Retaliation Cases

Stephen Trychon vs. Massachusetts Bay Transportation Authority. No. 15-P-1316. Suffolk. May 16, 2016. September 15, 2016. Present: Agnes, Massing, & Kinder, JJ. Massachusetts Bay Transportation Authority. Practice. Civil. Motion to dismiss. Employment. Termination, Retaliation. A Superior Court judge erred in dismissing the plaintiff’s complaint charging the Massachusetts Bay Transportation Authority (MBTA) with violations of G. L. c. 149, § 185, the Massachusetts public employee whistleblower statute, where the plaintiff, a former managerial employee of the MBTA, alleged sufficient facts to plausibly show that he had engaged in protected activities (i.e., reporting contract fraud, unsafe track conditions, and the high incidence of eye injuries among employees), and that those activities played a substantial or motivating part in the MBTA’s decision to terminate his employment. [254-260] Civil action commenced in the Superior Court Department on February 11, 2014. A motion to dismiss was heard by Heidi E. Brieger, J. Kevin G. Powers for the plaintiff. Jeffrey A. Dretler for the defendant. Agnes, J. In this appeal, we must determine the legal sufficiency of Stephen Trychon’s complaint charging the Massachusetts Bay Transportation Authority (MBTA) with violations of G. L. c. 149, § 185, the Massachusetts public employee whistle-blower statute (whistleblower statute). A Superior Court judge allowed the MBTA’s motion, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the complaint. We conclude that Trychon has stated a plausible claim for relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Accordingly, we reverse the judgment. 1. Standard of review. We review the order dismissing the complaint de novo, accepting the truth of all factual allegations and drawing all reasonable inferences in Trychon’s favor. See Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752, 754 (2014). A complaint is sufficient to withstand a motion to dismiss if the factual allegations “plausibly suggest” an entitlement to relief, raising the right to relief “above the speculative level.” Harrington v. Costello, 467 Mass. 720, 724 (2014), quoting from Iannacchino, supra. See Mass.R.Civ.P. 8(a)(1), 365 Mass. 749 (1974). The factual content is sufficient if it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 23 (1st Cir. 2014), quoting from Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “it. . . raise[s] a reasonable expectation that discovery will reveal evidence [of the alleged misconduct].” Lopez v. Commonwealth, 463 Mass. 696, 712 (2012), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). In conducting the “context-specific” inquiry required by the plausibility standard, we must “draw on [our] judicial experience and common sense.” Lopez, supra, quoting from Ashcroft, supra at 679. “The critical question is whether the claim, viewed holistically, is made plausible by ‘the cumulative effect of the factual allegations’ contained in the complaint.” A.G. v. Elsevier, Inc., 732 F.3d 77, 82 (1st Cir. 2013), quoting from Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011). 2. Background. We recite the allegations of Trychon’s complaint, along with reasonable inferences that may be drawn from those allegations. Although merely allegations, we must accept them as true for the purposes of reviewing the dismissal of a complaint. See Harrington, supra. Trychon’s employment. The holder of a master’s degree in business administration, Trychon worked in various management positions for the MBTA from his date of hire on March 30, 2009, until April 10, 2013. During that time period, he was promoted twice and received excellent performance reviews. His job duties and responsibilities grew over time. Trychon alleges that he made it his mission to eliminate the causes of the MBTA’s $180 million debt. For example, Trychon brought in consultants to review the MBTA’s station cleaning program, working with them on creating new, more cost-effective contract specifications. As a result of his efforts, Trychon asserts that he saved taxpayers $18 million over a five-year period. According to Trychon, with the exception of his direct superior, Michael Turcotte, MBTA management was not interested in changing the “culture of waste and inefficiency.” Contract fraud investigation. Assigned by Turcotte on or about February 10, 2011, to investigate possible contract fraud, Trychon alleges he uncovered two improprieties at the MBTA: the illegal extensions of expired contracts and the practice of dividing large contracts and purchases into smaller ones to avoid the necessity of management approval. Trychon reported his findings to Turcotte and to Jonathan Davis, the then acting general manager of the MBTA (GM) and former head of the procurement department. An official fraud investigation revealed that the root cause of the fraud was the procurement department. As a result of the investigation, at least one employee was fired. Informed by the investigating accountant that the evidence of fraud in the procurement department “ran very deep” and that many more employees would be implicated if the investigation continued, Davis stopped the investigation. Eyewear policy. In or about May, 2011, Trychon noticed a significant number of eye injuries sustained by MBTA employees. As a result of an investigation, Trychon drafted and implemented a new eyewear policy that required all E & M employees performing potentially hazardous duties to wear protective equipment. After Trychon and Turcotte discovered general disregard of that policy by E & M employees during a department-wide safety audit, a directive was issued requiring all E & M managers to conduct daily safety inspections and to file daily reports. On or about January 25, 2012, an employee who reported to Patrick Kineavy, the director of MOW, was disciplined for refusing to put on the required eyewear as instructed by Trychon. When Trychon observed continuing noncompliance with the policy among Kineavy’s group, Kineavy received a written warning, was placed on a thirty-day corrective action plan, and was required to document and report his safety-compliance inspections. When asked to produce proof of his safety-compliance inspections, Kineavy was unable to do so, and later provided Trychon with twelve allegedly fabricated safety observations. In or about April, 2012, Trychon wrote a memorandum to Turcotte recommending that Kineavy be removed from his director duties. Acting GM Davis and MBTA human resources director William Perez rejected that recommendation independently submitted to them by Turcotte. Kineavy’s safety-compliance reporting duties were switched from Trychon to Turcotte. In August, 2012, Turcotte sought in writing Kineavy’s termination based upon Kineavy’s verbal threat, failure to enforce the eyewear policy, fraudulent reporting, and continued poor performance reviews. State Secretary of Transportation Richard Davey and acting GM Davis stepped in and created a new job for Kineavy with minimal responsibilities and better pay. They also switched Kineavy’s reporting duties to Sean McCarthy, “an old South Boston buddy of [Kineavy].” Suspected time fraud. The complaint further alleges that “[i]t was reported” to Trychon and Turcotte that “very close friends” of Kineavy and Matthew McGuire, the deputy director of MOW, did not punch in for work by hand scanner as required by MBTA policy, but were still being paid. Trychon determined that a supervisor in SMI “was taping or was allowing his name to be taped” on time sheets without properly verifying that the employees had actually reported for work. Trychon decided to conduct a full investigation of E & M to determine the extent of the practice. News of the investigation leaked, and the original records of Kineavy and McGuire were stolen. Unsafe track conditions. Trychon claims that, pursuant to State regulation, the MBTA is required to “update and create new track standards every two (2) years.” In or about August, 2012, Try-chon discovered that the last updates were made in 2008. Trychon directed Kineavy and McGuire to bring the MBTA into regulatory compliance as soon as possible. To that end, Trychon approved the hiring of a highly-regarded, independent track inspector, HNTB. The report issued by HNTB warned the MBTA of alarming safety conditions needing correction that dated back to HNTB’s previous inspection in 2006. Neither Kineavy nor McGuire had addressed the unsafe track conditions since 2006. McGuire steered the report to himself and did not disclose it to Trychon. A concerned member of McGuire’s staff provided copies of the HNTB report to Trychon, who in turn passed copies on to Tur-cotte and to his subordinates, directors Joseph McNall and Andrew Baker. Asked by Turcotte why he had hidden the results of the report, McGuire allegedly became enraged and accused Turcotte and Trychon of “having an agenda” against him and Kineavy. When Turcotte requested that Perez “relieve [McGuire] of his duties,” Perez stated that he would transfer McGuire to the MBTA’s safety department. McGuire informed his boss, Baker, that “[b]ig changes are coming, and he (McGuire) is not going anywhere.” Baker reported the comment to Trychon and to Turcotte. Adverse employment actions. The complaint also alleges that following Turcotte’s “functional[ ] demotion],” on March 1, 2013, by the new GM, Beverly Scott, Turcotte resigned. On April 9, 2013, Trychon received an unsigned card that stated, “ ‘Good luck.’ ‘Enjoy your layoff!’ and ‘Fuck off.’ ” On the following day, Perez informed Trychon that he was laid off. At the time, Trychon had not yet completed his investigation of the suspected time fraud. 3. Discussion. In general, G. L. c. 149, § 185, protects public employees from retaliation by their employers for disclosing to a supervisor or public body workplace activities, policies, or practices that the employee reasonably believes violate the law, or pose a risk to public health, safety, or the environment. There is little decisional law by our appellate courts construing § 185’s provisions. In contrast, the Federal courts have had the opportunity to construe and apply § 185 on a number of occasions. While we are required to make our own judgment about the intent of the Legislature in adopting the statute, and are not bound by interpretations reached by Federal courts, we regard those decisions as persuasive authority and, in this case, find them to be instructive. See Fidler v. E. M. Parker Co., 394 Mass. 534, 545 (1985). There are three elements to a whistleblower claim brought under G. L. c. 149, § 185. The plaintiff-employee must prove that (1) the employee engaged in a protected activity; (2) participation in that activity played a substantial or motivating part in the retaliatory action; and (3) damages resulted. See Welch v. Ciampa, 542 F.3d 927, 943 (1st Cir. 2008); Taylor v. Freetown, 479 F. Supp. 2d 227, 241 (D. Mass. 2007). The plausibility standard, as clarified by the United States Court of Appeals for the First Circuit, does not require the pleading of specific facts to establish each element of the prima facie case. See Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (noting that “prima facie [case] is an evidentiary standard, not a pleading standard”). The prima facie elements, however, are relevant “background against which a plausibility determination should be made.” Ibid. a. Protected activity. Only certain acts are protected by § 185, including, as relevant in this case, disclosures (or threatened disclosures) to a supervisor of and objections to an employer’s activity, policy, or practice that the employee reasonably believes violates the law or poses a risk for public health or safety. See G. L. c. 149, § 185, (3). We construe the allegations of the complaint as resting on both statutory subsections. Trychon has alleged sufficient facts to plausibly show that he engaged in one or more activities protected by § 185. First, following his investigation into alleged contract fraud, he reported two practices (the extension of expired contracts and the splitting of contracts) that he reasonably could have believed violated the public bidding law. See G. L. c. 149, § 44J(1), (3). Compare Romero v. UHS of Westwood Pembroke, Inc., 72 Mass. App. Ct. 539, 541 & n.3 (2008). Second, even if he was mistaken about the track inspection and maintenance laws, Trychon reasonably could have believed, based on HNTB’s 2012 report and on common sense, that the MBTA’s failure to correct the alarming track conditions for six years posed a risk to the public safety within the meaning of § 185. His disclosures to Turcotte of the updated HNTB report, the nonfea-sance by Kineavy and McGuire, and the alleged cover-up by McGuire qualified as protected activity for purposes of pleading his § 185 claim. We agree with the MBTA that the phrase “a risk to public health, safety or the environment,” as it appears in § 185, means a risk to public health, public safety, or the environment. However, drawing on our judicial experience and common sense, we are not persuaded by the MBTA’s further argument that Try-chon’s disclosures to his supervisors about the high incidence of eye injuries among employees, and the failure of certain managers to enforce the MBTA’s policy designed to reduce the number of such injuries is not, as a matter of law, a disclosure relating to the public health or public safety. Disclosures relating to workplace activities, policies, or practices that have a significant impact upon the cost of public employment, including healthcare costs, may diminish the availability of limited public funds for other pressing public needs, including public needs relating to health and safety, and therefore may be protected under the whistleblower statute. The MBTA is dependent upon public funding from the Commonwealth and its cities and towns to sustain its operations. See, e.g., St. 2015, c. 46, § 2E (line items 1595-6368 and 1595-6369 of the general appropriations law for fiscal year 2016, transferring public funds to accounts earmarked to support the operation of the MBTA). One operational cost of the MBTA is the payment of benefits to employees injured on the job because the MBTA is a self-insurer. See McCarthy’s Case, 66 Mass. App. Ct. 541, 541, 545-546 (2006). To the extent that the MBTA uses taxpayer dollars to compensate its injured employees, it diminishes the availability of those funds to be used for other purposes relating