Retaliation Cases

DUDEWICZ v NORRIS SCHMID, INC Docket No. 93029. Argued March 31, 1993 (Calendar No. 3 April). Decided July 27, 1993. Michael L. Dudewicz brought an action in the Saginaw Circuit Court against Norris Schmid, Inc., alleging that the termination of his employment because he refused to. drop criminal assault and battery charges against a fellow employee that arose out of a dispute over the handling of Norris Schmid’s business violated the Whistleblowers’ Protection Act as well as public policy. The court, Robert S. Gilbert, J., granted summary disposition for the defendant with respect to the public policy claim and entered a directed verdict for the defendant with respect to the Whistleblowers’ Protection Act claim. The Court of Appeals, Cavanagh, P.J., and D. E. Holbrook, Jr., and Cynar, JJ., reversed, finding that retaliatory discharge violates the public policy of encouraging victims of crime to file criminal complaints, and that the Whistleblowers’ Protection Act applies to violations by fellow employees, as well as employers (Docket No. 126212). The defendant appeals. In an opinion by Justice Brickley, joined by Chief Justice Cavanagh, and Justices Levin, Riley, Griffin, and Mallett, the Supreme Court held: The Whistleblowers’ Protection Act applies to an employee who reports a violation of a law arising out of a dispute over the handling of company business occurring during business hours, regardless of whether the criminal actor is the employer or a fellow employee. 1. The Whistleblowers’ Protection Act applies to the discharge of employees who report a violation or a suspected violation of the law either by their employers or fellow employees. Reporting a fellow employee for violating the Criminal Code because of a dispute over the handling of company business is not so different from traditional notions of whistleblowing closely connected with employment, such as Health Code and safety violations or illegal labor practices. Nothing in the wpa or its legislative analysis limits protection only to those employees who report violations of law by their employer; rather, the explicit language of the analysis and the broad scope of the statute strongly suggest that the wpa was intended to protect employees who report violations by an employer or fellow employees. Remedial statutes, such as the wpa, are to be liberally construed in favor of the persons intended to be benefited. The trial court erred in directing a verdict on this issue. References Am Jur 2d, Wrongful Discharge § 57. See ALR Index under Whistleblowers. 2. Remedies provided by statute for violation of a right having no common-law counterpart are exclusive, not cumulative. At common law there was no right to be free from being fired for reporting an employer’s violation of the law. Thus, the remedies provided by the wpa are exclusive, not cumulative. The specific prohibition against retaliatory discharge is determinative of the viability of a public policy claim. A public policy claim is sustainable only where there is no applicable statutory prohibition against discharge in retaliation for the conduct at issue. Because the wpa provides relief for reporting illegal activity by a fellow employee, the public policy claim is preempted. Affirmed in part and reversed in part. Justice Boyle, dissenting, stated that the employer’s demand that the employee withdraw the criminal complaint against his co-worker or be fired, rather, was an alleged violation of a clearly established public policy of this state. The plaintiff did not engage in activity protected under the Whistleblowers’ Protection Act when he filed a criminal complaint against a coworker. The wpa was enacted to protect employees who report corrupt or illegal business practices or violations of law by an employer or co-worker that result from the conduct of the employer’s business. 192 Mich App 247; 480 NW2d 612 (1991) affirmed in part and reversed in part. Labor Relations — Whistleblowers’ Protection Act — Violations by Fellow Employees. The Whistleblowers’ Protection Act applies to an employee who reports a violation of a law arising out of a dispute over the handling of company business occurring during business hours, regardless of whether the criminal actor is the employer or a fellow employee (MSA 15.361 et seq.; MSA 17.428[1] et seq.). Jensen, Smith & Gilbert, P.C. (by Peter C. Jensen), for the plaintiff. Smith, Bovill, Fisher, Meyer & Borchard, P.C. (by Robert A. Jarema), for the defendant. Amicus Curiae: Mark Brewer (Paul Denenfeld, of counsel), for ACLU Fund of Michigan. Brickley, J. The issue before us is whether the Whistleblowers’ Protection Act (wpa) prohibits an employer from discharging an employee who files a criminal complaint against a fellow employee for an assault that arose out of a dispute over the handling of the employer’s business, during business hours, and at the site of employment. We are also asked to decide whether the public policy exception to the employment at will doctrine applies to the facts of this case. In a case of first impression for this Court, we find that the wpa applies and prohibits discharge under these facts. We also find that the wpa preempts any public policy claim arising out of the same facts. While summary disposition for the defendant on the public policy claim was proper, the trial court improperly granted a directed verdict for the defendant on the wpa claim. Therefore, the judgment for the directed verdict is reversed, and the case is remanded for trial of the wpa claim. I Plaintiff, Michael L. Dudewicz, worked as a parts manager for an automobile dealership, Norris Schmid, Inc., defendant. On the morning of November 4, 1987, Dudewicz attempted to obtain warranty service for a customer who, as a wholesale buyer, did. a lot of business with Norris Schmid. To get better service for the customer, Dudewicz enlisted the aid of one of the dealership’s owners, Samuel Norris. Together, the two men sought the assistance of the service manager, Dick Boehm, who agreed to do the work for the customer under warranty. After Norris. left the service area, Dudewicz alleged that the service manager reached over the service counter and grabbed Dudewicz by the collar and tried to pull him across the. counter. Dudewicz alleged that Boehm told him never to bring the owner into the service area again. During the course of this fracas, Dudewicz alleged that the service manager tore buttons off his shirt, broke a gold chain from around his neck, and left fingerprints on his neck. That same day, Dudewicz told Norris Schmid’s new car sales manager about the incident and also filed criminal charges with the Midland County Prosecutor, alleging assault and battery. Dudewicz testified that upon entering work the morning of December 1, 1987, he was called to Norris’ office and told to drop the criminal charges against the service manager or be fired. He was also told to leave the dealership. Dudewicz left the premises because he believed he had been fired; he also believed he could regain his job if he agreed to drop the criminal charges. Dudewicz then contacted an attorney who counseled him to return to work. When Dudewicz did return to the dealership on December 3, 1987, Norris told him the dealership considered him to have quit and that he had to leave the premises. Dudewicz argued that he had not quit, but had, in fact, been fired. Further, Dudewicz refused to leave unless provided with a letter of termination. Norris refused to comply with this request and called the police to escort Dudewicz from the premises. Subsequently, Dudewicz filed a two-count complaint, alleging that his termination violated Michigan’s Whistleblowers’ Protection Act as well as public policy. Following discovery, Norris Schmid sought and received summary disposition under MCR 2.116(C)(8), on the ground that the public policy argument failed to state a claim upon which relief could be granted. Then, after hearing proofs on the remaining count, Norris Schmid sought and received a directed verdict, under MCR 2.515, on the ground that Dudewicz failed to show that it had violated the Whistleblowers’ Protection Act. The trial court denied a motion to reconsider this verdict. Dudewicz appealed as of right in the Court of Appeals, which reversed. 192 Mich App 247; 480 NW2d 612 (1991). The Court first addressed the public policy claim and found that Dudewicz had alleged an implied cause of action for retaliatory discharge because " 'the reason for a discharge was the employee’s exercise of a right conferred by a well-established legislative enactment.’ ” Id. at 251, quoting Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 696; 316 NW2d 710 (1982). On the basis of federal precedent, Pratt v Brown Machine Co, 855 F2d 1225 (CA 6, 1988), the Court was satisfied that the ability to file a criminal complaint as the victim of a crime was a right conferred by a "well-established legislative enactment.” Therefore, Norris Schmid’s discharge violated a public policy that encouraged victims of crime to file complaints. Otherwise, the Court believed, "[t]o allow the discharge of an at-will employee because of a choice to file a criminal complaint against a fellow employee would force a choice between justice and livelihood. It is the public policy of this state to protect its citizens from such an onerous choice.” 192 Mich App 253. The Court also noted that, as Norris Schmid argued, Dudewicz might have had to choose the wpa as his exclusive remedy over his public policy claim. Because, however, the trial court "expressly stated that it had not granted the motion for summary disposition on the basis that the [wpa] provides the exclusive remedy,” the Court ruled that "consideration of the applicability of the public policy exception to the facts of this case [was] still proper . . . .” 192 Mich App 253. Next the Court considered Dudewicz’ claim that his discharge was in violation of the wpa because he was fired for filing a criminal complaint, alleging that he had been assaulted and battered by a fellow employee. In ruling that the wpa prohibited such conduct, the Court expressly rejected an earlier Court of Appeals holding, Dickson v Oakland Univ, 171 Mich App 68; 429 NW2d 640 (1988), that required, as an element of the applicability of the wpa, that the person accused of breaking the law be the employer. The Court found that the language of the act itself and the accompanying legislative analysis contained no such limitation and, in fact, indicated that violations by fellow employees, as well as by employers, were to be considered within the scope of the wpa. The Court therefore concluded that the trial judge erred in granting both a directed verdict and summary disposition for Norris Schmid. II In deciding whether the trial court erred in directing a verdict for the defendant, we must first decide whether the wpa was intended to protect employees who are fired for reporting violations of the law by fellow employees. Norris Schmid contends that the wpa protects only those employees who are fired for reporting their employers’ violations of law. There is, however, no such limitation in either the express language of the wpa or the analysis of the House Bill that spawned the wpa. Section 2 of the wpa provides in full: 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. [MCL 15.362; MSA 17.428(2).[] A plain reading of this provision reveals that protection is not limited to employee reports of violations by employers. On its face, the provision only seems to apply to the discharge of an employee who "reports ... a violation or a suspected violation of a law . . . .” Id. Moreover, the legislative analysis of the wpa supports the conclusion that its provisions protect employees who report violations of law by either their employers or fellow employees. The analysis recognizes the problem the wpa was designed to alleviate as the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses. House Legislative Analysis, HB 5088, 5089 (February 5, 1981). The analysis goes on to say that "[t]he people best placed to observe and report violations are the employees of government and business, but employees are naturally reluctant to inform on an employer or a colleague.” Id. (emphasis added). It appears that, at the time the bill was considered, the Legislature intended the protection to apply to employee reports of any and all violations of law by either employers or fellow employees. In any event, we find that the activity at issue here, reporting a fellow employee’s violation of the state’s Criminal Code because of a dispute over the handling of company business, is not so different from traditional notions of whistleblowing. Typically, the activity involves the violation of laws more closely connected with the employment setting, such as Health Code and safety violations, Tyrna v Adamo, Inc, 159 Mich App 592; 407 NW2d 47 (1987), or illegal labor practices, Hopkins v Midland, 158 Mich App 361; 404 NW2d 744 (1987), but there is no limitation in the statute to these types of activities. Moreover, the illegal activity is typically engaged in by an "employee,” even if that employee also happens to own the company. See Tyrna, supra. On the basis of these observations, we are satisfied that the events and individuals involved in this case are consistent with those activities and individuals contemplated by the WPA. In deciding that the wpa did not apply to the facts of this case, the trial judge relied upon a relatively recent Court of Appeals decision, Dickson v Oakland Univ, supra. The trial judge believed himself to be bound by the Dickson Court’s ruling that the wpa applied only to employees fired for reporting violations of law by their employers. We agree with the Court of Appeals, that there is no such limitation on the applicability of the wpa. The plaintiff in Dickson worked as a police officer for the defendant’s department of public safety. 171 Mich App 69. Before his dismissal, the plaintiff alleged that he was repeatedly criticized for enforcing the law against university students. Id. After he was allegedly assaulted by one student, the plaintiff requested that the defendant seek an arrest warrant against that student. Id. The defendant refused, and the plaintiff was subsequently discharged. Id. at 69-70. The trial court and Court of Appeals rejected the plaintiff’s wpa claim, however, because the plaintiff only reported the wrongdoing of students to the defendant. Id. at 71. Nothing in the plaintiff’s complaint alleged that the defendant-employer violated any law or that the plaintiff was fired for reporting the defendant’s violation of law to a higher authority. Id. In support for limiting the wpa to reports of violations of law by employers, the Dickson Court quoted, inter alia, the same portion of the legislative analysis as quoted above. See 171 Mich App 70-71. However, as stated above, nothing in either the wpa itself or its legislative analysis limits protection only to those employees who report violations of law by their employer. On the contrary, the explicit language of the analysis and the broad scope of the statute strongly suggest that the wpa was intended to protect employees who report violations by either employers or fellow employees. Indeed, such an interpretation is also supported by the rule of statutory construction that remedial statutes, such as the wpa, are to be liberally construed in favor of the persons intended to be benefited. See Bierbusse v Farmers Ins Group, 84 Mich App 34, 37; 269 NW2d 297 (1978); Holmes v Haughton Elevator Co, 75 Mich App 198, 200; 255 NW2d 6 (1977), aff’d 404 Mich 36; 272 NW2d 550 (1978). Simply stated, the Dickson Court erred in limiting the applicability of the wpa to employee reports of violations of law by employers. Admittedly, a strictly literal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances. See Tyrna, 159 Mich App 599 (the Court ruled that the wpa "provides a remedy to an employee terminated for reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States”) (emphasis added). However, this is not the case and these are not the facts to test the outer limits of this rather broad statute. In concluding that it was intended to bar a discharge of an employee for reporting a crime by a fellow employee under the circumstances of this case does not begin to test those limits. In saying that, we note that not only was this a crime alleged to have been committed by a fellow employee, but the alleged crime arose out of a work incident at the work site. It is, therefore, very much within the employer-employee setting. Accordingly, we find that the trial court erred in granting a directed verdict on this issue. III The Court of Appeals reversed the trial court’s grant of summary disposition on the public policy claim because the trial court did not dismiss the claim on the basis of the fact that the wpa provided an exclusive remedy. While acknowledging the fact that the wpa was probably exclusive, the Court found that, because the trial court did not discuss this issue, it could not do so either. The Court erred in its rationale, however. Because the parties preserved the issue of public policy preemption and because the trial court failed to deal with the issue, the Court of Appeals was not precluded from dealing with the question whether the public policy claim was preempted by the wpa claim. The Court of Appeals, should have considered this issue and should have found that any public policy claim was preempted by the application of the wpa. As a general rule, the remedies provided by statute for violation of a right having no common-law counterpart are exclusive, not cumulative. Pompey v General Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971). At common law, there was no right to be free from being fired for reporting an employer’s violation of the law. Covell v Spengler, 141 Mich App 76, 83; 366 NW2d 76 (1985). The remedies provided by the wpa, therefore, are exclusive and not cumulative. Shuttleworth v Riverside Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991). In Suchodolski v Michigan Consolidated Gas Co, supra, this Court recognized that there was an exception to the general rule that either party to an employment at will contract could terminate the agreement at any time for any or no reason. The exception is based on the principle that "some grounds for discharging an employee are so contrary to public policy as to be actionable.” Id. at 695. We also found that these restrictions on an employer’s ability to terminate an employment at will agreement are most often found in explicit legislation. Id. The wpa is such legislation. Id. The existence of the specific prohibition against retaliatory discharge in the wpa is determinative of the viability of a public policy claim. In those cases in which Michigan courts have sustained a public policy claim, the statutes involved did not specifically proscribe retaliatory discharge. Whe

KAUFMAN & PAYTON, PC v NIKKILA Docket No. 133012. Submitted December 3, 1992, at Detroit. Decided June 21, 1993, at 9:25 a.m. The law firm of Kaufman & Payton, P.C., brought an action in the Oakland Circuit Court against Catherine Nikkila, its former billing supervisor, alleging conversion and misappropriation of its files and records. Nikkila filed a counterclaim, alleging retaliatory constructive discharge in violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., intentional infliction of emotional distress, and defamation. The court, Alice L. Gilbert, J., summarily dismissed the claim brought under the Whistleblowers’ Protection Act, ruling that there existed no genuine issue with respect to the fact that Nikkila or anyone acting on her behalf had not threatened to report the law firm to the Attorney Grievance Commission for billing irregularities before she tendered the resignation she claimed was a constructive discharge in retaliation for her threatened action. Nikkila appealed. The Court of Appeals held: The trial court correctly concluded that an affidavit by Nikki-la’s attorney, in which the attorney contradicted his earlier deposition testimony that there had been no threat of a report of the law firm’s billing practices to the Attorney Grievance Commission before Nikkila’s resignation, was insufficient to create a genuine issue of fact. A party or its attorney may not contrive factual issues merely by asserting the contrary in an affidavit after giving damaging testimony in a deposition. Affirmed. Connor, J., dissenting, stated that discharge in retaliation for a feared imminent report to authorities, as opposed to actual knowledge of an imminent report, is sufficient for application of the Whistleblowers’ Protection Act, that the affidavit of Nikkila’s attorney did not contradict his deposition testimony, and that, if the affidavit and deposition can be considered contradictory, the benefit of reasonable doubt concerning the factual question raised by the contradiction should be given to Nikkila and the question decided at trial. Hyman & Lippitt (by Norman L. Lippitt and H. Joel Newman), for the plaintiff. Temple & Cutler (by Donald M. Cutler), for the defendant. Before: Corrigan, P.J., and Weaver and Con-nor, JJ. Corrigan, P.J. Catherine Nikkila appeals as of right the trial court’s summary dismissal of her counterclaim against the law firm of Kaufman & Payton, P.C., under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. We affirm. The circuit court properly granted partial summary disposition pursuant to MCR 2.116(0(10). Nikkila did not raise a genuine issue of material fact concerning her Whistleblowers’ Protection Act claim. The circuit court properly found, considering all the evidence before it, that Nikkila could not prove that either she or her attorney had threatened to report the law firm to the Attorney Grievance Commission before her resignation from the firm. Catherine Nikkila, the billing supervisor at Kaufman & Payton for IV2 years, was scheduled to testify at a deposition in the law firm’s suit for collection of legal fees against a client in February 1989. As she prepared for her testimony with the law firm’s counsel, she became worried about the legality of certain billing procedures that she had executed. She decided to consult outside counsel, Ronald Prebenda. Prebenda advised Nikkila only about the potential criminal aspects of her conduct. Prebenda thereafter sent two letters to Kaufman & Payton on Nikkila’s behalf. The first, dated March 15, 1989, questioned the law firm’s billing practices and sought certain assurances from the firm about Nikkila’s future duties. The second, dated March 29, 1989, complained of the lack of response to the March 15 letter and prescribed unilateral changes in Nikkila’s billing duties. Alan Kaufman, managing partner of the firm, never formally responded to either letter. The evidence on this record is disputed concerning whether Nikkila was reassigned to different duties; in any event, she continued to receive the same salary. On April 19, 1989, Nikkila tendered her letter of resignation to the law firm. Four days later, on April 23, 1989, she sent a request for investigation to the Attorney Grievance Commission (agc) and followed up on May 4, 1989, with a formal complaint. Prebenda assisted her in drafting the formal complaint to the agc. On May 22, 1989, Kaufman & Payton sued Nikkila for conversion and misappropriation of the firm’s files and records. Nikkila answered and also filed a countercomplaint against the law firm, alleging constructive termination, retaliatory discharge, discharge in violation of the Whistleblowers’ Protection Act, intentional infliction of mental distress, and defamation. She also filed a separate complaint against Alan Kaufman, alleging essentially the same claims. The Kaufman proceedings were consolidated with this case in the circuit court. However, Nikkila did not file a claim of appeal in the case against Kaufman. This case, accordingly, relates solely to the circuit court’s grant of partial summary disposition of Nikkila’s countercomplaint against Kaufman & Payton concerning the Whistleblowers’ Protection Act claim. The theory alleged in Nikkila’s countercomplaint was that Kaufman & Payton constructively discharged her because she had reported or was about to report an alleged violation of law, rule, or regulation. The central issue is whether Nikkila or anyone acting on her behalf, threatened, mentioned, or otherwise indicated that Nikkila might report Kaufman & Pay-ton or any of its attorneys to any agency before her April 19 resignation. In deciding that Nikkila had not made out a genuine issue of material fact with regard to this question, the circuit court analyzed the evidence as follows: First, Nikkila testified that she could not remember speaking to her employer about threatened action. (Nikkila deposition, pp 109-111). Second, Nikkila’s husband and attorney Prebenda both testified that they did not know about the grievance request until after Nikkila filed it after she left her employment. (Jeffrey Nikkila deposition, pp 41-42; Prebenda deposition, p 92). Next, the deposition testimony of Defendant Alan Kaufman referred to threats made by Prebenda, not Nikkila. (Kaufman deposition, p 93). Finally, the court notes that the affidavit of Prebenda in support of Nikkila’s claim, which states that Prebenda advised Irwin Alterman of Nikkila’s doings prior to her resignation, wholly contradicts Prebenda’s deposition testimony that he did not notify or threaten anyone on Nikkila’s behalf prior to her resignation. The circuit court did not err in disregarding Prebenda’s affidavit. It is undisputed in the record below that an affidavit dated December 1989 was not filed in this cause until after defendant moved for summary disposition. Prebenda’s later-filed affidavit contradicted his deposition testimony in relevant details. During his deposition, Prebenda testified: Q. Did you assist Ms. Nikkila in filing a grievance against Alan Kaufman? A. Yes, I did. Q. When did you determine that you would file such a grievance? A. She told me — first of all, she filed a grievance without my knowledge. She had filed some preliminary documents of some kind that to this day I have never seen. Q. Did you discuss doing so with her prior to that time? A. I have no present — prior to what time? Q. Prior to filing this document to the grievance board to which you were unaware. A. My understanding was that she had filed something with the grievance commission that I had no knowledge of and there was no discussion of to the best of my knowledge and then at that time she came to me and asked me if I would assist her in filing a complaint, and I read in the rules, and the rules that you must assist a person that request that you file a grievance and I complied with the rule. Q. Do you recall approximately when you assisted her filing this more formal complaint against Mr. Kaufman? A. No, I don’t recall. I assisted her as to form only. Earlier in that deposition, Mr. Prebenda had stated: Q. Do you recall ever telling anyone that you on behalf of Ms. Nikkila intended to file a State Bar grievance against Mr. Kaufman or his law firm? A. No. I have no recollection of telling him that. No. Q. Tell Mr. Kaufman that or anyone else? A. I never talked to Alan Kaufman after I wrote that letter, he chose never to face me. [Emphasis supplied.] The lower court also considered Alan Kaufman’s affidavit, in which he amplified his deposition testimony. In it, he referred to threats by Prebenda after Nikkila resigned that he would file a State Bar Grievance on his own behalf and not as a representative of Catherine Nikkila. Further, Kaufman averred that at no time before Nikkila left her position did Prebenda, Nikkila, or anyone else state that Nikkila was contemplating filing a grievance with the State Bar regarding Kaufman or his firm. Similarly, the law firm administrator’s affidavit averred that she had no conversation regarding this subject with Prebenda before Nikki-la’s departure from the firm. These assertions are all fully consistent with Prebenda’s deposition testimony on these points and further demonstrate the absence of a genuine issue of material fact. Although Prebenda’s deposition testimony in some respects displayed a failure of his memory, on the precise points at issue, his deposition testimony was intelligent, clear, and unequivocal. By contrast, Prebenda’s affidavit averred that he had informed Irwin Alterman, then a partner in the firm, before Nikkila’s resignation that Nikkila had been advised to go to the Attorney Grievance Commission and intended to do so. The circuit court appropriately disregarded Prebenda’s contradictory, later-filed affidavit in deciding whether a genuine issue of material fact existed. In Downer v Detroit Receiving Hosp, 191 Mich App 232; 477 NW2d 146 (1991), this Court observed that the plaintiffs affidavit contradicted testimony she had previously given in a deposition. Downer recognized the principle that parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition, and held that a trial court that disregards such testimony does not err. The principle, as discussed in Griffith v Brant, 177 Mich App 583; 442 NW2d 652 (1989), and Peterfish v Frantz, 168 Mich App 43; 424 NW2d 25 (1988), is not limited to parties who make contradictory assertions. The principle that contradictory affidavits should be disregarded stands irrespective of the identity of the maker of the conflicting statements. Even if the Griffith-Peterñsh-Downer principle is somehow limited, a party is bound by representative admissions of counsel. Neither a party nor that party’s legal representative may contrive factual issues by relying on an affidavit when unfavorable deposition testimony shows that the assertion in the affidavit is unfounded. Even if Prebenda’s contradictory assertions would somehow create a genuine issue of material fact as to Kaufman & Payton, they are totally insufficient to make a case against Alan Kaufman personally. At best, Prebenda told Irwin Alterman, a partner in Kaufman & Payton, of Ms. Nikkila’s threat before her resignation. Prebenda concededly never spoke directly to Kaufman. We see no proof in this record that Alterman ever relayed the substance of his discussions with Prebenda to Kaufman. Further, Kaufman acknowledges that he spoke to Prebenda only after Nikkila had already resigned. Finally, we disagree with the dissent’s advocacy of a reduction in the burden of proof in claims under the Whistleblowers’ Protection Act. An employer’s subjective fear of retaliation will not substitute for some form of notice of threatened action. Instead, an employer is entitled to objective notice of a report or a threat to report by the whistleblower. Neither Kaufman’s nor the firm’s knowledge that Nikkila had retained counsel, together with other unspecified evidence, yields an inference that the firm believed before she resigned that she would report her complaints to responsible agencies. Plaintiff did not present adequate evidence that a record might be developed upon which reasonable minds could differ with regard to the whistleblower claim. Affirmed. Weaver, J., concurred. The trial court’s summary disposition left Nikkila with two remaining counterclaims. However, after a hearing, the trial court made an express determination that there was no reason for delay, and made the partial summary judgment a final order pursuant to MCR 2.604(A). We question the circuit court’s certification of this order because the Whistleblowers’ Protection Act claim was but one of several theories upon which Catherine Nikkila sought recovery below. Where only one of several theories has been resolved, certification of a final judgment pursuant to MCR 2.604(A) is improper. Derbeck v Ward, 178 Mich App 38, 41; 443 NW2d 812 (1989), quoting 3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.604, p 417, observed: [I]f a claimant presents merely alternative legal theories, such that he will be permitted to recover on at most one of them, his possible recoveries are mutually exclusive, and he has presented only a single claim for relief. A preliminary disposition of one of his alternative theories cannot be made the subject of a final judgment and resulting appeal under MCR 2.604(A). The plaintiffs only liability claim against the defendant was for personal injuries. Although several theories of negligence were alleged, partial summary disposition of one, but not all, of the theories was not sufficient to qualify this order as a final judgment under MCR 2.604(A). To warrant certification, the undecided claims should be sufficiently independent of the decided claims to justify splitting the case. The theory disposed of here was not sufficiently independent of the remaining theories. The retaliatory discharge, constructive termination, and wrongful discharge claims seem to be interdependent. Moreover, the parties have apparently stipulated to stay further proceedings until the outcome of this appeal. The only reason justifying this stay is that the remaining theories depend on our ruling. More fundamentally, we question the continuing viability of any trial court certifications under MCR 2.604(A). The court below, applying MCR 2.604(A), found "no just reason for delay.” Such pro forma invocation of magic words in reality condemns litigants in this state to years of delay. We urge circuit judges to deny certifications under MCR 2.604(A) as long as the enormous docket backlog of this Court continues to persist. Such certifications are luxuries that the bench and bar of this state can no longer afford. In the early days of this Court, when the backlog was nonexistent, the judges of this Court could usually render a decision well before the trial court could finally render judgment. MCR 2.604(A) certifications served an important and helpful purpose in providing quick and definitive appellate resolutions. Now the situation is reversed. The circuit courts are relatively current, but this Court is buried in cases. The parties here have waited since mid-1990 to learn of this Court’s disposition of but one small aspect in ongoing litigation. The Supreme Court should either act to abolish jurisdiction under MCR 2.604(A), or authorize this Court to decline certification whenever this Court’s backlog precludes speedy disposition of piecemeal claims — a situation that we believe will persist well into the future. Connor, J. (dissenting). I dissent. I believe the trial court erred in granting Kaufman & Payton, P.C., and Alan J. Kaufman summary disposition. I would reverse and remand for further proceedings. A motion for summary disposition brought pursuant to MCR 2.116(0(10) tests whether there is factual support for a claim. Giving the benefit of reasonable doubt to the opponent, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Amorello v Monsanto Corp, 186 Mich App 324, 329-330; 463 NW2d 487 (1990). In this case, the motion tested whether Nikkila could establish retaliation. Kaufman & Payton and Alan J. Kaufman argued below that what they did could not have been retaliation because they did not know Nikkila was going to file a grievance with the Attorney Grievance Commission. I disagree with the majority’s conclusion that showing actual knowledge of an imminent report is required to establish retaliation. The Whistle-blowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., makes it unlawful for an employer to discriminate against an employee because the employee is about to report a suspected violation of law. MCL 15.362; MSA 17.428(2). Employers do not always wait to discriminate until they have proof that an employee is going to blow the whistle. They may discriminate against an employee they fear may blow the whistle either to nip the problem in the bud, or to give the employee a taste of things to come should the employee actually blow the whistle. If an employer actually discriminates against an employee, it should not matter whether that discrimination is motivated by knowledge or fear. Employers should not be allowed to peremptorily retaliate against employees with impunity. See McLemore v Detroit Receiving Hosp, 196 Mich App 391, 396; 493 NW2d 441 (1992). Both Kaufman & Payton and Alan J. Kaufman, Nikkila’s supervisor, knew that Nikkila thought Alan J. Kaufman’s billing practices were illegal, and both knew that she was very unhappy about being asked to participate in those practices. Giving Nikkila the benefit of reasonable doubt, I believe a reasonable factfinder could decide that Kaufman & Payton and Alan J. Kaufman suspected Nikkila was going to report those billing practices and made Nikkila’s work environment intolerable as a result. Moreover, even if a showing of actual knowledge is required, I would find that Nikkila made such a showing through the affidavit of her former attorney, Ronald Prebenda. Prebenda swore that, before Nikkila left Kaufman & Payton’s employ, he had told a member of Kaufman & Payton that Nikkila intended to file a complaint with the Attorney Grievance Commission. This conclusively demonstrates that Kaufman & Payton knew that she was going to report the billing practices. Considering that Alan J. Kaufman was an officer of Kaufman & Payton, the object of the complaint, and Nikkila’s supervisor, I think a reasonable factfinder could infer that this information would have been passed on to Alan J. Kaufman. I also disagree with the majority that Prebenda’s affidavit is contradicted by his deposition testimony. Prebenda was deposed by Kaufman & Pay-ton and Alan J. Kaufman over his own strong objections based on attorney-client privilege. He answered many questions by saying he had "no present recollection,” and gave responses so unsatisfactory that the trial court later ordered him to be redeposed. Regardless, a careful reading of his testimony shows no direct contradiction with his affidavit. Finally, even if Prebenda’s December 18, 1989, affidavit and his March 15, 1990, deposition testimony were contradictory, I disagree with the majority that the result should be to reject the evidence most favorable to Nikkila and accept the evidence most favorable to Kaufman & Payton and Alan J. Kaufman. When reviewing the supporting materials to determine whether a question of material fact exists, courts are supposed to give the benefit of reasonable doubt to the party opposing a motion for summary disposition, not to the party making the motion. See Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). There is a longstanding rule, followed in Griffith v Brant, 177 Mich App

