Retaliation Cases

LASHANDA SHAW, Plaintiff v. THE GOODYEAR TIRE & RUBBER CO., Defendants No. COA12-338 Filed 15 January 2013 Jurisdiction — subject matter — negligent infliction of emotional distress — Workers’ Compensation Act — exclusivity provisions The trial court lacked subject matter jurisdiction over plaintiff’s negligent infliction of emotional distress claim caused by defendant’s willful or wanton negligence because the exclusivity provision of the Workers’ Compensation Act gives the Industrial Commission exclusive jurisdiction over this type of claim. Plaintiff’s claim fell within the purview of the Worker’s Compensation Act but was not enough to sustain a Woodson claim and thereby qualify as an exception to the exclusivity provisions of the Workers’ Compensation Act. Appeal by defendant from judgment entered 8 April 2011 by Judge Mary Ann Tally in Superior Court, Cumberland County. Heard in the Court of Appeals 29 November 2012. Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellee. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, by Julia C. Ambrose, John W. Ormand, III and Patricia W. Goodson, for defendant-appellant. Womble Carlyle Sandridge & Rice, LLP, by Burley B. Mitchell, Jr., for Amicus Curiae North Carolina Chamber. STROUD, Judge. This case presents in a unique procedural posture, with defendant’s appeal from a $450,000,00 jury award to plaintiff for her claim of negligent infliction of emotional distress, arguing, inter alia, that the trial court lacked subject matter jurisdiction. For the following reasons, we agree and vacate the judgment of the trial court. I. Background This case is in an unusual procedural posture because it comes to us with facts that have already been determined by a jury. Because the only issue addressed by this Court is subject matter jurisdiction, we recite just the background we deem pertinent for an understanding of the jurisdictional issue before us. In 2007, defendant hired plaintiff “as an Area Manager.” During the course of plaintiff’s employment, she complained that she was being harassed by her male supervisor. Plaintiff’s supervisor’s behavior toward plaintiff was obnoxious and rude; the harassment was verbal and involved some forms of intimidation but did not involve anything of a sexual nature nor did it involve any physical contact with plaintiff. Despite plaintiff’s complaints to the appropriate personnel, plaintiff’s supervisor remained in his position, where he continued to harass her, and eventually, defendant terminated plaintiff’s employment. On 13 January 2010, plaintiff filed a verified amended complaint claiming (1) wrongful discharge, (2) violation of Retaliatory Employment Discrimination Act (“REDA”), (3) tortious interference with contractual rights, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress (“NIED”). On or about 27 August 2010, plaintiff voluntarily dismissed her second claim, the REDA claim. On 8 November 2010, defendant filed a motion for summary judgment. On 21 December 2010, the trial court filed an order regarding defendant’s motion for summary judgment and dismissed plaintiff’s third and fourth claims for tortious interference with contractual rights and intentional infliction of emotional distress. Accordingly, only plaintiff’s first and fifth claims for wrongful discharge and NIED remained at the time of trial. The allegations central to both plaintiff’s wrongful discharge and NIED claims were that plaintiff complained to defendant about the harassment by her supervisor; defendant negligently handled plaintiff’s complaint about the harassment; and defendant’s negligence caused plaintiff’s emotional distress and eventually led to her wrongful discharge. Several specific issues were submitted to the jury, and on appeal neither party challenges these issues as submitted to the jury. After a lengthy trial, the jury entered the following verdict: ISSUE ONE: Did the defendant intentionally discriminate against the plaintiff because of her race or sex or both when the defendant fired the plaintiff? [The jury answered “No[.]”] ISSUE TWO: Did the defendant retaliate against the plaintiff by firing her for her making a complaint of discrimination based upon her race or sex or both? [The jury answered “Yes[.]”] ISSUE THREE: Would the defendant have terminated the plaintiff in the absence of race or sex discrimination and/or retaliation for her complaints of discrimination? YOU WILL ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED ISSUES 1 OR 2 “YES[”] IN FAVOR OF THE PLAINTIFF. [The jury answered “Yes[.]”] ISSUE FOUR: Did the plaintiff suffer severe emotional distress as a proximate result of the negligence of the defendant? [The jury answered “Yes[.]”] ISSUE FIVE: What amount of damages is the plaintiff entitled to recover? YOU ARE TO ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED ISSUES 1 OR 2 “YES” IN FAVOR OF PLAINTIFF AND ANSWERED ISSUE 3 “NO” OR IF YOU HAVE ANSWERED ISSUE 4 IN FAVOR OF THE PLAINTIFF. [The jury answered “$450,000.00[.]”] The jury verdict sheet required that the jury answer Issue Five only in either of two scenarios: (1) “IF [IT HAD] ANSWERED ISSUES 1 OR 2 ‘YES’ IN FAVOR OF PLAINTIFF AND ANSWERED ISSUE 3 ‘NO’ ” or (2) “IF [IT HAD] ANSWERED ISSUE 4 IN FAVOR OF THE PLAINTIFF.” The jury answered Issue Two “Yes[,]” but answered Issue Three “No[.]” Accordingly, the jury could not award plaintiff a verdict based upon the first two issues. The jury answered Issue Four “Yes[,]” and thus the award of $450,000.00 was based solely upon Issue Four regarding plaintiff’s “severe emotional distress as a proximate result of the negligence of defendant.” In summary, the jury did not award plaintiff any damages for her wrongful discharge claim but only for her NIED claim. The jury then considered the issue of punitive damages. The jury entered the following verdict as to punitive damages: ISSUE ONE: IS THE DFENDANT LIABLE TO THE PLAINTIFF FOR PUNITIVE DAMAGES FOR NEGLIGENT INFLICTION OF SEVERE EMOTIONAL DISTRESS? [The jury answered “Yes[.]”] ISSUE TWO: WHAT AMOUNT OF PUNITIVE DAMAGES, IF ANY, DOES THE JURY IN ITS DISCRETION AWARD TO THE PLAINTIFF? (YOU ARE TO ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED THE FIRST “YES” IN FAVOR OF THE PLAINTIFF) [The jury answered “None[.]”[ On 8 April 2011, the trial court entered judgment consistent with the jury’s verdict sheets and awarded plaintiff compensatory damages of $450,000.00. Defendant appeals. II. Jurisdiction Defendant argues that “the trial court lacked subject matter jurisdiction over plaintiff’s NIED claim, which is barred by the exclusivity provision of the Workers’ Compensation Act.” (Original in all caps.) “Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). It is important to note that the only issue on appeal is the trial court’s jurisdiction as to plaintiff’s NIED claim, and thus we need not consider any of plaintiff’s other claims. Furthermore, the relevant facts have already been determined by the jury, so our analysis is based upon the jury’s verdict and not the allegations or evidence of either party. Here, the jury determined that “plaintiff suffered] severe emotional distress as a proximate result of the negligence of the defendant” and awarded plaintiff $450,000.00 as compensation for that claim and that claim only. The jury further determined that defendant is “liable to the plaintiff for punitive damages for negligent infliction of severe emotional distress” but awarded no damages. (Original in all caps.) However, a finding of liability for punitive damages requires that the plaintiff prove “that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud. (2) Malice. (3) Willful or wanton conduct.” N.C. Gen. Stat. § 1D-I5(a) (2007). The jury was properly instructed on the requirements for a finding of liability for punitive damages as to willful or wanton conduct. Plaintiff proved “that the defendant [was] liable for compensatory damages” as is shown by the jury’s compensatory damages award of $450,000.00. Accordingly, the issue before us is whether the trial court had jurisdiction over plaintiff’s claim for NEID caused by defendant’s willful or wanton negligence. A. Willful and/or Wanton Negligence Defined Here, the jury has already made the determination that defendant’s negligence was “willful or wanton.” “Willful negligence arises from the tortfeasor’s deliberate breach of a legal duty owed to another, while wanton negligence is done of a wicked purpose or done needlessly, manifesting a reckless indifference to the rights of others.” Sloan v. Miller Building Corp., 128 N.C. App. 37, 43, 493 S.E.2d 460, 464 (1997) (citation, quotation marks, and ellipses omitted). “Wil[l]ful and wanton negligence is conduct which shows either a deliberate intention to harm, or an utter indifference to, or conscious disregard for, the rights or safety of others. Carelessness and recklessness, though more than ordinary negligence, is less than willful[l]ness or wantonness.” Siders v. Gibbs, 31 N.C. App. 481, 485, 229 S.E.2d 811, 814 (1976) (citation and quotation marks omitted). Here, defendant argues that the trial court did not have jurisdiction over plaintiff’s NIED claim caused by defendant’s willful and wanton negligence because the Industrial Commission has exclusive jurisdiction over this type of claim. B. The Exclusivity Provisions N.C. Gen. Stat. § 97-9 provides, Every ,employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and in the manner herein specified. N.C. Gen. Stat. § 97-9 (2007). N.C. Gen. Stat. § 97-10.1, provides, If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death. N.C. Gen. Stat. § 97-10.1 (2007). Thus, this Court and our Supreme Court have agreed that [t]he [Workers’ Compensation] Act provides that its remedies are the only remedies an employee has against his or her employer for claims covered by the Act. . . . Even where the complaint alleges willful and wanton negligence and prays for punitive damages, the remedies under the Act are exclusive. An employee cannot elect to pursue an alternate avenue of recovery, but is required to proceed under the Act with respect to compensable injuries. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 580, 364 S.E.2d 186, 188 (1988) (emphasis added) (citations omitted); see Freeman v. SCM Corporation, 311 N.C. 294, 295-96, 316 S.E.2d 81, 82 (1984) (The “plaintiff filed this action, alleging that her injuries were caused by the gross, willful and wanton negligence and by the intentional acts of defendant.... Since plaintiff was here covered by and subject to the provisions of the Workers’ Compensation Act, her rights and remedies against defendant employer were determined by the Act and she was required to pursue them in the North Carolina Industrial Commission. She could not, in lieu of this avenue of recovery, institute a common law action against her employer in the civil courts of this State.” (citation omitted)). Thus, the only ways in which plaintiff might avoid the exclusive jurisdiction of the Industrial Commission are (1) that her claim falls under an exception to the exclusivity provisions or (2) that her NIED claim was not “covered by the Act.” McAllister, 88 N.C. App. at 580, 364 S.E.2d at 188. We consider both of these alternatives in turn. C. Woodson v. Rowland In 1991, our Supreme Court recognized one exception to the exclusivity provisions with the seminal case of Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). In Woodson, Mr. Thomas Sprouse was working in a trench “to lay sewer lines.” 329 N.C. at 334, 407 S.E.2d at 225. The trench should have had a trench box, but did not in violation of the Occupational Safety and Health Act of North Carolina. Id. at 335, 407 S.E.2d at 225. One foreman did not allow his men to work in the trench because of the dangers posed by the trench without a trench box. Id. Though a trench box was available on site, Mr. Sprouse’s project supervisor, among others, decided not to use it; the trench collapsed and Mr. Sprouse was buried alive. Id. at 335-36, 407 S.E.2d at 225. Mr. Sprouse died as a result of the trench collapse and plaintiff, the administrator of Mr. Sprouse’s estate, sued at the trial court but also filed a Workers’ Compensation claim to meet the filing deadline for compensation claims. In order to avoid a judicial ruling that she had elected a workers’ compensation remedy inconsistent with the civil remedies she presently seeks, plaintiff specifically requested that the Industrial Commission not hear her case until completion of th[e] action [before the trial court]. The Commission . . . complied with her request[.] Id. at 336, 407 S.E.2d at 226. The defendant requested summary judgment and prevailed at both the trial level and before this Court. Id. Upon further appeal, the question pending before the Supreme Court was “whether the exclusivity provisions of the Workers’ Compensation Act limit[ed] plaintiff’s remedies to those provided by the Act.” Id. at 334, 407 S.E.2d at 224. The Court then engaged in a thorough analysis of statutory provisions, our case law, and the case law of other jurisdictions reasoning that [i]n Pleasant, which involved co-employee liability for recklessly operating a motor vehicle, we concluded that injury to another resulting from willful, wanton and reckless negligence should also be treated as an intentional injury for purposes of our Workers’ Compensation Act. The Pleasant Court expressly refused to consider whether the same rationale would apply to employer misconduct. Nonetheless, Pleasant equated willful, wanton and reckless misconduct with intentional injury for Workers’ Compensation purposes. The plaintiff in Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986), urged us to extend the Pleasant rationale to injuries caused by an employer’s willful and wanton misconduct. The plaintiff, administrator of the estate of the deceased employee, alleged in part that the decedent died as a result of severe burns and other injuries caused by an explosion and fire in the. employer’s plant. On the employer’s motion for summary judgment, the plaintiff’s forecast of evidence, which included the allegations of the complaint, tended to show as follows: the employer utilized ignitable concentrations of flammable gasses and volatile flammable liquids at its plant, violated OSHANC regulations in the use of these substances, covered meters and turned off alarms designed to detect and warn of dangerous levels of explosive gasses and vapors — all of which resulted in the explosion and fire which caused the employee’s death. A majority of this Court in Barrino refused to extend the Pleasant rationale to employer conduct, but only two of the four majority justices expressed the view that the plaintiff’s injuries were solely by accident and that the remedies provided by the Act were exclusive. These two justices relied in part on Freeman v. SCM Corporation, 311 N.C. 294, 316 S.E.2d 81 (1984), a per curiam opinion which concluded that a complaint alleging injuries caused by the willful and wanton negligence of an employer should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure because exclusive jurisdiction rested under the Workers’ Compensation Act with the Industrial Commission. The other two justices in the Barrino majority concurred on the ground that the plaintiff, having accepted workers’ compensation benefits, was thereby barred from bringing a civil suit. The three remaining justices dissented on the ground that the plaintiff’s forecast of evidence was sufficient to raise a genuine issue of material fact as to whether the defendant-employer’s conduct embodies a degree of culpability beyond negligence so as to allow the plaintiff to maintain a civil action. Believing the plaintiff’s forecast of evidence was sufficient to survive summary judgment on the question of whether the employer was guilty of an intentional tort, the Barrino dissenters said: As Prosser states: Intent is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. The death of Lora Ann Barrino the employee was, at the very least, substantially certain to occur given defendants’ deliberate failure to observe even basic safety laws. As discussed in a subsequent portion of this opinion, the dissenters also concluded that the plaintiff was not put to an election of remedies. They thus would have allowed the plaintiff’s common law intentional tort claim to proceed to trial on the theory that the defendant intentionally engaged in conduct knowing it was substantially certain to cause serious injury or death. They would also have allowed the plaintiff to pursue both a workers’ compensation claim and a civil action. Today we adopt the views of the Barrino dissent. We hold that when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Act. Because, as also discussed in a subsequent portion of this opinion, the injury or death caused by such misconduct is nonetheless the result of an accident under the Act, workers’ compensation claims may also be pursued. There may, however, only be one recovery. We believe this holding conforms with general legal principles and is true to the legislative intent when considered in light of the Act’s underlying purposes. Id. at 339-41, 407 S.E.2d at 227-28 (emphasis added) (citations, quotation marks, ellipses, and brackets omitted). The Court further explained, Our holding is consistent with general concepts of tort liability outside the workers’ compensation context. The gradations of tortious conduct can best be understood as a continuum. The most aggravated conduct is where the actor actually intends the probable consequences of his conduct. One who intentionally engages in conduct knowing that particular results are substantially certain to follow also intends the results for purposes of tort liability. Intent is broader than a desire to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does. This is the doctrine of constructive intent. As the probability that a certain consequence will follow decreases, and becomes less than substantially certain, the actor’s conduct loses the character of intent, and becomes mere recklessness. As the probability decreases further, and amounts only to a risk that the resul