to public health and public safety. At this early stage of the proceedings, we cannot say, as a matter of law, that Trychon has not stated a plausible claim for relief with regard to the MBTA’s eye injury policy. On the other hand, the allegations relating to the suspected time fraud were too vague to support an inference that Trychon qualified for protected whistleblower status. An unnamed third party reported the violation of the hand scanner policy to Trychon and to Turcotte. Trychon, it was alleged, took two actions: he determined that a particular supervisor in SMI was not verifying employee time and he commenced an “E&M-wide” investigation. While a reasonable inference of fraudulent time reporting involving Kineavy and McGuire could be drawn, these sparse facts do not support an inference that before his layoff, Trychon engaged in any protected activity as to the suspected time fraud. No disclosure of, or threat to disclose, suspected time fraud to a supervisor may reasonably be inferred from these facts. See Estock v. Westfield, 806 F. Supp. 2d 294, 309 (D. Mass. 2011) (“The [whistleblower] statute prohibits retaliatory conduct on the part of an employer, not preventative conduct”). Although Trychon’s allegations concerning his conduct with respect to the suspected time fraud do not amount to protected activity, his other allegations of whistleblowing at this stage of the litigation are sufficient to withstand dismissal for failure to state a claim. b. Causation. We conclude that Trychon’s complaint, viewed as a whole, sufficiently alleged a causal connection between the protected activities and a retaliatory layoff to satisfy the plausibility standard. At the time of his discharge, Trychon’s trajectory was on the rise. He had evidently proven himself to be an effective and dedicated public employee, saving taxpayers millions of dollars, identifying fraudulent contracts, and exposing alarming track conditions that posed a risk to public safety. He had been promoted twice, and the scope of his job responsibilities was expanding. Generally, unless adverse conditions require a different course of action, employers who follow sound business practice do not select employees with excellent performance records for termination. Likewise, employers who follow sound business practice do not ordinarily transfer, shield, or reward employees whose poor performance or wrongful acts warrant termination, as the MBTA allegedly did according to the complaint. Trychon alleged adequate facts plausibly suggesting retaliatory animus harbored by MBTA management. The narrative of the complaint suggests a continuing pattern of opposition and hostility to Trychon, and to his mainstay Turcotte, over an extended period of time. Trychon claims that Kineavy and McGuire disregarded his directives, left fraudulent reports in his mailbox, hid HNTB’s alarming inspection report, and stole original records to thwart his time fraud investigation. Kineavy allegedly threatened to “fix” Turcotte “for good,” while McGuire accused Trychon and Turcotte of having a personal agenda against him and Kineavy. The retaliatory animus supposedly extended to the upper echelons of management. One could reasonably infer that acting GM Davis did not appreciate Trychon’s embarrassing disclosure of wrongdoing in a department that he personally had overseen, and that he wanted Trychon and his spotlight gone. After having shelved the investigation to avoid the implication of more employees in the contract fraud, Davis evidently supported the insubordinate and hostile Kineavy over Trychon and Turcotte. Indeed, it could be inferred that Davis, supported by Secretary Davey, rewarded Kineavy with an objectively better job for his opposition. The complaint alleges that the consequence of McGuire’s six years of nonfeasance as to track safety and his nondisclosure of the disturbing HNTB report was a planned transfer to the safety department. The treatment afforded to Kineavy and to McGuire plausibly suggested that they had influence far higher than their subordinate positions in the organizational chart. In short, for pleading purposes, the hostile acts and statements by Kineavy and McGuire, the unnatural protection afforded those individuals, and acting GM Davis’s suppression of the official contract fraud investigation initiated because of Trychon permit a plausible inference that Trychon’s protected activities played a substantial or motivating part in the decision to terminate him. Given the continuing pattern of opposition faced by Trychon, the temporal gap between Trychon’s protected conduct and his termination was not so attenuated as to fail to meet the plausibility standard. Trychon did not identify the individual who made the final decision to discharge him. Where, as here, it could reasonably be inferred that Davis and managers under his protection influenced that decision, the omission did not warrant the dismissal of the complaint. See Mole v. University of Mass., 442 Mass. 582, 598-600 (2004). In the alternative, the MBTA urges us to affirm the judgment based on the “normal job duties” exclusion. That doctrine limits employer liability where the employee’s disclosure to a supervisor occurred as part of

HECHT v NATIONAL HERITAGE ACADEMIES, INC Docket No. 150616. Argued March 10, 2016 (Calendar No. 3). Decided July 26, 2016. Craig Hecht brought an action in the Genesee Circuit Court alleging that his employment was terminated by National Heritage Academies, Inc., in violation of the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. Plaintiff had been employed as a teacher by defendant when he made racially charged comments. When later questioned about the comments by his supervisors, plaintiff provided inconsistent explanations. Plaintiff also allegedly attempted to interfere with his supervisors’ investigation of the incident by asking a witness to change his statement about what had happened. Plaintiff was subsequently terminated. Plaintiff asserted that his attempts to find new employment as a teacher were hampered by defendant’s mandatory statutory disclosures to other schools of his record of unprofessional conduct. Before trial, defendant moved to preclude plaintiff from presenting evidence of the disclosures because the disclosures were required by MCL 380.1230b and a school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure. The court, Geoffrey L. Neithercut, J., ruled that the evidence was admissible. Defendant moved for a directed verdict at the close of plaintiffs case in chief, arguing that this was a disparate-treatment discrimination case and plaintiff had not shown that any of defendant’s other employees engaged in the same or similar conduct. The court denied the motion. The jury returned a verdict in favor of plaintiff, finding that he had proved that race was a factor in his termination, that he had shown $50,120 in past economic loss, and that he had shown $485,000 in future economic loss. Defendant moved for judgment notwithstanding the verdict (JNOV), a new trial, or remittitur. The court denied the motion. The Court of Appeals, Sekvitto, P. J., and Cavanagh, J. (Wilder, J., dissenting), affirmed in an unpublished opinion. The Supreme Court granted defendant’s application for leave to appeal. 498 Mich 877 (2015). In an opinion by Chief Justice Young, joined by Justices Markman, Zahra, McCormack (as to Parts I, II, and III), Viviano, Bernstein (as to Parts I, II, and III), and Larsen, the Supreme Court held,'. In light of the circumstantial evidence presented and all the inferences that could have been reasonably drawn from that evidence in favor of the jury’s liability verdict, a reasonable jury could have concluded that defendant violated the CRA. However, because MCL 380.1230b afforded defendant complete immunity from civil liability flowing from the mandatory disclosures compelled by that statute, the trial court erred by allowing the jury to consider the disclosure evidence. Accordingly, the award of future damages had to be vacated and the case remanded for further proceedings. 1. When reviewing a motion for JNOV, an appellate court must construe all the evidence and the inferences arising from the evidence in the nonmoving party’s favor. If reasonable jurors could have honestly reached different conclusions, the jury verdict must stand. Under MCL 37.2202(1) of the CRA, an employer may not discharge or otherwise discriminate against an individual with respect to employment because of race. A claim under the CRA requires proof of “but for” causation. There are multiple ways to prove that a plaintiff was the victim of unlawful discrimination, including direct evidence of discrimination, i.e., evidence that proves impermissible discriminatory bias without additional inference or presumption. In this case, however, contrary to the conclusion of the Court of Appeals majority, defendant failed to present direct evidence of discrimination. One way of proving unlawful discrimination without direct evidence is by showing that the plaintiff was treated unequally to a similarly situated employee who did not have the characteristic protected under the CRA. Thus, an employer’s differing treatment of employees who were similar to the plaintiff in all relevant respects, except for their race, can give rise to an inference of unlawful discrimination. In order for this type of evidence to give rise to such an inference, the similarly situated employee must be nearly identical to the plaintiff in all relevant respects. In this case, plaintiff presented a different kind of circumstantial evidence: circumstantial evidence that his employer considered his race in its decision to discharge him. Plaintiff argued that the black employees routinely engaged in racial banter, but were not disciplined. There were distinctions between the comments made by plaintiff and those made by defendant’s black employees that, if credited by the jury, might have allowed the jury to find for defendant. However, plaintiff presented additional evidence that defendant considered plaintiffs race in terminating him. Specifically, plaintiff also presented evidence that defendant’s management employees were aware of and tolerated the unequal enforcement of defendant’s stated zero-tolerance policy. The evidence, if believed, suggested that defendant’s management employees prohibited negative stereotyping in the workplace except when negative stereotyping comments were made by defendant’s black employees. The jury was thus shown the difference between defendant’s policy in theory and its racially biased application. This was potent circumstantial evidence of defendant’s allegedly racially biased decision-making. This evidence could have allowed a reasonable jury to conclude that defendant applied a different standard to plaintiffs conduct based on his race. Accordingly, the jury could reasonably have found that race was a ‘Tut for” cause in defendant’s decision to investigate plaintiff and escalate punishment for his racial comments. Similarly, while defendant presented nondiscriminatory reasons for its decision to terminate plaintiff, plaintiff presented sufficient evidence for a reasonable juror to reject those race-neutral reasons as unbelievable. The jury’s verdict, finding a violation of the CRA, was supported by the totality of the evidence presented and the reasonable inferences in plaintiffs favor that could be drawn from that evidence. 2. Generally, all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the state of Michigan, the rules of evidence, or other rules adopted by the Supreme Court. Evidence may also be prohibited by statute. MCL 380.1230b provides that before hiring an applicant for employment, school employers must request that the applicant sign a statement (1) authorizing the applicant’s current or former employer or employers to disclose to the school employer any unprofessional conduct by the applicant, and (2) releasing the current or former employer from any liability for providing that information. Before hiring an applicant for employment, a school employer must request that the applicant’s current or prior employer provide information concerning the applicant’s unprofessional conduct, if any. After receiving such a request, a school employer must provide the information requested and make available to the requesting school employer copies of all documents in the employee’s personnel record relating to the unprofessional conduct. A school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure. In this case, plaintiff argued that he was not precluded from presenting evidence of the mandatory disclosure because he did not sue for the disclosure itself—he sued for a violation of the CRA and presented evidence of the adverse impact of the disclosure to establish future damages. Plaintiffs belief was that only a direct action for the disclosure, e.g., a defamation claim, was precluded by MCL 380.1230b(3), but the admission of evidence of the disclosures in a case such as this was permissible. The term “civil liability’ is defined as being legally obligated for civil damages. The trial court’s decision to admit evidence and argument regarding the mandatory disclosures for the purpose of assessing damages allowed the jury to impose against defendant legal obligations arising from the disclosure. This violated the plain language of the statute. There can be no damages without liability. A legislative decision to preclude liability necessarily precludes damages on the same basis. There is no textual support for the view that immunity under the statute depends on the nature of the claim underlying the civil liability. The improper admission of the disclosure evidence tainted the jury’s future damages award, which had to be vacated. Court of Appeals judgment is affirmed to the extent it held that plaintiff presented sufficient circumstantial evidence to sustain the jury’s verdict finding that defendant violated the CRA; Court of Appeals judgment is reversed to the extent it held that the trial court properly admitted evidence of defendant’s mandatory disclosures of plaintiffs unprofessional conduct; jury award of future damages is vacated; case is remanded to the trial court for further proceedings. Justice McCormack, joined by Justice BERNSTEIN, concurring in part and dissenting in part, agreed with the majority that plaintiff presented sufficient evidence of discrimination such that the trial court did not err by denying defendant’s motion for JNOV, but disagreed with the majority’s decision to vacate the jury award for future damages. MCL 380.1230b(3) confers immunity from liability, i.e., the state of being legally obligated for damages, “for the disclosure,” not from paying money as compensation for a state of legal responsibility unrelated to the disclosure. Because the statutory immunity is tied to the liability and not the remedy, MCL 380.1230b(3) only precludes imposing liability (and damages flowing therefrom) on a defendant when the liability arises from an injury caused by the disclosure itself. Disclosing plaintiffs unprofessional conduct did not create additional legal responsibility for which defendant was on the hook; rather, it was the alleged illegal act of discharging plaintiff based on his race that gave rise to defendant’s liability. The injury from which the liability arose was the discriminatory discharge, not the disclosures. Introducing evidence of defendant’s disclosures of plaintiffs conduct merely assisted the jury in determining the appropriate remedy for the discriminatory discharge. Because plaintiffs injury was the discriminatory discharge rather than defendant’s disclosures, and because it was the discriminatory discharge for which defendant was held liable, the future damages award did not constitute civil liability for the disclosure, and the award of future damages should have been affirmed. 