JOYCE M. DANIEL, Plaintiff v. CAROLINA SUNROCK CORPORATION, a North Carolina Corporation, and BRYAN PFOHL, Individually, Defendants No. 929SC479 (Filed 1 June 1993) I. Labor and Employment § 77 (NCI4th)— wrongful discharge — public policy exception — sufficient forecast of evidence Plaintiffs forecast of evidence was sufficient to support her claim for wrongful discharge under the public policy exception to the e.mployment-at-will doctrine where plaintiff presented evidence tending to show that her working conditions deteriorated after she was subpoenaed and expressed a willingness to testify honestly about her employer in a former co-employee’s suit against the employer, although she never testified because the lawsuit for which she was subpoenaed was settled out of court; the employer’s president told plaintiff not to say any more than she had to when testifying and to “remember that you work for me and represent me and my company”; after plaintiff told the employer’s attorney that she intended to testify that her former co-employee was a good worker, the employer took away many of plaintiff’s employment responsibilities and moved her to a smaller office with no phone, no typewriter, and no heat; the employer’s president told another employee that plaintiff knew too much and stated an intention to get rid of all of the former co-employee’s “people”; other employees took notes on plaintiff’s activities, counted and screened her personal phone calls, had a key made and inspected the contents of plaintiff’s desk while she attended her father’s funeral, and made harassing phone calls to the homes of plaintiff, her mother and her sister-in-law; and plaintiff was discharged thirteen months after the former co-employee’s case was settled. A reasonable finder of fact could infer from plaintiff’s forecast of evidence that the employer’s president engineered plaintiff’s discharge because he believed she was prepared to testify truthfully as a witness in the former co-employee’s lawsuit. Am Jur 2d, Master and Servant §§ 49-59. 2. Trespass § 2 (NCI3d)— intentional infliction of emotional distress —insufficient forecast of evidence Alleged actions by defendant employer and its president did not rise to the level of extreme and outrageous conduct so as to support plaintiffs claim for the intentional infliction of emotional distress where plaintiffs forecast of evidence tended to show that, after plaintiff was subpoenaed by a former co-worker to testify against defendant employer, defendant’s employees took away many of plaintiffs employment responsibilities, took notes on plaintiffs activities, counted and screened plaintiffs personal phone calls, had a key made and inspected the contents of plaintiffs desk while she attended her father’s funeral, moved plaintiff into a smaller office with no phone and no heat, and made harassing phone calls to the homes of plaintiff, her mother, and her sister-in-law. Am Jur 2d, Trial § 770. Judge LEWIS dissenting. Appeal by plaintiff from judgment entered 30 January 1992 in Granville County Superior Court by Judge Robert H. Hobgood. Heard in the Court of Appeals 15 April 1993. On 17 July 1990, plaintiff filed a complaint in which she asserted claims against defendants for wrongful discharge, breach of employment contract, and tortious interference with contract. On 21 February 1991, plaintiff filed an amendment to the complaint, adding a claim for the intentional infliction of emotional distress. On 1 October 1990, defendants filed an answer to plaintiff’s original complaint, and on 12 April 1991, defendants filed an answer to plaintiff’s amended complaint. Following extensive discovery proceedings, on 16 January 1992, defendants filed a motion for summary judgment as to each of plaintiff’s claims. On 11 February 1992, plaintiff took a voluntary dismissal of her breach of employment contract claim. On that same date, Judge Hobgood entered summary judgment for the defendants on plaintiff’s claims of wrongful discharge, intentional infliction of emotional distress, and tortious interference with contract. Plaintiff filed notice of appeal on 24 February 1992. Pulley, Watson & King, P.A., by Tracy Kenyon Lischer, for plaintiff-appellant. Haynsworth, Baldwin, Johnson & Greaves, P.A., by Gregory P. McGuire, for defendant-appellees. WELLS, Judge. Plaintiff contends that the trial court erred in granting defendants’ motion for summary judgment on plaintiff’s claims of wrongful discharge and intentional infliction of emotional distress. Plaintiff did not appeal the summary judgment order as to her tortious interference with . contract claim. “Summary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.’ N.C.G.S. 1A-1, Rule 56(c) (1983).” Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992). All inferences of fact from the proofs offered must be drawn against the movant and in favor of the party opposing the motion for summary judgment. Id. Applying these guidelines, we shall consider plaintiff’s claims for wrongful discharge and intentional infliction of emotional distress. Wrongful Discharge While employed at Sunrock, plaintiff was an employee-at-will. Generally, in North Carolina, an employee-at-will has no claim for relief for wrongful discharge. Tompkins v. Allen, 107 N.C. App. 620, 421 S.E.2d 176 (1992). Generally, either party to an employment-at-will contract can terminate the contract for no reason at all, or for an arbitrary or irrational reason. Id. However, a valid claim for wrongful discharge may exist in the employment-at-will context if the contract is terminated for an unlawful reason or a purpose that contravenes public policy. Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989). In Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985), this Court recognized a public policy exception to the employment-at-will doctrine in a case where a nurse alleged that her employer pressured her not to testify honestly in a medical malpractice lawsuit and subsequently discharged her because she refused to commit perjury, but rather testified fully and honestly. This Court wrote: Thus, while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. ... We hold, therefore, that no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case, as plaintiff alleges happened here. In Williams v. Hillhaven Corp., 91 N.C. App. 35, 370 S.E.2d 423 (1988), following Sides, this Court expanded the same public policy exception to a case where the plaintiff did not allege that her employer pressured her to alter her testimony, but rather alleged that she was wrongfully discharged after honestly testifying in an unemployment compensation hearing. The defendants in Williams attempted to differentiate their case from Sides because they never harassed or threatened plaintiff before she testified, but rather allegedly harassed and fired her after she testified against them. The Williams Court disagreed and found that, because she was discharged for telling the truth, “plaintiff falls into the same narrow exception to the general rule . . . that Sides created.” In the case at bar, plaintiff asks this Court to extend the public policy exception to the employment-at-will doctrine recognized in Sides and Williams to a situation where plaintiff alleges that she was wrongfully discharged after being subpoenaed and expressing a willingness to honestly testify about her employer, but never actually testified because the lawsuit for which she was subpoenaed was settled out of court. At the summary judgment hearing, the trial court considered (in addition to the pleadings) the depositions of plaintiff, H. Braxton Davis, Jr., David A. Eckstine, Jessie Self, Donald Tilley, Ellen Wilkins, and defendant Pfohl, and various exhibits relating to the plaintiff’s employment history. From these materials, the forecast of evidence, viewed in the light most favorable to plaintiff, may be summarized as follows: Carolina Sunrock Corporation [Sunrock] operates a quarry in Butner, North Carolina, producing crushed stone and building materials. Defendant Bryan Pfohl is the owner and President of Carolina Sunrock Corporation. Plaintiff became an employee at Sunrock in September of 1985. Between September of 1985 and January of 1988, plaintiff was an excellent employee and had received favorable reviews from her supervisors, one of whom stated that she was “very very effective” and “did a very good job.” On 28 January 1988, plaintiff was subpoenaed to produce company personnel records and to testify on behalf of Bob Gentry, a former plant superintendent who was suing Sunrock on a breach of contract claim. After learning that she had been subpoenaed, plaintiff immediately informed defendant Pfohl, the company’s president and owner, that she had been served with the subpoena. Upon learning of the subpoena, Mr. Pfohl told plaintiff not to say anymore than she had to when testifying and to “remember that you work for me and represent me and my company.” Plaintiff took Mr. Pfohl’s comments as a threat, pressuring her to alter her testimony, if need be, to advance the company’s best interests. Mr. Pfohl told plaintiff to meet with the company’s attorney. At the meeting with Sunrock’s attorney, plaintiff informed the attorney that she believed that Bob Gentry was a good worker and intended to testify to that effect. After informing Mr. Pfohl of the subpoena and her intention to testify honestly, plaintiff’s working conditions deteriorated significantly. Because she was subpoenaed, Mr. Pfohl became distrustful of plaintiff and believed that she had been leaking company information to Bob Gentry. Mr. Tilley, a heavy equipment operator, testified in deposition that Mr. Pfohl stated that plaintiff knew too much. Mr. Pfohl also expressed an intention to get rid of all of “Gentry’s people.” Mr. Pfohl treated plaintiff in a noticeably different manner after she received the subpoena. He was markedly colder to plaintiff after she received the subpoena. Within one week of plaintiff being served the Gentry subpoena, Ellen Wilkins was hired by Sunrock. Wilkins was assigned many of plaintiff’s duties, for reasons unrelated to plaintiff’s .performance. In February of 1988, Ms. Wilkins began taking notes on plaintiff and reported directly to Mr. Pfohl. Plaintiff was the only employee Ms. Wilkins took notes on and the notes she took were shredded after plaintiff was fired. Mr. Pfohl repeatedly asked Mr. Davis, a supervisor, whether he had “anything on” the plaintiff. In March of 1988, while plaintiff was away from work, attending her father’s funeral, Ms. Wilkins had a key made to plaintiff’s desk on Mr. Pfohl’s instructions. In plaintiff’s absence, Ms. Wilkins went through plaintiffs desk. In May of 1988, Bob Gentry’s lawsuit against Sunrock was settled out of court; hence, plaintiff never testified. On 6 June 1988, Jessie Self was hired as a receptionist. Ms. Wilkins told Ms. Self that there were problems with the plaintiff and instructed Ms. Self to keep a record of the number and source of plaintiff’s personal phone calls. Plaintiff was the only employee whose phone calls were counted. Ms. Self was also instructed to eavesdrop on plaintiff’s conversations with fellow employees and visitors and to keep notes on any violations of company policy by plaintiff. Ms. Self attended secret meetings which Ms. Wilkins called to discuss plaintiff. In December of 1988, David Eckstine was hired by Sunrock. Mr. Eckstine began taking notes on plaintiff in February, and continued taking such notes until he fired her, at which time he shredded his notes. Plaintiff was the only employee which Mr. Eckstine took notes on. After plaintiff was subpoenaed and many of her employment responsibilities were stripped, she was moved to a smaller office with no phone, no typewriter, and no heat. On 20 June 1989, Mr. Eckstine met with plaintiff and suggested that plaintiff resign. Plaintiff was told that if she did not resign, she would be terminated. On 20 June 1989, plaintiff was fired. From this forecast of evidence, a reasonable finder of fact might draw the inference that defendant Pfohl engineered plaintiff’s discharge because he believed she was prepared to testify truthfully as a witness in the Gentry lawsuit. If plaintiff was discharged for such reasons, notwithstanding the fact that she never actually testified, then plaintiff’s discharge violated public policy and would fall under the public policy exception to the employment-at-will doctrine. Therefore, the trial court erred in granting defendants’ motion for summary judgment on the claim of wrongful discharge. Intentional Infliction of Emotional Distress Next, plaintiff contends that the trial court erred in granting defendants’ motion for summary judgment on plaintiff’s claim of intentional infliction of emotional distress. “The essential elements of an action for intentional infliction of emotional distress are ‘1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.’ ” Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992). Extreme and outrageous conduct has been described as conduct which exceeds “all bounds usually tolerated by decent society.” Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). In the case at bar, plaintiff alleged that harassment by Sunrock’s executives and employees constituted extreme and outrageous behavior which was intended to result, and in fact resulted, in her severe emotional distress. Plaintiff’s forecast in support of the “extreme and outrageous behavior” element of her intentional infliction of emotional distress claim included her deposition testimony in which she stated that, after plaintiff was subpoenaed to testify against Sunrock, Sunrock’s employees took away many of plaintiff’s employment responsibilities, took notes on plaintiff’s activities, counted and screened plaintiff’s personal phone calls, had a key made and inspected the contents of plaintiff’s desk while she attended her father’s funeral, moved plaintiff to a smaller office with no phone and no heat, and made harassing phone calls to the home of plaintiff and to the homes of plaintiff’s sister-in-law and mother. In Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, cert. denied, 317 N.C. 334, 346 S.E.2d 141 (1986), this Court considered three intentional infliction of emotional distress claims brought against defendant by three former employees. At trial, each plaintiff’s emotional distress claim was dismissed. by summary judgment. On appeal, each plaintiff argued that her forecast of evidence contained sufficient grounds to overcome a summary judgment motion and reach the jury on its merits. While the Court considering plaintiff Hogan’s claim, this Court wrote: Hogan’s evidence tends to show that Pfeiffer [defendant’s agent] screamed and shouted at her, called her names, interfered with her supervision of waitresses under her charge, and on one occasion threw menus at her. She also testified that she shouted back at Pfeiffer. This conduct lasted during the period from 22 June 1983 until her termination on 24 July 1983. The general manager, Clifford Smith, received complaints from both Hogan and Pfeiffer concerning the temper of the other. His attempt to discuss the situation with both employees was unsuccessful because Pfeiffer walked out. While we do not condone Pfeiffer’s intemperate conduct, neither do we believe that his alleged acts “exceed all bounds usually tolerated by a decent society,” Stanback, supra, so as to satisfy the first element of the tort, requiring a showing of “extreme and outrageous conduct.” Dickens, supra. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats.The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate or unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. . . . Restatement (Second) of Torts, §46 comment (d) (1965). We hold Pfeiffer’s conduct, as shown by Hogan’s forecast of evidence, was not such as to be reasonably regarded as “extreme and outrageous” so as to permit Hogan to recover for intentional infliction of mental distress. In the case at bar, plaintiff’s forecast of evidence, taken in the light most favorable to plaintiff, fails to demonstrate that the defendants’ alleged actions “exceed all bounds-- usually tolerated by a decent society.” Guided by the Hogan standards, we hold that defendants’ alleged acts do not rise to the level of extreme and outrageous conduct, so as to support plaintiff’s claim for intentional infliction of emotional distress. Accordingly, we affirm- the trial court’s granting of defendants’ motion for summary judgment as to plaintiff’s claim of intentional infliction of emotional distress. For the reasons stated above, the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s wrongful discharge claim is reversed. The trial court’s granting of defendants’ summary judgment on plaintiff’s claim for intentional infliction of emotional distress is affirmed. Affirmed in part, reversed in part, and remanded. Judge GREENE concurs. Judge LEWIS dissents in a separate opinion. Judge LEWIS dissenting. I must respectfully dissent from the majority’s opinion regarding the issue of wrongful discharge and I would vote to affirm the trial court’s entry of summary judgment. I believe that the majority’s opinion takes the public policy exception to the employment at will doctrine substantially beyond the rationale proclaimed in Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985) and Williams v. Hillhaven Corp., 91 N.C. App. 35, 370 S.E.2d 423 (1988). In Sides, this Court first recognized the public policy exception when a nurse was discharged when she refused to commit perjury to protect her employer from liability in a civil suit. In reaching its decision, this Court said that encouraging perjury or incomplete testimony was an affront to our legal system. Sides, 74 N.C. App. at 338, 328 S.E.2d at 823-24. In Williams, we extended the public policy exception to a situation where an individual was harassed and eventually discharged after she testified truthfully. The Williams Court characterized the public policy exception as a “narrow exception” and again reaffirmed the rationale in Sides by stating: “[t]he law must encourage and not discourage truthful testimony.” Williams, 91 N.C. App. at 40, 370 S.E.2d at 426, quoting Petermann v. International Brotherhood of Teamsters, 344 P.2d 25, 27 (Cal. App. 1959). This Court now seeks to extend the public policy exception to a situation w

Alan Pinshaw vs. Metropolitan District Commission. No. 90-P-1471. Suffolk. February 14, 1992. December 22, 1992. Present: Fine, Jacobs, & Laurence, JJ. Massachusetts Tort Claims Act. Indemnity. Public Employment, Indemnification of employee. Metropolitan District Commission, Police. Police, Commonwealth’s liability. Civil Rights, Damages. Agency, Scope of authority or employment, Ratification. Evidence, Relevancy and materiality. A plaintiff who was awarded damages and fees in a Federal civil rights action against a police officer of the Metropolitan District Commission (MDC) and who subsequently, as assignee of the officer’s indemnification rights, sought unsucessfully to recover this award in a Superior Court action against the MDC, was entitled to a new trial, where the jury in the Superior Court found, in response to a special verdict question, that the officer had not acted within the scope of his duties, and where the judge had not adequately instructed the jury on the issue of ratification, which was presented by evidence at trial indicating that the officer’s superiors may have ratified his action. [734-737] On retrial of a civil action, admission in evidence of redacted versions of two paragraphs of the plaintiff’s complaint in a prior Federal action would be left to the broad discretion of the judge, along with the question whether the probative value of such evidence was outweighed by its potential prejudicial effect. [737-738] Civil action commenced in the Superior Court Department on February 15, 1984. Following review by the Supreme Judicial Court, 402 Mass. 687 (1988), the case was tried before J. Harold Flan-nery, J., and a motion for a new trial was heard by him. Howard Friedman for the plaintiff. Leila R. Kern for the defendant. Jacobs, J. Following the decision in Pinshaw v. Metropolitan Dist. Commn., 402 Mass. 687 (1988), in which a divided court reversed a summary judgment for the defendant Metropolitan District Commission (MDC), this case was tried in the Superior Court. At the trial, the plaintiff, Alan Pinshaw, acting under an assignment of rights to indemnification from Frederick Monk, an MDC police officer, sought recovery of damages and fees previously awarded Pinshaw in a civil rights suit he had filed against Monk in the United States District Court. In the Federal suit, Pinshaw had alleged that Monk had initiated a false and retaliatory criminal action against him after he complained to Monk’s superiors of his “incivility” toward him. Judgment that Pinshaw take nothing was entered in the Superior Court after the jury found, in response to a special verdict question, that Monk had not acted within the scope of his official duties. In this appeal, Pinshaw claims the judge erred when he. denied his motion for a new trial. We agree. Pinshaw’s principal argument is that the jury was inadequately instructed on ratification, an issue discussed in the prior decision, Pinshaw v. Metropolitan Dist. Commn., supra at 695-696, and raised by the evidence at trial. The only instruction which could be construed as touching on ratification was: “Moreover, if you find that Monk’s superiors knew that he had filed a false criminal complaint, and that they did nothing about it, you may consider that evidence on the question of whether they believed him to be within the scope of his official duties.” Upon completion of the judge’s instructions, Pinshaw objected to the judge’s “failure to give a full ratification or endorsement instruction as [requested].” It is a well-established principle that an employer is not only liable for torts committed by its servants acting within the scope of their employment but, “by ratification may become responsible for such acts when committed in excess of their authority.” White v. Apsley Rubber Co., 194 Mass. 97, 99 (1907), and cases cited. See Restatement (Second) of Agency § 218 comment a (1958). The court in Pinshaw indicated that ratification might be an issue in the case to be tried in the Superior Court. In its decision, it stated that “[t]he fact that Monk’s superiors knew of the retaliatory action is some evidence they may have endorsed or ratified Monk’s action . . .” (emphasis supplied). Pinshaw v. Metropolitan Dist. Commn., supra at 695. The court thereby intimated that the issue of ratification was related to whether Monk’s action might be encompassed within the statutory requirement that the alleged civil rights violation be found to be within the scope of his official duties in order to entitle Monk to indemnification. Note 1, supra. Thus, the law of the case was clearly established for trial. See Boyd v. Taylor, 207 Mass. 335, 336 (1911); Hetherington & Sons v. William Firth Co., 212 Mass. 257, 260 (1912). The evidence at the trial raised an issue of ratification principally through the testimony of Monk’s superior, Captain Elliott, who told of initially receiving Pinshaw’s complaint about Monk, learning of Monk’s application for a criminal complaint against Pinshaw in the Roxbury District Court, suspending any further investigation, and advising Pinshaw that the incident would be settled in that forum. Elliott also testified that the investigation of Pinshaw’s original complaint was not reopened, and that Monk was never disciplined, that he believed the matter had been resolved in the Roxbury District Court and that he was unaware of any further difficulty until the Federal action was filed. Accordingly, an appropriate instruction on ratification was required. The instruction in issue neither adequately informed the jury that ratification by Monk’s superiors could transform an unauthorized act into statutorily indemnifiable conduct nor fully explored the issue of ratification. It also erroneously focused on the subjective belief of Monk’s superiors as to his actions. The jury should have been instructed to address the issue of ratification if "they found that Monk’s motivation for bringing the criminal complaint precluded a determination that he. acted within the scope of his official duties. In that event, the issue is whether ratification by Monk’s superiors could be inferred from the circumstances. As indicated by the Supreme Judicial Court, knowledge of Monk’s retaliatory action may be evidence of ratification. Pinshaw v. Metropolitan Dist. Commn., supra at 695. See Perkins v. Rich, 11 Mass. App. Ct. 317, 322-323 (1981) (knowledge or imputed knowledge of what an investigation might disclose is necessary to establish ratification by a superior of unauthorized acts of agent). Compare Smith v. Boston, 413 Mass. 607, 617 (1992). Among other factors which may be considered evidence of ratification on the part of a superior are a failure to investigate and discipline an employee, see Pusateri v. E. F. Hutton & Co., 180 Cal. App. 3d 247, 253 (1986) (cited in Pinshaw v. Metropolitan Dist. Commn., supra at 696), allowing an improper prosecution to proceed, see Conklin v. Consolidated Ry., 196 Mass. 302, 308 (1907), and failure to disavow an employee’s unauthorized action and to mitigate the harm caused once the facts are ascertained. See Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330-331 (1923). Even when the evidence supporting such an inference is slender, “[t]he question of ratification should [be] submitted to the jury under appropriate instructions.” Id. at 331. An issue argued by Pinshaw which may arise on retrial involves the admission in evidence of redacted versions of two paragraphs of his complaint in the Federal action. To the extent that these pleadings contained more than formal allegations, they may be admissible as evidentiary admissions, even absent evidence that they were approved by Pinshaw. Clarke v. Taylor, 269 Mass. 335, 337 (1929). See Liacos, Massachusetts Evidence 280 (5th ed. 1981). The pleadings alleged that Monk knowingly filed a false complaint for the purpose of punishing Pinshaw for his complaint against Monk. They could be viewed as relevant in that they revealed a position inconsistent with one of Pinshaw’s claims in the indemnification action to the effect that Monk’s actions were within the ordinary scope of his authority. See Mitchell v. Fruehauf Corp., 568 F.2d 1139, 1147 (5th Cir. 1978). As the evidence had some, albeit slight, probative value, its admission must be left to the broad discretion of the judge, see DeJesus v. Yogel, 404 Mass. 44, 47 (1989), along with the question of whether that value was outweighed by its potential prejudicial effect. Liacos, Massachusetts Evidence 408-410 (5th ed. 1981). See Vincent v. Louis Marx & Co., 874 F.2d 36, 41 (1st Cir. 1989). We decline Pinshaw’s invitation to review the judge’s instructions as to the provision in G. L. c. 258, § 9A, which would prohibit indemnification if Monk “acted in a wilful, wanton, or malicious manner.” The jury did not reach the special question which addressed that provision. Given our decision, any analysis of the possible prejudicial effect of the judge’s instruction on the jury’s response to the scope of duty question would involve us in unnecessary speculation. Accordingly, the order denying the motion for new trial is vacated, the judgment is reversed, and the case is remanded to the Superior Court for further proceedings. So ordered. General Laws, c. 258, § 9A, inserted by St. 1982, c. 345, states in relevant part: “The commonwealth shall indemnify members of . . . the metropolitan district police . . . from all personal financial loss and expenses. . . arising out of any claim, action, award, compromise, settlement or judgment resulting from any alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law; provided, however, that this section shall apply only where such alleged intentional tort or alleged act or failure to act occurred within the scope of the official duties of such police officer.” On two occasions while Monk was directing traffic near Fenway Park following a Red Sox game, Pinshaw found Monk’s manner “threatening” and inappropriate. Pinshaw telephoned the MDC to complain of Monk’s “incivility,” and followed up with a letter to the officer’s superior, Captain Kenneth Elliott. Monk thereafter applied for a criminal complaint in the Roxbury District Court against Pinshaw for violating MDC Rule 7, “by refusing to comply with the lawful order of a police officer who was directing traffic. .. .” At about the time of that application, Elliott’s supervisor, Deputy Superintendent John McDonough, notified Pinshaw by letter that the matter would be investigated. The plaintiffs objection and timely submission of a requested instruction, in compliance with Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974), fully called to the judge’s attention the alleged inaccuracy or incompleteness of the jury instruction, and called for an adequate jury charge on this distinct and controlling issue. See Liakos v. Moreno, 351 Mass. 90, 93-94 (1966); Collins v. Baron, 392 Mass. 565, 568 n.3 (1984), and cases cited; Narkin v. Springfield, 5 Mass. App. Ct. 489, 491 (1977); Petras v. Storm, 18 Mass. App. Ct. 330, 335 (1984). The relevant portions of the requested instruction were: “The fact that Officer Monk’s superiors . . . knew [he] sought and then obtained a criminal complaint against . . . Pinshaw but did not discipline him for his conduct may be considered by you as evidence ... that Monk’s actions were . . . ratified .... Similarly the fact that Monk’s superiors relied on the existence of this criminal complaint to suspend action on . . . Pinshaw’s complaint against Monk is evidence that they . . . ratified Monk’s conduct .... “If you find that the [defendant] acting through [Monk’s superiors] endorsed or ratified [his] conduct, then the [defendant] cannot prevail on its claim that Monk acted outside the scope of his employment because the [defendant] ratified Monk’s conduct.” After the District Court judge found Pinshaw guilty and imposed a ten dollar fine, Pinshaw successfully sought dismissal of the complaint in the Superior Court. He thereafter filed the civil rights action in Federal court. During the pendency of the Federal proceeding, Monk filed a bankruptcy petition and subsequently assigned to Pinshaw his claim to indemnification from the MDC.

