s showing was sufficient to create an actionable claim for emotional distress. The Court concluded that “[although the assaults and batteries serve to color and give impetus to the future threat and its impact on plaintiff’s emotional condition, plaintiff may not recover damages flowing directly from the assaults and batteries themselves.” Dickens, 302 N.C. at 455, n. 11, 276 S.E.2d at 336 (emphasis added). The Court further stated that, “[although plaintiff’s recovery for injury, mental or physical, directly caused by the assaults and batteries is barred by the statute of limitations, these assaults and batteries may be considered in determining the outrageous character of the ultimate threat and the extent of plaintiff’s mental or emotional distress caused by it.” Id. Thus, while the Court did not allow damages for the separate torts, it did allow the evidence of the extreme and outrageous conduct of the defendant as an element of the plaintiffs emotional distress claim, even though an assault and battery claim was barred. In the case sub judice, the evidence presented at trial tended to indicate that incidents between the plaintiff and Defendant Colvin began in early 1985, soon after he was hired by Thalhimers in 1984. According to the plaintiffs testimony, the first conversation of a sexual nature was-on a trip to Sears in Hanes Mall in Winston-Salem to pick up supplies for the Hanes Mall Thalhimers location. The defendant asked her if she’d ever had an affair with anyone. She responded that she had not. The plaintiff also testified to the following: A. He told me he liked women with large breasts. Q. When he made that statement to you, can you tell the ladies and gentlemen of the jury what he was looking at? A. He was looking down at my breast area. On another occasion of sexually related conduct, the plaintiff testified that [w]e were moving the desk. And I was on one side and he was on the other. And I had hold of the desk and he came around on my side and he rubbed his penis across my hand. And I don’t know how, but it got caught in my ring and I jerked my hand away because was — it just flew all over me, embarrassed me. I was just humiliated. I mean it just — it just embarrassed me to death. The plaintiff also testified that the next day he called me down to the office. And he was sitting on my desk facing me. And he told me to pull my pants down because he wanted to see a bee sting. And he didn’t smile. He had that same dirty grin on his face. She told him at that time that he made her sick to her stomach. He then “jerked my door open and slammed it and left.” Except for the last incident, which plaintiff testified could have been an accident, the defendant never physically touched the plaintiff. On 24 September 1985, the plaintiff submitted some twenty-two complaints about Mr. Colvin to Tida Williams, personnel manager. She told Ms. Williams that she would be hiring an attorney to bring harassment, charges against Colvin. Ms. Williams recorded the complaints

VIRGINIA P. ABELS v. RENFRO CORPORATION No. 33PA93 (Filed 3 December 1993) 1. Rules of Civil Procedure § 50 (NCI3d)— motion for judgment n.o.v. — motion for directed verdict — same standard In essence, a motion for judgment notwithstanding the verdict is a renewal of the movant’s prerequisite motion for a directed verdict, and the same standard should be used in the determination of the sufficiency of the evidence with regard to both motions. N.C.G.S. § 1A-1, Rule 50(b)(1). Am Jur 2d, Trial §§ 862, 863, 1953. 2. Rules of Civil Procedure § 50.3 (NCI3d)— motion for directed verdict — consideration and sufficiency of evidence A motion for directed verdict tests the sufficiency of the evidence to take the case to the jury. In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. If the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, the motion for directed verdict and any subsequent motion for judgment notwithstanding the verdict should be denied. Am Jur 2d, Trial §§ 850 et seq. 3. Labor and Employment § 75 (NCI4th)— retaliatory discharge for workers’ compensation claim —sufficiency of evidence There was sufficient evidence to support an inference that plaintiff was fired because defendant employer anticipated her good-faith filing of a workers’ compensation claim so that her claim for retaliatory discharge in violation of former N.C.G.S. § 97-6.1 was properly submitted to the jury where plaintiff’s evidence tended to show that she worked for defendant from 1949 