SHANNON FATTA v. M & M PROPERTIES MANAGEMENT, INC. COA12-694 Filed 4 December 2012 1. Pretrial Proceedings — motion to strike — motion for sanctions The trial court did not err in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by granting defendant’s motion to strike and motion for sanctions against plaintiff. The trial court entered detailed and thorough findings of fact regarding the allegations made by plaintiff against defendant and against the trial judge, the facts as entered by the trial court were supported by the record, and the conclusions of law were fully supported by the findings of fact. 2. Pretrial Proceedings — motion for sanctions — improper purpose The trial court did not err in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by granting sanctions against plaintiff pursuant to Rule 11(a). There was sufficient evidence to support the trial court’s determination that plaintiff’s motion for sanctions was filed for an improper purpose. 3. Pretrial Proceedings — Rule 11 sanction — gatekeeper provision — no abuse of discretion The trial court did not abuse its discretion in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by entering the Rule 11 sanction of a “gatekeeper” provision against plaintiff. The trial court’s order explained the court’s reasons for entering the sanctions against plaintiff, the gatekeeper provision was narrowly tailored and limited in scope, and plaintiff was provided an opportunity to be heard and had notice that the trial court intended to impose a gatekeeper provision. Appeal by plaintiff from orders entered 4 January 2012 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 23 October 2012. Shannon Fatta pro se plaintiff-appellant. Fisher & Phillips, LLP, by Mason G. Alexander, for defendantappellee. BRYANT, Judge. Where the trial court did not err by granting defendant’s Rule 12(f) motion to strike and Rule 11 motion for sanctions against plaintiff, we affirm the orders of the trial court. Facts and Procedural History The case before us originates from an action commenced on 6 July 2010 by plaintiff Shannon Fatta against defendant M & M Properties Management, Inc. alleging several causes of action relating to the Retaliatory Employee Discrimination Act, and wrongful termination. On 10 March 2011, the trial court entered summary judgment in favor of defendant and dismissed plaintiff’s claims with prejudice. Thereafter, plaintiff filed a motion to reconsider and amend summary judgment pursuant to Rule 59(e) of the North Carolina Rules of Civil Procedure which was denied on 18 April 2011 following a hearing. On 20 April 2011, plaintiff appealed to our Court, and we affirmed the trial court’s summary judgment order in Fatta v. M & M Properties Management, Inc., ___ N.C. App. _, 727 S.E.2d 595 (2012) (“Fatta I”). On 13 July 2011, three months after plaintiff noted an appeal in this matter to our Court, plaintiff filed a motion for sanctions pursuant to Rules 11, 26(g), and 37(d) of the North Carolina Rules of Civil procedure against defendant and defendant’s counsel, Margaret M. Kingston (“Kingston”) of Fisher & Phillips LLP and a motion for relief from the 10 March 2011 summary judgment order entered in favor of defendant pursuant to Rules 60(b)(1), 60(b)(3), and 60(b)(6) (“Motion for Sanctions; Motion for Relief from Judgment”). Plaintiff alleged numerous discovery violations and other misconduct by defendant and Kingston. Plaintiff filed an amended “Motion for Sanctions; Motion for Relief from Judgment” on 26 September 2011. On 12 August 2011, defendant filed a motion to strike plaintiff’s “Motion for Sanctions; Motion for Relief from Judgment” and a motion for sanctions against plaintiff. Following a hearing held on 14 October 2011, the trial court made numerous findings of fact including the following: Plaintiff has attempted to create a discovery dispute. Plaintiff’s arguments about discovery violations are improper and lacking in a factual basis. The parties engaged in extensive discovery in this case, including correspondence between the parties about the adequacy of objections made to certain discovery responses. Plaintiff never filed a motion to compel or any other discovery motion. He raised his discovery arguments for the first time in his “Motion for Sanctions; Motion for Relief from Judgment”, after summary judgment was granted and his claims were dismissed. This Court does not have jurisdiction to review a potential discovery dispute between the parties. The Court entered an Order granting summary judgment to Defendant and dismissing Plaintiff’s claims in their entirety on March 10, 2011. Plaintiff has appealed that decision to the North Carolina Court of Appeals. Although Plaintiff’s discovery challenges are not proper, this Court will briefly address Plaintiff’s arguments that the discovery violations amounted to fraud under Rule 60. The Court finds no factual support for Plaintiff’s claim of discovery violations or misconduct regarding this allegation. In bringing these challenges at this late date and without legal or factual support, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. Also, Plaintiffs discovery allegations are frivolous and insufficient as a matter of law and should be stricken from the record pursuant to Rule 12(f) of the North Carolina Rules of Civil Procedure. The Court finds that these allegations are frivolous. Plaintiff has no facts or evidence to support these allegations. Plaintiff has no legal authority to support these allegations. Plaintiff relies upon his own affidavit, which contains conclusory and factually inaccurate assertions about the parties’ arguments at the summary judgment hearing and the undersigned’s decision following the hearing. Plaintiff made the unsupported assertion that two of Defendant’s summary judgment affiants, Jenny Meyer and Glenn McFarland, misrepresented facts in their affidavits in an effort to mislead the Court. The Court finds that this is an outrageous assertion without any facts in support. In addition, the Court finds that Ms. Meyer and Mr. McFarland have submitted additional affidavits under oath attesting to the accuracy of their prior affidavits. Plaintiff also made the unsupported assertion that Defendant and counsel for Defendant intentionally misrepresented facts and case law on his claims and committed fraud on the court. The Court finds no legal or factual basis for Plaintiffs allegations of fraud and Rule 11 violations in connection with this Court’s summary judgment ruling and subsequent ruling on Plaintiff’s Rule 59 motion. The Court finds that these are outrageous allegations by Plaintiff. In raising these allegations in Plaintiff’s Motion, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. The undersigned presided over the pretrial conference, the summary judgment hearing, the hearing on Plaintiff’s Rule 59 motion, and the hearing on Defendant’s Motion to Strike and Motion for Sanctions in this matter. The undersigned has observed the conduct of the parties and reviewed the documents filed and submitted to the Court by the parties. Plaintiff’s suggestion that the undersigned was part of a fraudulent scheme with counsel for Defendant is outrageous. The Court finds that Plaintiff has filed and pursued his “Motion for Sanctions; Motion for Relief from Judgment” alleging fraud and Rule 11 violations against Defendant and counsel for Defendant without any factual or legal support. The Court finds Plaintiff’s Motion and the manner in which Plaintiff pursued his Motion has been intended to harass counsel for Defendant and to needlessly increase the cost of this litigation for Defendant.. . . The Court finds that Plaintiff has made some very serious allegations against Defendant and counsel for Defendant, and that these allegations of fraud and misconduct are not supported by any facts or law. Due to Plaintiff’s pursuit of this frivolous Motion, this Court finds that the sanction of a gatekeeper provision is necessary and appropriate. The Court finds that Plaintiff has exhibited conduct in this matter showing such a disregard for the rules of law and procedure which, if he were licensed as an attorney, would require and demand reporting him to the North Carolina State Bar questioning his fitness to practice. The Court finds that Plaintiffs baseless allegations, Motion, and materials in support of the Motion were filed and pursued for the improper purpose of harassing the opposing party and opposing party’s counsel, and costing the opposing party unnecessary time and expense in responding to these allegations and'filings. This Court has the inherent power to impose such special limitations as are reasonably necessary for the proper administration of justice, including the authority to regulate and discipline persons who appear before the Court to prevent impropriety and to provide an appropriate remedy to meet the circumstances of the case. The nature of Plaintiff’s conduct and the extraordinary circumstances of this matter require that the Court place special limitations on Plaintiff’s access to the Iredell County Superior Court and enter a gatekeeper order. The trial court then made the following pertinent conclusions of law: The Court lacks jurisdiction to hear a discovery dispute but has considered Plaintiff’s discovery allegations in connection with his Rule 60 allegations of fraud and Rule 11 allegations against Defendant and [Kingston]. The Court concludes that Plaintiff has shown no discovery violations. The Court further concludes that Plaintiff’s discovery allegations are frivolous and lacking in any factual and legal support. The Court concludes that Plaintiff has shown no Rule 11 violation, misrepresentation, or other alleged misconduct amounting to fraud or fraud on the Court by Defendant or [Kingston], The Court further concludes that there is no factual or legal support for any of the fraud, Rule 11, or other misconduct allegations against Defendant and [Kingston] and these allegations are frivolous. The Court concludes that Plaintiff’s “Motion for Sanctions;, Motion for Relief from Judgment” is frivolous and insufficient as a matter of law and should be stricken pursuant to Rule 12 of the North Carolina Rules of Civil Procedure. The Motion is not well grounded in fact or law and appears to have been filed in order to harass Defendant and [Kingston] and to needlessly increase the costs of this litigation. In signing and filing this Motion, Plaintiff has violated Rule 11[.] The Court concludes that, due to the very serious nature of the allegations in Plaintiffs Motion and which are unsupported by any facts or law, the sanction of a gatekeeper provision and the sanction of reasonable attorneys’ fees and costs incurred by Defendant in defending Plaintiff’s Motion are necessary and appropriate. Accordingly, in a 4 January 2012 order, the trial court granted defendant’s motion to strike and motion for sanctions against plaintiff. The trial court also entered a gatekeeping order and awarded attorney’s fees and costs to defendant. From these orders, plaintiff appeals. Plaintiff presents the following issues on appeal: (I) whether the trial court erred by allowing defendant’s motion to strike and motion for sanctions against plaintiff where the motion was improper pursuant to N.C. Gen. Stat. § 1A-1, Rule 7(b)(1); (II) whether the trial court erred by granting sanctions against plaintiff pursuant to N.C. Gen. Stat. § 1A-1, Rule 11(a); and, (III) whether the trial court abused its discretion by entering the sanction of a gatekeeper provision. / In his first argument, plaintiff contends the trial court erred by granting defendant’s motion to strike and motion for sanctions against plaintiff where defendant’s motions violated N.C.S.S. § 1A-1, Rule 7(b)(1). N.C.G.S. § 1A-1, Rule 7(b)(1) (2011) states the following: An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state with particularity the grounds therefor; and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. Id. (emphasis added). The comments to Rule 7(b)(1) states: The 2000 amendment conforms the North Carolina rule to federal Rule 7(b). The federal courts do not apply the particularity requirement as a procedural technicality to deny otherwise meritorious motions. Rather, the federal courts apply the rule to protect parties from prejudice, to assure that opposing parties can comprehend the basis for the motion and have a fair opportunity to respond. Id. cmt. Rule 11(a) of the North Carolina Rules of Civil Procedure reads that [t]he signature of . . . [a] party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. N.C.G.S. § 1A-1, Rule 11(a) (2011). Rule 12(f) states that “[u]pon motion made by a party . . . the judge may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.” N.C.G.S. § 1A-1, Rule 12© (2011). Here, defendant’s motion to strike and motion for sanctions against plaintiff stated the following: Plaintiff’s most recent Motions (“Motion for Sanctions; Motion for Relief from Judgment”) are frivolous and insufficient as a matter of law. The Motions are not well grounded in fact or law. Also, Plaintiff’s intent in filing these Motions is to harass counsel for Defendant and to cause needless increase in the cost of litigation. In signing and filing these Motions, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. In addition, Plaintiff’s Motions contain irrelevant and outrageous assertions that should be stricken pursuant to Rule 12© of the North Carolina Rules of Civil Procedure. Plaintiff argues that defendant’s motion “does not point to what is frivolous or what is insufficient as a matter of law[,]” “does not provide how Plaintiff filing for sanctions or relief from judgment constitutes harassment or other improper purposes[,]” and that “[t]here is no indication of what is irrelevant, what is outrageous, or why something is even considered outrageous.” While we disagree with plaintiff’s characterizations, we note that our task is to review the trial court’s decision to grant or deny