VIRGINIA P. ABELS, Plaintiff, Appellee v. RENFRO CORPORATION, Defendant-Appellant No. 9117SC839 (Filed 1 December 1992) 1. Evidence and Witnesses § 1380 (NCI4th)— retaliatory discharge claim for filing workers’ compensation —Industrial Commission findings on workers’ compensation claim —not res judicata— excluded The trial court did not err in a retaliatory discharge action arising from a workers’ compensation claim by excluding the Industrial Commission’s findings that plaintiff’s alleged injuries were not compensable. Although defendant contended that the court should have admitted the findings based on res judicata, this was a claim for retaliatory discharge under N.C.G.S. § 97-6.1 and not the same cause of action that plaintiff brought before the Industrial Commission. Am Jur 2d, Evidence §§ 746, 747; Judgments §§ 394 et seq.; Wrongful Discharge §§ 199 et seq. 2. Evidence and Witnesses § 219 (NCI4th)— retaliatory discharge claim — evidence of similarly situated employees —no error The trial court did not err in a retaliatory discharge action arising from a workers’ compensation claim by excluding evidence of similarly situated employees. Defendant’s contention that an action for retaliatory discharge under N.C.G.S. § 97-6.1 is analogous to an action for employment discrimination under federal law would circumvent the intent of the legislature. Am Jur 2d, Job Discrimination §§ 1974 et seq.; Wrongful Discharge §§ 25 et seq. 3. Damages § 21 (NCI4th|— retaliatory discharge —emotional distress —properly submitted to jury The trial court did not err in a retaliatory discharge action by submitting the issue of emotional distress damages to the jury. Emotional distress damages are a form of damages suffered by an employee and accordingly are recoverable as a form of reasonable damages in a civil action brought by an employee under N.C.G.S. § 97-6.1. Am Jur 2d, Job Discrimination § 2421; Wrongful Discharge § 256. Damages recoverable for wrongful discharge of at-will employee. 44 ALR4th 1131. 4. Labor and Employment § 75 (NCI4th)— retaliatory discharge for filing workers’ compensation — evidence sufficient The trial court did not err in a retaliatory discharge action arising from a workers’ compensation claim by denying defendant’s motion for a judgment n.o.v. where plaintiff introduced evidence of the events causing her injuries, the injuries themselves, the treatment she received for the injuries, her filing workers’ compensation claims, and “quality lists” created weekly by defendant, which showed that the quality of plaintiff’s work was at or near the best during July, the month before her discharge. Furthermore, the trial court did not abuse its discretion by denying defendant’s motion for a new trial. Am Jur 2d, Job Discrimination §§ 2003 et seq.; Wrongful Discharge §§ 237, 238. 5. Labor and Employment § 75 (NCI4th)— retaliatory discharge for filing workers’ compensation claim —motion to compel medical exam after verdict —denied The trial court did not err by refusing to order an independent medical examination of plaintiff where plaintiff had won a retaliatory discharge action and the court had ordered reinstatement. Reinstatement is expressly provided as a remedy for a successful retaliatory discharge claimant in N.C.G.S. § 97-6.1(b). Defendant had the right to compel an independent medical examination under N.C.G.S. § 1A-1, Rule 35 during pretrial discovery but chose not to exercise that right, knowing the possible consequences if plaintiff was successful. Am Jur 2d, Workers’ Compensation § 504; Wrongful Discharge § 247. Appeal by defendant from judgment entered 25 March 1991 and order entered 26 March 1991 by Judge James M. Long in Surry County Superior Court. Heard in the Court of Appeals 15 September 1992. Plaintiff first worked for defendant, a hosiery manufacturer, from 1949 until the time of her pregnancy in 1962. Plaintiff resumed her employment as a knitter with defendant in 1972. At the time of her discharge on 19 August 1987, plaintiff’s duties included overseeing approximately 40 knitting machines and inspecting the quality of manufactured socks. Plaintiff claimed that she was injured twice during her employment. Plaintiff alleged that she injured her' back and leg when she slipped and fell on some flat cardboard boxes while attempting to get a spool of yarn on 15 June 1984. Plaintiff reported her injury to defendant but did not file a workers’ compensation claim at that time. Plaintiff alleged that her second injury occurred on 26 June 1987, when one of defendant’s employees, 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 G.S. § 97-6.1 by discharging her in retaliation for her filing the workers’ compensation claims. Defendant argued that plaintiff was discharged because of the poor quality of her work and that prior to her discharge, plaintiff received several warnings from management to either improve the quality of her work or face termination. On 31 October 1988, a Deputy Commissioner of the North Carolina Industrial Commission entered an order denying plaintiff compensation for her alleged injuries, ruling that the 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 North Carolina 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. The trial court further ruled that plaintiff’s testimony before the Deputy Commissioner could be used only for impeachment purposes. On 28 January 1991, the jury returned a verdict finding that plaintiff was wrongfully discharged and awarding 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 ordered plaintiff’s reinstatement to her former position with defendant. On 26 March 1991, the trial court denied defendant’s motion for judgment notwithstanding the verdict, motion for a new trial, and motion to compel plaintiff to undergo a medical examination in the event of reinstatement. On 10 April 1991, the trial court granted defendant’s motion to stay reinstatement of plaintiff as an employee pending appeal and motion to stay execution of the judgment pending appeal. On 29 April 1991, defendant again filed a motion to compel a medical examination of plaintiff. The trial court dismissed this motion on 3 May 1991. Defendant appeals. Franklin Smith and Brian K. Flatley for plaintiff-appellee. Constangy, Brooks & Smith, by W. R. Loftis, Jr. and Robin E. Shea, for defendant-appellant. EAGLES, Judge. Defendant brings forth six assignments of error. After a careful examination of the record before us, we affirm. I. In its first assignment of error, defendant argues that the trial court erred by excluding the Industrial Commission’s findings that plaintiffs alleged injuries were not compensable. Defendant contends that the trial court should have admitted these findings based on the principles of res judicata. We disagree. Regarding the application of the doctrine of res judicata, our Supreme Court has stated: As we recently noted in Duke 1988 [State ex rel. Utilities Commission v. Public Staff, 322 N.C. 689, 370 S.E.2d 567 (1988)]: The doctrine of res judicata treats a final judgment as the full measure of relief to be accorded between the same parties on the same “claim” or “cause of action.” C. Wright, Federal Practice and Procedure, § 4402 (1969). “The essential elements of res judicata are: (1) a final judgment on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits.” Hogan v. Cone Mills Corporation, 315 N.C. 127, 135, 337 S.E.2d 477, 482 (1985). Duke 1988, 322 N.C. at 692, 370 S.E.2d at 569; see, e.g., In re Trucking Co., 285 N.C. 552, 560, 206 S.E.2d 172, 177-78 (1974). More specifically, in addressing the issue of whether a Commission order can be deemed res judicata this Court has held that “only specific questions actually heard and finally determined by the Commission in its judicial character are res judicata, and then only as to the parties to the hearing.” Utilities Commission v. Area Development, Inc., 257 N.C. 560, 570, 126 S.E.2d 325, 333 (1962) (emphasis added). State ex rel. Utilities Commission v. Thornburg, 325 N.C. 463, 468, 385 S.E.2d 451, 453-54 (1989). Here, defendant’s res judicata arguments fail because this is a claim of retaliatory discharge under G.S. § 97T6.1 and is not the same cause of action that plaintiff brought before the Industrial Commission. A different set of rights was determined in each forum. “North Carolina law has long prohibited the use of a previous finding of a court as evidence of the fact found in another tribunal. Masters v. Dunstan, 256 N.C. 520, 124 S.E.2d 574 (1962).” Reliable Properties, Inc. v. McAllister, 77 N.C. App. 783, 787, 336 S.E.2d 108, 110 (1985), disc. review denied, 316 N.C. 379, 342 S.E.2d 897 (1986). In Masters, 256 N.C. at 524, 124 S.E.2d at 576-77, our Supreme Court held that: An estoppel by judgment arises when there has been a final judgment or decree, necessarily determining a fact, question, or right in issue, rendered by a court of record and of competent jurisdiction, and there is a later suit involving an issue as to the identical fact, question or right theretofore determined, and involving identical parties or parties in privity with a party or parties to the prior suit. Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; Distributing Co. v. Carraway, 196 N.C. 58, 114 S.E.2d 535. The purpose of the Industrial Commission hearing is to determine whether the employee has suffered an injury for which he or she is entitled to receive compensation under the Workers’ Compensation Act. See Hanks v. Utilities Co., 210 N.C. 312, 186 S.E. 252 (1936); Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985); G.S. § 97-77; G.S. § 97-91. An employee’s G.S. § 97-6.1 civil case is brought independently of the Industrial Commission hearing in order to protect the employee’s right to file a workers’ compensation claim before the Industrial Commission, notwithstanding the Commission’s adverse findings regarding the employee’s alleged injury. The public policy behind G.S. § 97-6.1 is to promote an open environment in which employees can pursue their remedies under the Workers’ Compensation Act without the fear of retaliation from their employers. See Wright v. Fiber Industries, Inc., 60 N.C. App. 486, 299 S.E.2d 284 (1983); Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 319 S.E.2d 290, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984). II. In its second assignment of error, defendant contends that the trial court erred by excluding defendant’s evidence of similarly situated employees. One set of employees included those who were discharged for the poor quality of their work. Another set of employees included those who returned to their jobs without incident after filing workers’ compensation claims. Defendant argues that the exclusion of this evidence was reversible error. We disagree. Defendant bases its argument on the manner in which “disparate treatment” employment discrimination cases are litigated under federal law. Defendant asserts in its brief that “[a] policy that is applied equally to all employees — even an unfair policy — does not constitute unlawful discrimination.” In this regard, defendant argues that “[a]n action for retaliatory discharge [under G.S. § 97-6.1] is analogous to an action for employment discrimination under federal law.” We disagree. Defendant appears to argue that an employer who treats all employees alike could potentially discharge all employees who file workers’ compensation claims and be free of the sanctions of the Workers’ Compensation Act. Defendant’s interpretation would circumvent the intent of the legislature and must not prevail. Defendant’s reasoning is inconsistent with the legislature’s intent in creating G.S. § 97-6.1 and with the overall goals of the Workers’ Compensation Act. In Wright, 60 N.C. App. at 491, 299 S.E.2d at 287, this Court interpreted the legislature’s intent in enacting G.S. § 97-6.1 as follows: Clearly, G.S. 97-6.1 was intended to prevent employers from firing or demoting employees in retaliation for pursuing their remedies under the Workers’ Compensation Act. If 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. We do not think the legislature intended the statute to be so easily circumvented. The courts of this State have recognized that the Workers’ Compensation Act should be liberally construed so that benefits will not be denied by technical, narrow, or strict interpretation. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972); Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930). Liberally construed, the statute encompasses acts by employers intending to prevent employees from exercising their rights under the Workers’ Compensation Act. This assignment of error fails. III. In its third assignment of error, defendant argues that the trial court should not have submitted the issue of emotional distress damages to the jury, because this is not a form of “reasonable damages” that a discharged employee may recover under G.S. § 97-6.1(b). We disagree. Initially, we note that in Johnson v. Ruark Obstetrics, 327 N.C. 283, 296-97, 395 S.E.2d 85, 92-93, reh’g denied, 327 N.C. 644, 399 S.E.2d 133 (1990), our Supreme Court held that emotional distress damages may be based upon a claim for breach of contract or tort. G.S. § 97-6.1(b) provides that, “[a]ny employer who violates any provision of this section shall be liable in a civil action for reasonable damages suffered by an employee as a result of the violation . . .” (emphasis added). The phrase “suffered by an employee,” found in G.S. § 97-6.1(b), has been interpreted by this Court according to its plain meaning. Buie v. Daniel International, 56 N.C. App. 445, 447, 289 S.E.2d 118, 119, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982) (“Punitive damages, by their very nature, are not damages ‘suffered’ by anyone. Rather, they are damages awarded to punish a wrongdoer, over and above the amount required to compensate for the injury.”). Unlike the punitive damages sought by the plaintiff in Buie, emotional distress damages are a form of damages “suffered by an employee” and accordingly are recoverable as a form of “reasonable damages” in a civil action brought by an employee under G.S. § 97-6.1. See also Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 434-35, 378 S.E.2d 232, 234 (1989), review dismissed, 326 N.C. 356, 388 S.E.2d 769 (1990); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 488-90, 340 S.E.2d 116, 120-21, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). IV. In its next two assignments of error, defendant argues that the trial court erred by not granting its motion for judgment notwithstanding the verdict, or in the alternative, its motion for new trial. Defendant alleges that there was insufficient evidence to support the verdict. We disagree. Upon review of a motion for judgment notwithstanding the verdict, “[t]he trial court must consider all the evidence in the light most favorable to the non-movant and must resolve in favor of the non-movant contradictions, conflicts and inconsistencies in the evidence.” Williams v. Randolph, 94 N.C. App. 413, 418, 380 S.E.2d 553, 556, disc. review denied, 325 N.C. 437, 384 S.E.2d 547 (1989) (citations omitted). Plaintiff’s recovery was based on G.S. § 97-6.1, which provides in pertinent part: (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. To recover under the statute, 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. Hull v. Floyd S. Pike Electrical Contractor, 64 N.C. App. 379, 307 S.E.2d 404 (1983). Plaintiff provided sufficient evidence at trial to withstand the judgment n.o.v. motion. At trial, plaintiff introduced evidence of: (1) the events causing her injuries; (2) the injuries themselves; (3) the treatment she received for . each of the injuries; and (4) her filing the workers’ compensation claims based upon those injuries. Additionally, plaintiff introduced “quality lists” created weekly by the defendant. These lists ranked each employee according to the percentage of defects that existed in each employee’s work. These lists demonstrated that the quality of plaintiff’s work was at or near the best during July 1987, the month following plaintiff’s second injury. Defendant contends that plaintiff’s discharge was not retaliatory because it has a “neutral” employee discharge policy, based upon an employee’s continuous absence from work for more than six months. Here, plaintiff requested only a one month leave of absence at the time she was discharged. Plaintiff presented a witness, Dr. Joseph Jackson, who testified that “there was no reason to think that she [plaintiff] wouldn’t be able to at least make an attempt to resume her normal employment” after a one month leave of absence. Accordingly, we find no error in the trial court’s denial of defendant’s motions as there was sufficient evidence to support the jury’s verdict. As to defendant’s motion for new trial, we find that the trial court correctly denied the motion. “An appellate court’s review of a trial judge’s discretionary ruling denying a motion to set aside a verdict and order a new trial is limited to a determination of whether the record clearly demonstrates a manifest abuse of discretion by the trial judge. Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982).” Pittman v. Nationwide Mutual Fire Ins. Co., 79 N.C. App. 431, 434-35, 339 S.E.2d 441, 444, disc. review denied, 316 N.C. 733, 345 S.E.2d 391 (1986). The record here does not demonstrate an abuse of discretion by the trial court. V. Finally, defendant contends that the trial court erred by denying defendant’s motion, filed approximately six weeks after trial, to compel plaintiff to undergo an independent medical examination, the purpose of which would be to determine whether she was capable of performing her duties as a knitter. We disagree. G.S. § 97-6.1(b) expressly provides reinstatement as a remedy for a successful retaliatory discharge claimant. “[A]n employee discharged or demoted in violation of this section shall be entitled to be reinstated to his [or her] former position.” Id. During pretrial discovery, defendant had the right to compel plaintiff to undergo an independent medical examination under Rule 35 of the North Carolina Rules of Civil Procedure. G.S. § 1A-1, Rule 35. Knowing the possible consequences of G.S. § 97-6.1 if plain

Dianne M. Brunner vs. Stone & Webster Engineering Corporation & another. Norfolk. March 3, 1992. November 19, 1992. Present: Liacos, C.J., Wilkins, Nolan, Lynch, & O’Connor, JJ. Practice, Civil, Summary judgment, Appeal. Anti-Discrimination Law, Prima facie case, Burden of proof, Termination of employment, Sex. On a claim under G. L. c. 15IB by a former employee of an engineering firm alleging that she had been discharged because of her sex and in retaliation for her having complained of sexual harassment and discrimination, the judge properly granted summary judgment for the engineering firm where, even assuming that the plaintiff had demonstrated a prima facie case of sex discrimination under c. 15 IB, the engineering firm produced evidence that it had legitimate, nondiscriminatory reasons for discharging the plaintiff, and where the record demonstrated that the plaintiff would have no reasonable expectation of proving at trial that the engineering firm’s asserted reasons for discharging the plaintiff were merely pretexts. [699-700, 703-705] Where this court determined, on the record of summary judgment proceedings, that a plaintiff had no reasonable expectation of proving unlawful discrimination against her employer in violation of G. L. c. 15 IB, and this determination was dispositive of a separate claim alleging that plaintiff’s supervisor had unlawfully interfered with her contractural relations with her employer, this court concluded that summary judgment on the unlawful interference claim was correctly ordered for the defendant supervisor. [705-706] Civil action commenced in the Superior Court Department on April 18, 1989. The case was heard by Robert W. Banks, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Frederick T. Golder for the plaintiff. David J. Kerman for the defendants. Robert C. Wiesel. O’Connor, J. In a seven-count complaint, the plaintiff alleges in count I that Stone & Webster Engineering Corporation (Stone & Webster) discharged her from employment because of her sex and in retaliation for her having complained of sexual harassment and discrimination in violation of G. L. c. 151B (1990 ed.). In count VII, the plaintiff alleges that the defendant Wiesel intentionally interfered with her contractual relations with Stone & Webster. The defendants moved for summary judgment on all seven counts and that motion was allowed in full. The plaintiff appealed from the grant of summary judgment on counts I, II, III, and VII, and the Appeals Court, in an unpublished memorandum and order, reversed the summary judgment on counts I and VII. The Appeals Court affirmed as to counts II and III. 31 Mass. App. Ct. 1113 (1991). We allowed the defendants’ application for further appellate review with respect to counts I (G. L. c. 151B against Stone & Webster) and VII (interference with contract against Wiesel). We hold that the Superior Court judge properly granted summary judgment to the defendants on counts I and VII. We affirm the judgment of the Superior Court. General Laws c. 151B, § 4 (1990 ed.), provides in pertinent part: “It shall be an unlawful practice: 1. For an employer . . . because of the . . . sex ... of any individual... to discharge from employment such individual . . . unless based upon a bona fide occupational qualification.” In a c. 151B case involving an assertion of sexual discrimination in employment, the plaintiff has the burden of persuading the fact finder that the employer intentionally discriminated against him or her on account of sex, and that, but for the discrimination, the employer would not have taken the complained-of action. McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 434 (1989). Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 765 (1986). See Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 227 n.8 (1978); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 139 (1976). The plaintiff may meet his or her burden of proof “by establishing an unanswered prima facie case of discrimination.” McKenzie v. Brigham & Women’s Hosp., supra at 434, quoting Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 139. A plaintiff would clearly establish a prima facie case, for example, by showing that she is a woman whom the employer discharged despite her qualifications, and that the employer thereafter filled that position, or attempted to fill it, with a man with similar qualifications. “If a plaintiff establishes a prima facie case, but the defendant [employer] answers it by advancing lawful grounds for the action taken and produces evidence of underlying facts in support thereof, the plaintiff, in order to prevail, must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reasons were not the real reasons for the action. Smith College, supra at 229-230. Wheelock College, supra at 139.” McKenzie, supra at 435. In support of their motion for summary judgment, the defendants submitted portions of the deposition testimony of the plaintiff and of Robert Doneski, supervisor of Stone & Webster’s graphic arts group to which the plaintiff was assigned. The defendants also submitted an affidavit of the defendant Wiesel, chief engineer of Stone & Webster’s struc-' tural division, to whom Doneski reported. In addition, the record contains the plaintiff’s answers to interrogatories that had been propounded by a third defendant, a coworker who is no longer a party to this case. The uncontradicted portions of those materials present the facts we set forth below. The plaintiff was first employed by Stone & Webster in 1970 as a drafter. She received several promotions and had been a senior graphic designer in the graphic arts group for six years when her employment was terminated in July, 1988. She was supervised by several tiers of management. The defendant Wiesel, as the chief engineer of Stone & Webster’s structural division, was one of the plaintiff’s supervisors. From mid-1985 until the plaintiff’s layoff, the plaintiff was also supervised by Robert Doneski, who was the supervisor of the graphic arts group. Doneski reported to Wiesel. Mario Rubio-Ospina was the lead senior graphic designer and was in charge of assigning and receiving the plaintiff’s work. In 1974, the plaintiff was denied a promotion and was told that it was because she did not have children and a mortgage to support. The plaintiff pursued the issue and was promoted. Once, the plaintiff and a female coworker overheard two male employees discussing a pornographic movie. When that incident was reported, Stone & Webster addressed the situation through a supervisor. In 1973 and again in 1986, male coworkers made vulgar sexually-oriented statements to the plaintiff. Rubio-Ospina assigned menial work to the plaintiff and did so in a confusing and demeaning manner. In 1988, Rubio-Ospina attempted to persuade the plaintiff to alter her time cards and, when she refused, he stated loudly that she was “not a real help” to the group. On that same day, Ru-bio-Ospina threw a hard-boiled egg at the plaintiff and held up her work and asked, “[Wjhich cow did this job?” In June, 1983, someone put razor blades in and on the plaintiff’s desk, and in September, 1983, her wedding picture was missing from her desk and was later found in her locked desk drawer. The plaintiff reported some of these incidents to Stone & Webster’s management personnel, who responded in a manner designed to be corrective. The plaintiff lacked training on certain automated equipment. Three men and two women in the graphic arts group, not including the plaintiff, were trained on the Autographix machine. Some of the graphic arts group personnel, but not the plaintiff, were trained in the use of the Oxbery and computer graphics machines, which training the plaintiff declined to pursue. During the 1980’s, the graphic arts group of Stone & Webster suffered a significant decline in its workload. Also, during that period, the group increased its use of automated equipment.- As a result, the workforce of the graphic arts group was reduced. The company laid off six employees in 1984, two in 1986, and three in 1987. As the workload continued to decline in 1988, Stone & Webster laid off three more graphic designers in July, 1988. They were the plaintiff, another woman, and a man. Five men and two women were retained. Of the seven graphic designers retained, two, a man and a woman, had more seniority than the plaintiff. Of the remaining five, four were men and one was a woman. They had less seniority than the plaintiff. Of these five employees with less seniority than the plaintiff, three of the men and one woman had received specialized training in automated equipment. One man, F.M. Van Wart, had not. The three individuals who were laid off had not received specialized training. Supervisor Doneski testified in a deposition that the plaintiff had never been rated less than “effective” in her formal performance evaluations, that there was nothing wrong with the quality of her work, and that other company personnel from time to time had commended the plaintiff’s work. He also testified that, while at one time he had felt that the plaintiff’s productivity was high, it had subsequently slipped, and that the plaintiff’s initiative was “average.” Wiesel and Doneski met and discussed who would be laid off. They appraised the capability, technical expertise, job knowledge, initiative, versatility, productivity, and potential contributions of each graphics group member. They decided to retain all the group members who had specialized training in automated equipment. They also decided to retain Van Wart following their discussion of Van Wart’s “high capability and excellent work.” They laid off all the others. On appeal, Stone & Webster says that it laid off its employees because of a shortage of work, and selected the plaintiff for layoff because she lacked the training of, or was a less capable performer than, those individuals with less seniority who were retained. The plaintiff argues that Stone & Webster’s claim is a mere pretext, and that the reasons she was laid off were that she was a woman and she had complained of sexual harassment and discrimination on the job. Ordinarily, as we have suggested early in this opinion, the first question would be whether the plaintiff has established a prima facie case of discrimination. However, in this case, Stone & Webster has not argued that the plaintiff has failed to prove a prima facie case and that therefore Stone & Webster is entitled to summary judgment. Instead, Stone & Webster’s argument is that it has furnished credible evidence that its reasons for discharging the plaintiff were nondiscriminatory, that, as a result, in accordance with the analytical framework of shifting burdens set forth above, the plaintiff will have the burden of proving at trial that Stone & Webster’s stated reasons were no more than pretexts, and that it is apparent from the materials submitted to the judge that the plaintiff will be unable to provide that proof. In those circumstances, contends Stone & Webster, it is entitled to summary judgment. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-716 (1991). Because Stone & Webster does not argue that the plaintiff has failed to establish a prima facie case for summary judgment purposes, we assume, without deciding, that a prima facie case has been demonstrated. It is clear, too, that Stone & Webster has produced evidence that it had legitimate, nondiscriminatory reasons for laying off the plaintiff. Therefore, we address the question whether the depositions, affidavit, and answers to interrogatories discussed above demonstrate that the plaintiff will be unable to prove at trial that Stone & Webster’s stated reasons were pretexts. We are satisfied that the materials show that the plaintiff will be unable to prevail at trial, and that the judge was correct in ordering summary judgment for Stone & Webster. The plaintiff supports her contention that Stone & Webster’s stated reasons were pretexts by asserting that (1) she was an “excellent,” not merely average, worker; (2) she was deliberately denied training on the automated equipment; and (3) she had been the victim of several incidents of sexual harassment by fellow workers and had repeatedly complained to her supervisors. We reject the plaintiffs first argument because nothing in the materials submitted pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), refutes the evidence that, when the productivity levels, technical expertise, and skills of all the graphic arts group employees were compared, a good faith judgment was made by those with the responsibility to decide that the plaintiff was less qualified for the job than those who were retained. Nothing in the record suggests that gender-specific factors were used in evaluating the job performances of the several employees. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437 (1989); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767-768 (1986). The plaintiff’s second argument is that Stone & Webster’s assertion that the plaintiff was less qualified for continued employment because she was untrained in the use of automated equipment was a pretext because Stone & Webster had denied her repeated requests for such training. Nothing in the record shows that the plaintiff’s discharge was discriminatory. Furthermore, nothing in the record contradicts the fact, set forth in Doneski’s deposition, that the plaintiff declined to continue training on the Oxbery machine after a week of working in the photography room, and that the plaintiff turned down an opportunity to be trained on the computer graphics machine. The record does not show that, if this case were to go to trial, there would likely be a genuine issue concerning whether Stone & Webster unlawfully denied the plaintiff’s request for training and then relied on her lack of training to dismiss her. We have set forth in our statement of the uncontroverted facts a series of incidents of harassment of the plaintiff by coworkers during her eighteen years of employment. We point out that these incidents did not directly involve Doneski or Wiesel, the Stone & Webster supervisory personnel who ultimately made the determination to lay off the plaintiff. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990) (“The biases of one who neither makes nor influences the challenged personnel decisions are not probative in an employment discrimination case”). Furthermore, the summary judgment materials show that, when the plaintiff reported such incidents to management personnel, Stone & Webster supervisors immediately intervened and took corrective action. We conclude that the defendant has shown by material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the plaintiff has no reasonable expectation of proving an essential element of her case, namely that, but for her sex, Stone & Webster would not have included her in the layoff. McKenzie v. Brigham & Women’s Hosp., supra at 434. Smith College v. Massachusetts Comm’n Against Discrimination, supra at 227 n.8. See Kourouvacilis v. General Motors Corp., supra at 716. In coming to that conclusion, we recognize that “where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate.” Flesner v. Technical Communication Corp., 410 Mass. 805, 809 (1991). That is not to say, however, that, in such cases, summary judgment is always inappropriate. See McKenzie v. Brigham & Women’s Hosp., supra at 438 (racial discrimination); Lewis v. Area II Homecare for Senior Citizens, Inc., supra at 770 (racial discrimination); Godbout v. Cousens, 396 Mass. 254, 258-259, 261-263, 264-265 (1985) (defamation, intentional infliction of emotional distress). We are content that, in this case, summary judgment is appropriate. We turn briefly to count VII, the plaintiff’s claim that the defendant Wiesel intentionally interfered with her employment contract with Stone & Webster. In order to prevail on that claim at trial, the plaintiff would have to prove, among other things, that Wiesel’s actions in terminating her employment were the product of improper motive or means. G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991). The crux of the plaintiff’s claim is that she was fired at Wiesel’s direction for discriminatory reasons and thus Wiesel was acting with an improper motive. Our determination that the Mass. R. Civ. P. 56 (c) materials demonstrate that the plaintiff has no reasonable expectation of proving unlawful discrimination against Stone & Webster is dispositive of the claim against Wiesel also. The record shows that the plaintiff cannot reasonably expect to show that, in terminating the plaintiff's employment, Wiesel acted with an improper motive. The judge in the Superior Court correctly ordered summary judgment for the defendants on counts I and VII. Judgment affirmed.