until 1962 and then again from 1972 until she was discharged in 1987; after her first injury in 1984, she was allowed to engage in light work until she could return to her regular duties; her production was good throughout her employment, even after her second injury in 1987; defendant was aware that plaintiff had been injured again in 1987 while at work and that her doctor had requested that she be given a one-month leave of absence; plaintiff was discharged shortly after her second injury; and plaintiff later filed a workers’ compensation claim based upon the injuries sustained while working for defendant. Am Jur 2d, Workers’ Compensation §§ 39 et seq. 4. Labor and Employment § 75 (NCI4th); Evidence and Witnesses § 108 (NCI4th)— retaliatory discharge claim —comparative evidence — treatment of similarly situated employees In an action under N.C.G.S. § 97-6.1 for retaliatory discharge for filing a workers’ compensation claim, evidence of the employer’s treatment of similarly situated employees is admissible to show the employer’s motive for discharging plaintiff employee. Therefore, evidence offered by defendant of the discharge for poor quality work of other employees who never filed workers’ compensation claims and evidence of other employees who filed workers’ compensation claims and returned to work without incident should have been admitted to support defendant’s defense under N.C.G.S. § 97-6.1(c) that plaintiff was fired because of the continued low quality of her work after repeated warnings. Am Jur 2d, Evidence §§ 298 et seq.; Workers’ Compensation §§ 39 et seq. 5. Labor and Employment § 75 (NCI4th); Damages § 29 (NCI4th) — retaliatory discharge —insufficient evidence of emotional distress Assuming arguendo that plaintiff may recover damages for emotional distress in an action for retaliatory discharge for filing a workers’ compensation claim and that plaintiff’s allegations of such damages were adequate, the evidence was insufficient to show any mental or emotional disturbance on the part of plaintiff resulting from defendant’s actions. Am Jur 2d, Damages § 185; Workers’ Compensation §§ 39 et seq. 6. Evidence and Witnesses § 1380 (NCI4th)— findings in workers’ compensation action — not res judicata in retaliatory discharge action Findings by the Industrial Commission that plaintiff’s injuries were not compensable were not res judicata in plaintiff’s action for retaliatory discharge for filing a workers’ compensation claim since plaintiff’s retaliatory discharge claim is not dependent upon a finding of compensability of plaintiff’s injuries and the two actions do not involve the same claim. Therefore, the trial court properly refused to admit those findings in plaintiff’s retaliatory discharge action. Am Jur 2d, Evidence §§ 738 et seq. 7. Labor and Employment § 75 (NCI4th(— retaliatory discharge — conflicting evidence — judgment n.o.v. not warranted The trial court did not err by denying defendant employer’s motion for judgment notwithstanding the verdict in plaintiff’s action for retaliatory discharge on the ground that defendant had a policy of discharging employees if they were not able to return to work after a six-month leave of absence due to injury and that plaintiff should not be allowed to recover for any compensation she lost beyond that point, or on the alternative ground that the evidence showed that plaintiff was able to work after her injury and should have been held responsible for mitigation of damages by engaging in other employment, where the evidence in support of each of these two contentions was conflicting. Am Jur 2d, Workers’ Compensation §§ 39 et seq. Justice PARKER did not participate in the consideration or decision of this case. On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 108 N.C. App. 135, 423 S.E.2d 479 (1992), affirming a judgment for plaintiff entered 25 March 1991 on a claim of retaliatory discharge in violation of N.C.G.S. § 97-6.1 by Long (James M.), J., after a jury trial at the 22 January 1991 Civil Session of Superior Court, Surry County, and an order entered 26 March 1991 denying defendant’s motion, inter alia, for judgment notwithstanding the verdict. Heard in the Supreme Court 14 September 1993. Franklin Smith for plaintiff-appellee. Constangy, Brooks & Smith, by W.R. Loftis, Jr., and Robin E. Shea, for defendant-appellant. . After initiation and trial of this action, this statute was repealed; the pertinent statute is now N.C!G.S. § 95-241. MEYER, Justice. In this