1. Actions — Violations of the Civil Rights Act — Sufficiency of the Evidence — Causation. Under MCL 37.2202(1) of the Civil Rights Act, an employer may not discharge or otherwise discriminate against an individual with respect to employment because of race; a claim under the act requires proof of “but for” causation; there are multiple ways to prove that a plaintiff was the victim of unlawful discrimination, including through proofs of either direct or circumstantial evidence of discrimination. 2. Schools — Disclosures of Unprofessional Conduct — Immunity from Civil Liability for Disclosures — Inadmissibility of Evidence of Disclosures to Assess Damages in a Discrimination Case. Under MCL 380.1230b, before hiring an applicant for employment a school employer must request that the applicant’s current or prior employer provide information concerning the applicant’s unprofessional conduct, if any; after receiving such a request, a school employer must provide the information requested and make available to the requesting school employer copies of all documents in the employee’s personnel record relating to the unprofessional conduct; a school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure; evidence of such a disclosure is not admissible for the purpose of assessing the plaintiffs damages arising out of the disclosure in a case brought by a plaintiff alleging that he or she was fired in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq. Law Office of Glen N. Lenhoff (by Glen N. Lenhoff and Robert D. Kent-Bryant) and Rizik & Rizik, PC (by Michael B. Rizik, Jr.), for plaintiff. Warner Norcross & Judd LLP (by John J. Bursch, Dean F. Pacific, and Matthew T. Nelson) for defendant. Amici Curiae: Bill Schuette, Attorney General, Aaron D. Lind-strom, Solicitor General, Matthew Schneider, Chief Legal Counsel, Kathryn M. Dalzell, Assistant Solicitor General, and Mark G. Sands, Assistant Attorney General, for the Attorney General. Miller, Canfield, Paddock and Stone, PLC (by Clifford W. Taylor, Paul D. Hudson, and Brian M. Schwartz), for the Michigan Manufacturers Association. YOUNG, C.J. In this race discrimination case, we must decide whether the trial court erred by denying defendant’s motion for judgment notwithstanding the verdict (JNOV) and determine the propriety of the admission of evidence of defendant’s mandatory reporting under MCL 380.1230b. We hold that the Court of Appeals did not err by affirming the trial court’s denial of defendant’s motion for JNOV on plaintiffs claim of discrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq. Contrary to the Court of Appeals, we conclude that there was no direct evidence of discriminatory animus concerning the firing of plaintiff. This case turned on circumstantial evidence—on the credibility of plaintiffs proofs that suggested there were racial reasons for his treatment and on the credibility of defendant’s nonracial justifications for firing him. We conclude, based on the evidence presented and all the inferences that could be reasonably drawn from that evidence in favor of the jury’s liability verdict, that a reasonable jury could have concluded that defendant violated the CRA. Finally, because MCL 380.1230b afforded defendant complete immunity from civil liability flowing from the mandatory disclosures compelled by this statute, we hold that the trial court erred by allowing the jury to consider evidence of defendant’s statutorily mandated disclosures of plaintiffs wrongdoing to other schools, and the Court of Appeals erred by affirming the trial court’s decision in that regard. For these reasons, we reverse in part and affirm in part the judgment of the Court of Appeals, vacate the jury award for future damages, and remand to the trial court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY Defendant, National Heritage Academies, Inc., is a company that owns and operates a number of public, independently operated schools, including Linden Charter Academy (LCA) located in Flint, Michigan. The student body at LCA is predominantly black. Plaintiff, Craig Hecht, is a white teacher who had been employed by defendant at LCA for approximately eight years, most recently serving as a third-grade teacher. We draw from the evidence adduced at trial the following narrative concerning the events that led to plaintiffs termination. On November 3, 2009, Lisa Code, a white library aide at LCA, entered plaintiffs classroom during class time to return a computer table she had borrowed. Upon her arrival, however, Code realized that she had brought back the wrong table— the one she borrowed was white, whereas the one she returned was brown. Noting her error, Code asked plaintiff if he would prefer to have a white table, like the one she borrowed, or the brown one she had returned. Plaintiff responded, “[Y]ou know I want a white table, white tables are better.” He continued, “[W]e can take all these brown tables and we can burn the brown tables.” Also present for this exchange was Floyd Bell, a black paraprofessional assigned to plaintiffs classroom. After hearing plaintiffs comments, Bell and Code both “called a foul” on plaintiff, in accordance with the school’s informal procedures for addressing inappropriate personal conduct. Plaintiff denied hearing either Bell or Code call a foul on him, but later acknowledged that his comments were meant to imply that “white” people are better than “brown” people. Later that same day, Code reported the incident to Corrine Weaver, the dean of LCA. Weaver, in turn, reported the incident to her supervisor, Linda Caine-Smith, the principal of LCA, who initiated an investigation. Caine-Smith and Weaver each separately interviewed plaintiff, Bell, and Code and took written statements from all three. Although Code’s testimony at trial emphasized that plaintiff made the statements in front of a child, plaintiffs counsel also elicited testimony from Code that her November 4th written statement did not include that allegation. When questioned, plaintiff provided varying explanations regarding what had happened. At first, plaintiff confirmed to Weaver the general discussion about white and brown tables, but he denied that he meant anything racial by his statements. The following day, plaintiff told Caine-Smith that he never said “brown should burn.” However, later that day, plaintiff sent Caine-Smith a written statement in which he admitted to saying, “white tables are better than brown tables” and “all brown tables should burn.” He also admitted that he involved a third-grade student in the “jok[e]” after he made the comments. Plaintiff subsequently met with Bell, apologized to him, and shook his hand. At this point in the investigation, Caine-Smith contacted Courtney Unwin, defendant’s employee relations manager, to discuss plaintiffs conduct and Caine-Smith’s belief that plaintiff had lied during their initial conversation regarding the incident. Unwin then spoke directly to plaintiff, who, despite the admissions made in his earlier written statement, told her that his remark was simply a “tasteless joke,” denied involving a student in the joke, and claimed that none of his students heard the exchange. Unwin also claimed that plaintiff called her later that day, stated that he could not even remember saying anything about brown tables burning, and then justified his conduct by reference to racial banter he suggested was regularly engaged in by black teachers at LCA. Plaintiff claimed that he told Unwin he was just kidding around, that similar joking happened all the time at the school, and that he would do anything to make it better. Caine-Smith and Unwin met to discuss plaintiffs comments in the classroom and his versions of the incident. They discussed several disciplinary options, including a final written warning and termination. After that meeting, Caine-Smith called plaintiff to her office and told him he was being placed on immediate leave pending further investigation. Instead of leaving the building, plaintiff went into a room in which Bell was tutoring students. Plaintiff asked the students to leave the room so that he and Bell could speak privately. He then asked Bell to change the statement he gave defendant. Bell declined the request and explained that he would not lie for plaintiff. Plaintiff also tried to contact Code by calling both her home and cellular phones. Code did not answer either call, but plaintiff left a voicemail stating that he was “desperate” to speak to her. Code testified that plaintiff had never before tried to contact her. Code further testified that plaintiff never asked her to change her statement. The following day, Bell told Caine-Smith that plaintiff had asked him to lie. After receiving this information, Caine-Smith worried that plaintiff had similarly contacted Code. When asked, Code told Caine-Smith about the voicemail, causing Caine-Smith to consult with Unwin again.

Plymouth Public Schools vs. Education Association of Plymouth & Carver & another. No. 15-P-906. Plymouth. April 11, 2016. June 30, 2016. Present: Cypher, Katzmann, & Massing, JJ. School and School Committee. Professional teacher status. Maternity leave. Arbitration, Termination of employment. Arbitration. Arbitrable question. School committee. Public Employment. Paid leave. Termination. Family & Medical Leave Act. In a civil action brought by a school district seeking, inter alia, a stay of arbitration following its tender of a notice of nonrenewal to a teacher who had taught in the district’s schools over the course of five consecutive years, but who had twice taken maternity leave permitted under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq., a Superior Court judge erred in denying the defendants’ motion to dismiss the complaint, where, given the strong public policy favoring arbitration, the preference for arbitration expressed in the Education Reform Act of 1993, and this court’s prior decisions, the question of the teacher’s status as a professional teacher must be decided by an arbitrator. [646-649] This court did not reach public policy arguments in a case involving the question of professional teacher status, where the issues were not ripe for review. [649-650] Civil action commenced in the Superior Court Department on February 18, 2014. A motion to dismiss was heard by Robert J. Kane, J., and the case was heard by Frank M. Gaziano, J., on motions for summary judgment. Matthew D. Jones (Ashley F. Call also present) for the defendants. Michael J. Long for the plaintiff. Kristen Bilbo. Massing, J. Defendant Kristen Bilbo taught in the plaintiff Plymouth Public Schools (district) over the course of five consecutive school years. She took maternity leave during two of them. The district tendered a notice of nonrenewal at the end of the fifth year. Bilbo asserts that her service, interrupted only by her leave permitted under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (FMLA), entitles her to professional teacher status, giving her rights including arbitration of her dismissal. The district contends that Bilbo is not entitled professional teacher status or arbitration because she did not serve three consecutive full years. We conclude that whether Bilbo has attained professional teacher status is for the arbitrator to decide. Background, Bilbo worked full-time as a special education teacher at Plymouth North High School starting on March 10, 2008, through the end of the school year in June, 2013. She took maternity leave during her first and fourth full years as a teacher, for sixty days in 2009 and for fifty-six days in 2012. Bilbo’s leave was authorized under the FMLA. She was paid during both absences using accumulated sick time and a sick-leave bank available under the governing collective bargaining agreement. Toward the end of her fifth year of teaching, by letter dated May 31, 2013, the district provided Bilbo with notice that she would not be reappointed to a teaching position for the next school year. The letter explained, “You are not being appointed to a teaching position based upon the recommendations of your supervising principal and program manager and the concerns about continuity of instruction and the education of our students.” Asserting that she possessed professional teacher status by virtue of her five consecutive school years of service, Bilbo, through the defendant Education Association of Plymouth and Carver (union), timely petitioned the Commissioner of Elementary and Secondary Education (commissioner) for arbitration of her status. The district opposed her request, arguing that she lacked professional teacher status and was therefore ineligible for arbitration. The commissioner on January 9, 2014, forwarded Bilbo’s petition to the American Arbitration Association, noting that “before addressing the merits of the dispute, the arbitrator should first address the question of arbitrability raised by the [district].” On February 18, 2014, the district filed the instant complaint in the Superior Court against Bilbo and the union, together with a motion for a preliminary injunction