McLEMORE v DETROIT RECEIVING HOSPITAL AND UNIVERSITY MEDICAL CENTER Docket No. 134930. Submitted August 13, 1992, at Detroit. Decided October 19, 1992, at 10:10 a.m. Leave to appeal sought. Orrie C. McLemore brought an action in the Wayne Circuit Court against Detroit Receiving Hospital and University Medical Center and others, alleging sex discrimination, breach of an employment contract, and retaliatory discharge for her filing of a sex discrimination charge with the Equal Employment Opportunity Commission. The jury found that plaintiff’s employment was terminated in retaliation for filing the charge and that the defendants breached their employment contract with the plaintiff. The court, J. Phillip Jourdan, J., entered a judgment consistent with the jury verdict for the plaintiff for $465,445.72, including prejudgment interest. The defendants appealed from the portion of the judgment finding retaliatory discharge. The Court of Appeals held: 1. There was sufficient evidence to support the retaliation claim. Regardless of the vagueness of an employee’s charge or the lack of a formal invocation of the protection of the Civil Rights Act, if an employer’s decision to terminate or otherwise adversely effect an employee is a result of that employee’s raising the possibility of a discrimination complaint, retaliation prohibited by the act occurs. The evidence supports the inference that, in eliminating the plaintiff’s position, the defendants merely took advantage of an opportunity to do what they had been preparing to do, and that the economic necessity they asserted was a pretext. The trial court properly denied the defendants’ motion for judgment notwithstanding the verdict. References Am Jur 2d, Appeal and Error §§ 398, 404, 797; Civil Rights §§ 223-225, 446; Job Discrimination §§ 127-150. Award of attorneys’ fees under § 706(k) of Civil Rights Act of 1964 (42 USCS § 2000e-5(k)) authorizing court to allow prevailing party, other than Equal Employment Opportunity Commission or United States, reasonable attorney’s fee as part of costs in action under equal employment opportunities part of Act. 16 ALR Fed 643; Construction and application of § 704(a) of Civil Rights Act of 1964 (42 USC § 2000e-3(a)), making it unlawful employment practice to discriminate against individual for participation in equal opportunity proceedings or activities. 11 ALR Fed 316. 2. The trial court did not abuse its discretion in denying the defendants’ motion for a new trial. The verdict was not against the great weight of the evidence. 3. The trial court erred in instructing the jury that the defendants had the burden of proving their claim that the layoff was motivated by the hospital’s economic problems. However, because the jury returned a verdict it was told it could reach only if it found that the plaintiff had proven that the defendants had a retaliatory motive and that the economic justification the defendants put forth was a sham or pretext, the error could not have affected the verdict. Therefore, reversal is not required. 4. The defendants’ failure to provide the Court of Appeals with a transcript of the trial court’s ruling regarding their request for remittitur precludes review of their claim that the court erred in denying the request. 5. By not requesting attorney fees in the trial court and not filing a cross appeal, the plaintiff waived any right she may have had to attorney fees for work done before the entry of the judgment. 6. The Court of Appeals has discretion to award the plaintiff appellate attorney fees under the Civil Rights Act, MCL 37.2802; MSA 3.548(802). Remand to the trial court is appropriate for a determination and award of reasonable appellate attorney fees. Aifirmed and remanded. 1. Civil Rights — Discrimination Complaints — Retaliation. Regardless of the vagueness of an employee’s charge of a violation of the Civil Rights Act or the lack of formal invocation of the protection of the act, if an employer’s decision to terminate or otherwise adversely effect an employee is a result of that employee’s raising the possibility of a discrimination complaint, retaliation prohibited by the act occurs (MCL 37.2701; MSA 3.548[701]). 2. Appeal — Jury Instructions. Reversal is required because of an erroheous jury instruction only where the failure to reverse would be inconsistent with substantial justice. 3. Appeal •— Remittitur — Preserving Question — Transcripts. Failure to provide the Court of Appeals with a transcript of a trial court’s ruling on a motion for remittitur precludes consideration of the claim that the court erred in denying the motion (MCR 7.210[B][l][a]). 4. Civil Rights — Appellate Attorney Fees. The Court of Appeals may award appellate attorney fees in an action brought under the Civil Rights Act (MCL 37.2802; MSA 3.548[802]). Clayton C. Jones, for the plaintiff. Honigman Miller Schwartz & Cohn (by Thomas E. Marshall and Ingrid K. Brey), for the defendants. Before: Neff, P.J., and Gribbs and Shepherd, JJ. Shepherd, J. A jury found that defendants terminated plaintiff’s employment in retaliation for her filing a sex discrimination charge with the Equal Employment Opportunity Commission. Pursuant to the jury’s verdict, the trial court entered judgment for plaintiff for $465,445.72. Defendants appeal as of right. We affirm and remand for further proceedings. Plaintiff was a clinical instructor at defendant hospital’s school of radiologic technology. In February of 1982, defendant Thomas Gallagher, director of radiology, appraised plaintiff’s performance as "effective.” In March of 1983, the educational coordinator, defendant Gail Alexander, also evaluated plaintiff’s performance as "effective.” When Alexander became associate director of radiology, plaintiff applied for the vacant educational coordinator’s position. Her interview in September of 1983 did not go well. Gallagher focused his attention on what he felt were inaccuracies in plaintiff’s resume._ Gallagher, Alexander, and Dr. Kenneth Krabbenhoft, the chief director of radiology, ultimately chose a man for the position. Plaintiff filed a complaint with the hospital expressing concern that the hiring decision may have been the result of "bias,” and requesting an explanation for the decision in order to avoid "litigation.” Plaintiff was told the man was selected because of his superior qualifications. As part of their response to plaintiff’s complaint, Alexander and Gallagher sent plaintiff memoranda criticizing her job performance. The man did not work out and resigned. In January 1984, plaintiff once again applied for the position. Gallagher, Alexander, and Dr. Krabbenhoft selected defendant Donald Stokes to be the new educational coordinator. Almost immediately, Stokes too began criticizing plaintiff’s job performance. At the end of March 1984, he appraised plaintiff’s performance as "unsatisfactory.” On April 2, 1984, plaintiff filed a complaint with the eeoc, charging defendants with sex discrimination. For years the hospital had been having financial difficulties. In the spring of 1984, Gallagher ánd Alexander were asked to identify positions in the radiology department that could be eliminated as part of a hospital-wide staff reduction. They recommended eliminating plaintiff’s position. At the time, Gallagher knew plaintiff had filed a complaint with the eeoc. Plaintiff was laid off on May 31, 1984. Plaintiff filed this action, charging sex discrimination, breach of contract, and retaliatory discharge. The trial court directed a verdict for defendants with regard to the sex discrimination charge, a ruling plaintiff has not appealed. The jury returned a verdict for plaintiff, finding that retaliation was a significant factor in defendants’ decision to lay her off, and that defendants violated the hospital’s policies by laying her off and subsequently failing to rehire her. The jury awarded plaintiff $13,500 for economic damages and $250,000 for emotional distress. The trial court entered judgment on the verdict for plaintiff for $465,445.72, including prejudgment interest. i Defendants first contend there was insufficient evidence to support the retaliation claim. We disagree. Defendants moved for judgment notwithstanding the verdict, contesting the sufficiency of the evidence. The trial court denied the motion. When deciding a motion for judgment notwithstanding the verdict, a trial court must examine the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the plaintiff. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678 (1991). If the evidence is such that reasonable jurors could have found for the plaintiff, neither the trial court nor this Court may substitute its judgment for that of the jury. Id. Defendants contend there was no evidence that the decision to eliminate plaintiff’s position was motivated by anything other than economic considerations. They argue that because plaintiff did not file her charge with the eeoc until April 2, 1984, what went on before that date cannot support her claim of retaliation. We disagree. The Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., prohibits employers from retaliating against an employee for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act. MCL 37.2701; MSA 3.548(701). In Booker v Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 1312-1314 (CA 6, 1989), the federal court of appeals decided that the Civil Rights Act did not protect from retaliation an employee who had merely expressed concern to his employer about possible discrimination. We strongly disagree with this interpretation of the act. Regardless of the vagueness of the charge or the lack of formal invocation of the protection of the act, if an employer’s decision to terminate or otherwise adversely effect an employee is a result of that employee raising the spectre of a discrimination complaint, retaliation prohibited by the act occurs. We will not interpret the act to allow employers to peremptorily retaliate against employees with impunity. Doing so would be contrary to our state’s policy of protecting employees who are about to report a suspected violation of law. See MCL 15.362; MSA 17.428(2). The core issue in this case was defendants’ motivation for eliminating plaintiff’s job. Plaintiff did not dispute that defendant hospital’s financial distress was genuine, and that some jobs would have to be eliminated. Plaintiff contended her job was selected because defendants wanted to get rid of her for making a discrimination charge. Plaintiff produced no direct evidence that defendants’ motives were less than pure. The question therefore is whether the circumstantial evidence plaintiff did produce, when viewed in the light most favorable to plaintiff, was sufficient for the jury to legitimately infer that defendants were motivated by a desire to retaliate. Plaintiff presented evidence that defendants had begun to compile a paper record that would support her discharge long before the layoff. This evidence supports the inference that in eliminating her position, defendants merely took advantage of an opportunity to do what they had been preparing to do, and that the economic necessity was a pretext. Plaintiff presented evidence that defendants, who previously judged her job performance as effective, suddenly viewed it as unsatisfactory after she raised the issue of bias. In fact, the barrage of criticism of plaintiffs job performance actually began as defendants’ official response to plaintiffs internal complaint. This supports the inference that it was the internal complaint with its implied threat of a formal discrimination complaint and not-so-implied threat of litigation that caused the sudden change in how defendants viewed plaintiffs worth. Defendants point out that neither in the internal complaint nor in the meeting that followed did plaintiff expressly discuss sex discrimination. While this is relevant, we believe a rational trier of fact could still conclude that defendants’ reaction to the complaint was motivated by a fear that plaintiff, a black female, would eventually file a complaint charging some type of prohibited bias, either race or sex discrimination. From the moment they learned plaintiff was concerned about bias, defendants began doing things that could make a case for terminating her employment. They sent numerous memoranda to her criticizing her job performance. Yet she was being criticized for problems with the school outside her control, and for not completing tasks she had not been given. These memoranda and plaintiff’s performance evaluations express a level of overall dissatisfaction with her work that is difficult to reconcile with the praise she had received before her complaint. A rational trier of fact could infer that all this was motivated by a fear of an eeoc charge and litigation to follow. When plaintiff filed her complaint with the eeoc, defendants’ fears were realized, and they responded by using the first available opportunity to rid themselves of her. Furthermore, there was evidence of a hospital policy to offer laid-off employees other positions to the extent such positions were available. Plaintiff presented evidence that the policy was deliberately ignored in her case. Therefore, the evidence, viewed in a light most favorable to plaintiff, supports the inference that she was laid off in retaliation for charging defendants with sex discrimination. The trial court did not err in denying the motion for judgment notwithstanding the verdict. ii Defendants also contend that the trial court erred in denying their motion for a new trial. We disagree. Defendants argued below that they were entitled to a new trial because the verdict was against the great weight of the evidence. See MCR 2.611(A)(1)(e). The trial court disagreed. A trial court’s decision on such a motion is discretionary, and will not be disturbed unless an abuse of that discretion is shown. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985). The jury, with sufficient evidence before it, found that the evidence established plaintiff’s claims. The trial court, with its unique vantage point of both the evidence and the proceedings, found the verdict not to be against the great weight of the evidence. Our reading of the record does not show that ruling to have been an abuse of the trial court’s discretion. in Defendants next argue that the trial court erred in instructing the jury about the burden of proof. The trial court told the jury that plaintiff had the burden of proving that retaliation played a significant role in her layoff. The court instructed the jury that plaintiff had the burden of proving that defendants’ claim of economic necessity was a sham or pretext. However, the court also told the jury that the defendants had the burden of proving their claim that the layoff was motivated by the hospital’s economic problems. The trial court’s instruction was erroneous. As the party seeking to change the status quo, the burden of proof was on plaintiff to show that she was entitled to the relief she sought. Although the burden of production may have shifted to defendants to articulate a legitimate reason for laying plaintiff off, the burden of proof did not shift. See Polk v Yellow Freight System, Inc, 876 F2d 527, 531 (CA 6, 1989). If a jury charge is erroneous, reversal is required only where failure to reverse would be inconsistent with substantial justice. Reisman, supra, p 532. Although the trial court erred in instructing the jury, we find that the error could not have affected the verdict, and, therefore, do not reverse. The parties’ claims concerning defendants’ motivation for eliminating plaintiff’s job were mutually exclusive. Either defendants were motivated by a desire to retaliate for the discrimination complaint as plaintiff claimed, or they were motivated by the economic situation, as defendants claimed. Although the jury instructions were erroneous, the error could only affect the verdict in one situation. If a preponderance of the evidence demonstrated that defendants were retaliating while using the economic situation as a pretext, then, according to the instructions given, the jury would properly return a verdict for plaintiff. If a preponderance of the evidence demonstrated that the layoff was motivated by the economic situation, and that a desire to retaliate was not a significant factor in the decision, then the jury would properly return a verdict for defendants. It is only if the jury could not decide what defendants’ motivation was, if the evidence was in equipoise, that the instructional error would have any effect. The jury was not told what to do in such a situation. A properly instructed jury would know to return a verdict for defendants. The record makes it clear that the jury did not find the evidence to be in equipoise. The jury returned a verdict it was told it could reach only if it found that plaintiff had proven that defendants had a retaliatory motive and plaintiff had also proven that the economic justification defendants put forth was a sham or pretext. Therefore, the instructional error could not have affected the verdict and, therefore, is not grounds for reversal. IV Defendants contend that the trial court erred in denying their request for remittitur. The jury awarded plaintiff $250,000 for the emotional distress she suffered. Defendants did not object to the verdict form, nor did they object to the instructions regarding how the jury should arrive at an amount for compensating plaintiff. When deciding a motion for remittitur, a trial court must determine whether the jury verdict is for an amount greater than the evidence can support. MCR 2.611(E). When reviewing the trial court’s decision, this Court must afford due deference to the trial court’s unique ability to evaluate the jury’s reaction to the evidence, and only disturb the trial court’s decision if there has been an abuse of discretion. Palenkas v Beaumont Hosp, 432 Mich 527, 533-534; 443 NW2d 354 (1989). The trial court considered defendants’ motion for remittitur and ruled from the bench on October 19, 1990. On November 2, 1990, the trial court signed an order denying the motion "for the reasons stated on the record.” Defendants have not provided this Court with a transcript of the proceedings of October 19, 1990, something they were required to do. See MCR 7.210(B)(1)(a). On the record before us we can only say that there was evidence that plaintiff suffered emotional distress as a result of defendants’ actions, the jury thought that $250,000 would adequately compensate plaintiff for her distress, and the trial court decided that defendants were not entitled to remittitur. Without the record of the trial court’s ruling from the bench, it is simply not possible for us to determine whether the trial court abused its discretion or properly exercised it. See Wilson v General Motors Corp, 183 Mich App 21, 40; 454 NW2d 405 (1990) (remittitur of mental anguish award to $375,000 not an abuse of discretion). We find defendants’ failure to provide this Court with a transcript of the ruling to preclude our review of this issue. See Brown v JoJo-Ab, Inc, 191 Mich App 208, 210; 477 NW2d 121 (1991). v Plaintiff asks this Court to remand for an award of post-verdict attorney fees. Plaintiff filed no cross appeal. She requested no attorney fees in the trial court. Therefore, she has waived any right she may have had to attorney fees for work done before entry of judgment. MCL 37.2802; MSA 3.548(802); MCR 2.625(F). Plaintiff apparently seeks to recover the attorney fees incurred defending this appeal. This Court has not previously decided whether appellate attorney fees are recoverable under MCL 37.2802; MSA 3.548(802). The subject of this appeal, plaintiff’s action, was

Arthur S. Demoulas & others vs. Demoulas Super Markets, Inc. & others. No. 90-P-1284. October 16, 1992. Practice, Civil, Interlocutory appeal, Injunction. Injunction. Evanthea Demoulas, Evan G. Demoulas, Diana D. Merriam, and Fotene Demoulas. Valley Properties, Inc., Lee Drug, Inc., Doric Development Corp., and Market Basket, Inc. When the plaintiff Arthur S. Demoulas obtained a preliminary injunction prohibiting the defendant Demoulas Super Markets, Inc. (DSM), from terminating his employment except for cause, DSM sought relief from a single justice of this court under G. L. c. 231, § 118, first par. The single justice modified the injunctive order to provide that DSM give Arthur a leave of absence pending the litigation with “interim” compensation during the leave at the annual rate of $60,000. Arthur appeals under G. L. c. 231, § 118, second par., arguing that the single justice acted without authority and substituted his discretion for that of the Superior Court judge. We conclude that there was a supportable basis for the single justice’s order, which we affirm. 1. The preliminary injunction. It appears from the materials before us that the parties are involved in numerous lawsuits, one of which concerns an allegation by the plaintiffs that their stock in DMS was fraudulently converted by the president and chief executive officer of DSM to himself and his family members. This is of some relevance to the present complaint by which the plaintiff shareholders seek to inspect the defendants’ books and records under “G. L. c. 156B, § 32, and the common law.” The plaintiffs claim to be shareholders as direct owners, or beneficiaries of a constructive trust, or both. Arthur is a shareholder in and an employee of DSM. He is the assistant produce manager with a claimed annual salary of $500,000. Because he feared that this lawsuit would prompt a retaliatory termination of his employment by DSM, he sought to enjoin DSM from firing him. The Superior Court judge reasoned that Arthur had alleged sufficient facts to show a right to inspect the defendants’ books. See Perry v. Perry, 339 Mass. 470, 480 (1959), holding that a “beneficiary of a trust of shares in a family corporation may in appropriate proceedings force an examination of the corporate affairs, and also the equivalent of a stockholders’ suit.” Inferring that a significant part of Arthur’s annual salary of $500,000 “reflects a beneficial ownership position in a closely held corporation,” the Superior Court judge concluded that termination of his employment by DSM “could be tantamount to a freeze out.” See Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 849 (1976), where the court noted that a freeze out is sometimes accomplished by depriving “minority stockholders of corporate offices and of employment with the corporation.” To meet DSM’s concern that Arthur was “invulnerable to reasonable standards of employment” and its allegations that his behavior in the workplace was disruptive to business, the Superior Court judge indicated that upon a showing by DSM that there was cause for terminating Arthur’s employment, he would modify his injunctive order. 2. The petition for relief In acting on a petition for relief brought under G. L. c. 231, § 118, the authority of the single justice is “plenary, with the result that his order will be reviewed on appeal in the same manner as if it were an identical order by the trial judge considering the matter in the first instance.” Jet Line Servs. Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645, 646 (1988). The question before us is “whether the single justice abused his discretion by entering an order without having a supportable basis for doing so.” Highland Tap of Boston, Inc. v. Boston, 26 Mass. App. Ct. 239, 240 (1988), citing Jet Line, supra, and Carabetta Enterprises Inc. v. Schena, 25 Mass. App. Ct. 389, 392 (1988). The expressed basis for the single justice’s order was to provide an “interim solution” without fanning the flames of this intra-family dispute and to preserve judicial resources. A paid leave of absence for Arthur would eliminate possible, if not probable, disputes and interlocutory proceedings concerning his work performance. Such ancillary proceedings would only prolong the litigation and intensify the animosity among the litigants. The leave of absence provided a solution whereby Arthur’s employment position would be protected while the parties proceeded with the true matter at hand, inspection of the defendants’ books and records. To protect Arthur’s right as a shareholder to inspect the defendants’ books and records, the single justice set out detailed provisions for the defendants’ production of specific items and dates by which the presentment was to be made. There is also a very adequate basis in the record for the single justice’s order concerning Arthur’s annual salary of $60,000 during the period of his leave of absence. Although Arthur alleges that his annual salary from DSM is $500,000, there is an affidavit from the comptroller of DSM setting out the circumstances of Arthur’s salary. The comptroller explained that every DSM managerial employee is paid an annual salary and, customarily, a discretionary year-end bonus. As of August, 1990, Arthur’s annual salary was $60,000. His compensation from DSM in 1989 consisted of his annual salary of $48,000, and a year-end bonus of $100,000. In 1988, DSM had changed its fiscal year. As a result of this change, two bonuses were given. Arthur received his annual salary of $48,000, and the two bonuses for a total compensation of $548,000. There was also information before the single justice to show that the “bulk” of Arthur’s annual salary, the bonus, is a distribution “which [DSM], as a Subchapter S corporation, must continue to pay, and will continue to pay Mr. Demoulas even if his employment is terminated.” Judith Ashton (Thomas S. Fitzpatrick with her) for the plaintiffs. Jerome Gotkin (Shepard Davidson with him) for the defendants. In ordering DSM to pay Arthur an annual salary of $60,000, the single justice was aware of but declined to express an opinion on Arthur’s contention that his compensation for the period of 1986 through 1989 should be ascertained from an examination of W-2 forms submitted by DSM or by a comparison of the average compensation paid other shareholders with 300 shares of stock. In view of the comptroller’s affidavit and the explanation of DSM’s distributions of income for tax purposes, we think that the single justice acted reasonably in declining to use the procedure suggested by Arthur in setting his annual salary for the duration of his leave of absence. 3. Conclusion. There is a factual basis for the single justice’s order, which preserves the status quo for the parties while they more wisely expend their energy attempting to bring the case to a resolution in the Superior Court. We see no abuse of discretion. Order of the single justice affirmed. In his notice of appeal from the order of the single justice, Arthur designated those portions of the order pertaining to his leave of absence and his compensation during that period. See Yanolis v. Yanolis, 402 Mass. 470, 472-474 (1988). These figures do not include payment of Arthur’s expenses associated with his use of a “corporate car.”

THURMAN VENABLE, Plaintiff-Appellant v. GKN AUTOMOTIVE, Defendant-Appellee No. 9111SC719 (Filed 6 October 1992) Master and Servant § 10.2 (NCI3d)— refusal of supervisor to punish union organizers —supervisor fired —claims preempted by NLRA Where plaintiff brought an action for wrongful discharge based on defendant’s firing of him because he refused to punish union organizers, the trial court properly concluded that plaintiff’s claims were preempted by federal law under the National Labor Relations Act, even though plaintiff was a supervisor and supervisors are not protected directly by the NLRA, since the NLRA does protect employees who are fired because of any unfair labor practice, and an employer’s discharge of a supervisor for refusal to participate in the commission of an unfair labor practice is itself an unfair labor practice; furthermore, plaintiff failed to allege sufficient facts to establish independent claims under state tort law. Am Jur 2d, Labor and Labor Relations § 917. Discipline of supervisor for failure to support unlawful conduct of employer as unfair labor practice prohibited by § 8(a)(1) of the National Labor Relations Act (29 USCS § 158(a)(1) ). 50 ALR Fed 866. APPEAL by plaintiff from order entered 11 April 1991 by Judge Knox Jenkins in Lee County Superior Court. Heard in the Court of Appeals 13 May 1992. Richard W. Rutherford for plaintiff appellant. Edwards, Ballard, Bishop, Sturm, Clark and Keim, P.A., by Wade E. Ballard and Terry A. Clark; and Love & Wicker, P.A., by Dennis A. Wicker, for defendant appellee. COZORT, Judge. Plaintiff-employee brought an action alleging the following claims against his employer: (1) wrongful discharge in violation of public policy; (2) wrongful discharge based on breach of implied covenant of good faith and fair dealing; and (3) intentional infliction of emotional distress. The trial court granted defendant-employer’s motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction due to federal preemption under the National Labor Relations Act and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted. We affirm. Defendant GKN Automotive hired plaintiff Thurman Venable in June 1979 to work in defendant’s Sanford automotive plant. Plaintiff subsequently became a supervisor of two departments within the plant and compiled a satisfactory work record over a nine-year period. In March of 1988, the United Auto Workers Union (UAW) began a Union campaign at GKN. During the Union campaign, plaintiff, as a supervisor, indicated to fellow supervisors that he would not mistreat or fire Union sympathizers. On 9 June 1988, plant manager Dave Forkner along with plaintiff’s supervisor, Hulon Brown, called plaintiff into a meeting. Forkner and Brown made pointed inquiries as to plaintiff’s loyalties concerning the Union campaign by asking plaintiff whether he was a member of the management “team,” and whether he would support the company’s efforts to ward off a Union threat. Following the 9 June meeting, plaintiff received his annual review from Mr. Brown. The evaluation was two weeks late and contained negative comments. On 1 August 1988, company managers called all supervisors into a meeting. At this time, management was aware the Union campaign had failed. Mr. Forkner conducted the meeting and explained to the supervisors that he did not want to see nine named employees, who were suspected Union supporters, working in the plant by January 1989. The nine employees had been transferred previously into plaintiff’s department and were his responsibility. When it became time for the nine employees to receive evaluations, Mr. Forkner ordered plaintiff to submit negative reviews for the Union supporters. Plaintiff refused to turn in adverse evaluations and gave all nine employees good ratings. After the evaluations were submitted to the personnel department, the records were changed to reflect negative performances. Mr. Forkner then directed plaintiff to explain to the nine employees that plaintiff had erred. Again, plaintiff refused. On 21 January 1989, plaintiff was moved to the night shift for a ninety-day trial period. Defendant terminated plaintiff’s employment on 17 April 1989. Plaintiff believed he was fired in retaliation for his refusal to violate the rights of Union supporters by falsifying their evaluations or by firing them. Plaintiff thereupon brought an action against GKN on 30 July 1990. Defendant filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) and Rule 12(b)(6) on 20 August 1990. On 11 April 1991, the trial court granted defendant’s motion to dismiss and made in part the following conclusions of law: 3. That the Complaint filed by plaintiff fails to state a claim upon which relief may be granted by the Court, and that all of the inter-related causes of action are preempted by Federal law under the National Labor Relations Act in Chapter 29 of the United States Code. 4. That the Court does not have jurisdiction of the subject matter, and that such subject matter is preempted by Federal law under the National Labor Relations Act pursuant to Chapter 29 of the United States Code. Plaintiff asserts five assignments of error on appeal, the first three of which challenge the federal preemption of plaintiffs claim. The National Labor Relations Act (NLRA), codified in 29 U.S.C. § 150 et seq., protects the rights of employees to engage in certain labor activities. The Act vests the National Labor Relations Board (NLRB) with exclusive jurisdiction over questions of Union representation and over unfair labor practices defined in the Act. 29 U.S.C. §§ 159-160 (1988). Thus, in some cases, the NLRB will have exclusive jurisdiction over claims which would otherwise appear appropriate for state jurisdiction. The United States Supreme Court explained the analysis used in determining whether state law claims are preempted by the NLRA in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 3 L.Ed.2d 775 (1959). The analysis set forth in Garmon was reemphasized more recently in International Longshoremen’s Assoc. v. Davis, 476 U.S. 380, 90 L.Ed.2d 389 (1986): “[D]ue regard for the federal enactment requires that state jurisdiction must yield,” when the activities sought to be regulated by a State are clearly or may fairly be assumed to be within the purview of § 7 or § 8. The [Garmon] Court acknowledged that “[a]t times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections.” Even in such ambiguous situations, however, the Court concluded that “courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.” Thus the Court held that “[w]hen an activity is arguably subject to § 7 and § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id. at 389-90, 90 L.Ed.2d at 400 (citations omitted). Plaintiff contends preemption should not be applied, first arguing that his claims should not be preempted because his rights as a supervisor are peripheral in nature to the NLRA. We recognize that supervisors are not protected directly by the NLRA, because under the Act [t]he term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include . . . any individual employed as a supervisor 29 U.S.C. § 152(3) (1988) (emphasis added). Nonetheless, it is clear that an employer’s discharge of a supervisor for refusal to participate in the commission of an unfair labor practice is itself an unfair labor practice. See generally, Kenrich Petrochemicals v. NLRB, 907 F.2d 400, cert. denied, — U.S. —, 112 L.Ed.2d 522 (3rd Cir. 1990); NLRB v. Talladega Cotton Factory, 213 F.2d 209 (5th Cir. 1954); Budget Marketing, Inc., 241 NLRB 1108 (1979). Conduct by an employer which is considered to be an unfair labor practice is defined in 29 U.S.C. § 158(a) and provides in part: (a) Unfair labor practices by employer. It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any Labor organization!.] Section 7 of the NLRA outlines the rights of employees as follows: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title. 29 U.S.C. § 157 (1988). In Budget Marketing, Inc., the NLRB found a violation of the NLRA where an employer discharged a supervisor for failing to discharge another employee under the pretext of poor performance. The NLRB concluded, “[the employer] violated Section 8(a)(1) of the Act by discharging [the supervisor] because of his refusal to engage in unfair labor practices — that is, his refusal to discharge an employee . . . because of his Union activities.” Budget Marketing Inc., 241 NLRB at 1112. Plaintiff argues that the state has subject matter jurisdiction in the present case because the state has a significant interest in discouraging unfair labor practices and because the defendant’s behavior was in violation of state public policy. Although the state does have an interest in discouraging unfair labor practices, it is clear in the case at bar that GKN’s actions constituted an unfair labor practice within the purview of Section 7 of the NLRA. The preemption analysis set forth in Davis is therefore applicable here; the trial court did not err in finding that it lacked jurisdiction over plaintiff’s claims. Plaintiff’s final assignments of error are based on arguments that the trial court failed to find defendant’s action to be in violation of state laws and public policy. Plaintiff’s complaint included the following allegations: 13. Plaintiff’s firing was due to his refusal to violate the rights of Union supporters under the National Labor Relations Act by falsifying evaluations and by firing them. 14. Plaintiff’s termination thus was in violation of the important statutorily codified public policy of this state and nation that Employees should not be fired or adversely treated for exercising protected rights under the National Labor Relations Act against and was made in bad faith and in violation of an implied covenant of good faith and fair dealing between plaintiff and GKN. 15. Plaintiff’s termination has caused him great mental anguish and distress and has damaged him greatly in his relationships with his acquaintances and peers in the community, and has cost him the wages and benefits of his position. Plaintiff’s allegations are conclusory in nature and fail to allege facts sufficient to constitute a claim independent of the unfair labor practice claim. Thus, we hold that plaintiff’s claims are based on allegations of unfair labor practices and are preempted by the NLRA. Furthermore, plaintiff has failed to allege sufficient facts to establish independent claims under state tort law. The trial court correctly dismissed the action under Rule 12(b)(1) and Rule 12(b)(6). Affirmed. Judges Parker and Greene concur.