case we decide, inter alia, whether, in an employee discharge case instituted pursuant to N.C.G.S. § 97-6.1, evidence of the employer’s treatment of similarly situated employees is admissible to show the employer’s motive for discharging the employee. We hold that such evidence is admissible. Plaintiff began her employment as a knitter with defendant in 1949 and continued working until she became pregnant in 1962. Plaintiff resumed her employment with defendant in 1972. At the time of her discharge on 19 August 1987, plaintiff’s duties included overseeing approximately forty knitting machines and inspecting the quality of manufactured socks. Plaintiff alleged that she was injured when she slipped and fell on some cardboard boxes on 15 June 1984. Plaintiff reported this injury to defendant but did not file a workers’ compensation claim at that time. Plaintiff also alleged a second injury, which occurred on 26 June 1987 when an employee of defendant, in the process of moving boxes, struck her from behind, injuring the back of her head, her upper back, her neck, and her ribs. Defendant discharged plaintiff on 19 August 1987. Approximately six weeks after her termination, plaintiff filed workers’ compensation claims for her alleged 15 June 1984 and 26 June 1987 injuries. Plaintiff filed suit against defendant on 25 November 1987, alleging that defendant violated N.C.G.S. § 97-6.1 by discharging her in retaliation for her anticipated filing of workers’ compensation claims. Defendant argued that plaintiff was fired due to the poor quality of her work and that prior to her discharge, she received several warnings from management to either improve the quality of her work or face termination. Plaintiff’s workers’ compensation claims were denied. The Industrial Commission found that her 1984 claim was barred by the statute of limitations and that the 1987 claim was not based on a compensable injury. This decision was affirmed by the full Commission on 13 June 1989 and by the Court of Appeals on 21 August 1990. A jury trial on the retaliatory discharge claim began on 22 January 1991. On 23 January 1991, the trial court ruled that defendant could not introduce as substantive evidence the findings of the Deputy Commissioner, the full Commission, or the Court of Appeals with regard to the injuries alleged to have been sustained by plaintiff. On 28 January 1991, the jury returned a verdict finding that plaintiff was wrongfully discharged in violation of N.C.G.S. § 97-6.1 and awarded her $82,200 in damages as follows: $60,000 for loss of earnings, $12,000 for loss of health insurance benefits, $7,200 for loss of defendant’s contributions to Social Security, $2,000 for loss of profit sharing, and $1,000 for mental and emotional distress. On 25 March 1991, the trial court entered judgment for that amount and ordered plaintiff’s reinstatement to her former position. Defendant’s motion for judgment notwithstanding the verdict and, in the alternative, for a new trial was denied by the trial court on 26 March 1991. Defendant appealed to the Court of Appeals, which unanimously affirmed the decision of the trial court. Abels v. Renfro Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992). Defendant brings forth five assignments of error. In its first assignment of error, defendant contends that the Court of Appeals erred in affirming the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Defendant suggests that this Court adopt the complicated analysis used in federal employment discrimination cases as a model for how a retaliatory discharge case based upon the filing of a workers’ compensation claim should be developed in our North Carolina courts. We decline to do so. Instead, we rely on the terms of the statute itself to determine what showing is necessary to withstand a motion for directed verdict and subsequent motion for judgment notwithstanding the verdict. We first note that Rule 50 of the North Carolina Rules of Civil Procedure provides that a motion for judgment notwithstanding the verdict “shall be granted if it appears that the motion for directed verdict could properly have been granted.” N.C.G.S. § 1A-1, Rule 50(b)(1) (1990). In essence, a motion for judgment notwithstanding the verdict is a renewal of the movant’s prerequisite motion for a directed verdict. Taylor v. Walker, 320 N.C. 729, 360 S.E.2d 796 (1987); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333 (1985). Accordingly, the same standard should be used in the determination