seeking to stay the arbitration. After a hearing, a judge denied the preliminary injunction motion on March 4, 2014, reasoning that G. L. c. 71, § 42, and our decision in Turner v. School Comm. of Dedham, 41 Mass. App. Ct. 354 (1996), mandated “that arbitration be the sole method used to resolve disputes concerning teacher termination in this Commonwealth, including disputes in which a teacher’s status as a professional teacher is questioned.” Bilbo and the union next moved to dismiss the complaint. While the motion to dismiss was pending, the parties proceeded to arbitration, submitting the matter to the arbitrator in the form of a joint statement of facts and legal memoranda in lieu of a formal hearing. Before the arbitrator issued a decision, however, a second judge denied the defendants’ motion to dismiss, reasoning that the question of Bilbo’s professional teacher status was for the court and not the arbitrator to decide. The arbitrator agreed not to issue his decision pending final resolution of the litigation. On December 17, 2014, the parties simultaneously filed cross motions for summary judgment. After a hearing, a third judge allowed the district’s motion and denied Bilbo’s and the union’s motion. Judgment entered for the district, declaring that Bilbo did not have professional teacher status at the time the district notified her of nonrenewal and that the nonrenewal did not violate the FMLA or the Massachusetts parental leave statute, G. L. c. 149, § 105D. The judgment also ordered a permanent stay of the arbitration. Bilbo and the union timely appealed from the judgment. Arbitration of professional teacher status. The first issue before us — and the only issue we reach — is whether the question of Bilbo’s professional teacher status is for an arbitrator or a judge to decide. As the judge who denied the district’s motion to preliminarily enjoin arbitration aptly noted, there is a “chicken and the egg nature” to this question. A teacher who teaches for three consecutive school years in a public school district of the Commonwealth and is not tendered written notice of nonrenewal by June 15 of the third year is entitled to “professional teacher status” under G. L. c. 71, § 41. Professional teacher status confers certain rights, including a degree of protection from dismissal, the right to seek review of a dismissal decision through arbitration, and, in the case of layoffs, the right to “bump” teachers without such status. See G. L. c. 71, §42. If Bilbo’s five school years of service, interrupted only by maternity leave in year one and year four, entitled her to professional teacher status, then the district’s action amounted to a “dismissal” under § 42, triggering the procedural and substantive rights that accompany professional teacher status — including arbitration. If not, then the district’s action was simply a “nonrenewal” under § 41. See note 5, supra. “A dismissal is not the same as a nonrenewal of a contract.” Laurano v. Superintendent of Schs. of Saugus, 459 Mass. 1008, 1009 (2011), quoting from Downing v. Lowell, 50 Mass. App. Ct. 779, 782 (2001). If Bilbo “was not dismissed from her position,” then “she was not entitled to the safeguards provided in G. L. c. 71, § 42,” Laurano, supra — including arbitration. Thus, the threshold question whether Bilbo has professional teacher status is determinative of whether she is entitled to arbitration of any dismissal. We have previously held that this question is within the scope of the arbitrator’s authority. The appeal in Turner v. School Comm. of Dedham, 41 Mass. App. Ct. 354 (1996), presented nearly the mirror image of the case now before us. After receiving notice that she was being laid off by the Dedham school where she taught, Pauline Turner filed a complaint in Superior Court seeking a declaration that she had professional teacher status and requesting an order that the school reinstate her and “bump” another teacher. Id. at 355. The school defendants filed a motion to dismiss, arguing that Turner’s sole remedy to challenge her dismissal was through arbitration under G. L. c. 71, § 42. Turner, supra. This court agreed, stating that the Education Reform Act of 1993, see St. 1993, c. 71, “t[ook] away the right of teachers to challenge their dismissal by filing an action in the Superior Court,” and instead “establish[ed] arbitration as the sole remedy for all dismissals.” Turner, supra at 357-358. Much like the district argues now, Turner argued then that the Legislature’s requirement of arbitration of dismissals did not prevent, as a threshold matter, “filing a complaint in the Superior Court seeking a declaration that he or she has attained professional teacher status.” Id. at 358. We rejected that argument: “We disagree with Turner’s argument because such an action would result in a Superior Court judge having to first make a declaration as to the status of the dismissed teacher, and then, if the judge declares that the teacher has acquired that status, the matter being remanded for arbitration as to his or her ‘bumping rights.’ We do not think that the Legislature intended to establish two successive forms of review in two different forums for dismissed teachers with professional status.” Ibid. Here, too, treating the question of Bilbo’s status separately from the propriety of her dismissal presents the risk of two successive forms of review in two different forums. The district makes a futile attempt to distinguish Turner by arguing that the concern with two successive forms of review is not present here because the only question to be determined is whether Bilbo enjoys professional teacher status. While it is true that a judicial determination that Bilbo does not have professional teacher status would be the end of the matter — she would not be entitled to arbitration of the grounds for her dismissal — the same was true in Turner. A judicial determination that Turner did not have professional teacher status would not have required a remand to determine her bumping rights. However, if a judge were to declare that Bilbo did have professional status, the merits of any dismissal decision would be for an arbitrator to review. The decision in Lyons v. School Comm. of Dedham, 440 Mass. 74 (2003), reinforces our decision in Turner. After this court affirmed the dismissal of Turner’s complaint, she and another Dedham teacher, Anne Lyons, had separate arbitration proceedings to determine their professional teacher status. Id. at 76. The arbitrators issued a joint decision, concluding that Turner and Lyons were not “teachers” within the meaning of G. L. c. 71, §§ 41 and 42, because their employment status as “Chapter I teachers” — hired under a federally funded program providing supplemental instruction to designated students in reading and mathematics — did not equate with the qualifications and characteristics of classroom teachers in the “Unit A” collective bargaining unit. Id. at 75-77. Lyons and Turner (again) filed a complaint in Superior Court, seeking to vacate the arbitrators’ decision and for a declaration that they were “teachers” within the meaning of the statute. Id. at 77. A judge of the Superior Court vacated the arbitration award, ibid., which the Supreme Judicial Court reinstated. Id. at 82-83. The court rejected the argument that the determination of professional teacher status under G. L. c. 71, § 42, was outside the jurisdiction of the arbitrators and reserved for the courts. Id. at 79-82. Relying on School Dist. of Beverly v. Geller, 435 Mass. 223, 230 (2001) (Cordy, J., concurring) (“[T]he responsibility for interpreting the meaning of G. L. c. 71, § 42, and the scope of the arbitrator’s authority thereunder remains with the court”), Turner and Lyons argued that “the judiciary is responsible for independently determining whether [they] are teachers under G. L. c. 71, §§ 41 and 42.” Lyons, supra at 81. The court disagreed, observing that G. L. c. 71 “does not define ‘teacher’ in the context of delineating who is eligible for ‘professional teacher status,’ ” ibid., and concluding that “the arbitrators had the authority to determine whether Lyons and Turner were teachers,” id. at 82. As an arbitrator has the authority to determine whether a person “shall be considered a teacher” within the meaning of G. L. c. 71, §41, we perceive no reason why an arbitrator does not equally have the authority to determine whether a person “has served in the public schools of a school district for the three previous consecutive school years” within the meaning of the same sentence of the same statute. See note 2, supra. In addition, we have held that an arbitrator may properly consider a similar question: whether a lengthy break in service deprives a teacher of professional teacher status. In Goncalo v. School Comm. of Fall River, 55 Mass. App. Ct. 7, 7-8 (2002), a tenured teacher stopped teaching after a dispute with school officials, which, she alleged, was related to her union activities. Nine years later, the school sent her a letter formally dismissing her as a teacher. Id. at 8. The teacher sought to arbitrate her dismissal, but the arbitrator declined to consider whether the school’s refusal to offer her a contract during those nine years was in continuing retaliation for her union activities, deciding instead that she was not entitled to arbitration because her break in service caused her to lose her professional teacher status. Id. at 8-9. We confirmed the arbitrator’s decision, concluding that the arbitrator did not exceed his authority. Id. at 10-11. Given “the strong public policy favoring arbitration,” Lyons, 440 Mass. at 77, quoting from Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990), the preference for arbitration expressed in the Education Reform Act of 1993, and our prior decisions, we hold that the issue whether Bilbo has professional teacher status must be decided by an arbitrator. Additional considerations. Both parties contend that important public policy considerations require a determination in their favor on the issue of professional teacher status. Bilbo and the union contend that the FMLA forbids penalizing pregnant employees, or any other employee who takes FMLA-qualifying leave, by putting them in a worse position than if they had not taken leave. The district maintains that service time can be measured only in full-year increments, and that three uninterrupted years of review are necessary for schools to properly evaluate teachers and make staffing decisions for the next year. See G. L. c. 71, §41 (“A teacher without professional teacher status shall be notified in writing on or before June fifteenth whenever such person is not to be employed for the following school year” [emphasis supplied]). ‘“An arbitration award that offends public policy ‘is beyond the arbitrator’s powers and is therefore subject to vacation under G. L. c. 150C, § 11(a)(3).’ ” Lyons, 440 Mass. at 79, quoting from Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Council 93, 420 Mass. 13, 16 (1995). However, ‘“because the public policy ‘doctrine allows courts to by-pass the normal heavy deference accorded to arbitration awards and potentially to ‘“judicialize” the arbitration process, the judiciary must be cautious about overruling an arbitration award on the ground that it conflicts with public policy.’ ” Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 604 (2000), quoting from E.I. DuPont de Nemours & Co. v. Grasselli Employees Indep. Assn. of E. Chicago, 790 F.2d 611, 615 (7th Cir.), cert. denied, 479 U.S. 853 (1986). Because of the view we take on the threshold question of arbitration, we decline to address the parties’ public policy arguments, which are in any event unripe at this juncture. Conclusion . The defendant Bilbo is entitled to arbitration of her professional teacher status and, if the arbitrator determines that she enjoys such status, ultimately of the merits of any dismissal. The judgment of the Superior Court is reversed, and a new judgment shall enter on all counts of the complaint and counterclaim consistent with this opinion. So ordered. “[A] teacher, school librarian, school adjustment counselor, school nurse, school social worker or school psychologist who has served in the public schools of a school district for the three previous consecutive school years shall be considered a teacher, and shall be entitled to professional teacher status as provided in section forty-two.” G. L. c. 71, § 41, as amended through St. 2006, c. 267. “A teacher with professional teacher status may seek review of a dismissal decision within thirty days after receiving notice of his dismissal by filing a petition for arbitration with the [Cjommissioner [of Elementary and Secondary Education].” G. L. c. 71, § 42, as appearing in St. 1993, c. 71, § 44. We draw our statement of facts from the parties’ joint statement of uncontested facts and exhibits submitted with their' cross motions for summary judgment. The letter cited G. L. c. 71, § 41, a portion of which provides, “A teacher without professional teacher status shall be notified in writing on or before June fifteenth whenever such person is not to be employed for the following school year. Unless such notice is given as herein provided, a teacher without such status shall be deemed to be appointed for the following school year.” Id., as appealing in St. 1993, c. 71, § 43. Bilbo has not asserted the alternative means of obtaining professional teacher status: “The superintendent of [a] district, upon the recommendation of the principal, may award such status to any teacher who has served in the principal’s school for not less than one year or to a teacher who has obtained such status in any other public school district in the commonwealth.” G. L. c. 71, § 41, as amended by St. 1996, c. 450, § 127. The complaint’s three counts sought a stay of the arbitration, a declaration that Bilbo did not have professional teacher status, and a declaration that Bilbo’s nonrenewal by the district was proper. Bilbo and the union then filed an answer and a counterclaim in three counts: to compel arbitration, to confirm any award issued by the arbitrator, and for a declaration that arbitration is the exclusive forum for determining Bilbo’s professional teacher status. “A teacher with professional teacher status . . . shall not be dismissed except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter or other just cause.” G. L. c. 71, § 42, as appealing in St. 1993, c. 71, § 44. Moreover, school principals “must follow strict procedural and substantive provisions before firing a teacher with professional status.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 761 (2003). The plaintiff had achieved tenure under G. L. c. 71, § 41, as it read before passage of the Education Reform Act in 1993. Goncalo, 55 Mass. App. Ct. at 9. A case interpreting the tenure statute prior to amendment by the Education Reform Act of 1993 held that “[t]he time spent on maternity leave [under G. L. c. 149, § 105D,] may not be counted towards the amount of time required for tenure,” but at the same time, that maternity leave “does not interrupt the consecutiveness of [the teacher’s] service except as to the period of time consumed by the leave.” Solomon v. School Comm. of Boston, 395 Mass. 12, 18-19 (1985). The court left open “the question whether such teacher must serve an entire additional year to compensate for the incomplet