William S. Reilly vs. Massachusetts Bay Transportation Authority & another. No. 90-P-1098. Suffolk. December 9, 1991. April 16, 1992. Present: Dreben, Fine, & Ireland, JJ. Labor, Fair representation by union, Action against labor union, Judicial relief, Arbitration, Collective bargaining. Practice, Civil, Motion in limine. Administrative Law, Primary jurisdiction. Jurisdiction, Labor case, Primary jurisdiction. Arbitration, Scope of arbitration, Authority of arbitrator, Parties. Damages, Fair representation by union. At the jury-waived trial of an employee’s claims against his employer and a labor union, arising from his discharge pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union,” the judge appropriately admitted evidence of the union’s prior unfair actions toward the plaintiff. [414-415] An employee seeking judicial relief from an arbitrator’s order that he be discharged pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union” was not precluded either by his failure to participate in the arbitration between the union and his employer, where the agreement gave him no such right, or, in the circumstances, by his not having pursued administrative or internal union remedies. [415-417] A judge was not clearly in error in finding that a labor union’s treatment of a certain employee, who was seeking reinstatement to union membership as a condition of employment under the applicable collective bargaining agreement, was unfair and constituted wrongful exclusion from membership. [417] Where a labor union’s bad faith actions in excluding from full membership an employee within its collective bargaining unit led to arbitration between the union and his employer, culminating in the employee’s discharge pursuant to a requirement in the collective bargaining agreement requiring employees to “become and remain members of the Union,” the employee had standing to challenge the arbitrator’s award in an action against the union and the employer. [417-418] Where a labor union’s wrongful exclusion of an employee from full membership had resulted in the employee’s discharge pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union,” a judgment ordering the employee’s reinstatement was clearly appropriate [418-419]; the union was to be liable for intervening wage loss [419]; and the union was to be ordered to refrain from further action against the employee before giving him the opportunity of full membership and benefits upon payment of back dues [419-420], Civil action commenced in the Superior Court Department on February 27, 1986. The case was heard by John C. Cratsley, J. Phinorice J. Boldin for Massachusetts Bay Transportation Authority. John McMahon for Boston Carmen’s Union, Division 589, Amalgamated Transit Union. Richard W. Murphy {Jon R. Maddox with him) for the plaintiff. Local 589, Amalgamated Transit Union. Dreben, J. This is the third time that a dispute among William S. Reilly; Local 589, Amalgamated Transit Union (union); and the Massachusetts Bay Transportation Authority (Authority) has reached this court. See Reilly v. Local 589, Amalgamated Transit Union, 22 Mass. App. Ct. 558 (1986) (Reilly I), and Reilly v. Local 589, Amalgamated Transit Union, 31 Mass. App. Ct. 633 (1991) (Reilly II). Footnote 27 of Reilly I, supra at 580, describes the beginning of the present controversy. Both prior appeals grew out of the 1972 discharge of Reilly by the Authority and the union’s refusal to represent his interests in arbitration. Ultimately, the union acknowledged that its refusal was “for reasons other than the merits of his cases,” and, by order of the Superior Court, the matter was sent to arbitration. The arbitrator ruled Reilly’s discharge inappropriate and ordered that he be “made whole for all benefits lost” as a result of the Authority’s actions. Reilly II, supra at 635. On March 20, 1981, a Superior Court judge confirmed the arbitrator’s award and ordered the Authority to reinstate Reilly to his position as a motorman “forthwith.” Reilly was reinstated in 1981. Section 101C of the collective bargaining agreement between the union and the Authority required all employees to “become and remain members of the Union” and also provided that any employee who “fails to maintain membership in the Union to the extent of paying regular membership dues and assessments shall not be retained in the employ of the Authority. . . .” Beginning with his reemployment, Reilly and the union could not agree on the terms of his reinstatement as a union member. Reilly wanted full reinstatement with all benefits, but the union refused to consider him a member in good standing since 1975, the time when Reilly had previously stopped paying dues. When they failed to reach agreement, the union insisted that he be fired for failure to pay dues, the Authority refused, and the union brought the matter to arbitration on December 18, 1985. Reilly, although given notice of the impending arbitration, did not participate in the proceedings. The Authority did not present evidence to the arbitrator, and an award was made which upheld the union’s position and ordered Reilly discharged. The Authority complied with the arbitral award in 1986. Reilly then brought this action in the Superior Court, alleging that he should have been made a party to the arbitration and that his discharge was in violation of the March, 1981 court order reinstating him as an employee. After a jury-waived trial, the trial judge found that the union, rather than accepting responsibility for Reilly’s suspension from membership in 1975, *refused to offer him full and unqualified membership. In particular, while the union gave Reilly the option of paying all back dues or joining as a new member, it also, citing the constitution of the international union, insisted that Reilly could not run for union office until he was again a member in good standing for two years. Reilly rejected both options and did not pay dues. The judge found the action of the union to be a “slavish adherence to formal requirements at the expense of fair play,” that waivers of the rule requiring membership for the preceding two years before seeking union office were possible, and that there was no evidence that the union even tried to seek from the international union permission to waive the rule. The judge ruled “that in the highly unusual circumstances of this case — where the union’s own failure to represent Mr. Reilly brought about the very problem, cessation of Reilly’s membership, of which the union now complains — the union’s failure to reinstate Reilly ‘whole’ constitutes wrongful exclusion from membership on its part. . . . [I]ts invocation of the Authority’s contractual obligation to adhere to the requirements of Section 101C of the Agreement effectively calls upon the Authority to legitimize the union’s own unjust treatment of Reilly.” The judge, after citing Vaca v. Sipes, 386 U.S. 171, 186 (1967), and Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. 283, 286 (1976), both cases discussing a union’s violation of its duty of fair representation, ruled “[i]t is impermissible for the Authority to discharge Reilly for no other reason than that he has not paid his union dues when the union had failed, after a judicial determination of its own wrongful actions, to reinstate fully its former member, thereby causing that non-payment. Under these circumstances, the discharge of Reilly essentially constitutes a violation of [the] order that Reilly be re-employed by the Authority as if he never were terminated.” A judgment was entered ordering that (1) the arbitration award be vacated; (2) the Authority reinstate Reilly forthwith with all the rights and benefits he held at the time of his discharge; (3) the Authority restore to Reilly “all salary and benefits lost, plus interest, from the daté of his discharge in 1986 to the date of his reinstatement”; and (4) the union “refrain from any further action against [Reilly] based on the fact that he is not, as yet, a dues-paying member of Local 589.” Before us are appeals by the union and the Authority. We are in basic agreement with the judge’s rulings but deem it appropriate to modify the remedy. Our discussion will first consider certain procedural claims of the appellants before turning to the merits. 1. Denial of motion in limine. The union and the Authority claim error in the introduction by Reilly of evidence of the union’s actions which took place before his 1981 reinstatement. This evidence, they urge, allowed Reilly’s action to encompass a claim of wrongful expulsion from union membership. Prior to trial, the union and the Authority moved to limit Reilly’s evidence to the two claims alleged in his complaint, namely (1) whether Reilly should have been made a party to the 1985 arbitration and (2) whether the 1986 award that Reilly be discharged violated the 1981 order that the Authority reinstate Reilly. A trial court has wide discretion to determine the relevancy of evidence. Commonwealth v. Tobin, 392 Mass. 604, 613 (1984). Commonwealth v. Good, 409 Mass. 612, 621-622 (1991). Even where the issues raised are not within the scope of the pleadings, a judge, in the absence of prejudice (that is, an inability by the opposing party to prepare an adequate case or defense), is encouraged by the Massachusetts Rules of Civil Procedure freely to allow amendments to the pleadings to conform to such evidence as serves the merits of the action. See Mass.R.Civ.P. 15(b), 365 Mass. 761-762 (1974). Moreover, here the evidence could reasonably be viewed as within the matters pleaded. The unfair treatment by the union of Reilly’s earlier grievance led to his ceasing to pay dues in 1975. The resulting break in continuous union membership underlay Reilly’s claim that the union unfairly deprived him of union benefits including the provision of the international union’s constitution, see note 5, supra, and thus procured his wrongful discharge in 1986. His 1986 firing was alleged to be a violation of the 1981 court order. 2. Failure to exhaust administrative remedies. Pointing to the fact that Reilly knew of the time, place and purpose of the arbitration, the union and the Authority argue that Reilly’s failure to participate in the arbitration proceedings precludes him from challenging its results. If his claim was that § 101C of the collective bargaining agreement (requiring maintenance of union membership) did not apply because he was excluded from the union (§ 101D of the agreement), they urge that he was required to participate in the proceedings once arbitration had been invoked by the parties to the collective bargaining agreement. Reilly did not have a statutory right to intervene, nor was he given such a right by the collective bargaining agreement. Indeed, § 104 of the agreement provided that the grievance procedure “shall apply to all disputes between the Union and the Authority, whether any such dispute occurs as the result of a complaint by an individual member of the Union or a complaint by the Union itself’ (emphasis supplied). There is nothing in the collective bargaining agreement requiring Reilly to intervene or lose his legal rights. Moreover, as the judge was warranted in finding, the notice given to Reilly was inadequate. It did not explicitly invite him to attend nor did it inform him of his rights in the arbitration process. It did not tell him whether he could have a lawyer, bring witnesses, or cross-examine the parties. That in some other instances, involving other issues, employees had participated in arbitration proceedings did not require a finding that there was a waiver by Reilly or an obligation binding on him to attend. The Authority’s additional argument that Reilly, if not required to arbitrate, was obliged by G. L. c. 161 A, § 19, “to submit his grievance to the state board of conciliation and arbitration or other board having similar powers and duties” does not appear to have been made to the judge prior to the Authority’s postjudgment motion for reconsideration. It is doubtful that the State board has the same authority as given to the Labor Relations Commission in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341 (1987). See Massachusetts Bay Transp. Authy. v. Labor Relations Commn., 356 Mass. 563, 567 (1970). See also G. L. c. 161 A, § 19A, which makes applicable to the Authority and its employees only c. 150A, § 5. Moreover, even if the legislative scheme of G. L. c. 161 A, § 19, were interpreted to give the State Board of Conciliation and Arbitration such authority, where, as here, the case was brought prior to the decision in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, supra, Reilly is entitled to rely “on Federal and State precedent indicating that the courts had concurrent jurisdiction [with administrative agencies] over cases concerning the duty of fair representation.” Id. at 350-351. Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 611 (1990). Vaca v. Sipes, 386 U.S. at 181-183. Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. 67, 73-84 (1989). See also Pattison v. Labor Relations Commn., 30 Mass. App. Ct. 9, 10, 21 (1991). Reilly also did not need to exhaust internal union procedures. The dispute between Reilly and the union remained unresolved from 1981 to 1985. To have prolonged it further would, in our opinion, have “unreasonably delay [ed] [his] opportunity to obtain a judicial hearing on the merits of his claim.” Clayton v. International Union, United Auto., Aerospace, & Agric. Implement Wkrs. of America, 451 U.S. 679, 689 (1981). The union procedure also may have been inadequate to award full relief. Ibid. 3. Wrongful exclusion from union membership. Urging that it was bound by the constitution of the international union, which was not a party to this proceeding, see Donahue v. Kenney, 327 Mass. 409, 413 (1951), the union claims the judge’s finding of wrongful exclusion is plain error. In view of the international union’s determination that the one-year limitation on reinstatement rule was inapplicable under the “highly unusual” facts applicable to Reilly, see note 6, supra, and in view of the evidence of earlier hostility by some union members to Reilly’s election attempts, see also Reilly I, 22 Mass. App. Ct. at 563 n.7, the judge’s finding — that the failure by the union even to request from the international union a determination of inapplicability or waiver of the two-year “good standing” rule for eligibility for election was unfair and constituted wrongful exclusion from membership — was not clearly erroneous. 4. Duty of fair representation and claim that Reilly cannot challenge the 1986 arbitration award. Under both State and Federal law, a union has the responsibility and duty of fair representation. Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. at 348. Vaca v. Sipes, 386 U.S. at 177. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564 (1976). Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. at 73. Even if not required by statute, “the courts would infer [such a duty] as a constitutional requirement.” Leahy, supra. McCormick v. Labor Relations Commn., 412 Mass. 164, 169 n.9 (1992). See generally A Judicial Guide to Labor and Employment Law § 18-4.1 (Walsh ed. 1990). Where the union has breached this duty, the foregoing authorities permit an employee, at least in cases brought prior to Leahy, to bring directly an action against his employer. See Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. at 286. “The union’s breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union’s breach also removes the bar of the finality provisions of the contract.” Hines v. Anchor Motor Freight, Inc., 424 U.S. at 567. The circumstances of this case are unusual: Reilly offered to pay all back dues; the union’s previous violation of the duty of fair representation had reasonably led Reilly to cease paying dues in 1975, causing him to lose his status as a member “in good standing”; despite its earlier wrongful behavior, the union refused to seek full benefits for Reilly upon his reinstatement; and union membership and payment of dues under the collective bargaining agreement was required as a condition of employment. We hold that the union, by excluding Reilly from full union membership, was in breach of its duty of fair representation in administering § 101C, the discharge provision of the collective bargaining agreement. In wielding the power of obtaining a discharge for failure to pay dues, the union had a duty to exercise that power fairly. See Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. at 82-83. This it has not done. Accordingly, the argument that Reilly lacks standing to challenge the award has no merit. See the cases previously cited discussing the duty of fair representation. We need not consider whether the arbitrator’s decision also superseded the prior court order. It is enough that the union’s bad faith actions in representing Reilly led to the arbitration decision and Reilly’s wrongful discharge. 5. Remedy against the Authority. Since Reilly was wrongfully discharged, the order requiring -the Authority to reinstate him was clearly appropriate. The assessment against the Authority of back pay from the time of the “tainted decision” of the arbitrator to the date of the judicial determination that the discharge was wrongful, however, presents difficulty. “If an employer relies in good faith on a favorable arbitral decision, then his failure to reinstate discharged employees cannot be anything but rightful, until there is a contrary determination. ... To hold an employer liable for back wages for the period during which he rightfully refuses to hire discharged employees would be to charge him with a contractual violation on the basis of conduct precisely in accord with the dictates of the collective agreement.” Hines v. Anchor Motor Freight, Inc., 424 U.S. at 572-573 (Stewart, J., concurring). For the reasons set forth by Justice Stewart in the Hines case, and implicitly by the Court in Bowen v. United States Postal Serv., 459 U.S. 212, 225-228 (1983), we vacate that portion of the judgment which assessed the Authority with an award of. back pay for the period prior to the judgment of the Superior Court. 6. Remedy against the union. The concurring opinion of Justice Stewart in Hines v. Anchor Motor Freight, Inc., supra, also sets forth the appropriate remedy against the union. “Liability for the intervening wage loss must fall not on the employer but on the union. Such an apportionment of damages is mandated by Vaca’[ ] holding that ‘damages attributable solely to the employer’s breach of contract should not be charged to the union, but increases if any in those damages caused by the union’s refusal to process the grievance should not be charged to the employer.’ 386 U.S. at 197-198.” 424 U.S. at 573. We again agree with Justice Stewart’s reasoning, see also Bowen v. United States Postal Serv., 459 U.S. at 223, and hold that the union is responsible for Reilly’s back pay from the time of the arbitrator’s decision to the date the judgment was entered in the Superior Court. The trial judge explained in his memorandum that, because the international union was not a party, see Donahue v. Kenney, 327 Mass. at 413, and because the union cannot unilaterally contravene a rule in the international union’s constitution, McDermo

Anita Wright vs. Shriners Hospital for Crippled Children & another. Suffolk. October 7, 1991. April 16, 1992. Present: Liacos. C.J. Wilkins. Lynch. O’Connor. & Greanly. JJ. Employment, Termination. Contract, Employment. Public Policy. Unlawful Interference. Nurse. The action of a hospital corporation in terminating the at-will employment of a registered nurse would not, as matter of law, have violated public policy, even if the termination were shown to have been in reprisal for the employee’s criticism of the hospital during interviews with members of a survey team representing the national organization to which the hospital belonged. [472-476] Liacos, J., dissenting. In an action by a nurse who was discharged from her at-will employment by a hospital corporation, the administrator of the hospital was entitled to judgment notwithstanding the verdict on the plaintiffs claim of intentional interference with contractual relations, where the corporation was legally entitled to discharge the plaintiff, and where there was no evidence that the administrator’s purpose in effecting her discharge was unrelated to a legitimate corporate interest. [476] Civil action commenced in the Superior Court Department on July 1, 1988. The case was tried before John C. Cratsley, J. The Supreme Judicial Court granted a request for direct appellate review. William F. Joy, Jr. (.Benjamin Smith with him) for the defendants. Kevin G. Powers for the plaintiff. Salvatore Russo. O’Connor, J. In this case, which is here on direct appellate review, we consider the sufficiency of the evidence to warrant a jury’s verdict of $100,000 in favor of the plaintiff, Anita Wright, against her employer, the defendant Shriners Hospital for Crippled Children (Shriners Hospital), on Wright’s claim that Shriners Hospital wrongfully terminated her at-will employment in violation of public policy. We also consider the sufficiency of the evidence to warrant the jury’s verdict of $50,000 against the defendant Salvatore Russo, the hospital administrator, for tortious interference with Wright’s employment relationship with Shriners Hospital. We hold that the evidence was insufficient to warrant either verdict and that the trial judge should have allowed the defendants’ motion for judgment notwithstanding the verdict. We reverse the judgments for the plaintiff and remand this case to the Superior Court for the entry of judgments for the defendants. We summarize the evidence in the light most favorable to the plaintiff. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 146 (1989). Shriners Hospital hired Wright, a registered nurse, in 1976. Subsequently, she became assistant director of nursing-, and she held that position until she was discharged in late February of 1987. At all times, she was an employee at will. Wright received excellent evaluations throughout her employment, including an evaluation in December, 1986, two months before her discharge. In June, 1986, a former assistant head nurse wrote a letter to the director of clinical affairs for the Shriners national headquarters detailing her concerns about the medical staff and administration at Shriners Hospital. Shriners Hospital is a separate corporation, but it is one of many Shriners facilities that are affiliated with the national headquarters. As a result of the letter, the national headquarters notified the defendant hospital administrator, Russo, that a survey team would visit Shriners Hospital in November, 1986. Russo was visibly upset. He spoke to the director of nursing about the letter and asked her: “Are you behind this? Is Anita Wright behind this?” The director of nursing denied that she was responsible for the letter. She did not address the question whether Wright was “behind” the letter. The survey team visited the hospital in November and interviewed Wright and other employees. Wright told the survey team that there were communication problems between the medical and nursing staffs. She detailed problems with the assistant chief of staff and gave specific examples of patient care problems. The survey team reported Wright’s comments to the assistant chief of staff. Two members of the survey team prepared reports. In his report issued on December 22, 1986, Dr. Newton C. McCollough, director of medical affairs for the national organization, wrote: “The relationships between nursing administration, hospital administration, and chief of staff are much less than satisfactory, and significant friction exists both as regard nursing/administration relationships and nursing/medical staff relationships. Communication and problem solving efforts in this relationship are poor to nonexistent.” A report issued on January 5, 1987, by Jack D. Hoard, executive administrator for the national Shriners organization, also documented the problematic relationship between the nursing and medical staff. Both reports recommended a follow-up site survey to determine the impact of this conflict on patient care. McCollough’s report stated that during her interview, Wright had made severe criticisms of the medical staff and had expressed concern over a lack of consistent procedures and standards for patient care. Hoard’s report stated that Wright discussed the breakdown in communication between the nursing staff and the attending medical staff, which she said was leading to deteriorating morale among nurses. Upon reading the survey team’s reports, Russo again became upset and told the director of nursing that it was the nursing department’s fault that the team was making another visit. He also stated at a department managers’ meeting in December, 1986, “It seems there are people who spend their time trying to find fault with everything that everyone does, and those kinds of people we don’t need here.” Russo testified that, when he said that, he “possibly” was referring to statements made to the survey team. After the survey team’s November, 1986, visit, Russo stopped speaking to Wright or even acknowledging her presence. The survey team returned on February 18 and 19, 1987, specifically to review the problems between the medical and nursing staffs. On February 26, after consulting with the chairman and several officers of the board of governors of Shriners Hospital and with national corporate counsel, Russo ordered that Wright’s employment be terminated for “patient care issues that had arisen as a result of the surveys.” Wright contends, and the defendants dispute, that the jury would have been warranted in finding that Shriners Hospital fired her from her employment at will in retaliation for her having criticized the hospital, specifically in regard to the quality of care rendered to patients, to the Shriners national headquarters survey team. Wright further asserts that-such a retaliatory firing violates public policy and is therefore actionable. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988); DeRose v. Putnam Management Co., 398 Mass. 205, 210 (1986). It is a question of law for the judge to decide whether a retaliatory firing in these circumstances would violate public policy. Mello v. Stop & Shop Cos., 402 Mass. 555, 561 n.7 (1988). We hold that a termination of Wright’s employment at will in reprisal for her critical remarks to the survey team would not have violated public policy. Therefore, we need not address the disputed matter of the sufficiency of the evidence to warrant a finding that the firing was indeed in retaliation for the criticism. We begin with the general rule that “[ejmployment at will is terminable by either the employee or the employer without notice, for almost any reason or for no reason at all.” Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). We have recognized exceptions to that general rule, however, when employment is terminated contrary to a well-defined public policy. Thus, “[rjedress is available for employees who are terminated for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 149-150. We have also held that redress was available to an at-will employee who was discharged in retaliation for his cooperation with a law enforcement investigation concerning his employer. Flesner v. Technical Communications Corp., 410 Mass. 805, 811 (1991). Although the employee in Flesner was not required by law to cooperate, we reasoned that the Legislature had clearly expressed a policy encouraging cooperation with criminal investigations as indicated by statutes providing for reimbursement of expenses for persons assisting in investigations and immunity for witnesses testifying in grand jury investigations. Id. at 810. The trial judge’s view of the law was that public policy was violated if Shriners Hospital fired Wright in reprisal for her having criticized the hospital in interviews with the survey team. As is clear from his instructions to the jury, the judge’s view was based in part on “the duty of doctors and nurses, found in their own code of ethics, to report on substantial patient care issues.” We would hesitate to declare that the ethical code of a private professional organization can be a source of recognized public policy. We need not consider that question, however, because no code of ethics was introduced in evidence in this case. It is also clear from his instructions that the judge’s view was based in part on “various state laws of the commonwealth, requiring reports on patient abuse.” The judge did not identify the State laws he had in mind. General Laws c. 119, § 51A (1990 ed.), requires nurses and others to make a report to the Department of Social Services concerning any child under eighteen years of age who they have reason to believe is suffering from physical or sexual abuse or neglect. Similarly, G. L. c. 19A, §15 (a) (1990 ed.), requires nurses and others who have reasonable cause to believe that an elderly person is suffering from abuse to report it to the Department of Elder Affairs. Subsection (d) of that provision provides that no employer or supervisor may discharge an employee for filing a report. Finally, G. L. c. 111, § 72G (1990 ed.), requires nurses and others to report to the Department of Public Health (department) when they have reason to believe that any patient or resident of a facility licensed by the department is being abused, mistreated, or neglected and provides a remedy of treble damages, costs, and attorney’s fees for any employee who is discharged in retaliation for having made such a report. None of these statutes applies to Wright’s situation, however, and we are unaware of any statute that does. Also, we are unaware of any statute that clearly expresses a legislative policy to encourage nurses to make the type of internal report involved in this case. In fact, Wright testified that she did not consider the patient care that caused her concern to be abuse, neglect, or mistreatment warranting a report to the department, nor did she feel that there was an issue of physician incompetence warranting a report to the board of registration in medicine as required by G. L. c. 112, § 5F (1990 ed.). Wright urges us to recognize a regulation promulgated by-the Board of Registration in Nursing as a source of public policy sufficient to create an exception to the general rule regarding termination of at-will employment. Title 244 Code Mass. Regs. § 3.02 (3) (f) (1986) describes the responsibilities and functions of a registered nurse, including the responsibility to “collaborate, communicate and cooperate as appropriate with other health care providers to ensure quality and continuity of care.” Even if that regulation called for Wright to report perceived problems or inadequacies to the survey team, a doubtful proposition, we have never held that a regulation governing a particular profession is a source of well-defined public policy sufficient to modify the general at-will employment rule, and we decline to do so now. Furthermore, as we have noted above, Wright’s report was an internal matter, and “[i]nternal matters,” we have previously said, “could not be the basis of a public policy exception to the at-will rule.” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 151, citing Mello v. Stop & Shop Cos., supra at 560-561. We agree with the dissent that the provision of good medical care by hospitals is in the public interest. It does not follow, however, that all health care employees should be immune from the general at-will employment rule simply because they claim to be reporting on issues that they feel are detrimental to health care. In Smith-Pfeffer, supra, we held that there was no violation of a well-established public policy by. an employer who discharged an employee for her actions in opposing a management restructuring plan proposed by the defendant acting superintendent as well as the possible appointment of the defendant to the position of permanent superintendent. Smith-Pfeffer, supra at 147-150. The employee’s opposition to the plan and appointment were based, in part, on her perception that the restructuring would significantly alter the management relationships such that it would “compromise service delivery to the residents” and “constitute[ ] a threat to the well-being of the institution and its residents.” Id. at 148, 151. The defendant conceded that the jury could have found that the “plaintiff had performed her duties in a superior manner” and that her “actions were motivated by a sincere commitment to the mentally retarded residents in her unit,” and that the defendant terminated her “to get rid of an employee he regarded as a trouble maker, and one with whom he personally did not get along.” Id. at 149. Although there is no less of a public interest in the provision of good quality care to the residents of a public facility for the retarded than in good care for patients in a hospital, we rejected the plaintiffs argument that the public policy exception to the at-will rule should extend to protect employees who were performing “appropriate, socially desirable duties” from being subject to discharge without cause. Id. at 150. We reasoned, “Essentially, the plaintiffs argument would require us to convert the general rule that ‘an employment-at-will contract [can] be terminated at any time for any reason or for no reason at all,’ see Gram v. Liberty Mut. Ins. Co., [384 Mass. 659,] 668 n.6 [1981], into a rule that requires just cause to terminate an at-will employee. The public policy exception to the at-will employment rule is not that broad” (footnote omitted). Id. We conclude in this case, as we did in Smith-Pfeffer, that the evidence did not warrant a verdict for the plaintiff. We turn to the case-against the defendant hospital administrator, Russo. “In an action for intentional interference with contractual relations, the 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, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.” G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991), citing United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812-817 (1990). Even if the evidence would have warranted a finding that Russo fired Wright in retaliation for her having complained to the survey team, a matter we are not deciding, that evidence alone would not have warranted a finding of improper motive, because, as we have' held, the corporation had a right to discharge Wright for such a reason. As Wright’s supervisor, Russo had a right to fire Wright unless he did so “malevolently, i.e., for a spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 432-433 (1987). The record is devoid of evidence that Russo’s purpose in discharging Wright was unrelated to a legitimate corporate interest. We conclude that the evidence was insufficient to warrant a verdict against the defendant Russo. We reverse the judgments for the plaintiff and remand to the Superior Court for the entry of judgments for the defendants. So ordered. Liacos, C.J. (dissenting). I disagree with the court’s conclusion that a hospital employer violates no public policy when it fires an employee for alerting supervisors to matters detracting from good patient care. The court has construed far too narrowly the public policy exception to the doctrine of employment at will. Moreover, in demanding a statutory basis for public policy, the court has relinquished to the Legislature its role in shaping the common law. I dissent. It is well-established that “an at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.” DeRose v. Putnam Management Co., 398 Mass. 205, 210 (1986). We have perceived clear violations of public policy when an employer terminates an employee for: (1) asserting a legal right, see Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149 (1989) (citing example of filing a workers’ compensation claim); (2) doing what the law requires, see Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (enforcing safety laws); and (3) refusing to do what the law forbids, see DeRose, supra at 210 (giving false testimony at trial). In addition, we have established “legal redress in certain circumstances for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed.” Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (cooperating with ongoing government investigation). “[T]he Achilles heel of the [public policy exception] lies in the definition of public policy.” Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130 (1981). It is a proper rolé of the courts to construe the boundaries of “public policy” and thereby develop common law remedies available to at-will employees who are terminated. Cf. Schofield v. Merrill, 386 Mass. 244, 245, 247-248 (1982) (based on social values and customs, and lack of community consensus, court refused to abolish “common law rule that a landowner is not liable to an adult trespasser for injuries resulting from the landowner’s negligence”). I find it disturbing, therefore, that the court would relinquish this role, by requiring a statutory basis for public policy. The court reads Flesner too narrowly. In that case, we provided relief because the plaintiff was fired for performing an important public deed, not because the plaintiff was acting in accordance with a legislatively determined public policy. The court also declines to say whether public policy arises from such nonstatutory sources as regulations or the ethical codes of private professional organizations. It thus defers unduly to the Legislature in defining the contours of the public policy exception. This deferral in the realm of common law is inappropriate. The court must determine the boundaries of public policy, by looking not only to statutory law, but also to administrative law, judicial opinions, and even professional codes of conduct (where those codes serve a public interest, not merely the interests of the profession). See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). In the instant case, the court should begin by acknowledging the undisputable public interest in the provision of good medical care by hospitals. We have long recognized that hospitals “conduct enterprises greatly affected with a general public interest.” Springfield Hosp. v. C