a motion to strike and motion for sanctions. (Rule 12© motions are reviewed for abuse of discretion. See Reese v. Brooklyn Vill, LLC,_N.C. App._,_, 707 S.E.2d 249, 260 (2011); Rule 11(a) motions are reviewed de novo. “The appropriateness of a particular sanction is reviewed for abuse of discretion.” Bledsoe v. Johnson, 357 N.C. 133, 138, 579 S.E.2d 379, 381-82 (2003) (citation omitted)). Defendant’s motion for sanctions cited Rule 11 and specified that plaintiff’s motion for sanctions was “frivolous and insufficient as a matter of law.” In its consideration of the allegations, the trial court found that plaintiff had “attempted to create a discovery dispute” and that plaintiff brought his “challenges at this late date and without legal or factual support.” The trial court found that plaintiff had relied on his own affidavit “which contains conclusory and factually inaccurate assertions” surrounding the summary judgment hearing at which the trial judge (the Honorable Christopher M. Collier) had presided. Based upon the motions and other evidence of record, the trial court concluded that plaintiff’s improper purpose in filing these motions was to harass the opposing party and its counsel, and to cause the opposing party unnecessary time and expense in responding to plaintiff’s allegations, a needless increase in the cost of litigation. Defendant’s motion to strike cited Rule 12© and specified that plaintiff’s motions “contained] irrelevant and outrageous assertions[.]” The trial court found that plaintiff’s allegations were “baseless” and concluded that plaintiff’s conduct demonstrated a “disregard for the rules of law and procedure[.]” In addition, defendant’s motion for sanctions and motion to strike specifically stated the relief requested: “[t]hat the Court strike from the record Plaintiff’s ‘Motion for Sanctions; Motion for Relief from Judgment’ ”; “[t]hat the Court enter • an Order determining that Plaintiff’s Motions are not well grounded in law or in fact and are intended to harass Defendant and counsel for Defendant;” and “[t]hat Defendant recover all costs and reasonable attorneys’ fees incurred in the defense of Plaintiff’s frivolous Motions[.]” See Lane v. Winn-Dixie Charlotte, Inc., 169 N.C. App. 180, 609 S.E.2d 456 (2005) (holding that the defendant’s Rule 12(b)(4) and 12(b)(5) motion to dismiss was stated with sufficient particularly as to the grounds alleged and sufficiently set forth the relief sought, as required by Rule 7(b)(1)). The trial court entered detailed and thorough findings of fact regarding the very serious and troubling allegations made by plaintiff against defendant and against the trial judge. The facts as entered by the trial court are supported by the record. Further, the conclusions of law are fully supported by the findings of fact. Accordingly, we hold that the trial court did not err in granting defendant’s motions. Plaintiff’s argument is overruled. II Next, plaintiff argues that the trial court erred in granting sanctions against plaintiff pursuant to Rule 11(a). “This Court exercises de novo review of the question of whether to impose Rule 11 sanctions.” Dodd v. Steele, 114 N.C. App. 632, 635, 442 S.E.2d 363, 365 (1994). “There are three parts to a Rule 11 analysis: (1) factual sufficiency, (2) legal sufficiency, and (3) improper purpose. A violation of any one of these requirements mandates the imposition of sanctions under Rule 11.” Battle v. Sabates, 198 N.C. App. 407, 425, 681 S.E.2d 788, 800 (2009) (citation omitted) (emphasis added). “When reviewing the decision of a trial court to impose sanctions under Rule 11, an appellate court must determine whether the findings of fact of the trial court are supported by sufficient evidence, whether the conclusions of law are supported by the findings of fact, and whether the conclusions of law support the judgment.” Johns v. Johns, 195 N.C. App. 201, 206, 672 S.E.2d 34, 38 (2009) (citation omitted). Because we hold that the record supports that plaintiff violated the improper purpose prong, we find it unnecessary to address the other prongs. See Brown v. Hurley, 124 N.C. App. 377, 382, 477 S.E.2d 234, 238 (1996) (“Even if a complaint is well-grounded in fact and in law, it may nonetheless violate the improper purpose prong of Rule 11.”). Under Rule 11, an objective standard is used to determine whether a paper has been interposed for an improper purpose, with the burden on the movant to prove such improper purpose. Because an objective standard is employed, an improper purpose may be inferred from the alleged offender’s objective behavior. In assessing that behavior, we look at the totality of the circumstances. Johns, 195 N.C. at 212, 672 S.E.2d at 42 (citations and quotations omitted). “An improper purpose is ‘any purpose other than one to vindicate rights ... or to put claims of right to a proper test.” Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2

CUDDINGTON v UNITED HEALTH SERVICES, INC Docket No. 303249. Submitted March 15, 2012, at Detroit. Decided October 25, 2012, at 9:10 a.m. Raymond Cuddington filed an action against United Health Services, Inc., in the Tuscola Circuit Court, seeking damages under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 etseq., for retaliatory discharge. Plaintiff was employed by defendant as a delivery technician and was involved in a car accident while working on the job. Plaintiff declined medical help at the scene of the accident, but developed shoulder and neck pain during the night. Plaintiff’s wife contacted defendant the following morning, stating that plaintiff would not be at work because of soreness from the accident. Plaintiff was told to report to work or he would be fired because he did not report his absence before the start of his shift. Plaintiff refused, stating that he wanted to see his doctor, and was informed that he had been terminated from his job when he reported for work two days later. Plaintiff filed a claim for workers’ compensation benefits and subsequently commenced this retaliatory-discharge claim under MCL 418.301(13). The court, Patrick Reed Joslyn, J., granted defendant’s motion for summary disposition, finding that there was no evidence that plaintiff was fired in retaliation for his workers’ compensation claim. Plaintiff appealed. The Court of Appeals held: 1. The primary goal of the WDCA is to promptly deliver benefits to employees injured in the scope of their employment. Filing a petition for workers’ compensation benefits is not a prerequisite to all retaliatory-discharge claims. Rather, under MCL 418.301(13), a claim of retaliatory discharge may he established if an employer terminates or otherwise discriminates against an employee in retaliation (1) for filing a complaint under the WDCA, (2) for instituting or causing a proceeding to be instituted under the WDCA, or (3) because the employee exercises a right afforded by the WDCA. 2. An injured employee, under MCL 418.315(1), has the right to seek needed, reasonable medical services and medicines for work-related injuries. The phrase “medical services” encompasses medical consultation, evaluation, and treatment. Determining whether an employee needed medical services following a workplace injury necessitates a fact-intensive reasonableness inquiry that focuses on the totality of the circumstances surrounding the employee, the workplace, the nature of the injury, and the injury’s adverse effect on the employee’s overall health and well-being. 3. A prima facie case of retaliation is established under the WDCA if an employee who suffered a work-related injury presents evidence (1) that the employee asserted a right to obtain necessary medical services or actually exercised that right, (2) that the employer knew that the employee engaged in this protected conduct, (3) that the employer took an employment action that was adverse to the employee, and (4) that the adverse employment action and the employee’s assertion or exercise of a right afforded under MCL 418.315(1) were causally connected. Direct evidence of retaliation is evidence that if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions. When a plaintiff asserting a claim for retaliatory discharge under MCL 418.301(13) establishes a prima facie case of retaliation with circumstantial evidence, the burden of proof shifts to the defendant to articulate a legitimate, nonretaliatory reason for its adverse employment action. If the defendant produces a legitimate, nondiscriminatory reason for its action, the plaintiff must then demonstrate that the evidence in the case, when construed in the plaintiffs favor, is sufficient to permit a reasonable trier of fact to conclude that retaliation was a motivating factor for the adverse action taken toward the plaintiff. A plaintiff can establish that the employer’s proffered reasons for the adverse employment action were pretextual by demonstrating that the reasons (1) had no basis in fact, (2) were not the actual factors motivating the decision, or (3) were insufficient to justify the decision. 4. Plaintiff presented prima facie evidence of causation because defendant knew of his work-related injury and that plaintiff exercised a right afforded under the WDCA when he sought medical attention for his injuries rather than reporting for work. Defendant rebutted plaintiff’s prima facie proofs with evidence that it had terminated his employment because he called in his absence two minutes after his shift commenced. The trial court erred by holding that summary disposition was appropriate on the basis of plaintiffs failure to prove that he was terminated in retaliation for filing a petition for workers’ compensation benefits. Rather, the trial court should have determined if a genuine issue of fact existed regarding whether defendant fired plaintiff because he had exercised the right to seek medical services for his work-related injury, as allowed under MCL 418.315(1). 5. In accordance with Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 645-646 (1987), and Griffey v Prestige Stamping, Inc 189 Mich App 665,667-669 (1991), which addressed claims of retaliation for anticipated filings of workers’ compensation benefits, a cause of action for retaliatory discharge cannot be based on the anticipated exercise of a right afforded under the WDCA. An employee who brings a claim under MCL 418.301(13) premised on the exercise of a right afforded by the WDCA must demonstrate that he or she first exercised such a right before the employer terminated or otherwise discriminated against the employee in response to that conduct. Plaintiff did not allege that he was terminated in retaliation for an anticipated claim, however, but alleged that his termination was for exercising a right afforded under the WDCA. Order vacated and case remanded for further proceedings. 1. Workers' Compensation - Retaliatory Discharge - Workers’ Disability Compensation Act — Exercise of Right — Seeking Medical Services. Filing a petition for workers’ compensation benefits is not a prerequisite to all retaliatory-discharge claims; under MCL 418.301(13), a claim of retaliatory discharge may be established if an employer terminates or otherwise discriminates against an employee in retaliation (1) for filing a complaint under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., (2) for instituting or causing a proceeding to be instituted under the WDCA, or (3) because the employee exercises a right afforded by the WDCA; an injured employee who brings a claim under MCL 418.301(13) premised on the exercise of a right afforded by the WDCA must demonstrate that he or she first exercised such a right before the employer terminated or otherwise discriminated against the employee in response to that conduct; under MCL 418.315(1), an employee has the right to seek needed and reasonable medical services and medicines for work-related injuries; medical services encompasses medical consultation, evaluation, and treatment; determining whether an employee needed medical services following a workplace injury necessitates a fact-intensive reasonableness inquiry that focuses on the totality of the circumstances surrounding the employee, the workplace, the nature of the injury, and the injury’s adverse effect on the employee’s overall health and well-being. 2. Workers’ Compensation — Retaliatory Discharge — Seeking Medical Services — Prima Facie Evidence — Shifting of the Burden of Proof. A prima facie case of retaliation for the exercise of the right to seek reasonable and necessary services is established under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., if an employee who suffered a work-related injury presents evidence (1) that the employee asserted the right or actually exercised that right, (2) that the employer knew that the employee engaged in this protected conduct, (3) that the employer took an employment action that was adverse to the employee, and (4) that the adverse employment action and the employee’s assertion or exercise of the right, which is afforded under MCL 418.315(1), were causally connected; direct evidence of retaliation is evidence that, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions; when a plaintiff asserting a claim for retaliatory discharge under MCL 418.301(13) establishes a prima facie case of retaliation with circumstantial evidence, the burden of proof shifts to the defendant to articulate a legitimate, nonretaliatory reason for its adverse employment action; if the defendant produces a legitimate, nondiscriminatory reason for its action, the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiffs favor, is sufficient to permit a reasonable trier of fact to conclude that retaliation was a motivating factor for the adverse action taken toward the plaintiff; a plaintiff can establish that the employer’s proffered reasons for the adverse employment action were pretextual by demonstrating that the reasons (1) had no basis in fact, (2) were not the actual factors motivating the decision, or (3) were insufficient to justify the decision. Hurlburt, Tsiros, & Allweil, PC. (by Mandel I. All-weil), for Raymond Cuddington. Stephens & Moore, P.C. (by Phoebe J. Moore), for United Health Services, Inc. Before: BORRELLO, EJ., and BECKERING and GLEICHER, JJ. FER CURIAM. In this wrongful termination action, plaintiff, Raymond Cuddington, appeals as of right the trial court’s order granting the motion of defendant, United Health Services, Inc. (UHS), for summary disposition pursuant to MCR 2.116(C)(8) and (10). For the reasons set forth in this opinion, we vacate the trial court’s order and remand for further proceedings. I. FACTS AND PROCEDURAL HISTORY UHS employed plaintiff for 12 years as a delivery technician. Plaintiffs job duties required him to transport and assemble medical equipment weighing up to 150 pounds. Plaintiff completed his last delivery for defendant on January 7, 2009. On his way back to the UHS office that evening, the van plaintiff was driving slipped on the icy road and collided with another vehicle. Plaintiff called Robert Daniels, president of UHS, and reported the incident. Robert and his wife, Rebecca Daniels, also an officer of the company, arrived at the accident scene and found plaintiff sitting in an ambulance. Plaintiff had “a fat lip and a bruised cheek from hitting the mirror” but elected not to go to the hospital. During the night, however, he developed pain in his shoulder and neck area. The next morning, plaintiff experienced difficulty getting out of bed and sought medical attention. Plaintiff testified at an unemployment compensation hearing that his wife called UHS at 9:00 a.m. and informed a secretary that he was unable to work because of soreness from the accident. According to plaintiff, Robert called a few minutes later and asked plaintiff why he was not at work. Plaintiff informed Robert that he “was very sore from the accident.” Robert advised plaintiff that he needed to see a doctor. Rebecca took the phone and, as recounted by plaintiff, expressed the following: “[Y]ou ain’t hurt, if you were hurt you would have went in the ambulance to the hospital last night. If you don’t come into work, you are blanking- -blanking fired.” Robert described the same conversation as follows: “My wife got on the phone and basically told him to get his butt to work or he was not going to be employed, because he didn’t call in before his shift.” Plaintiff declined to come in, insisting that he was very sore and wanted to see his doctor. That same morning, plaintiff went to the office of Richard Hall, D.O., his personal physician. While a nurse was taking plaintiffs blood pressure, another nurse announced that Dr. Hall had been called to Saginaw for an emergency. Plaintiff requested that Dr. Hall’s office contact UHS to verify the visit. Although he had not yet been examined by Dr. Hall, plaintiff reported for work on January 9, 2009. Robert informed him that he was “done” and needed to leave his keys and gas card at the office. Robert and Rebecca disputed plaintiffs version of events. Robert averred that plaintiff failed to call in before his shift and that plaintiff was terminated after admitting that he did not have a “doctor’s slip in accordance with the Employee Manual.” Rebecca claimed that she had terminated plaintiff because he did not show up for work, had not called, and “was insubordinate in regards to reporting to work.” Plaintiff filed a claim for workers’ compensation benefits and subsequently commenced this action for retaliatory discharge pursuant to MCL 418.301(13), a provision of the Worker’s Disability Compensation Act (“WDCA” or the “Act”), MCL 418.101 et seq. Plaintiff alleged that he had exercised a right protected under the Act by seeking medical treatment for a work-related injury and that defendant violated the Act when it terminated him in retaliation for exercising that right. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that plaintiff could not establish a viable cause of action under the WDCA because he did not petition for workers’ compensation benefits until after he was terminated. Defendant argued that plaintiff could not sustain a WDCA claim based merely on an intent to claim workers’ compensation benefits. The trial court granted defendant’s motion, finding “no indication here that Plaintiff was fired in retaliation for his worker’s compensation claim. Plaintiff did not even file his claim until after he had been terminated.” II. STANDARD OF REVIEW We review de novo a trial court’s decision on a motion for summary disposition to determine whether the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The trial court did not indicate whether it granted defendant’s motion pursuant to MCR 2.116(C)(8) or (10); however, because the trial court considered documentary evidence beyond the pleadings, we construe the motion as having been granted pursuant to MCR 2.116(C)(10). Krass v Tri-Co Security, Inc, 233 Mich App 661, 664-665; 593 NW2d 578 (1999). In reviewing a motion brought under MCR 2.116(C)(10), we review the evidence submitted by the parties in a light most favorable to the nonmoving party to determine whether there is a genuine issue regarding any material fact. Maiden, 461 Mich at 120. “A genuine issue of material fact exists when the record leaves open an issue on which reasonable minds could differ.” Bennett v Detroit Police Chief, 274 Mich App 307, 317; 732 NW2d 164 (2006). This case requires that we construe the applicable provisions of the WDCA. Issues of statutory construction involve questions of law that we review de novo. Klooster v City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011). “The primary goal of statutory interpretation is to give effect to the Legislature’s intent, focusing first on the statute’s plain language.” Id. at 296. “[U]nless explicitly defined in a statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used.” Yudashkin v Holden, 247 Mich App 642, 650; 637 NW2d 257 (2001) (quotation marks and citation omitted). III. ANALYSIS Plaintiff contends that by alleging that defendant terminated his employment because he exercised a right afforded him under the WDCA — the right to seek medical services for a work-related injury — he pleaded a cognizable retaliation claim under MCL 418.301(13). The evidence supports that plaintiff was terminated after suffering a work-related injury and expressing a need for medical services. We hold that pursuant to the WDCA, plaintiff had a right to seek medical consultation concerning his employment-related injury. Because MCL 418.301(13) contemplates that an employee may pursue a retaliation claim arising from the exercise of this right, the trial court improperly granted summary disposition to defendant. Whether retaliation actually played a role in defendant’s decision to terminate plaintiffs employment presents a factual question subject to further development on remand, in accordance with this opinion. A. RETALIATORY DISCHARGE UNDER THE WDCA The primary goal of the WDCA is to “promptly deliver benefits to employees injured in the scope of their employment.” Dunbar v Mental Health Dep’t, 197 Mich App 1, 6; 495 NW2d 152 (1992). Initially, the Act did not contain a retaliatory-discharge cause of action. Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 645; 413 NW2d 79 (1987). In 1981 PA 200, the Legislature codified a cause of action for retaliatory discharge by amending the WDCA and adding MCL 418.301(11), which was later reclassified as MCL 418.301(13). Wilson, 162 Mich App at 645; 2011 PA 266. MCL 418.301(13) now provides: A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act. [Emphasis added]. The plain language of MCL 418.301(13) establishes that a petition for workers’ compensation benefits is not a condition precedent to all retaliatory-discharge claims. Rather, the statute creates a cause of action when an employer terminates or otherwise discriminates against an employee in retaliation (1) for filing a complaint under the WDCA, (2) for instituting or causing a proceeding to be instituted under the WDCA, or (3) “because of the exercise by the employee ... of a right afforded by this act.” By including within the prohibitions set forth in MCL 418.301(13) that an employer may not retaliate against an employee who has exercised a protected right, the Legislature recognized that an employer could circumvent the goals of the WDCA by firing an injured employee before the employee had any opportunity to formally initiate workers’ compensation proceedings. Had the statute failed to include the final alternative clause, the result would be “a foot race, with the winner being determined by the event to first occur - either the firing of the employee or the filing of a claim with the Workers’ Compensation Board.” Bullard v Alcan Aluminum Corp, 113 Fed Appx 684, 690 (CA 6, 2004) (quotation marks and citation omitted). B. MEDICAL SERVICES AS A RIGHT UNDER THE WDCA Having determined that an employee may have a cause of action based on the exercise of a right, we now turn to whether the Act affords employees a right to seek medical services for work-related injuries. The WDCA does not expressly define the term “right” for purposes of the Act, and this Court has not previously defined the term in this context. In another context, this Court has defined the word to mean “ ‘[something that is due to a person ... [a] power, privilege, or immunity secured to a person by law.’ ” Risko v Grand Haven Charter Twp Zoning Bd of Appeals, 284 Mich App 453, 460; 773 NW2d 730 (2009), quoting Black’s Law Dictionary (8th ed). A review of MCL 418.315(1) reveals that the WDCA affords injured employees the right to seek reasonable medical services and medicines for work-related injuries. Specifically, MCL 418.315(1) provides in relevant part: The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed. [Emphasis added.] Our Supreme Court has not

MONTY S. POARCH, Petitioner v. N.C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, N.C. HIGHWAY PATROL, Respondent No. COA11-1501 (Filed 16 October 2012) 1. Public Officers and Employees — employment termination— North Carolina Highway Patrol — just cause The trial court did not err in an employment termination case by determining that petitioner’s employment with the North Carolina Highway Patrol was terminated for just cause where petitioner engaged in the alleged conduct constituting unacceptable personal conduct and where other Patrol officers had been terminated for similar misconduct. 2. Public Officers and Employees — employment termination— arbitrary and capricious — unacceptable personal conduct — just cause The trial court did not err as a matter of law in an employment termination case by failing to address and correctly decide petitioner’s claim of arbitrary and capricious personnel actions. As petitioner committed the alleged acts of misconduct, the misconduct qualified as unacceptable personal conduct, and the misconduct amounted to just cause for termination, it followed that petitioner’s termination was not arbitrary or capricious. 3. Public Officers and Employees — employment termination— findings of fact — supported by the evidence The trial court did not err in an employment termination case by failing to credit petitioner with undisputed facts warranting relief and by adopting erroneous findings of fact that were not supported by substantial evidence. The contested findings of fact were supported by the evidence. 4. Public Officers and Employees — State Personnel Act— employment termination — adequate compensation The trial court did not err in an employment termination case by finding that respondent North Carolina Highway Patrol’s actions cured a violation of the State Personnel Act and that granting petitioner back pay for the violation was adequate compensation. 5. Public Officers and Employees — employment termination— just and equitable remedy The trial court did not err in an employment termination case by failing to award a just and equitable remedy as the trial court did not err in the trial itself. Appeal by petitioner from order entered 20 April 2011 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 16 August 2012. The McGuinness Law Firm, by J. Michael McGuinness, for petitioner appellant. Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for respondent appellee. Richard C. Hendrix and Richard E. Mulvaney for the North Carolina Troopers Association and the National Troopers Coalition, amicus curiae. McCullough, judge. Monty S. Poarch (“petitioner”) appeals the superior court’s decision to affirm his dismissal from the North Carolina Highway Patrol (the “Patrol”), a division of the North Carolina Department of Crime Control and Public Safety (“respondent”). For the following reasons, we affirm. I. Background Petitioner was terminated from employment as a State Trooper in September 2003 for unacceptable personal conduct for allegedly violating the Patrol’s policies prohibiting unbecoming conduct, nonconformance to laws, and neglect of duty. At the time of his dismissal, petitioner had been employed by the Patrol as a State Trooper for over 18 years, of which 16 years were spent in Alexander County. Petitioner’s termination arose as a result of a complaint filed 7 October 2002 by Ms. Donna Lynne Kirby (“Ms. Kirby”). In the complaint, Ms. Kirby alleged that petitioner unlawfully stopped her the morning of 22 September 2002 because she was ending their extramarital affair. In response to Ms. Kirby’s complaint, the Patrol’s Director of Internal Affairs, Captain C. E. Moody (“Capt. Moody”), initiated an internal investigation and assigned First Sergeant Ken Castelloe, now Captain Castelloe (“Capt. Castelloe”), to conduct the investigation. Capt. Castelloe conducted interviews of Ms. Kirby and petitioner as part of the investigation. During Ms. Kirby’s interview on 29 October 2002, Ms. Kirby described the alleged unlawful stop and further alleged that she and petitioner had engaged in an on-again, off-again extramarital affair spanning fifteen (15) years. Ms. Kirby alleged that during the affair she had sex with petitioner on numerous occasions while petitioner was on duty, including in every patrol vehicle petitioner was issued during their relationship and in the Alexander County Highway Patrol Office. Ms. Kirby also alleged that she traveled to various locations where petitioner was assigned to work in order to spend nights with him. Petitioner contested the allegations in his interview on 15 November 2002. Petitioner denied unlawfully stopping Ms. Kirby on 22 September 2002 and refuted the extent of their sexual relationship. However, petitioner admitted having an on-again, off-again extramarital affair and to having sexual relations with Ms. Kirby in his patrol car, behind his patrol car, and in the Alexander County Highway Patrol office. Petitioner was never asked whether the sexual relations occurred while he was on duty, and petitioner further asserts that the sexual relationship occurred off duty. But, in each instance petitioner was in uniform. Capt. Castelloe submitted the results of his investigation on 20 January 2003. After reviewing the investigation, Capt. Moody recommended by memorandum dated 28 July 2003 that petitioner’s employment be terminated for unacceptable personal conduct. Major Munday, Director of Professional Standards, disagreed with Capt. Moody’s dismissal recommendation and instead recommended that petitioner receive a ten-day suspension without pay. Major Munday’s recommendation was forwarded to Colonel Holden (“Col. Holden”). Col. Holden considered a ten-day suspension without pay to be inappropriate and directed Capt. Moody to conduct a pre-dismissal conference. Petitioner was notified of the pre-dismissal conference on 4 August 2003. The pre-dismissal conference was held 11 August 2003. Following the pre-dismissal conference, petitioner submitted a letter to Col. Holden on 14 August 2003 requesting a meeting and received a reply by email the following day informing him that Col. Holden could not meet with him. However, after reviewing the transcript of the pre-dismissal conference, Col. Holden ordered a followup interview with petitioner to address concerns raised by the pre-dismissal conference. Capt. Castelloe conducted the follow-up interview on 3 September 2003. On 4 September 2003, Col. Holden issued a memorandum to Major Munday instructing him to dismiss petitioner and prepared the Personnel Charge Sheets upon which petitioner was dismissed. Petitioner appealed the decision internally. On 9 October 2003, the Employee Advisory Committee recommended the decision to terminate petitioner be reversed and that petitioner be reinstated with back pay and be given a ten-day suspension without pay. On 23 October 2003, Secretary Beatty declined the recommendation of the Employee Advisory Committee and affirmed petitioner’s termination from the Patrol. Petitioner timely filed a Petition for Contested Case Hearing with the Office of Administrative Hearings on 5 November 2003. Petitioner alleged that he was discharged without just cause, his discharge constituted disparate treatment, and false and misleading information was included in his personnel file in violation of N.C. Gen. Stat. § 126-25 (2003). A Contested Case Hearing began 19 March 2007 and concluded 22 March 2007, Administrative Law Judge Melissa Lassiter (the “ALJ”) presiding. On 17 September 2007, the ALJ issued her Decision finding that petitioner had engaged in unacceptable personal conduct, but that respondent lacked just cause to terminate petitioner due to disparate treatment. As a result, the ALJ recommended that petitioner’s termination from employment be reversed and that petitioner be reinstated and disciplined at a level less than dismissal. The State Personnel Commission (the “SPC”) considered the matter at its 13 December 2007 meeting and issued its Final Agency Decision on 7 February 2008. The SPC rejected the decision of the ALJ and affirmed petitioner’s termination. Petitioner filed a petition for review in Wake County Superior Court on 5 March 2008. On 20 April 2011, the superior court judge issued an Order adopting the findings of fact and conclusions of law of the SPC’s Final Agency Decision with several additional conclusions of law. Petitioner now appeals from the superior court’s Order. II. Analysis • On appeal, petitioner raises the following issues: Whether the trial court erred in: (1) determining there was just cause for termination of petitioner’s employment; (2) failing to address and correctly decide petitioner’s claim of arbitrary and capricious personnel actions; (3) failing to credit petitioner with undisputed facts and adopting erroneous findings of fact; (4) finding that a violation of the State Personnel Act (the “SPA”) was subsequently cured and petitioner was only entitled to limited back pay for the violation; and (6) failing to impose a just and equitable remedy. Standard of Review “When reviewing a superior court order concerning an agency decision, we examine the order for errors of law.” Warren v. Dep’t of Crime Control & Pub. Safety,_N.C. App._,_, 726 S.E.2d 920, 922 (2012) (citing ACT-UP Triangle v. Comm’n for Health Servs. of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)). “The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” ACT-UP, 345 N.C. at 706, 483 S.E.2d at 392 (internal quotation marks and citation omitted). In reviewing a final decision in a contested case in which an administrative law judge made a decision ... and the agency does not adopt the administrative law judge’s decision, the [superior] court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency’s final decision. The court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record. N.C. Gen. Stat. § 150B-51(c) (2003). Just Cause for Termination Petitioner first contends that the superior court erred in determining that his employment was terminated for just cause. We disagree. The SPA requires that just cause exist for the termination of a career State employee, such as petitioner. N.C. Gen. Stat. § 126-35. Under the North Carolina Administrative Code (the “Administrative Code”), there are two bases for termination of employees for just cause under N.C. Gen. Stat. § 126-35, unsatisfactory job performance and unacceptable personal conduct. 