McNEILL-MARKS v MIDMICHIGAN MEDICAL CENTER-GRATIOT Docket No. 326606. Submitted June 8, 2016, at Lansing. Decided June 16, 2016, at 9:00 a.m. Leave to appeal sought. Tammy McNeill-Marks brought an action in the Gratiot Circuit Court against MidMichigan Medical Center-Gratiot (MMCG), alleging that MMCG’s decision to terminate her employment violated both the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and Michigan public policy because MMCG terminated her for either reporting a violation of a personal protection order (PPO) to her attorney or for being about to report that violation to the circuit court. Plaintiff, a clinical manager at MMCG, had adopted three children. The children’s grandmother, Marcia Fields, had threatened to kill plaintiff, plaintiffs adopted children, and plaintiffs biological children during the adoption process. Plaintiff sought and was granted a series of PPOs against Fields. The PPO at issue ordered Fields, among other things, to refrain from stalking plaintiff as defined under MCL 750.411h and MCL 750.411Í. Plaintiff subsequently encountered Fields in a hallway at MMCG. Fields was in a wheelchair and said, “Hello, Tammy,” in a sing-song vocal tone that plaintiff described as “the cat that just ate the canary,” indicating to plaintiff that Fields knew she had “gotten away with something she’s not supposed to do.” Plaintiff informed her supervisor about the situation and then called her attorney to tell him that Fields had appeared at MMCG; however, at no time did plaintiff tell her attorney that Fields was a patient at MMCG. Later that evening, while Fields was still a patient at MMCG, a process server from the attorney’s law office served Fields with the PPO in her hospital room. Fields and her family reported the incident to MMCG as a suspected violation of the Health Insurance Portability and Accountability Act (HIPAA), 29 USC 1181 et seq.; 42 USC 300gg; 42 USC 1320d et seq. Plaintiff moved to have Fields held in contempt for violating the PPO, but plaintiff did not include her encounter with Fields in the hospital as an alleged violation. MMCG began an investigation into Fields’s HIPAA complaint, and plaintiff alleged that MMCG’s privacy officer threatened that plaintiff would be terminated if plaintiff testified regarding her interaction with Fields at MMCG at the hearing on plaintiffs motion to hold Fields in contempt for violating the PPO. Following the investigation, MMCG concluded that plaintiff violated both HIPAA and MMCG’s privacy policy, terminated plaintiffs employment, and gave plaintiff a “Corrective Action and Disciplinary Form” that cited plaintiffs telephone conversation with her attorney as a violation of HIPAA policy. Plaintiff then brought this action. MMCG moved for summary disposition, arguing that plaintiff had failed to establish a prima facie case under the WPA because plaintiff never reported the alleged violation to a “public body” as defined under the WPA and because plaintiff could not have reasonably suspected that Fields’s conduct violated the stalking prohibition in the PPO. Additionally, MMCG argued that the WPA claim preempted the public policy claim. The court, Randy L. Tahvonen, J., granted MMCG’s motion, concluding that plaintiffs telephone conversation with her attorney was not a communication to a public body, that Fields’s conduct did not violate the PPO, and that the hospital did not attempt to conceal a crime. Plaintiff appealed. The Court of Appeals held: 1. MCL 600.2950(l)(j) prohibits stalking, which MCL 750.411h(l)(d) defines as a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. MCL 750.411h(l)(e) defines unconsented contact as any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued. MCL 750.411h(l)(d) requires a willful course of conduct; however, even if Fields’s initial encounter with plaintiff in the hallway at MMCG was not willful, and was instead accidental, Fields’s subsequent verbal communication with plaintiff constituted willful, unconsented contact under MCL 750.411h(l)(e). Even if Fields could not have planned her contact with plaintiff or avoided such contact, after she saw plaintiff, Fields made a deliberate choice to speak to her, and such deliberation made the communication willful, particularly in light of the tone in which Fields spoke—a tone indicating that she knew she had “gotten away with something she’s not supposed to do.” Fields’s conduct, in concert with her prior unconsented contacts with plaintiff, qualified as “stalking” in violation of the PPO. 2. MCL 15.362 provides, in relevant part, that an employer shall not discharge, threaten, or otherwise discriminate against an employee 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 the 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. To establish a prima facie case under MCL 15.362, a plaintiff must show that (1) the plaintiff was engaged in a protected activity as defined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. “Protected activity” consists of (1) reporting to a public body a violation of a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3) being asked by a public body to participate in an investigation. Under MCL 15.363(4), an employee asserting that he or she was “about to report” a violation must support that claim with clear and convincing evidence that he or she or a person acting on his or her behalf was about to report, verbally or in writing, a violation or a suspected violation to a public body. Reporting or being about to report a violation or a suspected violation to a public body is protected if the report is or is about to be made in good faith. Under MCL 15.361(d)(¿u), a “public body” includes any body that is created by state or local authority or that is primarily funded by or through state or local authority, or any member or employee of that body. Under MCL 600.904, the Supreme Court is empowered to provide for the organization, government, and membership of the State Bar of Michigan (SBM) and to adopt rules and regulations concerning the conduct and activities of the SBM and its members, which includes the schedule of membership dues. In this case, the trial court erred by concluding that, because Fields’s conduct did not violate the PPO, it was immaterial whether plaintiff made a report or was about to make a report regarding Fields’s conduct to a public body before she was terminated. Even assuming that Fields’s conduct did not actually violate the PPO, plaintiff was still afforded the protection of the WPA so long as she, in good faith, reported, or was about to report, Fields’s conduct to a public body as a suspected violation of the PPO. There was no evidence that plaintiff acted in bad faith, i.e., that she did not actually believe that Fields’s conduct violated the PPO. If plaintiff reported such conduct to a public body, or was about to do so, she was engaged in a protected activity under the WPA. Furthermore, it was undisputed that plaintiffs attorney was a licensed Michigan attorney and a member in good standing of the SBM when plaintiff called him and reported her contact with Fields. The attorney’s licensure and active membership in the SBM were both mandatory. Under the plain language of the WPA, specifically MCL 15.361(d)(¿u), plaintiff’s attorney qualified as a member of a public body for WPA purposes. As a practicing attorney and member of the SBM, plaintiffs attorney was a member of a body “created by” state authority, which, through the regulation of the Supreme Court, is also “primarily funded by or through” state authority. The trial court erred by holding that plaintiffs attorney was not a member of a public body for WPA purposes, and the trial court further erred by concluding that a report to a public body is a necessary prerequisite to establish a prima facie case under the WPA because a report to a public body is only one of three types of protected activity under the WPA. Plaintiff established a prima facie case under the WPA because (1) her report to her attorney was a report to a member of a public body and therefore a protected activity under the WPA, (2) plaintiff was discharged, and (3) plaintiff presented direct evidence of the causal connection between the discharge and the report to her attorney: the “Corrective Action and Disciplinary Form” that explicitly cited plaintiffs telephone conversation with her attorney as a factor that motivated MMCG’s discharge decision. Plaintiffs direct evidence was sufficient to survive summary disposition despite the legitimate reason that MMCG offered for its action—that it suspected plaintiff of violating HIPAA—because a reasonable fact-finder could still conclude that plaintiffs protected activity was a motivating factor for MMCG’s decision. The trial court erred by granting summary disposition in favor of MMCG. 3. When a plaintiff alleges discharge in retaliation for engaging in activity protected by the WPA, the WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public policy claims arising from the same activity. Plaintiffs public policy claim arose out of the same activity as the WPA claim for preemption purposes. Plaintiffs refusal to conceal Fields’s violation of the PPO was effectuated by plaintiffs report to her attorney, and there was no record evidence that plaintiff was instructed to conceal such activity before plaintiffs telephone conversation with her attorney. There was no logical distinction between the refusal to conceal and the report by which that refusal manifested itself. Summary disposition of the public policy claim was proper because the WPA claim preempted the public policy claim. Trial court ruling regarding plaintiffs public policy claim affirmed; summary dismissal of the WPA claim reversed; case remanded to the trial court for further proceedings. 1. Michigan Penal Code - Aggravated Stalking - Words and Phrases - “Unconsented Contact.” MCL 600.2950(l)(j) prohibits stalking, which MCL 750.411h(l)(d) defines as a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested; MCL 750.411h(l)(e) defines unconsented contact as any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued; even if an initial encounter was not willful, a person’s subsequent verbal communication may constitute willful, unconsented contact under MCL 750.411h(l)(e). 2. Actions — Whistleblowers’ Protection Act — Words and Phrases — “Public Body.” MCL 15.362 provides that an employer shall not discharge, threaten, or otherwise discriminate against an employee 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 the 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; under MCL 15.361(d)(¿u), a public body includes any body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body; a licensed Michigan attorney with active membership in the State Bar of Michigan qualifies as a member of a public body for purposes of the Whistleblowers’ Protection Act. The Mastromarco Firm (by Victor J. Mastromarco, Jr., and Russell C. Babcock) for Tammy McNeill-Marks. Miller Johnson (by Sarah K. Willey) for MidMichi-gan Medical Center-Gratiot. Before: SAWYER, P.J., and HOEKSTRA and WILDER, JJ. WILDER, J. In this employment matter, plaintiff, Tammy McNeill-Marks, appeals as of right the trial court’s order granting summary disposition to defendant, MidMichigan Medical Center-Gratiot (MMCG). We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. I. FACTUAL BACKGROUND This case arises out of plaintiffs discharge from her position at MMCG. In 1991, plaintiff was hired as a registered nurse at a different MidMichigan Medical Center, which is located in Midland. She subsequently transferred to the Gratiot location, where she began to serve as clinical manager of perioperative services and ambulatory care. Between 2006 and 2008, plaintiff adopted two children and had a third placed in her custody (collectively, the children). Each child has a different father, but the biological mother of all three is Sandi Lee Freeze, who is plaintiffs second cousin. Freeze’s mother—the children’s grandmother—is Marcia Fields. According to plaintiff, Fields suffers from several psychiatric disorders, including “paranoid schizophrenia, multiple personality disorder,” and “bipolar depression.” During the adoption process, Fields began to threaten plaintiff. She threatened to kill plaintiff, the children, and plaintiffs biological children. Such threats led plaintiff to seek a personal protection order (PPG) against Fields, which was eventually granted on an ex parte basis. It is unclear from the record precisely when the initial PPG was issued, but presumably because it had expired, on December 19, 2012, plaintiff, through her legal counsel, Richard Gay, filed a petition again seeking an ex parte PPO against Fields. That same day, a circuit court judge granted plaintiffs ex parte petition, entering a PPO that prohibited Fields from having any contact with the children and from “posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s.” After its entry, Fields allegedly violated the PPO on several occasions by sending electronic messages to plaintiff. When plaintiff contacted local police regarding Fields’s purported violations of the PPO and attempted to file a police report, the police “told [her] that [she] needed to contact [her] attorney, not [the police],” because the PPO had never been properly entered in the Law Enforcement Information Network (LEIN). On January 14, 2013, the circuit court entered an amended PPO, this time ordering Fields, among other things, to refrain from “stalking” plaintiff, as that term is “defined under