DR. ALVIS L. CORUM v. UNIVERSITY OF NORTH CAROLINA through its Board of Governors; C. D. SPANGLER, President of the UNIVERSITY OF NORTH CAROLINA in his official capacity; APPALACHIAN STATE UNIVERSITY; and JOHN THOMAS, Chancellor of Appalachian State University, and HARVEY DURHAM No. 163PA90 (Filed 31 January 1992) 1. Constitutional Law § 86 (NCI4th)— § 1983 claims —UNC, ASU and university officials — official capacities — damages claims barred Plaintiff was barred from seeking damages under 42 U.S.C. § 1983 from the University of North Carolina, Appalachian State University, the president of the University of North Carolina in his official capacity, and the chancellor and a vice chancellor of Appalachian State University in their official capacities because .neither a state nor its officials acting in their official capacities are “persons” under § 1983 when the remedy sought is monetary damages. Am Jur 2d, Civil Rights §§ 17, 264. Public institutions of higher learning as “persons” subject to suit under 42 USCS sec. 1983. 65 ALR Fed 490. 2. Constitutional Law § 86 (NCI4th) — § 1983 claims — UNC, ASU and university officials — official capacities — injunctive relief permissible Plaintiff could properly bring actions under 42 U.S.C. § 1983 for injunctive relief against UNC, ASU, and the individual defendants in their official capacities because state institutions or employees acting in their official capacities are “persons” reachable under § 1983 when sued for prospective equitable relief. Am Jur 2d, Civil Rights §§ 17, 264. Public institutions of higher learning as “persons” subject to suit under 42 USCS sec. 1983. 65 ALR Fed 490. 3. Constitutional Law § 86 (NCI4th)— § 1983 claims — official capacities — sovereign and qualified immunity inapplicable Sovereign immunity alleged under state law is not a permissible defense to § 1983 actions. Nor is the defense of qualified immunity available under § 1983 to one sued in his official capacity. Insofar as Truesdale v. University of North Carolina, 91 N.C. App. 186, 371 S.E.2d 503, states that § 1983 claims against state institutions are barred by the doctrine of sovereign immunity, it is overruled. Am Jur 2d, Constitutional Law §§ 283, 713, 717. 4. Constitutional Law § 86 |NCI4th)— § 1983 claims — individual capacities — damages—qualified immunity State government officials may be sued in their individual capacities for damages under 42 U.S.C. § 1983, but officials sued as individuals may raise a defense of qualified immunity. Am Jur 2d, Civil Rights §§ 268, 269. 5. Constitutional Law § 86 (NCI4th)— § 1983 claims — individual capacities — objective test for qualified immunity — motivation State officials sued for constitutional violations under 42 U.S.C. § 1983 will be protected from liability by qualified immunity where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Where the existence of a constitutional violation depends on proof of motivation, proof of the official’s intent is required to determine whether the qualified immunity defense is appropriate. Am Jur 2d, Civil Rights §§ 268, 269. 6. Constitutional Law § 115 (NCI4th)— public official — free speech limitations A public employee’s right to free speech is limited by the government’s need to preserve efficient governmental functions. Furthermore, only speech on a matter of “public concern” is constitutionally protected, and in determining whether speech fits in this category, the court must examine the content, form and context of the public employee’s speech. Am Jur 2d, Constitutional Law §§ 496, 497. 7. Constitutional Law § 115 (NCI4th)— free speech — relocation of Appalachian Collection — matter of public concern Speech by plaintiff, the Dean of Learning Resources at ASU, concerning the relocation of the Appalachian Collection at ASU addressed a matter of public concern for free speech purposes. Am Jur 2d, Constitutional Law §§ 496, 497. 8. Constitutional Law § 115 (NCI4th)— relocation of Appalachian Collection — free speech right of plaintiff Plaintiff, the Dean of Learning Resources at ASU, had a constitutionally protected right to speak out in 1984 about a vice chancellor’s directive for relocation of the Appalachian Collection which would separate the artifacts from the written materials and to propose an alternate plan which would keep the entire Collection intact when it was moved, since such speech did not impede plaintiff’s duties or interfere with the regular operation of ASU; the speech did not affect the vice chancellor’s decision to relocate the Appalachian Collection and its danger to the organization was de minimus-, and plaintiff’s interest in speaking out on this public issue thus outweighed any negative effect it might have had on the efficient functioning of ASU. Am Jur 2d, Constitutional Law §§ 496, 497. 9.Constitutional Law § 115 (NCI4th)~ § 1983 claim —ASU vice chancellor — demotion of plaintiff — free speech — evidence of motive —summary judgment improper In plaintiff’s 42 U.S.C. § 1983 action against a vice chancellor of ASU in his individual capacity based on plaintiff’s claim that his right to free speech was violated when he was removed as Dean of Learning Resources of ASU because of statements he made at a staff meeting concérning the vice chancellor’s plan for relocation of the Appalachian Collection, plaintiff presented sufficient evidence of improper motive to raise a material question as to whether a reasonable vice chancellor would have believed that demoting plaintiff was lawful where the vice chancellor’s evidence indicates that his motive for demoting plaintiff was to promote discipline and efficient administration and to punish insubordination, but plaintiff presented specific evidence indicating that defendant’s motive was to stifle debate about where to relocate the Appalachian Collection, to carry out his decision to split the Collection quickly, and to punish plaintiff. Therefore, defendant vice chancellor’s motion for summary judgment based upon the defense of qualified immunity was properly denied by the trial judge. Am Jur 2d, Civil Rights §§ 19, 20. 10. Constitutional Law § 86 (NCI4th>- § 1983 claims-UNC, ASU and university officials — summary judgment proper Summary judgment should have been entered in favor of UNC, ASU, the president of UNC, and the chancellor of ASU on all of plaintiff’s 42 U.S.C. § 1983 claims based on his removal as the Dean of Learning Resources at ASU where plaintiff failed to present a forecast of evidence as to any improper action or motive by these defendants. Am Jur 2d, Civil Rights § 287. 11. Constitutional Law § 115 (NCI4th)— free speech violation by state official — direct claim under N.C. Constitution A plaintiff has a direct cause of action under the N.C. Constitution against state officials in their official capacities for alleged violations of plaintiff’s right of free speech, and the common law will provide the appropriate remedy for the adequate redress of a violation of that right. Therefore, plaintiff had a direct cause of action under the N.C. Constitution against a vice chancellor of ASU for an alleged violation of his free speech rights based on his removal as Dean of Learning Resources at ASU. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 12. Constitutional Law § 115 (NCI4th); Courts § 3 (NCI4th)~ violation of free speech right — common law remedy — limitations on judiciary It will be a matter for the trial judge to craft the necessary relief for a violation of a plaintiff’s free speech right under the N.C. Constitution. When called upon to exercise its inherent constitutional power to fashion a common law remedy for a violation of a particular constitutional right, however, the judiciary must recognize two critical limitations: (1) it must bow to established claims and remedies where those provide an alternative to the extraordinary exercise of its inherent constitutional power, and (2) in exercising that power, it must minimize the encroachment upon other branches of government — in appearance and in fact — by seeking the least intrusive remedy available and necessary to right the wrong. Am Jur 2d, Constitutional Law § 316. 13. Constitutional Law § 115 (NCI4th); State § 4.2 |NCI3d)— free speech violation —sovereign immunity inapplicable The doctrine of sovereign immunity is inapplicable to a plaintiff’s claim for violation of his free speech rights or other rights protected by the Declaration of Rights of the N.C. Constitution. When there is a clash between these constitutional rights and judge-made sovereign immunity, the constitutional rights must prevail. Art. I, § 14 of the N.C. Constitution. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 14. Constitutional Law § 115 (NCI4th)— free speech violation —no direct claim under N.C. Constitution against individual A plaintiff has no direct cause of action for monetary damages under the N.C. Constitution against persons sued in their individual capacities for violations of plaintiff’s free speech rights. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 15. Constitutional Law § 115 (NCI4th) — free speech claims under N.C. Constitution —UNC, ASU and university officials — summary judgment proper Plaintiff failed to present a forecast of evidence sufficient to defeat the motion for summary judgment on behalf of UNC, ASU, the president of UNC, and the chancellor of ASU as to plaintiff’s claims under the N.C. Constitution for violation of his free speech rights based on his removal as Dean of Learning Resources at ASU. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. Justice WEBB dissents. On appeal and discretionary review of an opinion by the Court of Appeals, 97 N.C. App. 527, 389 S.E.2d 596 (1990), reversing an order entered 21 October 1988 by Gray, J., which denied defendants’ motion for summary judgment. Heard in the Supreme Court 11 February 1991. Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., by John W. Gresham, for plaintiff-appellant/appellee. Lacy H. Thornburg, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, and Laura E. Crumpler, Assistant Attorney General, for defendant-appellants/appellees. William G. Simpson, Jr., John Vail, Travis Payne, J. Michael McGuinness, for amicus curiae North Carolina Civil Liberties Union Legal Foundation; and M. Jackson Nichols, for amicus curiae North Carolina Association of Educators. MARTIN, Justice. For the reasons stated below, we reverse in part and affirm in part the decision of the Court of Appeals. Plaintiff filed this action on 20 February 1987 seeking injunctive relief and damages' for the defendants’ alleged retaliation against plaintiff for his exercise of certain free speech rights. Plaintiff’s claims were brought under the North Carolina Constitution Article I, Sections 14, 19, and 35 and 42 U.S.C. § 1983. After filing an answer containing defenses, which included sovereign immunity and qualified immunity, defendants moved for summary judgment. Defendants’ motion for summary judgment was denied on 21 October 1988. Defendants appealed the denial of their motion for summary judgment to the Court of Appeals. The Court of Appeals properly reasoned that a denial of a summary judgment motion is normally not immediately appealable; however, under the case of Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411 (1985), when a motion for summary judgment based on immunity defenses to a section 1983 claim is denied, such an interlocutory order is immediately appealable before final judgment. The Court of Appeals went on to hold that the trial court erred in denying defendants’ summary judgment motion with respect to plaintiff’s 42 U.S.C. § 1983 claims, except for the motion pertaining to plaintiff’s claims against individual defendants Spangler, Thomas, and Durham in their official capacities only for prospective injunctive relief. The Court of Appeals further held that the trial court erred in failing to grant defendants’ motion for summary judgment with respect to plaintiff’s claims brought under the State Constitution regarding the University of North Carolina, Appalachian State University, and the three individual defendants in their official capacities. The Court of Appeals also held that the defendants’ motion was properly denied insofar as it concerned plaintiff’s claims for monetary damages against the two individually named defendants for violation of plaintiff’s state constitutional rights. Viewing the record in the light most favorable to plaintiff, as we must when evaluating a summary judgment motion, the following facts arise upon the record. In early summer 1984, the plaintiff, a tenured faculty member at Appalachian State University, was the Dean of Learning Resources, a position he had held for approximately fourteen years. As Dean, Dr. Corum’s responsibilities included supervising Appalachian State University’s academic support units, including the library, the audiovisual services, and the Appalachian Collection. The Appalachian Collection, a diversified collection of books, research reports, music, and artifacts, represents the mountain culture of the Southern Appalachian Region. Until mid-summer 1984 the Appalachian Collection was housed in the Daughtery Library. Beginning in September 1983 and continuing for several months, various administrators at Appalachian State University (“ASU”) discussed the possibility of moving the Appalachian Collection out of the Daughtery Library into different facilities. The plaintiff’s chief concern regarding this move was that the Appalachian Collection remain intact so that the artifacts would not be split off from the books, manuscripts, and other materials. In the administrative chain of command at ASU the person responsible for deciding where the Appalachian Collection would be moved and whether it would be broken up was defendant, Dr. Harvey Durham. Dr. Durham was the Vice Chancellor for Academic Affairs and Dr. Corum’s immediate supervisor. In December 1983 Dr. Durham decided to split up the Collection and move the artifacts to University Hall, a building on the campus where the artifacts would form the basis of a new museum. The decision to split the artifacts off from the rest of the Collection was not communicated to Dr. Corum at this time; however, the decision was documented by a memorandum written at or near the time of the decision. On 21 June 1984 Dr. Durham informed Dr. Corum that the Appalachian Collection would be moved to University Hall and that the move would need to be completed within a two-week period. On that same day, Dr. Durham informed Dr. Corum that the relocation of the Collection also entailed removing the personnel and budget supporting the Collection from Dr. Corum’s purview to a new administrative home. While Dr. Corum expressed concern over this transfer, he accepted the decision as one which was workable because, in his understanding, it would at least maintain the physical integrity of the Collection. Dr. Durham did not inform Dr. Corum at this time that the artifacts would be separate from the rest of the Collection. Dr. Corum proceeded to set up a subsequent meeting with relevant administrators in order to work out the details of the moving of the Collection; the next meeting was scheduled for 25 June 1984. At the 25 June meeting, Dr. Corum met with Dr. Barker, ASU’s Librarian; Ms. Ball, the library staff member associated with the Appalachian Collection; and Dr. Clinton Parker, an Associate Vice Chancellor of Academic Affairs. Dr. Parker attended the meeting as Dr. Durham’s representative because Dr. Durham had gone out of town. At the outset of the meeting on 25 June, Dr. Parker announced to those assembled that the written materials in the Appalachian Collection would be moved to University Hall, while the artifacts would be stored in Belk Library. Dr. Corum later testified that he saw this announcement as a dramatic shift from the directions previously given to him by defendant Durham. The day after this meeting, plaintiff sought to present an alternative plan for the relocation of the Appalachian Collection, a plan that would keep the Collection secure and physically intact. Dr. Corum read aloud his proposal for an alternate location during a meeting held 26 June 1984 that was attended by Dr. Parker and Dr. William Strickland, Dean of Arts and Sciences at ASU. In the memorandum that he read to those assembled, Dr. Corum claimed that Dr. Durham’s decision to move the Collection to University Hall presented many problems. Dr. Corum proposed instead to move the Collection into Belk Library and intershelve the holdings with the regular university library. To this proposal Dr. Parker responded that he had no authority to change Dr. Durham’s decision. However, Dr. Parker volunteered to try to contact Dr. Durham to let him know of Dr. Corum’s concerns. Dr. Parker did contact Dr. Durham later in the evening regarding Dr. Corum’s concerns. There is a material issue of fact in dispute as to whether at the 26 June meeting Dr. Corum refused to implement the move as per Dr. Durham’s 21 June directive or whether he encouraged his staff to go ahead with the move. The defendants’ position is that Dr. Corum announced at the meeting that he would not go through with the move until he could talk to Dr. Durham. Dr. Corum’s account is that he did not resist the move and cooperated fully despite his misgivings about the decision. Dr. Corum actually physically helped in the packing and moving. When Dr. Parker called Dr. Durham after the 26 June meeting, Dr. Durham responded by immediately returning to ASU. Dr. Durham met at 6:30 a.m. on 27 June with defendant Dr. Thomas, the Chancellor of ASU. At 8:30 a.m. Dr. Durham met with Dr. Corum and informed him that he was being removed from his deanship. There is no evidence that Dr. Durham gave Dr. Corum an opportunity to explain his proposal or to comment on the events of the previous day. Chancellor Thomas subsequently affirmed Dr. Durham’s decision to remove Dr. Corum from his duties as Dean of Learning Resources. Dr. Corum has, however, retained his position as a tenured faculty member. Plaintiff contends that defendants discharged him from his deanship in retaliation for his speaking freely about the moving of the Appalachian Collection. Plaintiff contends that Dr. Durham’s concealment of the fact that the Collection was to be split was intended to make the move administratively easier by preventing vocal opposition to the decision. When this “ruse” was discovered and exposed by Dr. Corum in his speaking out, defendants improperly removed him in retaliation for his speech. Plaintiff seeks damages and, among other things, reinstatement as Dean of Learning Resources as a result of this impermissible retaliatory removal. It is defendants’ position that the sole reason Dr. Corum was removed from his deanship was because he refused to carry out the move, and this insubordination justified his demotion. Plaintiff filed a grievance proceeding with the University of North Carolina (“UNC”) which resulted in a decision that Dr. Corum had failed to prove that his removal from the deanship was impermissibly based on his exercise of his right to freedom of speech. After this proceeding was completed Dr. Corum filed the instant case on 20 February 1987. I. 42 U.S.C. § 1983 Claims Plaintiff’s complaint alleges: 24. In relieving plaintiff of his duties as Dean and in denying plaintiff salary increases in retaliation for plaintiff having exercised his First Amendment rights, defendants violated plaintiff’s rights protected by the First and Fourteenth Amendments of the Constitution of the United States. Such acts are in violation of 42 U.S.C. § 1983. Under 42 U.S.C. § 1983, plaintiff sought a preliminary and permanent injunction, additional equitable relief including reinstatem

DUDEWICZ v NORRIS SCHMID, INC Docket No. 126212. Submitted June 5, 1991, at Lansing. Decided December 16, 1991, at 9:35 a.m. Leave to appeal sought. Michael L. Dudewicz brought an action in the Saginaw Circuit Court against his former employer Norris Schmid, Inc., for wrongful discharge, alleging that he had been discharged because he had refused to drop criminal assault charges against a fellow employee and that his discharge for that reason was contrary to public policy and violative of the provisions of the Whistleblowers’ Protection Act. The trial court, Robert S. Gilbert, J., granted the defendant’s motion for summary disposition with respect to the public policy count, finding that the public policy exception to the right to fire an employee at will was not applicable to the facts of the case. Following the close of the plaintiff’s proofs, the court granted the defendant’s motion for a directed verdict, holding that the Whistleblowers’ Protection Act was not applicable. The plaintiff appealed. The Court of Appeals held: 1. The right to bring a criminal complaint against a fellow employee is the type of protected right necessary to invoke the public policy exception to the right of an employer to discharge an employee at will. The trial court erred in granting summary disposition for the defendant with respect to the public policy count. 2. The Whistleblowers’ Protection Act is applicable in situations where an employee reports to a law enforcement agency the criminal act of a fellow employee; it is not limited merely to situations where an employee reports a violation of a law or regulation by the employer. The trial court erred in granting the motion for a directed verdict with respect to the count based on the Whistleblowers’ Protection Act. Reversed. 1. Master and Servant — Wrongful Discharge — Public Policy. The discharge of an employee at will because of the employee’s filing of a criminal complaint against a fellow employee or refusal to withdraw such a charge is an act that is contrary to public policy and is sufficient to establish a prima facie claim of wrongful discharge. References Am Jur 2d, Master and Servant § 48.5. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 2. Master and Servant — Whistleblowers’ Protection Act. The discharge of an employee at will because of the employee’s filing of a criminal complaint against a fellow employee constitutes a violation of the prohibition of the Whistleblowers’ Protection Act of termination for reporting to any public body a violation of any law or regulation; the provisions of the act are not limited to situations in which an employee reports ,a violation of a law or regulation by the employer (MCL 15.361 et seq.; MSA 17.428[1] et seq.). Jensen, Smith & Clark, P.C. (by Peter C. Jensen), for the plaintiff. Smith & Brooker, P.C. (by Robert A. Jarema), for the defendant. Before: Cavanagh, P.J., and Holbrook, Jr., and Cynar, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. Holbrook, Jr., J. In this wrongful-discharge case, plaintiff sought to be reinstated to his former position and to receive full back wages, including monthly bonuses, and attorney fees. On December 18, 1989, defendant’s motion for partial summary disposition was granted with respect to the count that claimed plaintiff’s discharge violated public policy. The parties then went to trial on plaintiff’s claim that his discharge violated the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. Following the close of plaintiff’s proofs, the trial court granted defendant’s motion for a directed verdict. The order granting this motion was entered January 5, 1990. Plaintiff now appeals as of right. We reverse._ Plaintiff was employed as a parts manager for defendant, an automobile dealership. Plaintiff testified that on November 4, 1987, he was manhandled when another employee, the service manager, reached over the counter and grabbed plaintiff by his shirt collar, breaking a gold chain and several buttons on plaintiff’s shirt. That day, plaintiff informed defendant’s new car sales manager about the incident. Plaintiff also filed criminal charges against the service manager with the Midland County Prosecutor, alleging assault and battery. Plaintiff testified that on December 1, 1987, he was called to the office of Sam Norris, owner of defendant, and was told by Mr. Norris to drop the charges or be fired. Plaintiff was also told to leave the premises. Plaintiff left the premises believing that he had been fired but could regain his job if he decided to drop the charges against the service manager. Plaintiff then contacted an attorney, who told him to return to work. Plaintiff did so on December 3, 1987, but was told by Mr. Norris that he had quit and had to leave the premises or the police would be called. Plaintiff told Mr. Norris he had not quit and would leave only if given a statement of termination. The police were then called, and plaintiff was escorted from the premises. Plaintiff first argues that it is a violation of public policy for an employer to fire an employee who files a criminal charge against a supervisor for an assault that occurred during the course of employment. We agree. A motion for summary disposition under MCR 2.116(C)(8) should be reviewed to determine whether the claim is so clearly unenforceable that as a matter of law no factual development could possibly justify a right of recovery. Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). The day before trial, the trial court granted defendant’s motion for partial summary disposition. A colloquy between the court and plaintiffs counsel indicates that plaintiffs attorney believed that the trial court was dismissing the "public policy” count on the basis that the Whistleblowers’ Protection Act provided the exclusive remedy. Plaintiffs counsel moved for reconsideration on the basis that the public policy exception to an employer’s right to discharge at will an employee not covered by contract provided a ground for relief separate from that provided by the act. The court declined to rule on the motion for reconsideration until after receiving proofs. Following plaintiffs proofs, the court denied plaintiffs motion for reconsideration and granted defendant’s motion for a directed verdict on the basis that the Whistleblowers’ Protection Act was not applicable to the case. The court stated that it had earlier dismissed the public policy count because it considered the public policy exception to discharge to be inapplicable to the instant case, not because it believed the Whistleblowers’ Protection Act was the exclusive remedy. The public policy exception to discharge in an employment at will situation was introduced in Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976), where the discharge of an employee in retaliation for filing a workers’ compensation claim was found to be against public policy. In Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692; 316 NW2d 710 (1982), the Supreme Court elaborated on this exception. The Suchodolski Court first recognized prohibitions against discharging employees who act in accordance with some explicitly granted statutory right or duties. The Court referred to four such statutes that granted explicit rights: the Civil Rights Act, the Handicappers’ Civil Rights Act, the Occupational Safety and Health Act, and the Whistleblowers’ Protection Act. Id., p 695. The Court also recognized a "sufficient legislative expression of policy to imply a cause of action for wrongful termination, even in the absence of explicit prohibition on retaliatory discharges.” Id. An implied cause of action for discharge exists in two situations: first, when a discharge occurs because an employee refuses to violate a law in the course of employment, and second, when "the reason for a discharge was the employee’s exercise of a right conferred by a well-established legislative enactment.” Id., p 696. Defendant argues that plaintiffs statutory right to bring a criminal complaint against a fellow employee does not come within the Court’s meaning of a "well-established legislative enactment.” We strongly disagree. Defendant argues that there must be a nexus between the statute violated and the employment relationship and points to the four statutes enumerated in Suchodolski as examples of this type of statute. Defendant argues that the Sventko opinion required a nexus between the statute violated and the employment relationship. Our reading of that case, however, reveals no such requirement. The discussion by the Supreme Court in Suchodolski did note four statutes that gave explicit rights to employees. But the discussion went on to focus on implied causes of action, showing that the four statutes mentioned by the Court were not meant to be an exhaustive description of the public policy exception. In Suchodolski, the plaintiff sought to establish a public policy exception based on the regulation of the accounting system of public utilities. The Supreme Court rejected this claim on the basis that the statute regulating the accounting systems of utilities was not aimed at conferring rights on an employee. Suchodolski, supra, p 696. Thus, the central requirement of the public policy exception is that there be an expressed legislative enactment that gives an employee an individual right, not that there be a direct nexus between the purpose of the statute and the employment relationship. This view finds support in the case of Pratt v Brown Machine Co, 855 F2d 1225, 1237 (CA 6, 1988). In Pratt, the plaintiff was discharged for refusing to discontinue an investigation into harassing phone calls that he was receiving. The district court found a violation of public policy because the employer’s action conflicted with Michigan’s compounding and aiding and abetting statutes. In Pratt, supra, p 1236, the district court stated: The public policy is the same, whether the underlying criminal offense is the maker [sic] of obscene phone calls or bank robbery or arson or any other crime. It matters not whether one of its employees or some other person is suspected of having committed the crime. In affirming the decision of the lower court, the Sixth Circuit Court of Appeals stated that, for the public policy exception to exist, "[i]t is sufficient that the company requested the plaintiff to drop his investigation into criminal wrongdoing, and terminated him for his refusal to do so.” Id., p 1237. This view is not contradictory to the language of existing case law and serves the purpose of the public policy exception. It serves " 'what is naturally and inherently just and right between man and man.’ ” Skutt v Grand Rapids, 275 Mich 258, 264; 266 NW 344 (1936), quoting Pittsburgh, C, C & St L R Co v Kinney, 95 Ohio St 64; 115 NE 505, 507 (1916). To allow the discharge of an at-will employee because of a choice to file a criminal complaint against a fellow employee would force a choice between justice and livelihood. It is the public policy of this state to protect its citizens from such an onerous choice. The trial court’s decision that the public policy exception did not apply to the instant case was erroneous, and the partial summary disposition for defendant is reversed. Defendant correctly points out that plaintiff may have to choose the remedy of the Whistleblowers’ Protection Act, rather than the remedy of the public policy exception to an employer’s right to terminate an at-will employee, as the exclusive remedy available in this case. Covell v Spengler, 141 Mich App 76, 83; 366 NW2d 76 (1985). However, the trial court expressly stated that it had not granted the motion for summary disposition on the basis that the Whistleblowers’ Protection Act provides the exclusive remedy; therefore, the consideration of the applicability of the public policy exception to the facts of this case is still proper, and reversal of the partial summary disposition is required. Plaintiff next argues that defendant violated the Whistleblowers’ Protection Act by discharging an employee who filed a formal complaint with a county prosecutor for assault and battery and obtained a warrant for the arrest of an employee. Once this report was filed, plaintiff argues the Whistleblowers’ Protection Act became applicable and he should have been protected by it. We agree. In deciding whether the trial court erred in granting or denying a motion for a directed verdict, this Court reviews all the evidence to determine whether a question of fact existed. In doing so, we view the evidence in a light most favorable to the nonmoving party and grant every reasonable inference and resolve any conflicts in the evidence in that party’s favor. Stoken v JET Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). However, in the case at bar, the trial court found, on the basis of an interpretation of a statute by an earlier panel of this Court, that plaintiff had failed to present a prima facie case. The determination of what satisfies a prima facie case of a statutory cause of action is a question of law that this Court may determine without deference to the lower court. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). The Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., "provides a remedy to an employee terminated for reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States.” Tyrna v Adamo, Inc, 159 Mich App 592, 599; 407 NW2d 47 (1987). The statute defines "public body” as including "[a] law enforcement agency or any member or employee of a law enforcement agency.” MCL 15.361(d)(v); MSA 17.428(1)(d)(v). The clear language of the statute would seem to include the facts of the case at bar where plaintiff reported a violation of the law to the local prosecutor’s office. However, the case of Dickson v Oakland University, 171 Mich App 68; 429 NW2d 640 (1988), relied upon by the trial court below, employed the language of a house legislative analysis to conclude that the act was applicable only when an employer was in violation of the law and an employee sought to report the violation. Id., p 71. The trial court indicated that, but for the Dickson ruling, it would not have granted the directed verdict in this case. We now believe the Dickson Court erred in concluding that the purpose of the Whistleblowers’ Protection Act was only to protect employees who reported violations of the law by their employers. While appellate courts have a duty to ascertain and effectuate the intent of the Legislature, a house bill analysis prepared before passage of a proposed bill is not persuasive authority of legislative intent embodied in an enacted statute. It is only an analysis and a description of the content of a proposed bill. The language of the bill analysis cited by the Dickson Court does not explicitly describe the Whistleblowers’ Protection Act as being limited to violations of employers. Rather, the section of the legislative analysis quoted by the Dickson Court stated that one reason for the Whistleblowers’ Protection Act would be that "employees are naturally reluctant to inform on an employer or a colleague.” Dickson, supra, p 71. This portion of the analysis could reasonably be read to indicate that violations by fellow employees were also to be considered within the scope of the act. The Whistleblowers’ Protection Act itself does not limit its application only to violations of employers but, rather, states that an employee shall not be terminated for reporting "a violation or suspected violation of the law ... of this state.” MCL 15.362; MSA 17.428(2). When resolving disputed interpretations of statutory language to effectuate the legislative intent, it is presumed that when the language of the statute is clear the Legislature intended the meaning plainly expressed. Ripley v Drivers Services, Inc, 151 Mich App 91, 94; 390 NW2d 690 (1986). In the case at bar, the language of the statute is inclusive of all violations, not just those of employers. We therefore find that the act is not limited to violations of employers and hold that the trial court erred in granting a directed verdict against plaintiff. Reversed. The author of this opinion was a member of the panel in Dickson and now believes that case to have been wrongly decided.