25 NCAC lJ.0604(b). In the present case, we address unacceptable personal conduct. Our recent decision in Warren,_N.C. App._, 726 S.E.2d 920, requires a three-prong inquiry to determine whether just cause exists to terminate a career state employee for unacceptable personal conduct. The proper analytical approach is to first determine whether the employee engaged in the conduct the employer alleges. The second inquiry is whether the employee’s conduct falls within one of the categories of unacceptable personal conduct provided by the Administrative Code. Unacceptable personal conduct does not necessarily establish just cause for all types of discipline. If the employee’s act qualifies as a type of unacceptable conduct, the tribunal proceeds to the third inquiry: whether that misconduct amounted to just cause for the disciplinary action taken. Just cause must be determined based “upon an examination of the facts and circumstances of each individual case.” Id. at_, 726 S.E.2d at 925 (quoting N. C. Dep’t of Env’t and Natural Res. v. Carroll, 358 N.C. 649, 669, 599 S.E.2d 888, 900 (2004)). We address each of these inquiries in order. As to the first inquiry, whether petitioner engaged in the alleged conduct, the Patrol alleged that petitioner engaged in a long-term extramarital affair and that, over the years, petitioner had sexual relations with Ms. Kirby in his assigned Patrol cars and in the Alexander County Highway Patrol Office while on duty. Although petitioner denied that his relationship with Ms. Kirby was a long-term extramarital affair, petitioner admitted to having an on-again, off-again extramarital affair with Ms. Kirby and admitted to specific instances of sexual relations with Ms. Kirby, including sex in a Patrol car, sex behind a Patrol car, and sex in a Patrol office. The only dispute as to the alleged misconduct is whether the misconduct occurred when petitioner was on duty or off duty. Petitioner strongly contends that he was never on duty when he had sexual relations with Ms. Kirby. This contention is based on the Patrol’s use of radio codes to check in for duty. On the other hand, respondent has presented evidence that a Patrol officer is “considered to be on duty when wearing the uniform . . . .’’N.C. Highway Patrol Policy Manual, Directive P.l. Further, Capt. Castelloe testified that he understands the Patrol’s policy to be that a Patrol officer is on duty when in uniform and using Patrol facilities because the Patrol officer is representing the Patrol. After reviewing the record, we find the distinction between on duty and off duty based on the Patrol’s radio codes to be of little significance in this case where petitioner was in uniform and the use of patrol facilities is so intertwined with the acts of misconduct. Furthermore, we find respondent’s argument persuasive that if any member of the public would have witnessed petitioner’s misconduct, where petitioner was in uniform and using patrol facilities, they would assume that petitioner was on duty to the detriment of the Patrol’s reputation. Thus, in concluding the first inquiry, petitioner engaged in the alleged acts. In regard to the second inquiry, whether petitioner’s conduct falls within one of the categories of unacceptable personal conduct provided in the Administrative Code, unacceptable personal conduct is defined to include “conduct unbecoming a state employee that is detrimental to state service[.]” 25 NCAC 1J.0614(i)(5). In this case, we agree with the unchallenged findings of the ALJ, SPC, and superior court that petitioner’s conduct is clearly conduct unbecoming of a state employee that is detrimental to state service. Here, “[p]etitioner failed to conduct himself in a manner to reflect most favorably on the Highway Patrol, and in keeping with the high standards of professional law enforcement, and was a discredit to himself and the Patrol.” The determinative third inquiry in this case is “whether [petitioner’s] misconduct amounted to just cause for the disciplinary action taken.” Warren, _N.C. App. at_, 726 S.E.2d at 925. In Warren, this Court noted that this inquiry accommodates the Supreme Court’s flexibility and fairness requirements announced in Carroll through a balancing of the equities. Id. (referencing Carroll, 358 N.C. at 669, 599 S.E.2d at 900 (“Just cause, like justice itself, is not susceptible of precise definition. It is a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case.”) (internal quotation marks omitted). Here, petitioner argues that his misconduct did not amount to just cause for termination as a result of the Patrol’s selective enforcement of personnel policies and disparate treatment in discipline. We disagree. Petitioner cites various examples of misconduct by Patrol officers for which the Patrol officers were disciplined at levels less than termination. In doing so, petitioner argues that principles of commensurate discipline must be applied in this case. After reviewing the record, we acknowledge and find it inexplicable that some Patrol officers were not terminated for similar misconduct, and in some instances more egregious, than that of petitioner. However, we will not shackle the Patrol to the worst personnel decisions that they have made. A complete review of the record reveals that officers were terminated for misconduct similar to that of petitioner based on complaints filed around the time the complaint against petitioner was filed. We find it particularly relevant that Patrol Officer Silance was dismissed for an ongoing extramarital affair while on duty based on a complaint filed 30 August 2002, less than two months prior to the complaint filed against petitioner. Furthermore, numerous complaints were filed within the year following the complaint against petitioner that resulted in dismissal or resignation or retirement in lieu of an investigation or dismissal for sexual misconduct similar to that of petitioner. Therefore, the superior court did not err in affirming petitioner’s termination for just cause where the superior court properly addressed petitioner’s arguments of selective enforcement of personnel policies and disparate treatment in discipline as part of the just cause analysis by adopting the SPC’s finding that “[Respondent failed to fire a few Troopers whose conduct was egregious enough to warrant dismissal. [But] [t]he preponderance of the evidence, demonstrates . . . that the Highway Patrol has . . . dismissed Troopers for engaging in on-duty sex.” Petitioner additionally argues that the Patrol’s non-compliance with its own agency rules constitutes a lack of just cause and governmental arbitrariness such that petitioner’s termination cannot stand. While petitioner is correct that the respondent must follow its own rules, see U.S. v. Heffner, 420 F.2d 809, 811 (4th Cir. 1969) (“An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down.”), petitioner has failed to identify the rules that were not followed. Instead, petitioner, without providing evidence, makes seven general assertions that the Patrol’s personnel rules were not followed. Because petitioner has failed to argue which rules were not followed, we do not address the argument. For the reasons discussed, the superior court did not err in finding that just cause existed to support petitioner’s termination from the Patrol where petitioner engaged in the alleged conduct constituting unacceptable personal conduct and where other Patrol officers have been terminated for similar misconduct. Arbitrary and Capricious Personnel Actions Petitioner also contends that the superior court erred as a matter of law in failing to address and correctly decide his claim of arbitrary and capricious personnel actions. We disagree. After determining that petitioner committed the alleged acts of misconduct, that the misconduct qualifies as unacceptable personal conduct, and that the misconduct amounted to just cause for termination, it follows that petitioner’s termination was not arbitrary or capricious. Further, we find that the SPC’s Conclusions of Law 12 and 16, adopted by the superior court, specifically address petitioner’s claim of arbitrary and capricious personnel actions. These conclusions state: 12. In this case, the preponderance of the evidence established that the punishment imposed was within the range of punishment imposed in other cases involving similar conduct. Additionally, the conduct of Petitioner, a sworn law enforcement officer, was particularly egregious such that any reasonable officer could expect to be dismissed. Accordingly, Respondent did not act arbitrarily or capriciously when it dismissed Petitioner. 16. While there might have been mistakes made during the internal process within the a

Maria Lahbibi Ryan vs. Holie Donut, Inc. No. 11-P-1403. Suffolk. March 8, 2012. - October 15, 2012. Present: Katzmann, Sikora, & Agnes, JJ. Practice, Civil, Motion to dismiss. Employment, Retaliation, Sexual harassment, Termination. Anti-Discrimination Law, Sex, Termination of employment. Administrative Law, Exhaustion of remedies. Massachusetts Commission Against Discrimination. Superior Court, Jurisdiction. In a civil action brought by a plaintiff against her employer alleging common-law wrongful termination in violation of a public policy supporting the report of unlawful conduct to law enforcement authorities (here, that she had been sexually assaulted on multiple occasions by a customer of her employer who was an on-duty police officer), the Superior Court judge properly granted the employer’s motion to dismiss, where the claim alleged, in substance, retaliation for the plaintiff’s opposition to her employer’s tolerance of a sexually hostile work environment, within the operation of G. L. c. 151B, § 4(16A), and therefore fell within the statutory jurisdiction of the Massachusetts Commission Against Discrimination, to which the plaintiff had failed to submit an administrative complaint within 300 days of her termination, as required by G. L. c. 151B, § 5. [635-641] Civil action commenced in the Superior Court Department on September 2, 2010. A motion to dismiss was heard by Geraldine S. Hines, J. Michael A. West for the plaintiff. Nancy A. Serventi for the defendant. Sikora, J. By a single-count complaint for damages, Maria Lahbibi Ryan alleged that the defendant, Holie Donut, Inc. (Ho-lie Donut), had fired her because she had complained to Holie Donut and to law enforcement authorities about a pattern of sexual harassment committed at her workplace by a local police officer. She claimed that the retaliatory discharge violated public policy supporting the report of unlawful conduct to authorities and constituted tortious wrongful termination. She appeals from a judgment of dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). A judge of the Superior Court concluded that, in substance, Ryan’s complaint alleged a claim of employer retaliation for her opposition to Holie Donut’s tolerance of a sexually hostile work environment, as prohibited by the antidiscrimination statute, G. L. c. 151B, § 4(4) (forbidding retaliation) and 4(16A) (forbidding sexually hostile work environment). The judge reasoned that the genuine character of the claim had required submission of an administrative complaint to the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the alleged misconduct as a statutory prerequisite for pursuit of any subsequent remedies, and that omission of the mandatory administrative complaint compelled dismissal of Ryan’s common-law action. For the following reasons, we affirm the judgment of dismissal. Background. Because we are reviewing a dismissal pursuant to Mass.R.Civ.R 12(b)(6), we credit hypothetically the allegations of the complaint. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 415 (1988). In 2003, Ryan began employment with Holie Donut, the holder of a Dunkin’ Donuts franchise shop in the city of Chelsea. During the course of her work at the shop, Chelsea police Officer Michael Morabito became a regular customer. The shop was located at 478 Broadway; Officer Mora-bito’s station house was located at 500 Broadway. When he patronized the store, Morabito was in uniform and on duty. According to the complaint, in 2006 Morabito began a course of conduct in which he (1) made sexually suggestive comments to Ryan, (2) made them in the presence of customers and other employees, (3) made sexual propositions to her, (4) made “sexually intimidating” comments to her, and (5) on one or more occasions “touch[ed] and sexually assaulted] ” her. The management and ownership of Holie Donut were aware of this behavior. Nonetheless, they did not report his conduct to any authorities and did not bar or limit his access to the shop. In early September of 2007, Ryan informed Holie Donut that she intended to report Morabito’s conduct to law enforcement authorities. The management discouraged that course and indicated that any “legal steps” would create “problems” for Holie Donut and Ryan. Also during the first half of that month, Morabito and at least one other police officer discouraged Ryan from taking any action. Ryan nevertheless “initiated steps to report the conduct” and “steps to protect herself” (unspecified in the complaint). Holie Donut then discharged her. Ryan brought the present common-law action for wrongful termination on September 2, 2010, almost three years later. Ho-lie Donut moved successfully for dismissal upon the ground that Ryan had failed to submit a prerequisite timely administrative complaint. This appeal ensued. Analysis. 1. Standard of review. Review of the allowance of a rule 12(b)(6) motion proceeds de nova. See Harhen v. Brown, 431 Mass. 838, 845 (2000); Housman v. LBM Financial, LLC, 80 Mass. App. Ct. 213, 216 (2011). To assess the legal sufficiency of the complaint, we take as true all factual allegations and any reasonable inferences from those allegations. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011); Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). The factual allegations, as a matter of both plausibility and law, must support an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Finally, the presence of allegations or information constituting a conclusive affirmative defense can spell the demise of a complaint. See, e.g., Bagley v. Moxley, 407 Mass. 633, 637-638 (1990) (application of issue preclusion); Daniel v. Contributory Retirement Appeal Bd., 418 Mass. 721, 722 (1994) (failure to exhaust administrative remedies); Babco Indus., Inc. v. New England Merchants Natl. Bank, 6 Mass. App. Ct. 929, 929 (1978) (applicability of statute of limitations). 2. Common-law claim of wrongful termination. Ryan characterizes her cause of action not as a specific allegation of discrimination, but rather as a generic claim of wrongful discharge beyond the coverage of the antidiscrimination provisions of G. L. c. 151B, § 4(4) and 4(16A). She describes Holie Donut’s dismissal of her as “retaliation for reporting a crime to law enforcement authorities, consisting of an assault to her person, perpetrated by an on-duty, uniformed and armed police officer while in an ‘off limits to the public’ area at the plaintiff’s place of employment.” To the same effect, she argues that “[germinating an employee for reporting a crime is not a practice that is expressly forbidden by any section of [G. L.] c. 151B. Such a termination is a common law tort, without a remedy articulated in [c.] 151B.” That view would place her dismissal within the tort of wrongful termination of an at-will employee. Even if “the employer does not gain a financial advantage, an at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.” DeRose v. Putnam Mgmt. Co., 398 Mass. 205, 210 (1986) (recognizing claim under Massachusetts common law). The public policy must be well defined, important, and preferably embodied in a textual law source. See Mello v. Stop & Shop Cos., 402 Mass. 555, 561 n.7 (1988); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472-476 (1992). A public policy violation arises, at the least, from a termination punishing an employee’s assertion of a legally guaranteed right, compliance with a legal requirement, or refusal to commit prohibited conduct. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). See also Hobson v. McLean Hosp. Corp., 402 Mass. at 416-417 (allegations of discharge for enforcing municipal and State law standards of patient supervision constitute claim); Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (wrongful termination can arise from circumstances in which company discharges employee for cooperation with customs officers’ investigation of employer even though employee had no legal duty to cooperate); Shea v. Emmanuel College, 425 Mass. 761, 762-763 (1997) (discharge of employee for reporting criminal wrongdoing within organization to superiors within organization would constitute actionable violation of public policy). In short, Ryan insists that the thrust of her complaint is not her discharge for reporting an experience of discriminatory sexual harassment in the workplace, but instead her discharge for reporting criminal activity (assaultive touching on one or more occasions) by an on-duty police officer to law enforcement officials; and that such a distinctive allegation falls outside the operation of G. L. c. 151B. We respect the contention that disclosure of misconduct, especially by on-duty law enforcement officers, serves a public purpose. However, two considerations defeat that argument in this instance: a realistic assessment of the complaint and the full reach of c. 15IB. 3. Allegations of the complaint. A full and balanced view of the complaint reveals a story of sexual harassment. The alleged events extended in a pattern for a year or more. They were predominantly verbal and open. “[0]ne or more” acts consisted of “touching and sexually assaulting” Ryan. The complaint does not elaborate upon the details of any physical contact or relate any contemporaneous report of it to law enforcement. It does state that at least one other police officer witnessed or knew about the misconduct, and that Holie Donut management witnessed or knew of the train of events. In full perspective, the assault by offensive touching would constitute the gravest element of a larger pattern of actionable sexual harassment. 4. Exclusivity of the remedies ofG. L. c. 151B. Section 4(16A) of G. L. c. 151B, inserted by St. 1986, c. 588, § 3, prohibits “an employer, personally or through its agents, to sexually harass any employee.” At least since 2002, the MCAD, in its Sexual Harassment in the Workplace Guidelines § III(C) (2002), has advised that “[a]n employer may ... be liable for the sexual harassment of its employees by certain non-employees, such as customers . . . when the employer knew or should have known about the conduct and failed to take prompt, effective and reasonable remedial action. . . . The greater the employer’s ability to control the non-employee’s conduct, the more likely it will be found liable for that person’s unlawful harassment.” In Modern Continental/Obayashi v. Massachusetts Commn. Against Discrimination, 445 Mass. 96, 105 (2005), the court expressly adopted that standard: “An employer who passively tolerates the creation of a hostile working environment implicitly ratifies the perpetrator’s misconduct and thereby encourages the perpetrator to persist in such misconduct. . . . Moreover acquiescence on the part of the employer effectively communicates to the victim of harassment that her employer does not care about the hostile environment in which she must work .... [A]n employer who is not part of the solution inevitably becomes part of the problem.” See Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 603-608 (2006) (public employer’s tolerance of employees’ homophobic abuse of coworker creates actionable hostile work environment). If an employer’s inaction in the face of sexual harassment and assault of an employee by a customer falls within the operation of § 4(16A), then all the more so would the employer’s attempt to suppress the employee’s efforts for a remedy. Under this standard, the allegations of Ryan’s complaint fall within the operation of § 4(16A). Section 5 of G. L. c. 15 IB authorizes complaints to the MCAD for remedies of compensatory damages, civil fines, and restraining orders. The complainant must file within 300 days of the alleged act of discrimination. Ibid. Section 9 of c. 15IB, as amended by St. 2002, c. 223, § 2, provides that the administrative proceeding “shall, while pending, be exclusive.” That section provides also that a claimant “may, at the expiration of ninety days after the filing of a complaint with the [MCAD], or sooner if a commissioner assents in writing,” bring a civil action for damages and injunctive relief in the appropriate Superior, Probate and Family, or Housing Court, and incur dismissal of the administrative complaint. In other words, the statute suspends, but does not extinguish, a claimant’s other causes of action. Decisions examining the relationship of the G. L. c. 15IB administrative complaint to common-law claims and other statutory causes of action involving discrimination have stated that commencement of a timely administrative complaint must precede any such common-law claim created after enactment of the statutory remedies now appearing in §§ 5 and 9. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994); Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985) (specifically observing that statutory rights and remedies predated recognition of common-law tort of wrongful discharge in Massachusetts). Occasional language has described the exclusivity and required exhaustion of the c. 15 IB administrative complaint process more categorically. See Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 430 (1987) (“In the absence of a timely complaint to the MCAD, there may be no resort to the courts”); Cherella v. Phoenix Technologies, Ltd., 32 Mass. App. Ct. 919, 919 (1992) (“Resort to the courts is not available for a complaint of discrimination within the jurisdiction of the MCAD unless the person claiming to have been the object of unlawful discrimination first makes a timely complaint to that agency”). Multiple reasons favor a required first resort to the administrative system afforded by G. L. c. 15IB. It furnishes a comprehensive remedial process designed to resolve claims of discrimination with fairness and efficiency for both the complainant and the respondent. Its administrative attributes include a reasonably prompt time limit (300 days) promoting notice to the respondent and the preservation of evidence by all parties, a neutral investigation and probable cause determination, and conciliation services, pursuant to § 5; compensatory damages, civil fines, restraining orders, and the award of reasonable attorney’s fees to deserving claimants, pursuant to § 9; and the cumulative institutional judgment of a specialized agency accustomed to distinguishing meritorious from unmeritorious grievances. See Charland v. Muzi Motors, Inc., supra at 583; Melley v. Gillette Corp., supra at 512-513; Windross v. Village Automotive Group, Inc., 71 Mass. App. Ct. 861, 863-864 (2008) (purpose of mandatory submission to MCAD process “is twofold: [1] to provide the MCAD with an opportunity to investigate and conciliate the claim of discrimination; and [2] to provide notice to the defendant of potential liability”). Those benefits of a calibrated legislative scheme offer distinct advantages against traditional litigation in trial courts of general jurisdiction upon multiple variant theories of statutory and common-law wrongdoing. Therefore, as a jurisdictional prerequisite, the complaint must pass first through the MCAD portal for the potential advantages of timeliness, efficiency, expertise, and negotiation. The statute maintains access to judicial review in the Superior Court under the standards of the Administrative Procedure Act, G. L. c. 30A, § 14(7), and, as noted, the option of withdrawal from the administrative process after ninety days for direct access to the courts. 5. Present circumstances. The allegations of Ryan’s complaint charge Holie Donut management not only with tolerance of a customer’s continuing sexual harassment of its employee, but also with deterrence of her efforts to seek help, and finally with retaliatory discharge of her for those eventual efforts. We acknowledge the peculiar circumstance alleged in this case: that the perpetrating customer was a member of the local police force often in the company of a second officer, and that one or more members of the police department may have inhibited management’s willingness to assist its employee. However, that circumstance would not relieve management of the duty to do so. A retail shop in the shadow of a police station does not possess an exemption from the duty of a reasonable effort to safeguard the security and dignity of its employees from sexual harassment by a police officer. As discussed at oral argument, an abuse of official authority would more properly intensify the employer’s duty to act. Because Ryan’s grievance fell within the statutory jurisdictian of the MCAD, she should have submitted an administrative complaint to the agency within 300 days of her retaliatory discharge, and not commenced a common-law action in the Superior Court almost three years later. She was not entitled to bypass the mandatory and preferred procedure. The omission creates a conclusive affirmative defense requiring dismissal. Judgment affirmed. The complaint does not identify the “authorities" to whom Ryan reported or complained. Other documents in the appellate record recite, without objection by either party, (1) that the Chelsea police department conducted an internal investigation, “sustained” Ryan’s complaint, and imposed unspecified discipline upon Officer Morabito; and (2) that Ryan received compensation of $8,121.62 for lost wages under the terms of the statute providing compensation to victims of violent crimes, G. L. c. 258C, administered by the Attorney General. The court surveyed comparable Federal case law and prescribed as a standard of liability the test whether the employer reasonably knew of the harassment and whether it made reasonable efforts to remedy it, whether completely successful or not. Modern Continental/Obayashi v. Massachusetts Comm. Against Discrimination, 445 Mass. at 108-109. In that instance, employees of a subcontractor harassed a female carpenter employed by Modem Continental/Obayashi, the construction general contractor. Modern Continental took reasonable steps, but not completely effective ones, to end the harassment. The court found its efforts reasonable and reversed the administrative decision of the MCAD imposing liability. Id. at 118. The same clause of § 9 adds that “the final determination on the merits shall exclude any other civil action, based on the same grievance of the individual concerned.” In 1965, the Legislature first broadly prohibited “discrimination in employment because of sex” by addition of “sex” as a forbidden basis for disparate “conditions ... of employment.” St. 1965, c. 379, § 4. The formal recognition of tortious wrongful discharge occurred in DeRose v. Putnam Mgmt. Co., 398 Mass. at 210, in 1986. As the court observed in Melley v. Gillette, 19 Mass. App. Ct. at 512, these features resemble the benefits attributed to the exhaustion of administrative remedies and promoted by the legislative requirement of a ninety-day interval at the agency. This category of customer would not fit comfortably within the employer’s range of “control,” but it would demand the employer’s reasonable effort to protect its worker and to fulfil the law. “Few institutions depend as heavily on integrity and credibility for the effective performance of their duties as do police departments.” Local 346, Intl. Bd. of Police Officers v. Labor Relations Commn., 391 Mass. 429, 439 (1984). As recounted above, see note 1, supra, the record indicates that the department investigated and sustained Ryan’s complaint and imposed discipline. The motion judge properly relied upon Melley v. Gillette Corp., 19 Mass. App. Ct. at 512-513, another instance in which a plaintiff omitted the administrative process and filed an action for wrongful discharge in the Su