MCL 750.411h and MCL 750.411Í, which includes but is not limited to” (1) “following or appearing within sight of’ plaintiff, (2) appearing at plaintiffs workplace or residence, and (3) “approaching or confronting [plaintiff] in a public place or on private property.” The amended PPO explicitly noted that it would “remainO in effect until 12/31/2013.” Ignoring the amended PPO, Fields continued to contact plaintiff. On December 27, 2013—four days before the expiration date of the amended PPO—plaintiff filed a motion, through Gay, to extend the amended PPO for another year. Later that day, the circuit court granted plaintiffs motion on an ex parte basis. The court entered a new PPO, which again ordered Fields to refrain from “stalking” plaintiff, as that term is “defined under MCL 750.411h and MCL 750.411Í,” and which specified that the order was “effective when signed, enforceable immediately,” and would “remain 0 in effect until 12/31/2014.” While at work roughly two weeks later, on January 13, 2014, plaintiff encountered Fields in a hallway at MMCG. At her deposition, plaintiff described the encounter as follows: Q. ... Okay. You were walking down the hallway? A. I came out of the operating room door .... I said “Hello” because you’re trained to always speak to people. I didn’t even realize who she [Fields] was .or who the transporter was that was transporting her. I got three steps down the hallway and [Fields] said, “Hello, Tammy,” in one of those little voices she does, and my stomach sank. Q. She was being transported, in the sense that she was not walking herself? A. Correct. She was in a wheelchair.. .. Q. Do you know what area of the hospital she had been admitted into? A. No, I do not. Nor did I at that time. Q. Did you understand that she was inpatient? A. No, I did not. Q. You didn’t know, or you understood something different than that? A. No, I had no way of knowing where [Fields] had came from [sic] in the hospital. Those transporters transport from ER, the tower, all outpatient services, she could have came from [sic] anywhere and be going anywhere. Q. After you had passed, [Fields] said, “Hello, Tammy”? A. Yes. Q. In whatever voice you had described? A. A little sing-songy voice she has when she feels she has passed something over on you like a little kid. It’s very specific.[] Q. Were any other words exchanged? A. No. I immediately went into another door. Q. Do you have any reason to think that she somehow planned that encounter with you, meaning that she knew that you were going to be coming down the hallway in the moment that she was getting wheeled to a procedure? [Plaintiffs counsel places an objection to foundation on the record, then instructs plaintiff to answer.] A. I believe on more than one occasion she has admitted herself in the hospital with the hopes that she could ... make contact with me, yes. Q. Well, I’m talking about with regard to this particular encounter, and then if you want we can expand on that; okay? A. Okay. Q. So with this particular encounter, the two of you passed each other in the hallway. A. I don’t believe that. . . that anybody could necessarily — that wouldn’t be a reasonable expectation, that she could plan to pass me in the hallway. Q. After that encounter in the hallway, did you see her again at [MMCG]? A. No, I did not. After encountering Fields, plaintiff immediately went into an employee break room. She was “visibly upset and shaking,” so much so that a coworker voiced concern, asking plaintiff what was wrong. Plaintiff was particularly upset that, through their encounter, Fields had learned “specifically where in the hospital” plaintiff worked. She feared that such knowledge would make Fields a danger to not only plaintiff but also her fellow employees. A short time later, plaintiff called her supervisor, Theresa Baily, who was already aware that plaintiff held a PPO against Fields, and informed Baily about what had transpired. After speaking with Baily, plaintiff called her attorney, Gay, and told him, “[Fields] showed up today at my workplace.” According to plaintiff, Gay never asked for further explanation about what plaintiff “meant” when she said that Fields “showed up” at MMCG. At no time did plaintiff inform Gay that Fields “was there in any form as a patient” or that Fields had been in a wheelchair. Likewise, plaintiff said nothing to Gay about the possibility of serving Fields with the latest PPO while Fields was at MMCG. Rather, questioning whether it was advisable to serve the PPO, plaintiff instructed Gay “not to serve [Fields] at all. . . .” Gay confirmed that

ROBERT PAUL MORRIS v. SCENERA RESEARCH, LLC and RYAN C. FRY No. 429PA13 Filed 10 June 2016 1. Employer and Employee — Wage and Hours Act — patent bonuses — patents pending when employment ended In a compensation and intellectual property dispute between plaintiff and his former employer arising from the employer’s patent bonus program, the trial court did not err by denying the employer’s motions for direct verdict and judgment notwithstanding the verdict on the issue of whether plaintiff was entitled to patent issuance bonuses for patents still pending when his employment ended. Plaintiff presented more than a scintilla of evidence supporting his Wage and Hours Act claim: Plaintiff testified that his bonuses were earned at the time the patents were filed, and another witness confirmed that bonuses were earned at the time patents were filed. 2. Employer and Employee — Wage and Hours Act — patent bonuses — calculability—question for jury In a compensation and intellectual property dispute between plaintiff and his former employer arising from the employer’s patent bonus program, the Supreme Court affirmed the holding of the Court of Appeals that the question of whether a wage is “calculable” under the Wage and Hours Act is one of fact, not law, and that the trial court properly submitted the question to the jury. Plaintiff argued at trial that value of the patent issuance bonuses for patent applications still pending with the U.S. Patent and Trademark Office could be calculated using the following formula: 150 outstanding patents x $5,000 for each successfully issued patent x 90% patent issuance success rate = $675,000. The employer failed to offer any other formula at trial, and the meaning of “calculable” includes “capable of being estimated.” 3. Employer and Employee — patent bonuses — liquidated damages In a compensation and intellectual property dispute between plaintiff and his former employer arising from the employer’s patent bonus program, the trial court did not abuse its discretion by concluding that plaintiff was not entitled to liquidated damages on the jury’s award of issuance bonuses associated with unissued patents. The employer had reason to believe that it did not owe plaintiff the bonuses. 4. Employer and Employee — patent bonuses — Retaliatory Employment Discrimination Act damages — not trebeled In a compensation and intellectual property dispute between plaintiff and his former employer arising from the employer’s patent bonus program, the trial court did not err when it declined to treble the jury’s award of Retaliatory Employment Discrimination Act (REDA) damages. Proving a willful violation of N.C.G.S. § 95-241 requires a showing of the accused party’s knowledge or reckless disregard of whether an action violated the statute. Competent evidence supported the trial court’s decision to not treble plaintiff’s REDA award. 5. Employer and Employee — patent bonuses — rescission— money damages sufficient remedy In a compensation and intellectual property dispute between plaintiff and his former employer arising from the employer’s patent bonus program, the Court of Appeals erred by holding that plaintiff was entitled to rescission. A party may pursue rescission only when a material breach occurs and all legal remedies fall short of compensating the injured party for its loss. Plaintiff claimed that his employer owed him $5,000 to $10,000 for each patent at issue, and money damages provided him with a complete remedy. On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 229 N.C. App. 31, 747 S.E.2d 362 (2013), finding no error in part, affirming in part, and reversing in part a memorandum opinion entered on 4 January 2012, a judgment entered on 14 May 2012, and an order entered on 27 June 2012, all by Judge James L. Gale in Superior Court, Wake County, and remanding in part for further judgment. On 18 December 2014, the Supreme Court allowed plaintiff’s conditional petition for discretionary review as to additional issues. Heard in the Supreme Court on 18 May 2015. Young Moore and Henderson P.A., by Walter E. Brock, Jr., Andrew P. Flynt, and Patrick M. Aul, for plaintiff -appellee/appellant. Parker Poe Adams&BemsteinLLP, by CatharineB. Arrowood, Scott E. Bayzle, and Catherine R.L. Lawson, for defendant-appellants/ appellees. Smith Moore Leatherwood LLP, by Richard A. Coughlin and Matthew Nis Leerberg, for North Carolina Chamber of Commerce, North Carolina Association of Defense Attorneys, and North Carolina State University, amici curiae. Robinson, Bradshaw & Hinson, P.A., by John R. Wester and Thomas Holdemess, for Qualcomm Incorporated, Qualcomm Technologies, Incorporated, Cisco Systems, Inc., Microsoft Corp., and Cree, Inc., amici curiae. BEASLEY, Justice. This appeal arises out of a compensation and intellectual property dispute between Robert Paul Morris (“plaintiff’) and his former employer Scenera Research, LLC and its CEO Ryan Fry (collectively, “defendants”). In 2004, Stanley Fry, defendant Ryan Fry’s father, hired plaintiff as Scenera’s first employee. The parties did not sign a written employment agreement. They did, however, have several discussions concerning the details of plaintiff’s employment. Plaintiff expressed interest in inventing, but testified at trial that he had no obligation to invent. According to plaintiff, inventing was not part of his regular job duties for which he received a base salary. Plaintiff participated in Scenera’s patent bonus program (the “bonus program”), under which he received $5000 for every patent application submitted to the United States Patent and Trademark Office (“PTO”) and another $5000 if and when the patent issued. Defendant Ryan Fry became concerned with the bonus program’s viability and suspended Scenera’s bonus program for all employees effective 1 January 2008. Plaintiff testified that Scenera owed him $210,000 in patent bonuses at this time. Plaintiff voluntarily suspended receipt of payments beginning in January 2008, believing that defendant Fry had promised to reinstate the original bonus program if Scenera did not create a new compensation plan and, thereafter, provide plaintiff a written employment contract. As of 2009, the parties had not been able to agree on a new compensation plan and plaintiff still had no written contract. Frustrated with this lack of progress, plaintiff hired a lawyer and threatened to sue under the North Carolina Wage and Hour Act (“WHA”) for the $210,000 in bonuses owed. The parties dispute the events that followed. Plaintiff claimed that Scenera fired him in retaliation for his threatening to bring a lawsuit, thereby violating the North Carolina Retaliatory Employment Discrimination Act (“REDA”). Defendants countered that plaintiff clearly intended to leave the company and that his lawyer indicated the only option was to negotiate a severance package — thus, plaintiff “effectively resigned” and defendants merely accepted the resignation. Defendants tendered plaintiff a check for $210,000 on the condition that he acknowledge Scenera’s ownership of patent applications filed and patents issued between 1 January 2008 and 17 June 2009. Plaintiff did not accept defendants’ offer. Plaintiff filed a complaint against defendants alleging breach of contract, fraudulent inducement, uujust enrichment, and WHA and REDA violations. On 1 April 2011, the Chief Justice designated this action as a complex business case and assigned it to the North Carolina Business Court. Defendants asserted a counterclaim for declaratory judgment that (1) Scenera owns all inventions plaintiff developed during his employment, and (2) plaintiff was not entitled to bonuses for patent applications filed or patents issued any time after January 2008. Defendants also sought damages for breach of fiduciary duty and for plaintiffs failure to support prosecution of patent applications to the PTO. Both parties moved for summary judgment. The trial court granted defendants’ motion in part, concluding that plaintiff was “hired to invent,” and that ownership of the patents presumptively rested with Scenera, with the onus on plaintiff to prove that an agreement between the parties vested ownership with him. The trial court also granted defendants’ summary judgment on plaintiffs claims for fraudulent inducement and unjust enrichment. The trial court denied the remainder of plaintiff’s and defendants’ motions for summary judgment. Trial began on 30 January 2012. At the close of the evidence, the trial court granted defendants’ motion for a directed verdict with respect to the issue of patent ownership, but denied defendants’ motion for a directed verdict on the WHA and REDA claims. The trial court submitted the rest of the issues to the jury, and the jury awarded plaintiff (1) $210,000 in patent bonuses under the WHA for applications filed or patents issued between 1 January 2008 and 17 June 2009, (2) $675,000 under the WHA in patent issuance bonuses for patent applications pending as of 17 June 2009, (3) and $390,000 for REDA violations. Plaintiff then requested liquidated damages and attorneys’ fees under the WHA, and treble damages and attorneys’ fees under REDA. The trial court denied plaintiff’s request to treble damages, awarded $450,000 in attorneys’ fees, and awarded $210,000 in liquidated damages for patents that have already issued. The trial court denied plaintiff’s request for liquidated damages under the WHA for patents that had not yet issued. The trial court further ruled that Scenera owned all of the inventions, patents, and patent applications listed in plaintiffs complaint, required plaintiff to assign any unassigned patent applications to Scenera, and ruled that Scenera could not recover damages under its counterclaims. Defendants moved for judgment notwithstanding the verdict (JNOV), and the trial court denied the motion. All parties appealed. The Court of Appeals affirmed the trial court’s ruling on the motions for directed verdict and JNOV, liquidated damages, WHA damages, and REDA damages. The court reversed, however, the trial court’s ruling that plaintiff could not pursue rescission. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013). All parties appealed. I A Defendants contend that the trial court should have granted their motions for directed verdict and JNOV as to whether plaintiff was entitled to patent issuance bonuses for patents still pending when his employment with Scenera ended. To survive a motion for directed verdict or JNOV, the non-movant must present “more than a scintilla of evidence” to support its claim. Stark v. Ford Motor Co., 365 N.C. 468, 480, 723 S.E.2d 753, 761 (2012) (citation omitted). While a scintilla is “very slight evidence,” State v. Hawkins, 155 N.C. 466, 470, 71 S.E. 326, 328 (1911) (quoting State v. White, 89 N.C. 462, 464-65 (1883)), the non-movant’s evidence must still “do more than raise a suspicion, conjecture, guess, surmise, or speculation as to the pertinent facts in order to justify its submission to the jury,” Jenrette Transp. Co. v. Atl. Fire Ins. Co., 236 N.C. 534, 539, 73 S.E.2d 481, 485 (1952) (citation omitted). The trial court must construe the evidence in the light most favorable to the non-movant and resolve all evidentiary conflicts in the non-movant’s favor. Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986) (citations omitted). We review this question of law de novo. Green v. Freeman, 367 N.C. 136, 141, 749 S.E.2d 262, 267 (2013) (citations omitted). The WHA provides: Employees whose employment is discontinued for any reason shall be paid all wages due on or before the next regular payday either through the regular pay channels or by mail if requested by the employee. Wages based on bonuses, commissions or other forms of calculation shall be paid on the first regular payday after the amount becomes calculable when a separation occurs. N.C.G.S. § 95-25.7 (2015). At trial, plaintiff testified that he, like other Scenera employees, had a unique bonus plan, and that he was never informed that continued employment with Scenera was a prerequisite for receiving patent issuance bonuses. Plaintiff confirmed in his testimony that “the issuance bonus . . . was earned at the time the patent application was filed.” He further testified that after a patent was filed and he assigned the corresponding rights to Scenera, “I was entitled to $5,000.... There was nothing as far as work with respect to the patent that I needed to do in order to earn that bonus.” Moreover, Mona Singh, an inventor and witness for Scenera, confirmed that “whatever bonuses applied to [her] agreement became earned and due at the time the patent was filed.” Singh also testified that she had received five or six issuance bonuses after leaving Scenera. We hold that plaintiff has carried his minimal burden of presenting more than a scintilla of evidence supporting his WHA claim. While defendants cite conflicting evidence (some of which we discuss below), in the context of a directed verdict and JNOV, the trial court must resolve these conflicts in plaintiff’s favor. Accordingly, we affirm the Court of Appeals’ holding that the trial court properly submitted the question of whether plaintiff was entitled to the issuance bonuses to the jury and properly denied defendants’ directed verdict and JNOV motions. B Defendants further argue that the Court of Appeals erred in construing the term “calculable” under the WHA to mean capable of being estimated. As a preliminary matter, we address the Court of Appeals’ holding that the question of whether a wage is “calculable” under the WHA is one of fact, not law, and that therefore the trial court could properly submit the question to the jury. The Court of Appeals explained that determining whether a wage is calculable “requires a weighing of the evidence and, thus, falls in a jury trial within the exclusive purview of the jury.” Morris, 229 N.C. App. at 44, 747 S.E.2d at 370 (citations omitted). As we have explained, it is for the trial court “to determine whether the evidence ... is sufficient to permit a legitimate inference of the facts essential to recovery; and it is the province of the jury to weigh the evidence and to determine what it proves or fails to prove.” Sneed v. Lions Club of Murphy, N.C., Inc., 273 N.C. 98, 101, 159 S.E.2d 770, 772 (1968) (citations omitted). “It is still for the jury if reasonable [minds] may differ as to its truth or if conflicting inferences may reasonably be drawn from” the evidence. Cutts v. Casey, 278 N.C. 390, 421, 180 S.E.2d 297, 314 (1971) (citations omitted). Because determining whether a wage is calculable involves a weighing of the evidence, we affirm the Court of Appeals’ holding that this issue presents a question of fact. At trial, plaintiff argued that the value of the patent issuance bonuses for patent applications still pending with the PTO could be calculated using the following formula: 150 outstanding patents x $5,000 for each successfully issued patent x 90% patent issuance success rate = $675,000. The trial court instructed the jury to determine whether it could calculate the issuance bonuses owed, and if so, to compute that amount. The Court of Appeals first noted that neither the WHA nor case law define the term “calculable.” The court therefore consulted the American Heritage College Dictionary, which defined calculable as “ ‘[t]hat [which] can be calculated or estimated.'’ ” Morris, 229 N.C. App. at 45, 747 S.E.2d at 371 (quoting The American Heritage College Dictionary 198 (3d ed. 1997) (emphasis added)). The court concluded that plaintiffs proffered formula "was at least one reasonable way to calculate” the bonuses and therefore held that the trial court did not err in submitting this question to the jury. Id. at 45, 747 S.E.2d at 371. Defendants again argue that “calculable” does not mean capable of being estimated because this interpretation would allow impermissible speculation as to future wages. Defendants cite the rule that “the party seeking damages must show that the amount of damages is based upon a standard that will allow the finder of fact to calculate the amount of damages with reasonable certainty.” Olivetti Corp. v. Ames Bus. Sys., Inc., 319 N.C. 534, 547-48, 356 S.E.2d 578, 586 (1987) (citation omitted). Plaintiffs formula, they contend, does not allow for the reasonably certain determination of issuance bonuses associated with pending patent applications. We disagree. In other contexts in which a party seeks to recover lost profits, that party must show “both the amount and [the] cause of his loss. Absolute certainty, however, is not required, but both the cause and the amount of the loss must be shown with reasonable certainty.” Cary v. Harris, 178 N.C. 624, 628, 101 S.E. 486, 488 (1919) (quoting Nance v. W. Union Tel. Co., 177 N.C. 314, 317, 98 S.E. 838, 840 (1919)). The evidence indicated that plaintiff had completed all the work required for the patents to issue. An employer must pay “those wages and benefits due when the employee has actually performed the work required to earn them." Kornegay v. Aspen Asset Grp., 204 N.C. App. 213, 229, 693 S.E.2d 723, 735 (2010) (quoting Narron v. Hardee’s Food Sys., Inc., 75 N.C. App. 579, 583, 331 S.E.2d 205, 208 (emphasis added), disc. rev. denied, 314 N.C. 542, 335 S.E.2d 316 (1985)). We further note that defendants presented no evidence at trial challenging the adequacy of plaintiff’s formula. Because defendants offered no other formula, this Court need only be concerned that the result reached, based on the evidence presented, is reasonable. See Jenrette Transp. Co., 236 N.C. at 539-40, 73 S.E.2d at 485. We therefore affirm the Court of Appeals’ holding that determining calculability of wages under the WHA is a question of fact to be submitted to a jury. II We next address plaintiff’s argument that the Court of Appeals erred in affirming the trial court’s decision to refrain from awarding plaintiff liquidated damages on the jury’s award of issuance bonuses associated with unissued patents. First, we must determine the appropriate standard of review. Plaintiff contends that de novo review applies, while defendants contend that we should apply a three-tiered standard as used by federal courts addressing claims under the Fair Labor Standards Act (“FLSA”). In Kornegay v. Aspen Asset Group, LLC, the Court of Appeals adopted the latter approach. [T]he traditional standard of review that applies to a trial court’s factual findings — in federal court, the “clearly erroneous” standard and in North Carolina, the “competent evidence” standard — applies to findings of fact made by a trial court in addressing a claim for liquidated damages. In reviewing the trial court’s conclusions of law, the courts have held that review is de novo, including on the issue whether the findings of fact support the conclusions of law. 204 N.C. App. at 245, 693 S.E.2d at 745. The trial court’s final decision to award or refrain from awarding liquidated damages is then reviewed for abuse of discretion. Id. at 244, 693 S.E.2d at 744. We adopt the Court of Appeals’ reasoning in Kornegay and review the trial court’s decision to not award plaintiff liquidated damages for an abuse of discretion. We hold that the trial court did not abuse its discretion in concluding that plaintiff was not entitled to liquidated damages. The WHA provides: In addition to the amounts awarded pursuant to subsection (a) of this section, the court shall award liquidated damages in an amount equal to the amount found to be due as provided in subsection (a) of this section, provided that if the employer shows to the satisfaction of the court that the act or omission constituting the violation was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this Article, the court ma

Kamee Verdrager vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., & others. Suffolk. November 5, 2015. May 31, 2016. Present: Botsford, Duffly, Lenk, & Hines, JJ. Anti-Discrimination Law, Employment, Sex, Termination of employment. Employment, Discrimination, Sexual harassment, Demotion, Retaliation, Termination. Unlawful Interference. Practice, Civil, Summary judgment, Discovery. In a civil action brought by an attorney (plaintiff) against the law firm that employed her and certain individuals in that firm (defendants), alleging discrimination on the basis of gender, the judge erred in granting summary judgment in favor of the defendants, where the plaintiff presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination [396-405], as well as evidence allowing an inference that both were the result of retaliation [405-410]. This court concluded that an employee’s acts of self-help discovery in aid of claims under G. L. c. 151B, § 4, might constitute protected activity under that statute, but only if the employee’s actions are reasonable in the totality of the circumstances; further, this court concluded that where the plaintiff in a civil action alleging discrimination in employment is an attorney, such that some of the documents at issue might be subject to the rules of attorney-client confidentiality and privilege, the plaintiff’s acts of self-help discovery are not thereby stripped of the protections afforded other employees by G. L. c. 151B; finally, this court set forth seven factors to be taken into account in an analysis of the reasonableness of self-help measures in the totality of the circumstances. [410-415] In a civil action alleging tortious interference with contractual relations, the judge properly granted summary judgment in favor of the defendant on the ground that the claim was time barred because the relevant acts took place more than three years before the complaint was filed, where the proper vehicle for the plaintiff’s claim would have been the administrative procedure provided in G. L. c. 151B. [415] Civil action commenced in the Superior Court Department on November 3, 2009. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Kamee Verdrager, pro se. Joan A. Lukey (.Justin J. Wolosz also present) for the defendants. Ellen J. Messing, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. Robert Gault, David Barmak, Bret Cohen, R. Robert Popeo, and Donald Schroeder. Lenk, J. General Laws c. 151B, § 4, prohibits employers from discriminating against employees on the basis of gender. It also prohibits them from retaliating against employees for engaging in “protected activity,” i.e., activity undertaken “to protest or oppose statutorily prohibited discrimination” (citation omitted). See Thirkield v. Neary & Hunter OB/GYN, LLC, 76 F. Supp. 3d 339, 350 (D. Mass. 2015) (interpreting G. L. c. 151B). Here, we are asked to determine whether summary judgment should have entered for the employer on an employee’s claims for gender discrimination and retaliation. In addressing the retaliation claim, we confront the novel question whether it is “protected activity” for an employee to search for, copy, and share with the employee’s attorney confidential documents that the employee is authorized to access in the course of employment and that may help prove a discrimination claim. The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm). During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD) that she was being subjected to discriminatory treatment on the basis of her gender — treatment that, she believed, led to her demotion in February, 2007. In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm’s document management system for items that might prove her assertions of discrimination. In November, 2008, after these searches were made known to the firm’s chairman, the plaintiff’s employment was terminated “for cause.” In November, 2009, the plaintiff filed the present action in the Superior Court, which, as amended, named as defendants the firm, certain firm “members” with whom she worked, and the firm’s chairman, R. Robert Popeo. The complaint alleged that both the plaintiff’s demotion and her termination were the result of discrimination on the basis of gender, and that both also constituted retaliation for her having opposed such discrimination. The complaint specified five counts pursuant to G. L. c. 151B, § 4: gender discrimination (against all defendants except Bret Cohen); pregnancy discrimination (against the firm); aiding and abetting discrimination (against all except the firm and Cohen); failure to investigate and remedy discrimination (against the firm); and retaliation (against all except Cohen). A sixth count, tortious interference with contractual relations, was filed only against Cohen, who was not named in any of the other counts. The defendants then counterclaimed on various grounds. Following cross motions for summary judgment, only three of the defendants’ counterclaims survived, and all of the plaintiff’s claims were dismissed. The plaintiff appealed from the dismissal of her claims, and we allowed her petition for direct appellate review. We conclude, first, that the plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation. Therefore, summary judgment for the defendants on those counts was inappropriate. Second, we hold that an employee’s accessing, copying, and forwarding of documents may, in certain limited circumstances, constitute “protected activity,” but only where her actions are reasonable in the totality of the circumstances. Finally, we conclude that judgment was entered properly on the claim against Cohen for tortious interference with contractual relations. 