Leslee A. Willitts vs. Roman Catholic Archbishop of Boston & another. Middlesex. September 9, 1991. November 18, 1991. Present: Liacos, C.J.. Nolan, O’Connor, & Greaney, JJ. Contract, Employment, Construction of contract, Termination. Employment, Termination. Public Policy. Civil Rights, Termination of employment, Coercion. A school teacher’s written contract of employment, covering a one-year school term and explicitly stating its expiration date, was not automatically renewed for a subsequent term by the school’s failure to follow its written policy, incorporated in the contract by reference, that, in the event of a contract not being renewed, the teacher “should be formally notified of [the] decision by April 15.” [206-208] Where a form of contract for a teacher’s employment at a religious school, consistent with the employer’s written policies incorporated in the contract by reference, contained signature lines for both the principal of the school and the pastor of the parish with which the school was affiliated, the pastor’s signature alone was not sufficient to create a binding contract. [208-209] An employer’s decision not to renew a contract providing a definite period of employment, allegedly in consequence of the employee’s attempt to form an association of her follow employees, was not actionable as a discharge for reasons contrary to public policy. [209-210] A nonprofit school’s decision not to renew a school teacher’s contract providing a definite period of employment, allegedly in consequence of the teacher’s attempt to form an association of her follow teachers, did not constitute “threats, intimidation, or coercion” intefering with her exercise of free speech or association rights, so as to be actionable under the State Civil Rights Act, G. L. c. 12, § 11H. [210-211] Civil action commenced in the Superior Court Department on November 30, 1988. The case was heard by David M. Roseman, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. James F. Lamond for the plaintiff. Richard W. Murphy (Thomas J. Hobin, Jr., & Jon R. Maddox with him) for the defendants. St. Tarcisius School. Greaney, J. The plaintiff, Leslee A. Willitts, brought this action in the Superior Court against the defendants, the Roman Catholic Archbishop of Boston and St. Tarcisius School (school), claiming that the school had unlawfully terminated her employment. Her complaint sought declaratory relief under G. L. c. 231A (1990 ed.), and damages on the basis of alleged breach of contract, termination of employment in disregard of public policy, and violation of the State Civil Rights Act, G. L. c. 12, § 111 (1990 ed.). Both the plaintiff and the defendants moved for summary judgment pursuant to Mass. R. Civ. P. 56 (a) and (b), 365 Mass. 824 (1974). A judge of the Superior Court allowed the defendants’ motion, and judgment entered for the defendants. The plaintiff appealed. We transferred the case to this court on our own motion. We affirm the judgment of the Superior Court. Summary judgment “shall be rendered . . . [if] there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). In setting out the facts from the documents, affidavits and depositions in the record, we resolve any conflicts in the summary judgment materials, and we make all logically permissible inferences, in the plaintiff’s favor. Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). St. Tarcisius School is an elementary school affiliated with Saint Tarcisius Church of Framingham, a Roman Catholic church, The plaintiff worked there as a kindergarten teacher from September, 1980, until June, 1987. Her employment was governed by yearly written contracts, each covering one school-year term. Each contract set forth the terms of employment for the upcoming school year, including beginning and ending dates, and contained signature lines for the teacher, the principal of the school, and the parish pastor. The contract incorporated by reference the “Regulations and directives of the Archdiocese Department of Education,” from the Policy Book for Catholic Schools (Directives), a guide to the administration of parish schools published by the archdiocese of Boston. The school’s practice for renewing the contracts of its teaching staff was to conduct a yearly performance review in the spring and at that time to present the teacher with a contract for the upcoming school year. In keeping with this procedure, the plaintiff met with the principal of the school, Sister Rita Welch, on March 31, 1987, to receive her annual performance review and her contract for the 1987-1988 school year. Her performance review was uniformly positive. During the meeting, she signed the contract, which had already been signed by Father Alfred Almonte, the pastor of the church, and returned it to Sister Welch. The plaintiff mentioned to Sister Welch that she had applied for a teaching position in the Framingham public schools, but had not received an offer as of that time and was therefore not pursuing any other positions. In response to this disclosure, Sister Welch said that she could not sign the contract under the circumstances and told the plaintiff that she had until May 31 to decide whether or not to return to the school. The plaintiff told Sister Welch that she had already decided to stay at St. Tarcisius, and she left the meeting with the understanding that she would meet again with Sister Welch before May 31 to reaffirm her intention to remain at St. Tarcisius for the next school year. While employed at St. Tarcisius, the plaintiff had attended meetings of the Boston Archdiocesan Teachers’ Association, which represented teachers at some of the archdiocesan high schools in collective bargaining. She became interested in forming a teachers’ association at her school in order to address issues of concern to the faculty there. On May 22, 1987, she posted a notice in the teachers’ lounge- at the school, calling for a meeting of the teachers to discuss various matters, including collective bargaining. The notice included statements from authorities in the Roman Catholic Church in support of the rights of workers to organize and to bargain collectively. On the same date, the plaintiff distributed a memorandum to the teachers announcing the date and time of the meeting and stating as its objective “the airing of views, ideas and concerns” toward the end of “establishing direction towards a ‘just’ teaching atmosphere.” After learning of the notice that the plaintiff had posted in the teachers’ lounge, Sister Welch and Father Almonte called a meeting of all the teachers on May 29, 1987, to discuss it. At that meeting, Father Almonte referred to problems that another school was experiencing because of union organization, and he declined Willitts’ offer to arrange a meeting with a group of concerned teachers. In response to the plaintiff’s comment that there were “discrepancies” in the working conditions at the school which in her opinion should be dealt with, Father Almonte said that her proposed topics of discussion all involved money, and that the school was at its financial limit. He told the teachers that if they were unhappy at the school, they should leave. He offered to release any teacher who wished to go, and he gave the teachers one week to reach a decision. At the end of the meeting, the plaintiff told Sister Welch that since she had already signed her contract for the forthcoming school year, she had already made up her mind. Sister Welch informed her that she (Welch) would not sign the contract “under these conditions.” At a subsequent meeting on June 8, 1987, Sister Welch criticized the plaintiff for her attempt to organize the teachers. She offered to renew the plaintiff’s contract, but only on the condition that the plaintiff refrain from such efforts in the future. When the plaintiff refused to agree to that condition, Sister Welch, on behalf of the school, declined to renew her contract, which expired by its terms on June 30, 1987. Following the school’s decision, the plaintiff requested both the National Labor Relations Board (board) and the Massachusetts Labor Relations Commission (commission) to pursue an unfair labor practice charge on her behalf. The board declined to do so on tiie ground that it lacked jurisdiction over the school. The commission also dismissed the plaintiff’s claim on the ground that, as a professional employee of a nonprofit institution, she was not covered by G. L. c. 150A, § 2, which protects the rights of workers to organize and to - bargain collectively. No appeal was taken by the plaintiff from either of these decisions and her complaint to the Superior Court followed. 1. Breach of contract.* The plaintiff advances two theories in support of her contention that, despite Sister Welch’s refusal to sign the contract, she held a valid employment contract for- the 1987-1988 school year. She first argues that her contract with the school for 1986-1987 was automatically renewed for the following year by the school’s failure to follow its own provisions for the notification of teachers whose contracts are not to be renewed. Section 4420(3) of the Directives, which are incorporated by reference into the school’s contracts with its teachers, specifies that “[t]he teacher should be informed prior to February 15 that because of unsatisfactory performance, there is a possibility that the contract might not be renewed. The teachers should be formally notified of a decision prior to April 15, so that opportunities to seek other employment will not be lost.” Relying on this provision, the plaintiff argues that the school’s failure to follow its own notice provisions resulted in the automatic renewal of her contract for the following school year, and that the school committed a breach of this contract by terminating her employment. We reject this claim. First, neither the contract itself nor the Directives state that failure by the school to follow the provisions of § 4420(2) results in automatic renewal of a teacher’s contract. Furthermore, the word “should,” as used in that provision of the Directives, is merely advisory rather than mandatory language; its purpose is to facilitate whenever possible the employment search of a teacher whose contract the school does not intend to renew. To interpret this provision of the Directives as the plaintiff does would render the school powerless to avoid rehiring a teacher where the basis for the decision not to rehire arose, as it did in this case, after April 15. Such an interpretation would contradict the letter of the contract, which contained definite beginning and ending dates, and which stated “[tjhis agreement expires on June 30, 1987 unless definitely renewed.” “The intent of the parties must be gathered from a fair construction of the contract as a whole and not by special emphasis upon any one part.” Crimmins & Peirce Co. v. Kidder Peabody Acceptance Corp., 282 Mass. 367, 375 (1933). Ucello v. Cosentino, 354 Mass. 48, 51 (1968). Lydon v. Allstate Ins. Co., 5 Mass. App. Ct. 771 (1977). We therefore reject the plaintiff’s argument that a contract was formed automatically when, on April 15, the school failed to notify the plaintiff that her contract was not to be renewed. “Expectations and negotiations fall far short of a binding agreement.” Brighton Packing Co. v. Butchers’ Slaughtering & Melting Ass’n, 211 Mass. 398, 405 (1912). Phoenix Spring Beverage Co. v. Harvard Brewing Co., 312 Mass. 501, 506 (1942), and cases cited. The plaintiff argues in the alternative that a binding agreement was formed on the date of her performance review, when she signed the contract that had previously been signed by Father Almonte. Although Sister Welch had not yet signed the contract, her signature was not required, the plaintiff claims, because only the parish pastor had authority to enter contracts with the teachers. Relying on § 4120 of the Directives, which states that “the final contracting of the teacher should be the responsibility of the pastor who may delegate this responsibility to the principal,” the plaintiff argues that nothing in the record indicates that Father Almonte had in fact delegated this responsibility, and so his signature alone was sufficient to bind the school. We disagree. The contract contains a signature line for the principal, and all previous contracts between the parties contained her signature, in keeping with § 2200 of the Directives which designates the principal as “the administrative head of the school.” “Effect is to be given if possible to every word of an instrument and to every signature upon it.” Gloucester Mut. Fishing Ins. Co. v. Boyer, 294 Mass. 35, 39 (1936). Summary judgment was properly granted in favor of the defendants on the plaintiffs claim of breach of contract. 2. Termination in violation of public policy. The plaintiff argues that, even if the school was not contractually bound to employ her for the 1987-1988 term, it nevertheless was prohibited from terminating her employment for reasons that violate public policy. See DeRose v. Putnam Management Co., 398 Mass. 205, 210 (1986); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-151 (1989); Flesner v. Technical Communications Corp., 410 Mass. 805, 810-812 (1991). The common law doctrine granting an employee a cause of action for wrongful discharge, if the reason for the discharge is contrary to public policy, is limited to at-will employees. Because the plaintiffs employment contract contained a definite period of employment, she was not an employee at will. See Jackson v. Action for Boston Community Dev. Inc., 403 Mass. 8, 9 (1988), and cases cited. And because she was not an employee at will, the school’s decision not to renew her contract did not constitute termination actionable under the public policy exception stated in the DeRose decision, supra. The plaintiff would extend that exception to employees under contract for a term; we decline to do so. The school’s decision not to reappoint the plaintiff was simply a determination, within its complete discretion, to discontinue a relationship that had expired by the terms of the contract, and is not conduct actionable under the public policy exception to the at-will employment doctrine. Summary judgment was properly granted for the defendants on this claim. 3. State Civil Rights Act claim. The plaintiffs final claim is that the school’s action, in ending her employment amounted to “threats, intimidation, or coercion” interfering with her rights to free speech and association in violation of G. L. c. 12, § 11I, the State Civil Rights Act. We do not agree. That act provides a remedy when “any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the commonwealth.” G. L. c. 12, § 11H (1990 ed.) (incorporated into G. L. c. 12, § 11I). As noted in Bally v. Northeastern Univ., 403 Mass. 713, 719-720 (1989), relief under the Act may be granted where the “threat, intimidation or coercion” involves either a physical confrontation accompanied by a threat of harm, see Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (1985); Bell v. Mazza, 394 Mass. 176, 183-184 (1985); O’Connell v. Chasdi, 400 Mass. 686, 687-688 (1987), or the loss of a contract right, see Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 95 (1987). Because the plaintiff did not have a contract for the 1987-1988 school year, the violation of the Act she alleges consists only in the defendant’s failure to renew its contract with her. Such action by the school falls outside the scope of what we recognize as “threats, intimidation or coercion” required to state a claim under the Act. In declining to continue the plaintiffs contract, the school exercised its discretion under the terms of employment it chose to offer its teachers. There was no improper interference by the defendant with a secured right. Summary judgment was therefore properly granted for the defendants on this claim. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 417-418 (1988). Korb v. Raytheon Corp., 410 Mass. 581, 585 (1991). Flesner v. Technical Communications Corp., supra at 818-819. Judgment affirmed. There is no indication in the record that the meeting the plaintiff proposed was ever held. Citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the board concluded, among other things, that because “St. Tarcisius School is a Catholic School whose purpose and function in substantial part is to propagate a religious faith and whose primary purpose is the religious education of students,” the board lacked jurisdiction over the school. In reaching the merits of the plaintiffs claims, we reject the school’s argument that the claims are beyond the subject matter jurisdiction of the civil courts because the issues raised involve “ ‘matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law,’ ” see Madsen v. Erwin, 395 Mass. 715, 723 (1985), quoting Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976). We conclude, as did the judge, that the plaintiffs claims deal with secular matters, founded on the interpretation of constitutional, common and statutory law, and thus fall within the jurisdiction of the courts to determine. To the extent that the cases cited by the plaintiff in support of this argument rely on G. L. c. 71, §41 (1990 ed.), they are inapposite, since that statute, which provides for automatic renewal of the appointments of certain public school teachers where notification requirements are not met, is inapplicable to a contract between private parties of the type involved in this case. Black’s Law Dictionary 1379 (6th ed. 1990), defines the word “should” as follows: “The past tense of shall; ordinarily implying duty or obligation; although usually no more than an obligation of propriety or expediency, or a moral obligation, thereby distinguishing it from ‘ought.’ It is not normally synonymous with ‘may,’ and although often interchangeable with the word ‘would,’ it does not ordinarily express certainty as ‘will’ sometimes does.” The school also argues that § 4420(2) of the Directives is inapplicable in this case because it applies only to the nonrenewal of contracts on the ground of “unsatisfactory performance,” and there is no dispute that the plaintiff performed her teaching duties in a satisfactory manner. Because we reject the plaintiff’s argument on other grounds, we need not decide whether her union organization efforts could properly be categorized as “unsatisfactory performance.” Moreover, the conduct of the parties shows that neither treated the contract as automatically renewed on April 15. The plaintiff informed Sister Welch on May 29 of her intention to remain at the school, and at their meeting on June 8, Sister Welch extended a conditional offer of employment, which the plaintiff rejected. The plaintiff" cites to no authority in support of her argument that the public policy exception should apply to employees under contract for a term. Because G. L. c. 150A is inapplicable to professional employees of nonprofit corporations, the plaintiff" had no “legally guaranteed right” that could serve as the basis for a public policy exception in this case. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 149-150. See Delaney v. Chief of Police of Wareham, 27 Mass. App. Ct. 398, 409 (1989), defining “threat” as “acts or language by which another is placed

HOWARD v CANTEEN CORPORATION Docket No. 120825. Submitted May 13, 1991, at Detroit. Decided October 15, 1991; approved for publication January 15, 1992, at 9:00 a.m. Carol J. Howard brought an action in the Wayne Circuit Court against Canteen Corporation and David Spender, alleging breach of an employment contract and sexual discrimination as a result of the defendants’ failure to promote her, harassment, retaliation, and wrongful termination of her employment. The jury returned a verdict for the plaintiff on the claims for breach of contract and sex discrimination, and the court, Louis F. Simmons, Jr., J., entered a judgment for $299,530 plus interest, costs, and attorney fees. The defendants appealed from the denial of their motions for directed verdict, judgment notwithstanding the verdict, a new trial, and remittitur. The Court of Appeals held: 1. There was sufficient evidence of sexual discrimination on the basis of the failure to promote, sexual harassment, retaliation, and wrongful discharge and of breach of contract to send the case to the jury and to support its verdicts regarding those claims. The trial court did not err in denying the defendants’ motions for directed verdict or judgment notwithstanding the verdict. 2. The award of $200,000 for mental anguish, emotional distress, and humiliation associated with the sex discrimination claims was supported by the evidence and was not excessive. The court did not abuse its discretion in denying the defendants’ motion for remittitur. 3. The court did not abuse its discretion in denying the defendants’ motion for a new trial. 4. A remand is necessary for an evidentiary hearing regarding the reasonableness of the attorney fees awarded to the _plaintiff because the defendants were not provided a sufficient opportunity to challenge the affidavits and other documentary evidence in support of the requested fees and the trial court did not make findings of fact with regard to the attorney fee issue. References Am Jur 2d, Costs §§ 72, 79, 261; Damages §§ 143, 144, 678; Job Discrimination § 2498. Effect of anticipated inflation on damages for future losses — modern cases. 21 ALR4th 21. 5. The use of a multiplier for the attorney fees granted under the Civil Rights Act was not justified under the circumstances of this case, and, therefore, the portion of the attorney fees awarded that are attributable to the multiplier is vacated. 6. The award of attorney fees under both the Civil Rights Act and MCR 2.403(0) was appropriate because each provision serves an independent policy or purpose. The court, on remand, must determine the reasonableness of the fees awarded as mediation sanctions. 7. The court erred in failing to reduce the award for damages for the plaintiffs future wage loss to present value or to instruct the jury to do so. Inflation is a factor that may be considered in assessing damages, but a court may not employ it to omit the present-value reduction. Remand is required for the court to reduce the future wage loss award to present value. Affirmed in part, reversed in part, and remanded. 1. Attorney and Client — Attorney Fees. Each party in a lawsuit ordinarily bears its own attorney fees unless there is express statutory authorization to the contrary. 2. Civil Rights — Attorney Fees — Findings of Fact. A trial court, in its discretion, may award reasonable attorney fees in cases involving violations of the Civil Rights Act; the court, where attorney fees are to be awarded, must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE, 413 Mich 573 (1982), and, while not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the issue of attorney fees (MCL 37.2802; MSA 3.548[802]). 3. Attorney and Client — Attorney Fees — Evidentiary Hearings. The party seeking an award of attorney fees bears the burden of establishing entitlement and documenting the appropriate hours expended and hourly rates; where the opposing party challenges the reasonableness of the requested fee, the trial court should hold an evidentiary hearing regarding the issue, and, if any of the underlying facts are in dispute, the court should make findings of fact regarding those issues. 4. Attorney and Client — Attorney Fees. A reasonable attorney fee is presumed to be based on a reasonable hourly rate multiplied by a reasonable number of hours expended; a trial court’s discretion to increase such a presumptively reasonable attorney fee is limited to rare circumstances where the attorney’s work is so superior and outstanding that it far exceeds client expectations and normal levels of competence, or where it is necessary for attracting competent counsel. 5. Civil Rights — Attorney Fees — Mediation Sanctions. Reasonable attorney fees may be awarded under both the court rule governing mediation sanctions and the attorney fee provision of the Civil Rights Act in an appropriate case because each provision serves an independent policy or purpose (MCR 2.403[O]; MCL 37.2802; MSA 3.548[802]). 6. Damages — Future Losses — Present Value. An award of damages for future losses must be reduced to its present cash value; a trial court faced with such an award either must instruct the jury regarding such reduction or reduce the award to its present value. . 7. Damages — Future Losses — Inflation. Inflation is a factor that may be considered in assessing damages, but it does not entitle a trial court to ignore the duty to reduce to present value an award of damages for future losses. Kelman, Loria, Downing, Schneider & Simpson (by Janet M. Tooley), for the plaintiff. Clark, Klein & Beaumont (by P. Robert Brown, Jr., Dorothy M. Basmaji, Amy Bateson, Sheryl A. Moody, and Nancy J. Gordon), for the defendants. Before: Cavanagh, P.J., and Neff and W. R. Beasley, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. Per Curiam. In this gender-based discrimination case, defendants appeal as of right from a judgment entered on a jury verdict of approximately $300,000. They also claim that the trial court erred in denying their posttrial motions for directed verdict, judgment notwithstanding the verdiet, a new trial, and remittitur. We affirm in part and reverse in part. Plaintiff, Carol Howard, began working at defendant Canteen’s Cadillac 5 cafeteria as a shift supervisor in 1982. In September 1984, defendant David Spender was hired as manager of Cadillac 5. Plaintiff claims that Spender performed several acts and made several statements that constituted sexual harassment. Shortly before plaintiff left Canteen’s employ, she had a meeting with Bernard Palko, manager of food services, and Spender regarding her complaints where Spender claimed that, rather than harassing, he was only complimenting plaintiff in the things he had said. Plaintiff believed that the two men were only trying to appease her and that she was not going to get anywhere with her complaint. Spender told plaintiff after the meeting that she would be terminated, removed, or reprimanded, and that he was going to make sure she was transferred out of Cadillac 5. During plaintiff’s last week of employment, Palko told her that she was being transferred to the Cadillac Main account, which was located in a dangerous neighborhood in Detroit and was a farther distance from her home. She protested the transfer, which was obviously undesirable for her, as being made only because Spender could not be controlled. She turned down the transfer because of the way it was handled, it would cause her financial hardship, she did not have reliable transportation to drive the farther distance, she would not be getting extra income, and her feelings regarding her safety. Palko told her that if she did not transfer, she would be considered terminated. Plaintiff did not return to work for Canteen. In February 1986, plaintiff filed suit against defendants, alleging, among other things, breach of contract and sexual discrimination as a result of defendants’ failure to promote her, harassment, retaliation, and wrongful termination of her employment. These issues were thoroughly ventilated before the jury, and, after trial, the jury returned a verdict in plaintiff’s favor on both the breach of contract and sex discrimination claims. The trial court entered a judgment for $299,530, plus interest, costs, and attorney fees. Defendants filed motions for directed verdict, judgment notwithstanding the verdict, a new trial, and remittitur, which were denied. Defendants appeal. First, defendants claim the trial court erred in denying their motions for directed verdict or judgment notwithstanding the verdict because there was insufficient evidence to send the case to the jury or to support the verdicts for sexual discrimination and breach of contract. When deciding motions for directed verdict and judgment notwithstanding the verdict, the trial court must view the evidence in a light most favorable to the nonmoving party. Relief is required where insufficient evidence is presented to create an issue for the jury. Conversely, relief is not required where reasonable minds could differ on issues of fact. We will not disturb the trial court’s decision unless there has been a clear abuse of discretion. To establish a prima facie case of sex discrimination, the plaintiff must show membership in a class protected under the Civil Rights Act and that, for the same or similar conduct, the plaintiff was treated differently than a member of the opposite sex. If the defendant employer asserts legitimate, nondiscriminatory reasons for its actions, the plaintiff must then show that the reasons asserted were a mere pretext for discrimination. With regard to plaintiff’s claim of sexual discrimination regarding the failure to promote her to the Cadillac 5 manager position, for which she had requested consideration, defendants argue that plaintiff did not present sufficient evidence to support her claim because Spender was more qualified for the position than she was. However, plaintiff presented evidence that she had supervisory experience before coming to work for Canteen in 1982, she had filled in for the manager at another location on numerous occasions, she had managed both shifts of the Cadillac 5 cafeteria for a few weeks before Spender was hired, and she had generally fulfilled all the job duties of a manager at some point in time. Additionally, she was told by Palko to try to assist and guide a previous manager because she had more experience. Viewing this and the other evidence of discrimination in a light most favorable to plaintiff, a jury question was raised regarding whether plaintiff had shown, by a preponderance of the evidence, that she applied for an available position for which she was qualified but was rejected under circumstances giving rise to an inference of unlawful conduct and that sex discrimination played a significant role in the decision to deny plaintiff the promotion._ With regard to plaintiffs claim of sexual harassment, defendants argue that plaintiff did not present sufficient evidence to establish either quid pro quo sexual harassment or sexual harassment that results from a hostile or offensive work environment. However, the jury heard testimony that Spender would inquire into plaintiffs personal life, asking why she was divorced and how she could get a younger man like Michael Hobson, her live-in boyfriend who also worked on her shift at Cadillac 5; that Spender asked if plaintiff paid Hobson for his sexual favors, how she could keep up with a younger man, and why she was not more sociable with a man of Spender’s age; and that Spender also told plaintiff that if it were not for Hobson, he and plaintiff would be "closer” and they would have a better "working relationship.” Additionally, the jury heard testimony that Spender would open, read, and throw away plaintiffs mail, would go through her purse, and had grabbed a personal check out of her hand, and that he told plaintiff that women should not work out in public, that she was too aggressive, and that she was wasting her time because the company did not promote women to upper management positions, but rather would stick them in lower management positions just to keep various women’s groups happy. The jury also heard testimony that Spender told plaintiff she was not going to go anywhere unless she cooperated and that Spender was responsible for food shortage problems that occurred two or three times a week. This evidence, if accepted by the jury, was sufficient to show, at least, sexual harassment resulting from a hostile or offensive work environment. Regarding plaintiffs claim of sexual discrimination concerning retaliation, defendants argue that there was nothing of an actionable nature to retaliate against, that there was no evidence of retaliation, and that plaintiffs claim of retaliation based on her transfer to Cadillac Main was pure speculation. However, plaintiff testified that, after the meeting between Palko, Spender, and herself, Spender told her she would be terminated, removed, or reprimanded and that Spender would make sure plaintiff was moved out of his account. Soon afterward, plaintiff was told she must transfer to what was for her a much less desirable situation. Further, when plaintiff refused to transfer, Canteen hired a person "off the street” to fill the position, which tends to render quite unbelievable defendants’ claim that this was a promotion or growing experience for plaintiff. Viewing this evidence in a light most favorable to plaintiff, there was ample evidence for the jury to reasonably find that the elements of plaintiffs retaliation claim were proved. With regard to plaintiffs claim of sexual discrimination concerning her discharge, there was sufficient evidence to support the jury’s findings. Plaintiff was terminated immediately after she refused the transfer to Cadillac Main. She presented evidence that, in the context of this case, working conditions there were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign and that such action was a reasonably foreseeable consequence of Canteen’s conduct. As indicated, there was evidence that plaintiffs employment situation had been made intolerable by discrimination and sexual harassment and that her employment situation was further aggravated by a transfer to an undesirable location. Defendants also argue that there was insufficient evidence to support plaintiffs claim of breach of contract. However, plaintiff testified that Palko had told plaintiff that as long as she was familiar with the company’s policies, followed those policies, and did her job well, she would have a future with Canteen. Such verbal statements can give rise to a contract that an employee will be discharged only for just cause. In addition, Palko testified that it was Canteen’s policy not to terminate employees without a fair reason or just cause. Thus, plaintiff presented sufficient evidence to support her claim for breach of contract. Viewing all the evidence in a light most favorable to plaintiff, we do not find that the trial court abused its discretion in denying defendants’ motions for directed verdict and judgment notwithstanding the verdict. Second, defendants claim that the evidence was insufficient to support the $200,000 damage award for mental anguish, emotional distress, and humiliation with regard to the discrimination count, and they contend that the trial court erred in denying their motion for remittitur. Victims of discrimination may recover for the humiliation, embarrassment, disappointment, and other forms of mental anguish resulting from the discrimination, and medical testimony substantiating the claim is not required. When a verdict is within the range of the evidence produced at trial, it should not be reversed as excessive. With regard to remittitur, the only consideration expressly authorized by the remittitur court rule, MCR 2.611(E)(1), is whether the award is supported by the evidence. However, other objective factors such as whether the verdict was induced by bias or prejudice relating to the actual conduct of the trial or to the evidence adduced may be considered. The testimony indicated that defendants’ actions left plaintiff sad and depressed and that she is still dealing with her problems today. She is behind in paying her bills and suffers from a medical problem that she believes stems from her work situation. The evidence to support these results is found in the harassment and discrimination inflicted upon her for a lengthy period of time, despite her complaints to Palko. Under these circumstances, we do not believe the award was excessive, nor do we believe, giving deference to the trial court that personally observed the witnesses and heard the testimony, that the trial court abused its discretion in denying defendants’ motion for remittitur. Third, defendants claim that the trial court abused its discretion in denying their motion for a new trial because of numerous errors or irregularities in the trial proceedings. We have reviewed each of defendants’ alleged errors and do not find that the trial court abused its discretion so as to justify a new trial. Fourth, defendants claim that the trial court erred in its award of attorney fees. They contend that the attorney fees requested and granted were unreasonable, that the use of a multiplier for the fees granted under the Civil Rights Act was not justified, and that an additional award of attorney fees as a mediation sanction constituted double-dipping. The "American Rule” provides that each party in a lawsuit ordinarily bears its own attorney fees unless there is express statutory authorization to the contrary. MCL 37.2802; MSA 3.548(802) provides the authority to award reasonable attorney fees in state civil rights cases. The decision to grant or deny attorney fees under the Civil Rights Act is discretionary with the trial court. Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE. While the court is not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the attorney fee issue. The most useful starting point for determining the amount of a reasonable attorney fee is the number of hours reasonably expended on the case multiplied by a reasonable hourly rate. The party seeking the fee bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. In plaintiffs brief in support of her motion for attorney fees submitted to the trial court, plaintiffs attorney claims that she does not keep contemporaneous time records. She stated: It may be noted that Plaintiffs firm does not ordinarily keep contemporaneous billing records, as we are strictly a plaintiffs law firm and rarely bill clients. While such records are not required to be kept, in demanding a large sum of attorney fees the lack of contemporaneous time records leaves room for doubt regarding the reasonableness of the hours expended. Where the opposing party challenges the reasonableness of the requested fee, the trial court should hold an evidentiary hearing regarding the issue. If any of the underlying facts, such as the number of hours spent in preparation, are in dispute, the trial court should make findings of fact regarding the disputed issues. In this case, no evidentiary hearing was held regarding the reasonableness of the attorney fee. Rather, plaintiffs counsel submitted affidavits and other documentary evidence in support of her requested fees, and oral arguments were heard. The trial court, in ruling on the issue, stated: [T]he Court is satisfied that both

Maurice Ourfalian vs. Aro Manufacturing Company, Inc., & another. No. 89-P-1043. Middlesex. December 6, 1990. August 29, 1991. Present: Brown, Perretta, & Jacobs, JJ. Contract, Employment. Employment, Termination. Public Policy. Practice, Civil, Complaint. In a civil action, the defendants’ alleged violation of the public policies reflected in G. L. c. 149, § 24A (prohibiting an employee’s dismissal based on age), and G. L. c. 152, § 75A (requiring rehiring preference to a workers’ compensation claimant), as to each of which the Legislature has provided statutory remedies, gave rise to no common law cause of action by a former at-will employee who claimed that he had been wrongfully discharged from employment. [295-296] In an action by a former at-will employee, the plaintiff’s assertion that the defendants lacked just cause for discharging him stated no ground for relief. [296] In an action by a former at-will employee, the complaint and the inferences therefrom were sufficient to state a claim that the corporate defendant, the plaintiff’s former employer, had discharged him in retaliation for filing a workers’ compensation claim, entitling him to relief under G. L. c. 152, § 75B (2). [296-298] Civil action commenced in the Superior Court Department on May 20, 1987. The case was heard by Hiller B. Zobel, J., on a motion to dismiss. Philip .S'. Iuliano (Zaven Kaprielian with him) for the plaintiff. John A. Dziamba for the defendants. Sidney Shapiro, president and chief executive officer of Aro Manufacturing Company, Inc. Jacobs, J. After approximately nineteen and one-half years of continuous at-will employment with the defendant Aro Manufacturing Company, Inc. (Aro), the plaintiff was fired from his job. In his amended complaint in the Superior Court, he alleged that his discharge on October 20, 1986, was wrongful and without good or just cause; that he had not worked for four weeks previous to that date due to a workplace injury; and, that prior to his firing, other employees of Aro who had been injured at work and filed workers’ compensation claims had been discharged from employment. The legal theories in support of the complaint were set forth in five counts. Counts I, II, III, and IV sought to impose liability on the defendant Sidney Shapiro for a “bad faith discharge,” for breaches of the plaintiff’s “implied contract of continued employment” and “implied covenant of good faith,” and for violations of the public policy of the Commonwealth as reflected in G. L. c. 149, § 24A (prohibiting dismissal based on age), and G. L. c. 152, § 75A (requiring rehiring preference to a workers’ compensation claimant). Count V sought to impose liability on Aro for Shapiro’s actions “under the doctrine of respondeat superior.” This appeal is precipitated by the allowance of the defendants’ third motion to dismiss. The judge correctly dismissed those portions of the complaint that allege violations of the public policies reflected by G. L. c. 149, § 24A, and G. L. c. 152, § 75A. Although “[a] basis for a common law rule of liability can easily be found when the Legislature has expressed a policy position concerning the rights of employees and an employer discharges an at-will employee in violation of that established policy[,]” Mello v. Stop & Shop Cos., 402 Mass. 555, 557 (1988), generally no common law cause of action is established where “the Legislature has also prescribed a statutory remedy.” Ibid. The statutes upon which the plaintiff relies for public policy pronouncements contain recognized and comprehensive sanctions: G. L. c. 152, § 75A, provides for a civil action and specific remedies, Federici v. Mansfield Credit Union, 399 Mass. 592, 597 (1987), and, although G. L. c. 149, § 24A, sets out only a criminal penalty, the public policy against age discrimination is already protected by a comprehensive legislative scheme, G. L. c. 151B, see Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985). To create common law actions based on policies expressed in those statutes would impermissibly interfere with those remedial schemes. Id. at 513-514. Also, the bald assertion of lack of just cause for discharge, standing alone, cannot sustain the complaint. Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 671 (1981). Our courts have recognized that an employer’s need for “wide latitude in deciding whom it will employ,” Fortune v. National Cash Register Co., 373 Mass. 96, 102 (1977), is not outweighed by any general concept of employee job security. See Cort v. Bristol-Myers Co., 385 Mass. 300, 305-306 (1982). Standing on a different footing, however, is the complaint allegation of a bad faith discharge. When read in combination with the plaintiff’s allegations of having suffered a workplace injury at the time of his discharge and of the firing of several Aro employees for filing workers’ compensation claims, the clear inference to be drawn from the complaint, if it is to be construed so as to do substantial justice, see Nader v. Citron, 372 Mass. 96, 98, 104 (1977); Mass.R.Civ.P. 8(f), 365 Mass. 751 (1974), is that the plaintiff was discharged in retaliation for filing such a claim. The plaintiff argues that his implicit allegation of retaliatory discharge implicates a public policy which is entitled to common law protection. See Glaz v. Ralston Purina Co., 24 Mass. App. Ct. 386, 389-390 (1987)(claim exists where employee can “point to some clearly-defined and well-established public policy that is threatened by the employer’s action . . . [such as] termination ... in retaliation for performing an important and socially desirable act . . .”). Our courts have not spoken to this issue. See Federici v. Mansfield Credit Union, 399 Mass, at 594 & n.3. We need not reach the question because our workers’ compensation act clearly establishes both a right and a remedy in the circumstances alleged. Magerer v. John Sexton & Co., 727 F. Supp 744, 751 (D. Mass.), aff'd, 912 F.2d 525 (1st Cir. 1990). Mello v. Stop & Shop Cos., 402 Mass, at 557 n.2. General Laws c. 152, § 75B(2), as amended by St. 1986, c. 662, § 49, provides: “No employer or duly authorized agent of an employer shall discharge ... an employee because the employee has exercised a right afforded by this chapter .... Any person claiming to be aggrieved by a violation of this section may initiate proceedings in the superior court department of the trial court for the county in which the alleged violation occurred. An employer found to have violated this paragraph shall be exclusively liable to pay to the employee lost wages, shall grant the employee suitable employment, and shall reimburse such reasonable attorney fees incurred in the protection of rights granted as shall be determined by the court. The court may grant whatever equitable relief it deems necessary to protect rights granted by this section.” The complaint sufficiently states a claim of retaliatory discharge for the filing of a workers’ compensation claim under the statute. In view of its exclusive liability provision, the statute applies only to Aro and not to Shapiro. Accordingly, the allowance of the motion to dismiss is affirmed as to Shapiro (Counts I through IV) and reversed as to Aro (Count V) insofar as the complaint states a claim cognizable under G. L. c. 152, § 75B(2). So ordered. The record .indicates that a motion to dismiss the original complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), was denied by a judge other than the judge who allowed the motion to dismiss which is before the court. The original complaint contained general allegations of bad. faith and personal animus on the part of Shapiro but no averment relating to a workplace injury. According to the docket entries, a second motion to dismiss was denied by another judge prior to the filing of the motion to dismiss before the court. All parties treat the motion to dismiss as having been transformed into a motion for summary judgment pursuant to the last paragraph of Mass.R.Civ.P. 12(b). While matters outside of the pleadings were submitted by the parties, the judge, except for a background statement, focused his memorandum of decision on the adequacy of the contents of the complaint. In any event, the complaint and the submitted material, benefited by inferences favorable to the plaintiff, Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970), adequately raise a genuine issue as to whether the plaintiff’s discharge was in retaliation for his making a compensation claim. When, as here, “intent is at the core of a controversy, summary judgment seldom lies.” Madden v. Estin, 28 Mass. App. Ct. 392, 395 (1990). During oral argument, the plaintiff waived his age discrimination claim. It is not fatal to the complaint that G. L. c. 152, § 75B, was not specifically pleaded. Springfield v. Commonwealth, 349 Mass. 267, 270 (1965). Gallant v. Worcester, 383 Mass. 707, 709-710 (1981). Gaillard v. Board of Appeals of Lexington, 6 Mass. App. Ct. 834 (1978). “[A] complaint is not subject to dismissal if it would support relief on any theory of law” (emphasis in original). Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979). Nor does the failure of the parties to address the statute prohibit us from considering it. Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11 (1989). Since the Legislature has provided a statutory remedy against Aro for the wrong allegedly committed by Shapiro, no common law cause of action is available against him personally, especially in the absence of any allegation that he acted outside of the scope of his employment.