of the sufficiency of the evidence with regard to both motions. E.g., Abernathy v. Consolidated Freightways Corp., 321 N.C. 236, 362 S.E.2d 559 (1987), reh’g denied, 321 N.C. 747, 366 S.E.2d 855 (1988); Northern Nat’l Life Ins. v. Miller Machine Co., 311 N.C. 62, 316 S.E.2d 256 (1984). A motion for directed verdict tests the sufficiency of the evidence to take the case to the jury. In Re Will of Jarvis, 334 N.C. 140, 143, 430 S.E.2d 922, 923 (1993); United Labs v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. Anderson v. Butler, 284 N.C. 723, 730-31, 202 S.E.2d 585, 590 (1974). If, after undertaking such an analysis of the evidence, the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, then the motion for directed verdict and any subsequent motion for judgment notwithstanding the verdict should be denied. In Re Will of Jarvis, 334 N.C. 140, 143, 430 S.E.2d 922, 923; Braswell v. Braswell, 330 N.C. 363, 367, 410 S.E.2d 897, 899 (1991), reh’g denied, 330 N.C. 854, 413 S.E.2d 550 (1992). Plaintiff in this case bases her claim on N.C.G.S. § 97-6.1, the pertinent portion of which reads as follows: (a) No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the North Carolina Workers’ Compensation Act, or has testified or is about to testify in any such proceeding. N.C.G.S. § 97-6.1(a) (1991) (repealed effective October 1992). As the Court of Appeals noted, in order for a plaintiff to recover in an action brought pursuant to N.C.G.S. § 97-6.1, “plaintiff must show that her discharge was caused by her good faith institution of the workers’ compensation proceedings or by her testimony or her anticipated testimony in those proceedings.” Abels v. Renfro Corp., 108 N.C. App. 135, 143, 423 S.E.2d 479, 483 (1992) (citing Hull v. Floyd S. Pike Electrical Contractor, 64 N.C. App. 379, 307 S.E.2d 404 (1983)). The Court of Appeals has also held that a plaintiff can survive a Rule 12(b)(6) motion to dismiss his claim even if he is fired before he files his workers’ compensation claim. In Wright v. Fiber Industries, Inc., 60 N.C. App. 486, 299 S.E.2d 284 (1983), the Court of Appeals noted that [i]f G.S. 97-6.1 were limited only to retaliatory acts which occurred after the employee filed his claim, an employer could easily avoid the statute by firing the injured employee before he filed. Id. at 491, 299 S.E.2d at 287. We agree. A careful reading of the transcript reveals that the evidence taken in the light most favorable to the plaintiff was as follows: Plaintiff testified that she worked for defendant, Renfro Corporation, from 1949 until 1962, and then again from 1972 until she was discharged in 1987. She testified that throughout her employment, even after her second injury, her production was good. There was evidence that after her first injury in 1984, she was allowed to engage in light work until she could return to her regular duties. There was also evidence that Renfro Corporation was aware that plaintiff had been injured again in 1987 while at work and that her doctor had requested that she be given a one-month leave of absence. Shortly after the injury, she was discharged. Plaintiff later filed a workers’ compensation claim based upon the injuries sustained while working for defendant Renfro Corporation. We conclude that, although the evidence of causal connection between the discharge and filing of the workers’ compensation claim is weak, the jury could have inferred that Renfro, having earlier escaped a workers’ compensation claim by allowing plaintiff to continue earning her salary at lighter duties, eventually concluded, upon her second injury, that this prospect was no longer to be avoided and that, in order to forestall the anticipated filing of a workers’ compensation claim, the most expedient remedy would be to discharge plaintiff. We thus hold that there was sufficient evidence to support an inference that plaintiff was fired because defendant Renfro Corporation anticipated her good-faith filing of a workers’ compensation claim, and accordingly, defendant’s motion for a judgment notwithstanding the verdict was properly denied. We next address the question of whether it was error for the trial court to prohibit defendant from introducing evidence of its treatment of similarly situated employees. We hold that it was error requiring a new trial. Defendant Renfro Corporation offered substantial evidence that plaintiff was discharged, not because of any anticipated filing of a workers’ compensation claim, but because of