1. Background. We summarize the facts, which are generally undisputed, “drawing inferences in favor of the plaintiff where they may reasonably be drawn from the facts.” Young v. Boston Univ., 64 Mass. App. Ct. 586, 587 (2005), cert. denied, 549 U.S. 832 (2006). To the extent that facts are disputed, we resolve them in favor of the plaintiff. See Miller v. Cotter, 448 Mass. 671, 676 (2007). We reserve certain details for later discussion. After graduating from law school in 1999, the plaintiff practiced employment and labor law in New York. In June, 2004, she began work as a fifth-year associate at the firm’s Boston office, in its employment, labor, and benefits (ELB) section. Throughout the course of the plaintiff’s employment, the firm had in place an “Electronic Information System [EIS] Acceptable Use Policy” (EIS policy). On June 16, 2004, the plaintiff signed a copy of that policy and agreed to be governed by its provisions. The plaintiff was trained in the use of DeskSite, a document management system used by the firm, at the beginning of her employment. She was told that she “was supposed to save almost all documents which she authored to the public section of DeskSite” and “was expected to search the system regularly in connection with her work.” Any documents in the “public” section of that system “were available to everyone in the firm who could access DeskSite.” Such documents could be accessed directly or could be found through a general word search of the system’s contents. Users also could choose, however, to save documents in a “private” section of the system, accessible only to themselves or to individuals that they specified. The EIS policy provided that the “EIS should be used, with limited exceptions, only for job-related communications. Although personal use is permitted, employees should do so with the full understanding that nothing is private” (emphasis in original). Associates frequently used DeskSite for personal or nonbusiness reasons, including to check the time records of other associates to see “who was getting the most work.” The firm also had in place a confidentiality policy, which stated that “[a]ll documents, correspondence, forms and other work product created or produced by the firm in connection with the delivery of legal services to the firm’s clients are the sole property of [the firm] and its clients. Such material should not be removed from the office or used for any reason other than for or in connection with the delivery of services on behalf of the firm.” Shortly after joining the firm, in late June and early July, 2004, the plaintiff was assigned to work with Cohen, a member in the ELB section, to draft a brief on behalf of one of the firm’s clients. In an electronic mail message dated July 19, 2004, Cohen stated that the client “has really liked our pleadings to date. Let’s keep up the good work!” Another firm member, who also worked on the brief, later wrote in an evaluation that the plaintiff “not only has a sound command of legal principles but she appears to have great intuition and reaction to legal issues that will make her an excellent advisor to clients and an attorney who has much to contribute to strategic issues in matters. On numerous matters in [this] case she has dropped by my office to discuss an issue and her intuitive response to the issue has been on point and well-considered .... I have not witnessed [her] interaction with clients, but I do know that she has had extensive contact with opposing counsel and the client in [this] matter. My impression is that [the client] has appreciated [the plaintiff’s] counsel and that [she] is well-respected and had ‘run with the ball’ in connection with opposing counsel in the matter .... I would certainly like to work with her again on any matters that involve ELB litigation[.]” The plaintiff maintains that, while Cohen and the plaintiff were working on this brief, he made a number of inappropriate, sexually charged comments to her. At some point in July, 2004, the plaintiff complained of these incidents to the firm’s human resources office. In mid-August, 2004, the plaintiff spoke with, among others, the firm’s managing director, Peter Biagetti, and with the attorney managing the ELB section, defendant Robert Gault, about the incidents. Gault and Biagetti met with Cohen in August, 2004, to discuss the plaintiff’s assertions. Gault and Biagetti concluded that her complaints were “management style complaints” rather than “complaints related to gender differences,” and decided to hire an executive coach to work with Cohen. At some point during that summer, firm chairman Popeo was informed of the plaintiff’s complaints. Popeo spoke with Biagetti and was told that Biagetti had looked into the complaints and had found no evidence of gender-based discrimination. In October, 2004, after a client complained to Cohen about the plaintiff’s performance, Cohen asked the client to submit the complaint in writing, which Cohen then forwarded to Gault, the ELB section manager, and Starr, the director of human resources. Also in October, 2004, various individuals, both members and associates, told the plaintiff that Cohen was making negative remarks about her. In evaluating the plaintiff’s performance in the fall of 2004, Cohen rated it as “usually below expectations.” He wrote that the plaintiff “needs a great deal of help on her writing. She is smart and seems to have a great deal of institutional knowledge but, at least when I dealt with her, was unable to translate her knowledge into a cohesive thought.... Orally, I find that she does not speak with confidence. For example, she says ‘um’ a lot.” The concerns regarding the plaintiff’s writing were echoed in the comments of her other evaluators. Defendant Donald Schroeder, then a senior associate in the ELB section, who would later be promoted to membership, rated the plaintiff’s performance as “always meets expectations.” In his written comments, however, he added that the plaintiff “needs to develop her analytical writing skills and organize her thoughts more clearly on paper.” Gault rated her work as “usually meets expectations” and noted that “I do not have much exposure” to her work but “I’ve seen a few things [in her writing] that suggest a need for more attention to detail.” In January, 2005, Cohen increased the scope of a research project he had assigned to the plaintiff. This project did not count toward her quota of hours billable to clients. Based on conversations she had at the time with her colleagues, the plaintiff maintains that the scope of the nonbillable work assigned to her was greater than that assigned by Cohen to other associates, a point that Cohen disputes. On February 2, 2005, the United States Court of Appeals for the Fourth Circuit upheld a jury verdict in favor of a female employee in the firm’s Virginia office. See Gallina vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, U.S. Ct. App., Nos. 03-1883 & 03-1947, slip op. at 12 (4th Cir. Feb 2, 2005) (Gallina). The jury found that, in violation of Federal antidiscrimination laws, the firm had retaliated against the employee for complaining of what she believed to be discriminatory treatment on the basis of her gender. Id. at 8. On February 11, 2005, Cherie Kiser, a member in the firm’s Washington, D.C., office who chaired the firm’s diversity committee, left a voicemail message for Popeo expressing her concern that the firm in general, and section manager Gault, in particular, did not take seriously employees’ complaints of gender discrimination. Popeo later spoke with Kiser, stating his commitment to combatting discrimination based on gender, but suggesting that Kiser was “overreacting” to what “she was hearing from Gault.” In March, 2005, the plaintiff underwent her annual performance review. Among her evaluators were Schroeder and Gault. She received an over-all rating of “always meets expectations” in five competencies, and an over-all rating of “usually meets expectations” in another six competencies. Each evaluator also provided written comments. Gault wrote that the plaintiff “seems very smart but [I] think the writing issues may mask some of her inherent intellectual ability.” Schroeder wrote that “her writing style is too informal” and that “[s]he needs to proofread her work and pay more attention to detail.” Some of the other comments were positive, including a comment from Gault that the plaintiff “[s]eems to have a pretty good substantive knowledge of a lot of general employment law areas” and from Schroeder that she “is very good with clients.” In the fiscal year ending that month, the plaintiff had amassed thirty-three more billable hours per month than the average associate. Also in March, 2005, Starr, the human resources director, and Rosemary Allen, a firm member who oversaw the firm’s personnel matters, received complaints from six women that Cohen had made inappropriate comments to them. After investigating, Starr and Allen concluded that no gender-based discrimination had taken place. On July 20, 2005, Eastern Point Consulting Group, Inc. (Eastern Point), a consulting company hired in the wake of the Gallina case to investigate allegations of discrimination, presented the findings from its investigation to the firm. Among other things, Eastern Point reported that many female attorneys, both members and associates, “believe it is more difficult for women than men at [the firm].” Starr was interviewed in the course of this investigation, and stated that there is a “tolerance for poor behavior” at the firm. In September, 2005, after returning from her honeymoon, the plaintiff informed Gault that she was pregnant with her first child. Gault responded, “Well, I suppose these things happen. I guess we have your honeymoon to blame for this?” He then discussed the possibility of the plaintiff reducing her schedule to part time, although the plaintiff had not sought a reduction in hours or raised the possibility of such a reduction. Subsequently, the plaintiff experienced medical difficulties related to her pregnancy and was placed on short-term disability. Gault and Schroeder exchanged electronic mail messages in January, 2006, and March, 2006, in which each expressed that he was “frustrated” with the plaintiff’s absences and lack of availability. Gault also spoke to the plaintiff’s neighbors and discovered that she was performing work around her house that he did not believe was consistent with the medical conditions she reported. In March, 2006, the plaintiff underwent her second annual performance review. Gault was one of her evaluators. She received over-all ratings of “usually exceeds expectations” in four competencies, “always meets expectations” in six other competencies, and a rating of “usually meets expectations” in the eleventh area, business development. In a written comment, Gault stated, “I noted some areas of substantive knowledge and writing in my last review that needed improvement,” but that he “has seen what seems to be an improvement in her work since her last evaluation.” His main criticism was that “I have not seen any evidence of production potential/entrepreneurial instincts.” Another member wrote “that she spent excessive time on the work” he had assigned her and that her “drafting is not particularly precise.” On the other hand, a firm member from outside ELB wrote positively that “the work [the plaintiff] did was for a very demanding client who set pretty unrealistic expectations, but [she] was able to meet them.” In a separate evaluation dated May 1, 2006, Schroeder wrote, among other things, that the plaintiff’s “writing needs to improve” and that she “did not always communicate [her reduced] schedule to everyone in ELB and I had to handle a number of matters on an emergency basis.” On May 3, 2006, the plaintiff gave birth to her first child. She began a planned six-month maternity leave. In June, 2006, defendant David Barmak replaced Gault as section manager of the ELB section. While the plaintiff was on leave, she was informed that, based on the performance reviews she had received in March, 2006, prior to her leave, she would be subject to another, interim performance review. This review would be based on her performance during the first ninety days after her return from leave. The plaintiff returned to work on November 1, 2006. Thereafter, she registered a relatively low number of billable hours compared to other associates in the ELB section. By early February, 2007, the plaintiff had received two negative reviews of her work. One review criticized her for putting into a contract “poorly drafted language that needed to be redrafted in more conventional form.” The other review, from Schroeder, noted, among other things, that she took “too much time to complete [a writing] task” he had assigned her and that “I had to perform more editing than I normally need to do for memos done by more junior associates.” He also noted that “[d]espite a full-time schedule, she is coming in at 9[:]30 or so and leaving no later than 5[:]30 ... I cannot understand why she has not attempted to step up to the plate.” The plaintiff also received positive comments from a client who “was very complimentary of [the plaintiff] and [her] work.” In or around February, 2007, Allen, the member overseeing personnel matters, told Popeo, the firm chairman, that the senior attorneys in the ELB section had requested that the plaintiff