WURTZ v BEECHER METROPOLITAN DISTRICT Docket No. 301752. Submitted March 13, 2012, at Detroit. Decided October 2, 2012, at 9:05 a.m. Leave to appeal granted, 494 Mich 862. Richard L. Wurtz brought an action under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., in the Genesee Circuit Court against Beecher Metropolitan District, Leo McClain, Jacquelin Corlew, and Sheila Thorn. On February 1, 2000, plaintiff signed a 10-year employment contract with the district, which provided water and sewage services in Genesee County. Plaintiff alleged that defendants violated the WPA when they decided not to renew his contract after he engaged in activities that amounted to whistleblowing during 2008 and 2009. The individually named defendants were three of the five elected board members for the district during the relevant period. Defendants moved for summary disposition under MCR 2.116(0(10), asserting that plaintiff had not suffered an adverse employment action and that the district had no obligation to renew his contract. The court, Judith A. Fullerton, J., granted summary disposition in favor of defendants concluding that plaintiff had not suffered an adverse employment action. Plaintiff appealed. The Court of Appeals held.-. 1. The elements of a prima facie case under the WPA are well established: (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action. Under the act, protected activity includes reporting to a public body a violation of a law, regulation, or rule. Plaintiff engaged in protected activity under the act when he reported to the local prosecutor and other governmental entities that he suspected that defendants had violated the Open Meetings Act, MCL 15.261 et seq., and when he met with members of the sheriffs office to report that he believed the individual defendants had acted illegally with regard to reimbursements they had claimed for attending an American Water Works Association conference in San Diego. For an employer’s action to amount to an adverse employment action, the action must he materially adverse, meaning that it must be more than a mere inconvenience or an alteration of job responsibilities. Nonrenewal of an employment contract may constitute an adverse employment action under the WPA. To hold otherwise would be to carve an arbitrary distinction between contractual and at-will employees. Accordingly, the trial court erred by granting summary disposition in favor of defendants on that basis. 2. Summary disposition before the close of discovery is appropriate if there is no reasonable chance that further discovery will result in factual support for the nonmoving party. However, summary disposition is inappropriate when questions of motive, intention, or other conditions of the mind are material issues. Whether nonrenewal of a contract amounts to an adverse employment action in a particular instance will depend on the circumstances of the case. In this case, summary disposition was premature. Plaintiff was not given an adequate opportunity to develop a record regarding whether the nonrenewal of his contract was an adverse employment action. Plaintiff had submitted a discovery request for documents concerning whether other contractual employees had their contracts renewed. Whether other employees’ contracts were renewed pro forma was relevant to whether plaintiff’s contract was not renewed because of his whistleblowing activity. Further, questions of material fact remained regarding when the district decided not to renew plaintiff’s contract. Summary disposition was also improper because the motivation for defendants’ decision not to renew plaintiff’s contract was at issue. Reversed and remanded. K. F. Kelly, J., dissenting, would have affirmed the decision of the trial court. The WPA requires the existence of an employment relationship; its protections do not extend to cover former employees who seek reemployment, to preemployment negotiations, or to the refusal to hire. By plaintiff’s own admission, defendants scrupulously adhered to the terms of his contract. Absent a contractual obligation or legal duty to consider an extension or renewal of an employment contract, a cause of action under the WPA is unavailing when a contractual employee finishes a fixed-term contract. Because plaintiff was not an employee under the act after his contract was fulfilled, he did not suffer an adverse employment action. Because no additional amount of discovery would have assisted plaintiff in developing his case, the trial court correctly granted summary disposition in favor of defendants. Labor Relations — Whistleblowers’ Protection Act — Adverse Employment Actions — Nonrenewal of an Employment Contract. The elements of a prima facie case under the Whistleblowers’ Protection Act are (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action; under the act, protected activity includes reporting to a public body a violation of a law, regulation, or rule; for an employer’s action to amount to an adverse employment action, the action must be materially adverse, meaning that it must be more than a mere inconvenience or an alteration of job responsibilities; nonrenewal of an employment contract may constitute an adverse employment action under the act; whether nonrenewal of a contract amounts to an adverse employment action in a particular instance will depend on the circumstances of the case (MCL 15.361 et seq.). Charles A. Grossmann for plaintiff. Landry, Mazzeo & Dembinski, EC. (by David B. Landry and Nancy V. Dembinski), for defendants. Before: WHITBECK, EJ., and JANSEN and K. E KELLY, JJ. JANSEN, J. Plaintiff appeals by right an order granting summary disposition to defendants in this action under the Whistleblowers’ Protection Act (WPA). We reverse and remand for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY This case pertains to the last two years of plaintiffs employment with Beecher Metropolitan District. The district provides water and sewage services to approximately 4,000 residential and commercial customers near Flint. The three individually named defendants, McClain, Corlew, and Thorn, were three of five elected board members for the district at all times relevant to this case. On February 1, 2000, plaintiff signed an employment contract with the district. The contract provided that the district would employ plaintiff from February 1, 2000, until February 1, 2010, as the district’s administrator. The parties do not dispute that plaintiff was employed for the full 10-year period under the contract, nor do the parties dispute that plaintiff received all compensation to which he was entitled under his contract. Rather, plaintiff alleges that he was discriminated against under the WPA when defendants decided to not renew his contract. Plaintiff alleges that, over the course of a two-year period, he engaged in activities that amounted to whistleblowing under the WPA, and that his contract was not renewed as a consequence of his whistleblowing activity. A. 2008 In May 2008, plaintiff sent a letter to the Genesee County Prosecutor, the Genesee County Sheriff, and the Mt. Morris Township police chief. The letter alleged that McClain, Corlew, and Thorn had violated the Open Meetings Act (OMA). Specifically, the letter claimed that plaintiff, in his capacity as administrator, had received a billing statement from an attorney indicating that on April 2, 2008, the attorney had met privately with board members McClain, Corlew, and Thorn. Plaintiff, in his letter, inferred that, because this attorney had no existing arrangement with the district, “a majority of the [board] had met privately . .. [with the attorney] to discuss public business.” The letter noted that the board had later voted to hire the attorney. The letter also claimed that the attorney, along with McClain, Corlew, and Thorn, had “attended a... union negotiating session. Neither [plaintiff], nor any other staff, nor the other 2 members of the Board, knew anything in advance about this meeting, which was not scheduled as a special meeting with the appropriate 18-hour notice to the public.” Plaintiff alleged that, because the April 2 meeting and the subsequent union negotiating session were private meetings involving a majority of the board, those meetings violated the OMA. It is unclear whether the sheriff or police chief responded to the letter, but David Leyton, the Genesee County Prosecutor, did. He wrote that criminal prosecution was but one remedy for OMA violations and that he did not believe that the events described by plaintiff warranted criminal investigation. The prosecutor accordingly did not act on plaintiffs letter. B. 2009 In January 2009, plaintiff sent a memorandum to McClain, the board president, proposing an extension and alteration of his employment contract. Plaintiff recommended that the district extend his employment to August 1, 2012, and reduce his salary and benefits, which would save the district about $33,000. At its February 11, 2009 meeting, the board told plaintiff that he could present the amended contract to the board, but at its March 11, 2009 meeting, a motion to have “[plaintiff] draw up an employment agreement with [the board’s attorney]” failed; McClain, Corlew, and Thorn voted against the motion. In May 2009, plaintiff expressed disapproval, in a memorandum sent to the board, about the possible expense to taxpayers of the board members’ upcoming trip to San Diego for the American Water Works Association (AWWA) conference. Plaintiff noted that the trip was projected to cost taxpayers $29,000, which included trips for the board members to Sea World and the San Diego Zoo. Moreover, the board members were apparently planning on driving to San Diego for the conference; plaintiff noted that “if gas mileage is given [for the board members to drive], as previously requested, that amounts to over $11,000.00, whereas members can fly from Bishop Airport. . . for $280.00 round trip .... Another $4,000.00 could be saved for food and lodging for the nearly ten days requested for travelling [by car].” Plaintiffs memorandum requested that the board pass resolutions detailing the method of compensation for travel, and recommended that the board members be reimbursed only for the price of airfare even if they opted to drive to the AWWA conference. On July 8, 2009, plaintiff asked the board to hold a special meeting to discuss the possibility of “mutually discontinuing]” their relationship, and an attempt at that meeting was held on July 15, 2009. Plaintiff, however, refused to meet with the board because the board had its attorney present for the meeting, and plaintiff interpreted the attorney’s presence as a breach of the “gentlemen’s understanding” that the meeting would be an open dialogue between the board and plaintiff only. Plaintiff indicated that he was “frustrated” with the board, but wanted to continue his employment with the district and expressed his desire to do so. In August 2009, after the AWWA conference, plaintiff met with members of the Genesee County Sheriffs Office to discuss his belief that the board members had acted improperly or illegally regarding reimbursements for their trip to the AWWA conference. For example, plaintiff was concerned that the board members had gone to the San Diego Zoo, Sea World, and lavish dinners with family and friends, all at taxpayer expense. Additionally, plaintiff told the sheriffs office that four of five board members actually flew to San Diego, but had reported that they drove, accordingly receiving an amount of per diem compensation and reimbursement for mileage that they were not entitled to claim. Following defendant’s meeting with the sheriffs office, a criminal investigation of the board members ensued. At least one article about the board members’ reimbursements from the AWWA conference appeared in the Flint Journal. Public attendance at board meetings increased, and at those meetings members of the public began openly questioning board members about their travel expenses. On November 11, 2009, Thorn made a motion to not extend plaintiffs employment contract beyond its expiration and to begin looking for a new administrator. The motion passed the board three votes to two. McClain, Corlew, and Thorn voted in favor of the motion. C. 2010 Plaintiffs last day of employment with the district was January 31, 2010. On January 19, 2010, plaintiff filed a complaint alleging that defendants had violated the WPA by not renewing his employment contract; plaintiff alleged that the board’s decision to not renew his contract was retaliation for his reporting suspected violations of, inter alia, the OMA, the Freedom of Information Act, and other Michigan statutes. On October 18, 2010, plaintiff served defendants with a request for production of employment contracts and records. Among other things, plaintiff asked for “the written contracts . . . [of] non-union employees who were employed anytime with the District between 1990 to the present.” Defendants did not produce these documents. On November 15, 2010, defendants filed a motion for summary disposition under MCR 2.116(C)(10), in which they argued that plaintiff did not suffer an adverse employment action because “there is no evidence that Defendants discharged, threatened, or discriminated against the Plaintiff regarding his compensation, terms, conditions, location or privileges of employment.” In any case, defendants argued, the board had no obligation to renew plaintiffs contract. Defendants also argued that the board’s decision to not renew plaintiffs employment contract was made for the first time in March 2009, well before any of the events surrounding the AWWA conference and reimbursements. That decision, according to defendants, was merely “reiterated” in November 2009, when the board formally voted to not renew defendant’s employment. Concurrent with the time frame of this case, the criminal case against the board members, including McClain, Corlew, and Thorn, related to the AWWA conference expenses and reimbursements, continued. The trial judge dismissed the charges against McClain, and a jury returned verdicts of not guilty in favor of Corlew, Thorn, and the other board members. In its response to defendants’ summary disposition motion, plaintiff argued that summary disposition was premature because at the time he served them with discovery requests, the criminal case against McClain, Corlew, and Thorn was still pending, and “the individual Defendants. . . exercised their 5th Amendment rights” and did not respond to discovery requests. Plaintiff asserted that “[n]ow, the Defendants, after taking the Plaintiffs deposition, but not allowing their own, [are] refusing to provide the requested information . . . .” The trial court granted defendants’ motion for summary disposition on December 6, 2010. After noting that whether nonrenewal of an employment contract amounts to an adverse employment action under Michigan law appears to be an issue of first impression, the trial court explained: [I]n this case the contract for the plaintiff did expire in February of TO — February 1. And despite the activities that took place earlier in the year of reporting by [plaintiff] to a public body and public officials ... everything from the [Flint] Journal [newspaper] to the sheriffs department and the prosecutor, the Board, and I’m surprised it happened, let him stay on to February 1 of TO. And so I find there’s no adverse employment action by the District and that summary disposition should be granted and I grant it. Plaintiff now appeals by right. II. STANDARD OF REVIEW “This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. In making this determination, the Court reviews the entire record to determine whether defendant was entitled to summary disposition.” A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties ... in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.[] “Whether a plaintiff has established a prima facie case under the WPA is a question of law subject to review de novo.” III. ANALYSIS The elements of a prima facie case under the WPA are well established: “(1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action.” The parties do not dispute that the first element of the prima facie case is satisfied here. In May 2008, plaintiff reported to the local prosecutor and other governmental entities that he suspected that defendants had violated the OMA; in August 2009, plaintiff met with members of the sheriffs office to report that he believed defendants had acted illegally with regard to the AWWA conference reimbursements. The WPA defines “protected activity” as, among other things, “ ‘reporting to a public body a violation of a law, regulation, or rule . . . .’ ” Accordingly, plaintiffs actions amount to a “protected activity” under the WPA. Defendants focus their argument on the second element of the prima facie case, arguing that plaintiff was a contractual employee, and the failure to renew his contract was not, and could not be, an adverse employment action because plaintiff had no expectation of employment after the expiration of his contract, the terms of which were fulfilled. Michigan courts have defined “adverse employment action” in the context of Michigan’s Civil Rights Act (CRA) and in the WPA context. Those definitions are identical. In both contexts, for an employer’s action to amount to an adverse employment action, the action must be “materially adverse,” meaning that it must be more than a “mere inconvenience or an alteration of job responsibilities . . . .” This definition of “adverse employment action” initially arose in federal courts, in the context of federal workplace discrimination laws, and was eventually adopted by Michigan courts for purposes of the CRA and the WPA. Michigan courts have also suggested that, in the CRA context, the nonrenewal of an employment contract may amount to an adverse employment action, although no Michigan case addresses the issue squarely. There are no Michigan cases interpreting the WPA that address the issue at all. “Though not binding on this Court, federal precedent is generally considered highly persuasive when it addresses analogous issues. In the context of discrimination cases, federal precedent may be consulted for guidance.” Accordingly, because the WPA’s definition of “adverse employment action” derives from the federal courts’ interpretation of the same term as used in federal discrimination laws, we turn to the federal courts for guidance regarding whether non-renewal of a contract may amount to an adverse employment action. This issue was addressed directly by the United States Court of Appeals for the Second Circuit in Leibowitz v Cornell University. In Liebowitz, the plaintiff, a 51-year-old female university professor, accepted an early retirement package after her employer did not offer