SHUTTLEWORTH v RIVERSIDE OSTEOPATHIC HOSPITAL Docket No. 121019. Submitted March 11, 1991, at Detroit. Decided August 20, 1991, at 9:40 a.m. Leave to appeal sought. Arlene Shuttleworth and her husband, Kim Shuttleworth, brought an action in the Wayne Circuit Court against the Riverside Osteopathic Hospital, claiming that it terminated her employment because she filed a complaint under the Michigan Occupational Safety and Health Act. The court, Kathleen I. MacDonald, J., granted summary disposition for the defendant, finding that Arlene Shuttleworth had failed to exhaust administrative remedies under the act and had failed to file timely a claim under the Whistleblowers’ Protection Act. The plaintiffs appealed, asserting that a common-law cause of action exists for retaliatory discharge. The Court of Appeals held: 1. No common-law cause of action exists for the discharge of an employee in retaliation for reporting an employer’s violation of law. That right was created by the Whistleblowers’ Protection Act, which requires the timely filing of a claim under that act. 2. An employee must exhaust the administrative remedies provided by the Michigan Occupational Safety and Health Act before commencing a civil action alleging retaliatory termination of employment for the filing of a complaint under that act. Affirmed. 1. Actions — Common-Law Actions — Employment — Retaliatory Discharge. No common-law cause of action exists for retaliatory discharge from employment for reporting an employer’s violation of law. References Am Jur 2d, Master and Servant §§ 43, 48.3, 48.7, 49; Plant and Job Safety-OSHA and State Laws §§ 131,137. Liability for retaliation against at-will employee for public complaints or efforts relating to health and safety. 75 ALR4th 13. Liability for discharge of at-will employee for in-plant complaints or efforts relating to working conditions affecting health or safety. 35 ALR4th 1031. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 2. Actions — Employment — Retaliatory Discharge — Michigan Occupational Safety and Health Act — Whistleblowers’ Protection Act. An employee whose employment allegedly is terminated in retaliation for filing a complaint against the employer for violations of the Michigan Occupational Safety and Health Act may seek redress under that act or under the Whistleblowers’ Protection Act (MCL 408.1001 et seq., 15.362; MSA 17.50[1] et seq., 17.428[2]). Roy, Shecter & Vocht, P.C. (by Lynn H. Shecter), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by Henry W. Saad and Gary S. Casey), and H. Elliot Parnés, for the defendant. Before: Brennan, P.J., and Michael J. Kelly and D. F. Walsh, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. Michael J. Kelly, J. Plaintiffs filed the instant lawsuit after plaintiff Arlene Shuttleworth was terminated from her employment by defendant in alleged retaliation for filing a complaint under the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq.; MSA 17.50(1) et seq. The circuit court granted summary disposition pursuant to MCR 2.116(C)(8) in favor of defendant after finding that plaintiff Arlene Shuttleworth had failed to exhaust her administrative remedies under the miosha and had failed to file a timely claim under § 2 of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2). Plaintiffs appeal as of right, and we affirm. A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of a claim solely on the basis of the pleadings. All factual allegations made in support of the claim are accepted as true, as well as any reasonable inferences that can be drawn therefrom. The motion is properly granted when the claim is so clearly unenforceable as a matter of law that no factual development could justify a right of recovery. Parkhurst Homes, Inc v McLaughlin, 187 Mich App 357, 360; 466 NW2d 404 (1991). Plaintiffs contend that the trial court erred in finding that the wpa is the exclusive remedy for an employee who has been wrongfully discharged from employment for reporting an employer’s violation of the law. Plaintiffs assert that a common-law cause of action for retaliatory discharge predated the wpa and that, therefore, the remedies are cumulative. We disagree. The wpa provides a remedy to an employee terminated for 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). It is the general rule in this state that 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. Pompey v General Motors Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). This Court in Covell v Spengler, 141 Mich App 76; 366 NW2d 76 (1985), held that no common-law counterpart existed before passage of the wpa and that, therefore, the act is the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer’s violation of the law. Plaintiffs have not cited, nor do we find, any common-law counterpart to the wpa. Although plaintiffs maintain that retaliatory discharge actions predated passage of the wpa, they failed to direct this Court to any decision recognizing a common-law right for the type of retaliatory discharge that is now protected by the wpa. The only case that we can locate that held that a cause of action for discharge of an employee in retaliation for reporting an employer’s violation of law existed before enactment of the wpa is Watassek v Dep’t of Mental Health, 143 Mich App 556, 564; 372 NW2d 617 (1985). However, the panel in that case recognized the cause of action only after considering the public policy espoused in the wpa itself. The events at issue in Watassek occurred before the act took effect in 1981, and the panel therefore looked to the statute as evidence that a recognized public policy existed before the statute was enacted. We find that the conclusion in Watassek that there was a preexisting common-law counterpart to the wpa was nothing more than an attempt to give preenactment effect to a statutory right by fabricating a supposed preexisting common-law right wholly from the provisions of the subsequently enacted statute. We therefore decline to hold that a common-law counterpart preexisted the wpa. Lastly, we note that a separate remedy under the miosha was available to plaintiff Arlene Shuttleworth for being terminated in retaliation for filing a complaint or instituting a proceeding under that act. Tyrna v Adamo, Inc, 159 Mich App 592; 407 NW2d 47 (1987). However, before resorting to a civil action, she first must have pursued the administrative remedies contained in the miosha. Schwartz v Michigan Sugar Co, 106 Mich App 471, 480; 308 NW2d 459 (1981). The trial court did not err in finding that plaintiff failed to state a claim. Affirmed.

Boston Police Superior Officers Federation vs. Labor Relations Commission. Suffolk. May 9, 1991. - August 13, 1991. Present: Liacos. C.J. Wilkins. Abrams. Nolan, O’Connor. & Greaney, JJ. Labor Relations Commission. Labor, Judicial review. The Labor Relations Commission erred as matter of law in dismissing a prohibited practice charge as time-barred under 456 Code Mass. Regs. § 15.03 (1986), where the alleged prohibited practice was of a continuing nature and occurred within the six-month limitation period for filing the charge. [892-894] Appeal from a decision of the Labor Relations Commission. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Alan J. McDonald for the plaintiff. Jean Strauten Driscoll for the defendant. Wilkins, J. The Boston Police Superior Officers Federation (federation) has appealed, pursuant to G. L. c. 150E, § 11 (1990 ed.), from a prehearing dismissal by the Labor Relations Commission (commission) of a charge alleging that the Boston police department (department) engaged in prohibited practices. See G. L. c. 150E, § 10(a) (1), (3) and (5) (1990 ed.). In this appeal, which we transferred here from the Appeals Court, the federation challenges the commission’s determination that the charge was time-barred by its rule, contained in 456 Code Mass. Regs. § 15.03 (1986), limiting the commission from entertaining a charge based on a prohibited practice occurring more than six months prior to the filing of the charge, except for good cause shown. The facts on which the commission based its decision are not in dispute. In January, 1988, Sergeant William Broder-ick, then a vice president of the federation, sought permission from the department to practice law during his off-duty hours. Prior to this request, the department had promptly granted such permission to several police officers, in accordance with a rule permitting employees to engage in off-duty employment subject to certain limitations and to approval by the police commissioner. In March, 1988, the department told Broderick that the off-duty employment policy was under review and that no action would be taken on his application pending this review. In December, 1988, a department attorney testified in another matter that Broderick’s request would be held until review of the policy was completed. In November, 1989, having heard nothing further, Broderick sent a letter to the police commissioner, stating in effect that he would assume that the department had approved his request unless it notified him in writing and provided the basis for denial. On December 16, 1989, Broderick received a letter from the department stating that his request had “not been approved” and that it, along with the off-duty practice rule, were “under review.” On January 17, 1990, the federation filed the charge with the commission, alleging that since December 1, 1989, the department had denied “Broderick permission to practice law on off duty time in retaliation for his exercise of protected concerted activities, and to discourage him in the exercise of union activity.” On May 21, 1990, after conducting an investigation, the commission dismissed the charge on the ground that there was no probable cause to believe that the charge was filed within six months of the date when Broderick should have known that the department was unlawfully failing to respond to his request. See City of Pittsfield, 4 M.L.C. 1905, 1908 (1978) (six-month period does not begin to run until complainant knew or should have known of the alleged violation). The commission also concluded that there was no probable cause to believe that the alleged violation was' of such a continuing nature that the six-month rule of limitations could be avoided. We conclude that, as a matter of law, the reasons the commission advanced for its dismissal of the complaint lack merit. The commission’s prehearing dismissal was a “final order” reviewable under G. L. c. 150E, § 11. Quincy City Hosp. v. Labor Relations Comm’n, 400 Mass. 745, 747 (1987). In conducting this review, we are governed “insofar as applicable” by the provisions of G. L. c. 30A, § 14 (1990 ed.). G. L. c. 150E, § 11 (1990 ed.). We may not disturb the commission’s decision unless “the substantial rights of any party have been prejudiced” for one of the reasons set forth in G. L. c. 30A, § 14 (7). We generally accord considerable deference to the commission’s disposition of a charge. See Quincy City Hosp. v. Labor Relations Comm’n, supra at 748; Brookline v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 398 Mass. 404, 411 (1986). No such deference is appropriate, however, when the commission commits an error of law. See G. L. c. 30A, § 14 (7) (c) (agency decision “[bjased upon an error of law”). The federation alleged that since December 1, 1989, the department had engaged in a prohibited practice by denying Broderick permission to practice law on his off-duty time in retaliation for his exercise of protected union activities. The commission did not decline to issue a complaint against the department based on its assessment of the substance of the claim, but rather it decided that the federation came to the commission too late. In so ruling, the commission committed an error of law. Even if the department may have wrongfully denied Brod-erick his rights from some time early in 1988 and even if Broderick should reasonably have known of that denial sometime in 1988 (a doubtful point on this record which we shall assume in favor of the commission), the fact remains that, on the federation’s allegations, the department continued to deny Broderick his rights to a time within six months of the filing of the charge. The commission could not properly dismiss the charge simply because § 15.03 speaks of a prohibited practice that occurred more than six months before the filing of the charge. Although certain prohibited practices may have occurred more than six months before the federation filed its charge, an alleged prohibited practice occurred more recently. The department’s response of December, 1989, to Broderick’s request was within six months of the filing of the charge. The department’s failure to act at that time was an alleged independent wrong, making the bar of § 15.03 inapplicable to the charge in this case. See Chesapeake & Potomac Tel. Co. v. National Labor Relations Bd., 687 F.2d 633, 638 (2d Cir. 1982). Broderick was entitled to an answer from the department within a reasonable time. As to his future right to practice law part-time, he remained entitled to an answer even more than six months after a reasonable time had passed. If in December, 1989, the department failed to act in unlawful retaliation against Broderick, it would be unfair to deny Brod-erick any chance of agency relief simply because he should have known that the department had committed the same wrong, as to his earlier right to practice, more than six months earlier. There is no warrant for denying Broderick prospective relief simply because he could have complained sooner. The commission’s interpretation of its regulation encourages the filing of possibly premature charges and certainly encourages the filing of unnecessary charges. More importantly, the commission’s interpretation of its regulation unlawfully rejected a charge based on a wrong allegedly committed within six months of the filing of the charge. The order of the Labor Relations Commission dismissing the charge is vacated, and the matter is remanded to the commission for further consideration whether the matter should proceed to complaint. Another portion of the commission’s decision has not been challenged on appeal and stands unaffected by this opinion. So ordered. Section 15.03 of 456 Code Mass. Regs, provides: “Except for good cause shown, no charge shall be entertained by the Commission based upon any prohibited practice occurring more than six months prior to the filing of a charge with the Commission.” Section 15.03 is not expressed precisely in the form of a statute of limitations, that would become important in a proceeding only if pleaded by one charged with the violation of certain rights. It is phrased somewhat in the nature of a jurisdictional test. The federation does not argue that the department may not invoke § 15.03 on its own motion. We do not consider reasons in support of the commission’s decision that are advanced for the first time in its brief filed in this appeal. We need not reach the question whether the department’s conduct was a continuing wrong, a position the commission rejected without explanation. See Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 522-523 (1990) (continuing violation in employment discrimination); Mack v. Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179, 183 (1st Cir. 1989) (same).

Jeffrey Flesner vs. Technical Communications Corporation & others. Middlesex. April 1, 1991. - August 8, 1991. Present: Liacos. C.J.. Wilkins. Abrams, Lynch. O’Connor, & Greaney. JJ. Contract, Employment. Employment, Termination. Public Policy. Emotional Distress. Fraud. Privacy. Civil Rights, Termination of employment. Practice, Civil, Summary judgment. Damages, Emotional distress. A cause of action for wrongful discharge in violation of public policy was stated by a plaintiffs allegation that his discharge from employment was motivated by his employer’s desire to interfere with or retaliate for the plaintiffs cooperation with a United States Customs Service investigation [810-811], and where the motive for the discharge was a contested issue, summary judgment was incorrectly entered for the employer [811-812], In a civil action in which the plaintiff sufficiently alleged and supported a claim of misrepresentation the judge incorrectly dismissed the claim. [814] In a civil action based on an allegation of wrongful discharge from employment, the employer’s contention that the plaintiff was precluded from recovering damages because of alleged misrepresentations on his résumé and in his job interview involved disputed issues of material fact not appropriately resolved at the summary judgment stage of the proceedings. [815-817] In a civil action in which the plaintiff claimed damages for invasion of privacy pursuant to G. L. c. 214, § IB, the judge correctly ordered entry of summary judgment for the defendants where the only evidence on the claim was the plaintiffs hearsay testimony or statements of his personal belief. [817-818] In a civil action based on the plaintiffs alleged wrongful discharge by his employer, the plaintiff failed to identify any “secured right” under the Constitution or laws of the Commonwealth or the United States to entitle him to relief on a claim under the Massachusetts Civil Rights Act, G. L. c. 12, § 111, and summary judgment properly entered for the employer on that claim. [818-819] Civil action commenced in the Superior Court Department on January 25, 1985. The case was heard by Robert J. Hallisey, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard L. Neumeier (Paul M. Moretti with him) for the plaintiff. D. Alice Olsen (Thomas M. Elcock with her) for the defendants. Arnold McCalmont and James McCalmont. Abrams, J. Jeffrey Flesner claims that his former employer, Technical Communications Corporation (TCC), constructively discharged him in retaliation for his cooperation in a United States Customs Service investigation of TCC. A Superior Court judge awarded summary judgment in favor of TCC. Flesner now appeals, contending that the judge erred in dismissing his claims for (1) wrongful discharge; (2) misrepresentation; (3) invasion of privacy; and (4) violation of the Massachusetts Civil Rights Act, G. L. c. 12, § 111 (1990 ed.). In addition, the defendants claim that Flesner is precluded from recovering damages by his own misrepresentations. We transferred the case to this court on our own motion. We reverse the summary judgment on the wrongful discharge and misrepresentation claims. We affirm on the other claims. From the materials submitted to the court in conjunction with the summary judgment motion, the undisputed facts are as follows. TCC is a Massachusetts corporation that produces, develops, and sells internationally communications systems, including communications security systems. Arnold McCalmont and his son, James McCalmont, also defendants, are president and sales manager, respectively. Flesner worked as a salesman for TCC from January 31, 1983, until his resignation on September 1, 1983. Flesner planned a sales trip to Argentina in July, 1983, to demonstrate certain TCC security equipment to potential buyers. He claims that before he left he repeatedly asked James McCalmont whether a temporary export license was needed to transport the equipment to Argentina. McCalmont told Flesner that because he was only demonstrating the equipment rather than making a permanent sale, no such license was required. At the time, TCC had applied for a temporary export license for Argentina but the application was returned with no action taken. On the date of departure, Flesner was met at Logan International Airport in Boston by a TCC employee who delivered the equipment to Flesner and handed him a manila envelope containing Customs documents. Flesner checked the equipment through to Argentina. At a stopover in Miami, Flesner was detained by Customs officials. He handed them the documents that TCC had provided him in the manila envelope, but they did not satisfy the officials. The officials told Flesner that if he did not cooperate, he would be handcuffed and arrested on the spot. Flesner said he would cooperate. The officials further questioned Flesner for approximately two and one half hours about TCC’s business, and Flesner’s planned Argentina trip. Afterward, he was told to return to Boston the next day, but the equipment was seized. When Flesner arrived back at Logan, he was met by other Customs officials who also told him that he would not be arrested or handcuffed if he cooperated. Again, he was questioned intensively. The officials instructed Flesner not to tell TCC that he was cooperating with them unless asked directly. They then released him. Later that night, Flesner met with the McCalmonts and Herman Wolz, another TCC employee, to relate the events of the past two days. He did not tell them, because they did not ask, that he was cooperating with Customs. The Customs agents met with Flesner several times after the incident to ask further questions. They also interviewed Arnold McCalmont. At one point, Flesner was summoned to a meeting with Arnold McCalmont and TCC’s lawyer at which Flesner informed them that he was cooperating with Customs. The lawyer advised Flesner that they might become adversaries and that Flesner should watch what he said to them. Flesner claims that the employer-employee relationship deteriorated thereafter. He asserts that he was forbidden to travel until the investigation was cleared up, and that he was not allowed to telephone or telex potential customers. All of his correspondence was to be reviewed by Wolz, and little, if any, of it was approved for mailing. Because he was denied access to his customers, he asserts that he was prevented from making sales or earning commissions, although he had not made any sales prior to the incident either. On August 31, 1983, Flesner told Arnold McCalmont and Wolz that he had met with Customs agents the previous week. Wolz told Flesner to inform them of any further contacts with Customs. Later, Flesner asked Wolz about his future with TCC. Wolz’s response was not positive. He told Flesner that he should resign so that he could receive two weeks’ severance pay or he would be fired the next day. On September 1, 1983, Flesner tendered his resignation. In January, 1985, Flesner filed an eight-count complaint against the defendants. TCC counterclaimed for misrepresentation. In September, 1989, the defendants moved for summary judgment on Flesner’s claims. On September 27, 1989, the judge allowed the motion except as to the counts for misrepresentation, wrongful discharge, and negligence. In October, he allowed the motion for all counts, and filed a memorandum of decision explaining his order. Flesner appeals the order as to five of those counts. 1. Motion for summary judgment. In ruling on a motion for summary judgment, “a judge . . . must consider ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ in determining whether summary judgment is appropriate. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). The burden on the moving party is to ‘show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Id.” Madsen v. Erwin, 395 Mass. 715, 719 (1985). This burden need not be met by affirmative evidence negating an essential element of the plaintiff’s case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial. See Kourouvacilis v. General Motors Corp., ante 706 (1991). Where a moving party properly asserts that there is no genuine issue of material fact, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A judge’s mere belief that the movant is more likely to prevail at trial is not a sufficient basis for granting summary judgment. See Byrd v. Roadway Express, Inc., 687 F.2d 85, 87 (5th Cir. 1982); American Int’l Group v. London Am. Int’l Corp. Ltd., 664 F.2d 348, 351 (2d Cir. 1981). 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, at 104-105 (1983). In cases where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) (“the generally accepted rule is that the ‘granting of summary judgment in a case where a party’s state of mind . . . constitutes an essential element of the cause of action is disfavored’ ”), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984). See also Sweat v. Miller Brewing Co., 708 F.2d 655, 657 (11th Cir. 1983); Baldini v. Local 1095, UAW, 581 F.2d 145, 151 (7th Cir. 1978). 10A C. Wright, A. Miller, & M. Kane, supra at § 2730. In such cases, “[mjuch depends on the credibility of the witnesses testifying as to their own states of mind. In these circumstances, the jury should be given an opportunity to observe the demeanor, during direct and cross-examination, of the witnesses whose states of mind are at issue.” Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir. 1971). With these principles in mind, we consider the merits of Flesner’s arguments. 2. Wrongful discharge. Flesner claims that TCC constructively discharged him in violation of public policy because of his cooperation with the Customs officials. We have recognized an exception to the traditional doctrine that at-will employees may be discharged for any reason or no reason at all, where the discharge is for reasons that violate public policy. See DeRose v. Putnam Management Co., Inc., 398 Mass. 205 (1986). We have held, for example, that a cause of action will lie when an employee is fired for disobeying the employer’s instruction to testify falsely at a trial, see id., or for enforcing safety regulations for which she was responsible, see Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988). In Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 149-150 (1989), we stated that redress is available for employees who are terminated “for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Flesner claims he was discharged for cooperating with the Customs officials. The law did not require him to cooperate; he had the right to remain silent. Nevertheless, it is the public policy of this Commonwealth to encourage cooperation with ongoing criminal investigations. See, e.g., G. L. c. 262, § 29 (1990 ed.) (providing compensation and travel costs reimbursement for any person who attends the Attorney General or the offices of a district attorney for the purpose of assisting an investigation); G. L. c. 233, § 20D (1990 ed.) (permitting a grant of immunity for specified crimes for witnesses in a grand jury investigation); Correllas v. Viveiros, ante 314 (1991). Cf. 18 U.S.C. § 6002 (permitting a grant of immunity to witnesses testifying or providing information in a proceeding ancillary to an agency of the United States). We think that the reasons for imposing liability in the categories of cases set forth in Smith-Pfeffer also justify legal redress in certain circumstances for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed. In such a situation, as in the Smith-Pfeffer categories, allowing the employer to terminate employees for reasons that directly contradict the public policy of the Commonwealth would seriously impair that policy. See Petermann v. International Bhd. of Teamsters, 174 Cal. App. 2d 184 (1959). Cooperating with an ongoing governmental investigation is an important public deed which fits this category. See Palmateer v. International Harvester Co., 85 Ill.2d 124 (1981) (cause of action stated where plaintiff claims he was discharged in retaliation for supplying information to law enforcement agency that a fellow employee might have committed a crime and for agreeing to assist in the investigation and trial). The judge, however, granted summary judgment because “TCC never urged Flesner not to cooperate with Customs officials or otherwise hamper an investigation.” This assertion does not demonstrate an absence of evidence on an essential element of the claim. See Kourouvacilis, supra. Flesner’s claim is that the discharge itself was motivated by a desire to interfere with or retaliate for his cooperation with the investigation. Such intentional interference, if found by a jury, would constitute a wrongful discharge in violation of public policy. Moreover, the judge asserted that, while “Flesner may be said to have been fired for participating in an illegal scheme in which the employer was involved, . . . such a termination does not fall within the public policy exception.” Although a reasonable jury may conclude that such was the cause for Flesner’s termination, it would not be required to so con-elude. Where a jury can draw opposite inferences from the evidence, summary judgment is improper. See Anderson v. Liberty Lobby, Inc., supra at 248-250. Flesner’s deposition asserts that he asked about export licenses and TCC told him they were not necessary. Thus, it is permissible to conclude that Flesner left on his trip completely unaware that he was acting in violation of the law. *He describes his ongoing cooperation with Customs authorities and a corresponding deterioration in his working relationship with TCC. He asserts that he was told to resign with two weeks’ pay or be fired. This evidence sufficiently raises a question of material fact as to whether Flesner was discharged in retaliation for his cooperation with a law enforcement investigation. The defendants contend that Flesner was discharged, if at all, for other legitimate business reasons. Thus, the motive for the discharge is a primary contested issue of fact. In such circumstances, the grant of summary judgment on these claims was improper. See Sweat v. Miller Brewing Co., supra (where employer’s intent in discharging plaintiff was contested, summary judgment was improper); Padway v. Palches, 665 F.2d 965, 967 (9th Cir. 1982) (same). 3. Damages. In addition to economic damages, Flesner claims damages for emotional distress and mental anguish as well as punitive damages.* * Punitive damages are not allowed in this Commonwealth unless expressly authorized by statute. See Santana v. Registrars of Voters of Worcester, 398 Mass. 862, 867 (1986); USM Corp. v. Marson Fastener Corp., 392 Mass. 334, 353 (1984). Because no such legislative authorization applies to this case, Flesner’s claim for punitive damages cannot stand. Because the judge ordered summary judgment for the defendants on liability for the wrongful discharge count, he did not decide whether such a cause of action gives rise to tort damages, such as those for emotional distress claimed by Flesner, in addition to contract damages. There is, therefore, no ruling before us to review. The parties focused on liability in the motion for summary judgment. Therefore, the factual background on damages is undeveloped. Indeed, no facts alleged in the complaint or submitted on summary judgment evidence any suffering by Flesner of mental anguish due to the defendant’s conduct in wrongfully discharging him. We decline to adopt a hard and fast rule on whether tort damages in general and emotional distress damages in particular are recoverable in wrongful discharge cases in the absence of a well-developed factual record. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 417 n.3 (1988). If at trial no facts are brought out supporting damages for emotional distress due to the defendant’s intentional conduct, then the question need not be reached. We therefore decline to address this issue. 4. Misrepresentation. The judge also granted summary judgment on Flesner’s misrepresentation claim because the complaint did not allege damages independent of those alleged in connection with the termination of his employment. “Therefore,” according to the judge, the “plaintiffs cause of action, if one lies, must be for Wrongful Discharge.” Even if the judge were correct that the only damages Flesner alleges are those arising out of his termination, a point we do not decide, the overlap does not justify dismissal of the claim. Flesner, of course, cannot recover double damages for the two claims, but he is entitled to proceed on more than one theory of recovery. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979); Laurendeau v. Kewaunee Scientific Equip. Corp., 17 Mass. App. Ct. 113, 120-121 (1983). Mass. R. Civ. P. 8 (e) (2), 365 Mass. 749 (1974). The judge does not conclude that Flesner insufficiently alleged or supported his claim of misrepresentation. Summary judgment should not have been allowed on the misrepresentation claim. Cf. Presto v. Sequoia Sys., Inc., 633 F. Supp. 1117 (D. Mass 1986) (claims for breach of employment contract and misrepresentation allowed to go forward; wrongful discharge claim dismissed on other grounds). 5. Flesner’s alleged misrepresentation. The defendants argue that Flesner is precluded from recovering damages because he misrepresented several facts on his résumé and in his job interview leading to his employment with TCC. According to the defendants, TCC would not have hired Flesner had they known these representations were not true. Therefore, they conclude that even though they did not discover these misrepresentations until after Flesner resigned, he cannot recover any damages because TCC would have been justified in firing him even absent any wrongful motives. Because the judge ordered summary judgment for the defendants on all counts, he did not reach this issue. The defendants cite a line of Federal wrongful discharge and employment discrimination cases in support of their argument. See, e.g., East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988); Smallwood v. United Airlines, Inc., 728 F.2d 614 (4th Cir.), cert, denied, 469 U.S. 832 (1984); Murnane v. American Airlines, 667 F.2d 98 (D.C. Cir.), cert, denied, 456 U.S. 915 (1982). These cases all deal with the question of the appropriate remedy once discrimination or a wrongful discharge has been established. In Mt. Healthy, a teacher was fired, in part because of his exercise of rights secured him by the First Amendment to the United States Constitution. Several other permissible reasons could have supported the discharge, however. The Supreme Court remanded the case to the District Court to determine whether the school board in fact would have fired the plaintiff even absent the impermissible reason. The court reasoned that the plaintiff should not be put in a better position than he would have been in had the wrong not b