the continued low quality of plaintiff’s work after repeated warnings. Defendant also attempted to1 introduce evidence of the discharge for poor quality work of other employees who never filed workers’ compensation claims and evidence of other employees who filed workers’ compensation claims and returned to work without incident. This evidence was offered to rebut plaintiff’s assertion that she was fired because defendant anticipated her filing a workers’ compensation claim as a result of her 1984 and 1987 injuries. We first note that under Rule 401 of the North Carolina Rules of Evidence, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (1992). What defendant would have attempted to prove by the introduction of comparative evidence was that plaintiff was discharged “for failure to meet employer work standards not related to the Workers’ Compensation Claim,” a specifically listed defense to the cause of action established by N.C.G.S. § 97-6.1. N.C.G.S. § 97-6.1(c). It thus becomes apparent that, in this type of claim, after it has been established that the employee was in fact discharged and that she had filed or was about to file a workers’ compensation claim, the question of the motive of the employer is determinative. “The motive which prompts a person to do a particular act is seldom an essential element of a cause of action or defense, and therefore it need not ordinarily be proved.” 1 Henry Brandis, Jr., Brandis on North Carolina Evidence § 83 (3d ed. 1988). In this type of case, however, the employer’s motivation is critically important. This particular statute was designed to protect employees who have been fired because the employee has instituted, or those whom the employer anticipates will in good faith institute, a proceeding under the North Carolina Workers’ Compensation Act. N.C.G.S. § 97-6.1(a). The statute contains several specifically listed defenses to such an action: (c) Any employer shall have as an affirmative defense to this section the following: willful or habitual tardiness or absence from work or being disorderly or intoxicated while at work, or destructive of an employer’s property; or for failure to meet employer work standards not related to the Workers’ Compensation Claim; or malingering; or embezzlement or larceny of employer’s property; or for violating specific written company policy of which the employee has been previously warned and for which the action is a stated remedy of such violation. N.C.G.S. § 97-6.1(c) (emphasis added). The employer’s primary defense in these cases rests upon its ability to present evidence that the employee was fired for other reasons, particularly those reasons listed in the statute as defenses to the claim. This Court, in its first employment discrimination case brought under N.C.G.S. § 143-422.2, noted that it would “look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases.” Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983). Though not controlling, we note that federal courts have long allowed this type of comparative evidence in employment discrimination cases. E.g., McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668 (1973); Miller v. CertainTeed Corp., 971 F.2d 167 (8th Cir. 1992); Canady v. J.B. Hunt Transport, Inc., 970 F.2d 710 (10th Cir. 1992). In a case such as this, the motivation of the employer in the dismissal of the employee is the primary issue to be decided by the jury. It is unlikely that either plaintiff or defendant will be able to present any direct evidence of the employer’s state of mind in the making of the decision. Thus, critical to this determination would be evidence of how the employer has treated similarly situated employees in the past and how it was treating them at the time of the disputed discharge. This evidence, though circumstantial in nature, is perhaps the best indication, other tha