Michael S. O’Brien vs. Massachusetts Institute of Technology & others. No. 11-P-45. September 25, 2012. Handicapped Persons. Anti-Discrimination Law, Handicap, Termination of employment. Employment, Discrimination, Termination, Retaliation. A Superior Court judge awarded summary judgment in favor of Michael S. O’Brien’s former employer, the Massachusetts Institute of Technology (MIT), on his handicap discrimination and retaliation claims. The judge ruled that O’Brien’s claims failed because he had no reasonable expectation of establishing essential elements of his case. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). On count 1 (handicap discrimination), the judge ruled that O’Brien could not establish that he is a handicapped person within the meaning of G. L. c. 15 IB (the statute), and that even if he could establish his handicapped status, he would not be able to meet his burden of showing that the reasons given for his discharge were a pretext. On count 2 (retaliation), the judge found that O’Brien could not establish that he experienced adverse employment actions prior to his discharge, and that the discharge itself was too remote from the protected activity (a complaint to the United States Department of Labor) to establish a causal connection. Jack R. Stark and Donald J. O’Mara. O’Brien appeals, claiming that he presented sufficient evidence to send his case to a jury. With respect to O’Brien’s discrimination and retaliation claims against MIT, and viewing the record in the light most favorable to O’Brien, see Lyons v. Nutt, 436 Mass. 244, 245 (2002), we agree. This is not to say that MIT in fact discriminated or retaliated against O’Brien. That is a question for the jury on which we express no opinion. We hold only that the evidence is sufficient to raise genuine issues of material fact that preclude the award of summary judgment on counts 1 and 2. 1. Background. O’Brien worked at MIT’s central utility plant (CUP) as a second-class engineer for approximately ten years, starting in 1997. Given the nature of the GUP’s operations, engineers are expected to work overtime. Throughout his employment, O’Brien suffered from pain in his back and legs. He underwent two surgeries: in 2003, he had surgery on both legs, and in November, 2004, he had spinal surgery. Neither surgery was successful, and O’Brien continued to experience pain. In February, 2005, after his second surgery, O’Brien provided MIT with a letter from his surgeon explaining that because of continued pain, O’Brien’s ability to work overtime was limited. O’Brien subsequently tried repeatedly to obtain sick leave under the Family and Medical Leave Act (FMLA) and an accommodation that would excuse him from working overtime. These requests were accompanied by doctors’ notes stating, inter alla, that O’Brien had chronic leg pain “that disrupts his sleep”; that he “likely [would] miss work 1-2 days per month”; that he had a neurological condition made worse by working long hours and that it was “important for his long term health that he not be required to work overtime”; and that he had lower extremity neuropathic pain, spinal stenosis, and lumbar radiculopathy, with “[bjuming pain [in] both lower legs that worsens after prolonged standing hence limiting time on feet.” MIT rejected each request, generally stating that the medical documentation submitted “did not describe circumstances that would entitle [him] to leave under FMLA,” and requesting that he submit additional forms and documentation. In September, 2006, while O’Brien’s request that he not work overtime was pending, one of his supervisors, Jack Stark, commented to another manager that he could not wait until the day he could fire O’Brien. In November, 2006, after O’Brien’s request for an accommodation was formally denied, he filed a complaint with the United States Department of Labor (department). On April 11, 2007, as a result of negotiations with the department, MIT provisionally approved FMLA leave “due to a serious medical condition.” In December, 2006, while O’Brien’s complaint with the department was pending, another supervisor, Donald O’Mara, sent an internal electronic mail message (e-mail) strongly opposing an accommodation for O’Brien on the ground that it would set a precedent. The e-mail stated, “I have no interest whatever in accommodating [O’Brien] at all.” As we have noted, O’Brien first informed MIT that his medical condition affected his ability to work overtime in the beginning of 2005. Prior to that time, during his first eight years of employment, the only disciplinary action involving O’Brien was a single warning he received in January, 2002, for improperly closing a damper. However, following his first request to be excused from working overtime until his employment was terminated in September, 2007, O’Brien received a number of verbal and written warnings and was suspended for a variety of infractions, including insubordination, failing to complete assignments, leaving his post without proper coverage, and abuse of MIT’s sick leave policy. A fellow worker, John Spinosa, submitted an affidavit stating that O’Mara and Stark “appeared to have two different sets of standards for performance in the CUP. One set of standards for . . . O’Brien and the other set of standards ... for the rest of the workforce,” and that he had “personally observed much of this discriminatory treatment.” As to the termination of O’Brien’s employment, there is no dispute as to the following. On September 8, 2007, O’Brien was assigned to work a twelve-hour shift, from 6:00 a.m. to 6:00 p.m. At some point in the early afternoon, he was asked to start CUP chiller number one. During the “slow-roll” start-up process, O’Brien left the CUP to retrieve his truck in a nearby lot, bringing it back to the parking lot next to the CUP. He then washed the truck and a kayak attached to the truck’s roof, drove the truck to a parking garage, and returned to the CUP. At the end of his shift, O’Brien left for a scheduled two-week vacation. Upon his return, O’Brien was informed by letter that his employment was terminated for “unacceptable” conduct in connection with having abandoned his post and for other disciplinary concerns. Spinosa’s affidavit stated that it was common practice to leave the chiller during the slow-roll process because the equipment did not need constant monitoring at that point, and that he was not aware of any discipline imposed on any other engineer for that behavior during his twenty-five years at CUP. 2. Discussion. a. Count 1 — handicap discrimination, i. Handicap status. To establish that he is handicapped within the meaning of G. L. c. 15IB, O’Brien must show that (1) his “condition, actual or perceived, constitutes a mental or physical ‘impairment’[;]... [2] the life activity curtailed constitutes a ‘major’ life activity as defined in G. L. c. 151B, § 1(20), and its accompanying regulations^] . . . and [3] ‘the impairment substantially limit[s] the major life activity’ ” (citations omitted). New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 (2003). There is sufficient evidence on each prong to preclude summary judgment. First, there clearly is evidence that O’Brien’s chronic pain constitutes a physical impairment. Second, there is evidence in the record demonstrating that this impairment limits at least two major life activities, sleep and work. Third, a jury could conclude that these major life activities are substantially limited by O’Brien’s impairment. The question whether an impairment substantially limits an individual’s ability to sleep as compared to the ability of the average person in the general population “requires an individual, case-by-case assessment.” Shedlock v. Department of Correction, 442 Mass. 844, 852 (2004). In his deposition, O’Brien testified that there were weeks when he would sleep only “one or two hours a night, three or four hours a night for a week or two . . . depending] on how many days in a row [he] had to work, what shifts [he] had to work.” He would sometimes go for days with only four hours of broken sleep. Also, O’Brien’s doctor noted that O’Brien “continues to have leg pain that disrupts his sleep” and he “will likely have exacerbations that require missing work intermittently.” If the jury were to credit this evidence, they could conclude that O’Brien’s ability to sleep is substantially limited in comparison to the average person. See ibid. A limitation on work is “substantially limiting]” for purposes of G. L. c. 151B when the impairment “prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 639 (2004). Given the evidence in the record, and the broad range of jobs in the Commonwealth that require overtime, the question whether O’Brien is substantially limited in his ability to work is, again, one for the jury.»» ii. Pretext. Next, we consider whether MIT has proffered legitimate nondiscriminatory reasons for terminating O’Brien, and, if so, whether O’Brien could meet his burden of establishing that the reasons given were a pretext. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997). It may, in fact, be true that O’Brien was terminated for leaving his post during the slow roll of chiller number one. Here, however, there is direct evidence of serious resistance by MIT to O’Brien’s request to be excused from working overtime due to his medical condition, and to his applications for leave under the FMLA and for reasonable accommodation. O’Mara’s internal e-mail and Stark’s comment about wanting to fire O’Brien raise a jury question whether MIT’s proffered reason is in fact why O’Brien was terminated or whether, instead, it is a pretext, and O’Brien was terminated either because of his handicap or in retaliation for engaging in protected conduct, namely, filing a complaint with the department. Seth Stoffregen for the plaintiff. Scott A. Roberts for the defendants. Evidence in the summary judgment record would also support a finding that, beginning about the time he first sought accommodation due to his medical condition, O’Brien was singled out for disciplinary action. In addition to O’Brien’s deposition testimony, the Spinosa affidavit avers that there was one set of rules for O’Brien and another set of rules for everyone else. b. Count 2 — retaliation. This claim is premised on the treatment O’Brien received after he filed his complaint with the department. He alleges that harassment by his supervisors, resulting in numerous verbal and written warnings, as well as his termination in September, 2007, were “adverse action[s]” entitling him to recovery. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004), quoting from Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) (retaliation claim requires plaintiff to show that “he engaged in protected conduct, that he suffered some adverse action, and that ‘a causal connection existed between the protected conduct and the adverse action’ ”). There is no question that O’Brien’s filing of the department complaint constituted protected conduct. Because a reasonable juror could conclude that the verbal and written warnings, as well as O’Brien’s termination, were all “adverse actions” that, if shown to have been retaliatory, would entitle him to recover under the statute, MIT is not entitled to summary judgment. Under the retaliation provision of the statute, “adverse actions consist of a defendant’s action ‘to discharge, expel or otherwise discriminate against’ the plaintiff.” Mole v. University of Mass., supra at 592 n.14. Any such action that “materially disadvantage^] ” a plaintiff is an adverse employment action for purposes of a retaliation claim. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-708 (2011). Here, the less serious infractions ultimately were included among the reasons for imposition of the sanction of termination (see note 4, supra) and, therefore, could be construed as having materially disadvantaged O’Brien. See Nye v. Roberts, 145 Fed. Appx. 1, 6 (4th Cir. 2005). 3. Conclusion. The judgment is reversed as to counts one and two against MIT. In all other respects, the judgment is affirmed. So ordered. We affirm the grant of summary judgment on O’Brien’s additional claim of tortious interference against Stark and O’Mara. As the motion judge found, this claim fails because they were supervisory employees whose actions were governed by a collective bargaining agreement (CBA), and the claim is therefore preempted by the Federal Labor Management Relations Act. See 29 U.S.C. §§ 141 et seq. (1994); Magerer v. John Sexton & Co., 912 F.2d 525, 530-531 (1st Cir. 1990). To the extent O’Brien argues that the claim is not preempted because his allegations of improper motive and means (discriminatory and retaliatory animus) involve actions outside the CBA, the argument is not sufficiently developed, and we do not reach it. The frequency of reprimands escalated in August, 2007, when O’Mara reprimanded O’Brien three times in as many weeks, for infractions ranging from failing to wear his fire retardant suit to leaving the CUP without informing O’Mara. The letter of termination set forth a history of prior disciplinary actions and noted that O’Brien had been “counseled” on three occasions during the preceding month of August for improper conduct. (See note 3, supra.) O’Brien’s union pursued a grievance challenging the termination under the CBA. The matter proceeded to arbitration, and the arbitrator upheld O’Brien’s termination. We review an order granting summary judgment de nova to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). MIT did not argue, and the motion judge did not reach the question, whether O’Brien could make out the second element of his prima facie case, establishing that he is a qualified handicapped person. See, e.g., Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822 & n.11 (1997). We do not address the question. We observe that some Federal courts have found that, as a matter of law, inability to work more than a forty-hour week is not a “substantial limitation” on the ability to work for purposes of the Americans with Disabilities Act (ADA). See Boitnott v. Corning, Inc., 669 F.3d 172 (4th Cir. 2012). However, these cases were decided under a construction of the ADA’s “substantial limitation” language that was subsequently rejected by Congress in the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). In any event, G. L. c. 151B, not the ADA, applies in this case. See, e.g., Dahill v. Police Dept. of Boston, 434 Mass. 233, 240-243 (2001). With respect to the major life activities of thinking and concentrating, O’Brien stated in his affidavit, “I’ve endured numerous days and countless nights of private torture and tears and my ability to concentrate is often impacted.” In light of our conclusions about sleep and work, we need not decide if this is sufficient to raise a genuine issue of material fact whether these major life activities are substantially impaired. Should the evidence at trial be sufficient to support such a conclusion, the judge will be free to instruct the jury on the point.