PHILLIPS v BUTTERBALL FARMS COMPANY, INC (ON SECOND REMAND) Docket No. 165049. Submitted June 4, 1993, at Lansing. Decided October 4,1993, at 9:30 a.m. Leave to appeal sought. Teresa Phillips brought an action in the Kent Circuit Court against Butterball Farms Company, Inc., alleging that she had been discharged from her employment with the defendant in retaliation for exercising her rights under the Workers’ Disability Compensation Act. The plaintiff sought not only lost income but also damages for mental and emotional distress and anguish. The trial court, Robert A. Benson, J., dismissed the claim for damages for mental and emotional distress, finding that the plaintiff’s claim sounded in contract rather than tort, and dismissed a breach of contract claim, finding that the plaintiff was an at-will employee. Thereafter, the court, George S. Buth, J., approved a jury instruction proposed by the defendant that would have limited the plaintiff to nominal damages. The plaintiff appealed by leave granted. The Court of Appeals, Maher, P.J., and Sullivan and Reilly, JJ., affirmed, basing the determination in part on the plaintiffs failure to request a transcript of one of the hearings. Unpublished opinion per curiam, decided February 21, 1991 (Docket No. 118024). The Supreme Court, in lieu of granting leave to appeal, remanded for consideration on the merits. 439 Mich 895 (1991). On remand, the Court of Appeals, Sullivan, P.J., and Reilly and Jansen, JJ., again affirmed. Unpublished opinion per curiam, decided May 14, 1992 (Docket No. 147051). The Supreme Court, in lieu of granting leave to appeal, vacated the judgment of the Court of Appeals and remanded for reconsideration in light of Dunbar v Dep’t of Mental Health, 197 Mich App 1 (1992). 442 Mich 909 (1993). On second remand, the Court of Appeals held: 1. The Dunbar holding that an action brought under the retaliatory discharge provision of the Workers’ Disability Compensation Act sounds in tort rather than contract and that damages for mental distress and anguish may be awarded is binding precedent and must be followed. Accordingly, it was error for the trial court to limit the plaintiff’s damages to nominal damages for lost wages. References Am Jur 2d, Damages §§ 251-259; Master and Servant §§ 60-63; Wrongful Discharge §§ 25-29. Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 ALR4th 1221. 2. Because the plaintiff was an at-will employee, damages for mental distress and anguish are limited to only those damages attributable to the distress resulting from the retaliatory nature of the discharge and not from the distress of her subsequent unemployment, because she could have had no reasonable expectation of continued employment. The fact that the result may be only nominal damages that might do little to deter retaliatory discharges is a problem that must be addressed by the Legislature. Reversed and remanded. 1. Master and Servant — Wrongful Discharge — Retaliatory Discharge — Damages — Mental Anguish. An action for wrongful discharge alleging retaliation for the filing of a claim for workers’ compensation benefits sounds in tort, not contract; damages for mental anguish may be awarded in such an action. 2. Master and Servant — At-Will Employment — Retaliatory Discharge — Damages — Mental Anguish. Intrinsic in the concept of an at-will employment contract is the mutual understanding between employer and employee that neither party to the agreement has an expectation of continued employment; consequently, damages for mental or emotional distress in an action alleging discharge in retaliation for the filing of a claim of workers’ compensation benefits are limited to those damages that arise solely from the retaliatory nature of the discharge. Williams, Klukowski, Drew & Fotieo (by Stephen R. Drew), for the plaintiff. Miller, Johnson, Snell & Cummiskey (by Craig H. Lubben and Nancy S. Rubino), for the defendant. ON SECOND REMAND Before: McDonald, P.J., and Reilly and Jansen, JJ. Reilly, J. This case has been remanded again, this time for reconsideration in light of Dunbar v Dep’t of Mental Health, 197 Mich App 1; 495 NW2d 152 (1992), a case decided after our last opinion was released. Our previous opinions in this matter have been vacated and, therefore, we are bound by Administrative Order No. 1990-6, as extended, to follow Dunbar. Accordingly, we reverse. i In our original opinion on remand, we considered whether the trial court properly dismissed plaintiffs claim for damages for mental anguish, anxiety, humiliation, and pain and suffering arising out of her alleged retaliatory discharge for exercising her rights under the workers’ compensation statute. Unpublished opinion per curiam of the Court of Appeals, decided May 14, 1992 (Docket No. 147501). We noted that a conflict among panels of this Court with regard to the recovery of exemplary damages in retaliatory discharge actions had been resolved in Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 728; 465 NW2d 395 (1991). In Mourad, this Court, following Watassek v Dep’t of Mental Health, 143 Mich App 556; 372 NW2d 617 (1985), and Lopus v L & L Shop-Rite, Inc, 171 Mich App 486; 430 NW2d 757 (1988), determined that an action for retaliatory discharge is an action asserting a specific type of wrongful discharge and is, therefore, a contract action. Accordingly, a plaintiff in a retaliatory discharge case is not entitled to recover exemplary damages. Mourad, supra at 728. In Dunbar, a panel of this Court held that an action for retaliatory discharge for filing a workers’ compensation claim sounds in tort, not in contract. The majority acknowledged that a retaliatory discharge is a type of wrongful discharge. Dunbar, supra, at 6. However, the majority distinguished Mourad (retaliatory demotion for failing to follow company’s unethical practice), Watassek (retaliatory discharge for interference with treatment of patients), and Lopus (retaliatory discharge in anticipation of plaintiffs filing a workers’ compensation claim) and held that the allegedly wrongful conduct was a breach of the statutory duty not to discharge an employee in retaliation for filing a workers’ compensation claim and, therefore, sounds in tort. Id. at 10; MCL 418.301(11); MSA 17.237(301)(11). This case is factually on point with Dunbar, because plaintiff in this case also alleges that she was discharged from her employment in retaliation for exercising her rights under the Workers’ Disability Compensation Act, in violation of § 301(11) of the statute. Therefore, we believe that we are bound to follow Dunbar. However, we do so reluctantly because we do not believe that the Dunbar majority sufficiently justified its departure from the rule of law stated in Mourad. The cause of action for retaliatory discharge in contravention of the public policy indicated in the Workers’ Disability Compensation Act was judicially established in Sventko v Kroger, 69 Mich App 644, 647; 245 NW2d 151 (1976), as an exception to the doctrine of at-will employment. However, Sventko failed to define the nature of the action, i.e., contract or tort, and failed to provide a remedy. Subsequently, in 1981, the Legislature codified that public policy and enacted a prohibition against the discharge of an employee for filing a claim for workers’ compensation benefits. 1981 PA 200, §301(11), MCL 418.301(11); MSA 17.237(301)(11). However, the legislation failed to codify the judicially created cause of action, define its nature, or provide any penalty or remedy for the violation of the public policy. Later decisions of this Court, which dealt with the nature of retaliatory discharge actions in other factual contexts, were in conflict concerning whether the cause of action was one sounding in tort or contract. We believe that conflict was appropriately resolved in Mourad. Nevertheless, the majority in Dunbar has concluded that the cause of action in that case sounded in tort because the employer allegedly violated a duty imposed by § 301(11) of the Workers’ Disability Compensation Act. However, we emphasize, as did the dissent in Dunbar, that § 301(11) does not create a cause of action or set forth a remedy. Compare the Civil Rights Act, MCL 37.2701; MSA 3.548(701) and MCL 37.2801; MSA 3.548(801) and the Handicappers’ Civil Rights Act, MCL 37.1602; MSA 3.550(602) and MCL 37.1606; MSA 3.550(606). Rather, the statute is merely a codification of the judicially recognized public policy against retaliatory discharge in the specific situation where an employee files a workers’ compensation claim. Dunbar, supra at 14-15, n 4; see also Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982); Sventko, supra. Furthermore, the Dunbar majority has presented no rationale for distinguishing between retaliatory discharge for filing a workers’ compensation claim and other types of retaliatory discharge that are equally offensive to public policy. The mere fact that the Workers’ Disability Compensation Act has codified the public policy against retaliatory discharge for filing a workers’ compensation claim is not a sufficient basis for ignoring the underlying basis for the cause of action, i.e., that some grounds for discharge are so contrary to public policy as to give rise to an action for wrongful discharge, even though the employer-employee relationship is "at will.” Sventko, supra. The action is based on the breach of an implied provision that the employer will not discharge an employee for a reason that is contrary to public policy. See Brockmeyer v Dunn & Bradstreet, 131 Wis 2d 561; 335 NW2d 834 (1983); Sterling Drugs, Inc v Oxford, 294 Ark 239; 743 SW2d 380 (1988). The cause of action for wrongful discharge exists even where there is no explicit legislative statement prohibiting such a discharge. See Mourad, supra, Suchodolski, supra, and Sventko, supra. See also Trombetta v Detroit, T & I R Co, 81 Mich App 489, 496; 265 NW2d 385 (1978) (employee discharged for refusing to violate a law). The majority in Dunbar acknowledged that a retaliatory discharge is a type of wrongful discharge, but did not explain how the explicit statutory codification of a public policy against retaliatory discharge in workers’ compensation cases transforms such activity into a tort action while other types of retaliatory discharge apparently give rise to contract actions. We recognize that the majority’s conclusion in Dunbar that a claim of discharge in retaliation for filing a workers’ compensation claim sounds in tort is consistent with recent rulings of several other state courts. 32 ALR4th 1221, § 4, pp 1231-1238. However, we remain convinced that plaintiff’s claim for retaliatory discharge is one sounding in contract. The rights and obligations of employers and employees under the Workers’ Disability Compensation Act arise out of and are incidental to the contract of employment and, therefore, are contractual in nature. Boshaw v J J Newberry Co, 259 Mich 333, 341; 243 NW 46 (1932), overruled on other grounds Halfacre v Paragon Bridge & Steel Co, 368 Mich 366, 376; 118 NW2d 455 (1962); Erickson v Goodell Oil Co, Inc, 384 Mich 207, 211; 180 NW2d 798 (1970); Lee v J H Lee & Son, 72 Mich App 257, 265; 249 NW2d 380 (1976). Furthermore, the liability imposed upon employers for their employees’ work-related injuries is not based on tort theory. Rather, employees who receive an injury "arising out of and in the course of employment” are entitled to benefits without regard to whether the employer was negligent or at fault. See MCL 418.301(1); MSA 17.237(301X1). In spite of that, because we are bound to follow Dunbar, we are compelled to conclude that plaintiff’s cause of action sounds in tort, and, therefore, plaintiff may claim all the damages allowed for that cause of action, including damages for mental or emotional distress. In view of our holding, the trial court’s ruling accepting defendant’s proposed instruction limiting plaintiff’s damages solely to nominal damages for lost wages, was error. Intrinsic in the concept of an at-will employment contract is the mutual understanding between employer and employee that neither party to the agreement has an expectation of continued employment. Consequently, an "at-will” employee who seeks to enforce an action for retaliatory discharge, whether the action sounds in tort or contract, will be limited in the damages that can be obtained. Having ruled that the plaintiffs action is to be treated as one sounding in tort, the measure of damages for her mental or emotional distress necessarily will be confined to proof of distress arising solely from the retaliatory nature of the discharge, because an at-will employee has no reasonable expectation of being continued in employment. Similarly, whether the action be in tort or contract, damages for lost wages will be nominal because an at-will employee cannot show a reasonable expectation of continued employment. Sepanske v Bendix Corp, 147 Mich App 819; 384 NW2d 54 (1985). We realize that at-will employees may only be able to recover minimal damages for their mental and emotional distress, and nominal damages for lost wages in an action sounding in tort. Nonetheless, while we do not condone acts of retaliatory discharge, we should not disregard basic concepts of the common law in order to deter retaliatory discharges. We should not judicially convert "at-will” employment contracts into "just cause” contracts for the purpose of deterring such conduct. Any other remedy for the at-will employee, or penalty against the employer, must be provided by the Legislature. Accordingly, we reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction. Phillips v Butterball Farms Company, Inc, 442 Mich 909 (1993). A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under the act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act. In this case, the plaintiff was a ninety-day probationary employee, whose employment was terminable at will. In Dunbar, the plaintiff was a registered nurse employed by the Michigan Department of Mental Health at the Northville Regional Psychiatric Hospital for approximately two years.