Retaliation Cases

HOWARD H. PIERCE, SR., Plaintiff v. THE ATLANTIC GROUP, INC, d/b/a/ DZ ATLANTIC, DAY & ZIMMERMANN LLC OF PENNSYLVANIA and DAY & ZIMMERMAN LLC d/b/a/ DZ ATLANTIC GROUP and/or DZ ATLANTIC, and DUKE ENERGY CAROLINAS, LLC, Defendants No. COA11-494 (Filed 21 February 2012) 1. Employer and Employee—wrongful discharge—Retaliatory Employment Discrimination Act—initiation of inquiry The trial court did not err by dismissing plaintiff’s complaint under N.C.G.S. § 1A-1, Rule 12(b)(6) for violation 'of the Retaliatory Employment Discrimination Act. Plaintiff called defendant Duke’s ethics hotline to report the retaliatory treatment he had been receiving and not to report a concern regarding occupational health and safety in the context of his employment with defendant Atlantic. These allegations were insufficient to constitute the initiation of an inquiry pursuant to N.C.G.S. § 95-241(a). 2. Employer and Employee—wrongful discharge—failure to show violation of law or public policy The trial court did not err by dismissing plaintiffs wrongful discharge claim. Plaintiff’s allegations failed to show that defendants ever violated their Occupational Safety and Health Adminstration obligations, including 13 N.C. Admin. Code 07F .0901, et seq., and plaintiff’s assertions that defendants’ termination of his employment violated law or public policy based on provisions of the administrative code that were yet to become effective did not remedy this deficiency in plaintiff’s pleadings. 3. Emotional Distress—negligent infliction of emotional distress—intentional infliction of emotional distress The trial court did not err by dismissing plaintiff’s claims of negligent and intentional infliction of emotional distress. Plaintiff’s statement that he began to experience serious on and off the job stress that severely affected his relationship with his wife and family members was insufficient to support these claims. 4. Libel and Slander—libel per se—failure to allege email or report susceptible of two meanings—libel per quod The trial court did not err by dismissing plaintiff’s defamation claim. Plaintiff’s complaint, alleging that defendant falsely contended that plaintiff falsified his time card or reported plaintiff to the Nuclear Regulatory Commission did not set forth a cause of action for libel per se. Further, plaintiff’s complaint was insufficient to state a claim because the complaint did not allege that the email or report were susceptible of two meanings. Finally, plaintiff’s allegation that the alleged defamation damaged plaintiff’s economic circumstances did not fairly inform defendants of the scope of plaintiff’s libel per quod claim. Appeal by plaintiff from order entered 3 February 2011 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 27 October 2011. Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, and Behan Law, by Kathleen A. Behan, for the plaintiff Littler Mendelson, P.C., by Jerry H. Walters, Jr., and Julie K. Adams, for defendant, The Atlantic Group, Inc. d/b/a/ DZ Atlantic. Ogletree, Deakins, Nash, Smoak & Stewart, P.G., by Robert M. Bisanar and Michael L. Wade, Jr., for defendant, Duke Energy Carolinas, LLC. THIGPEN, Judge. The employment of Howard H. Pierce, Sr., (“Plaintiff”) was terminated by The Atlantic Group, Inc., et al., (“Defendant Atlantic”). Defendant Atlantic is an engineering, construction and maintenance contractor providing services to Duke Energy Carolinas, LLC, (“Defendant Duke Energy”) (together, “Defendants”). Plaintiff filed a complaint alleging the following: In terminating Plaintiffs employment, Defendants violated the Retaliatory Employment Discrimination Act; Plaintiff was wrongfully discharged in violation of public policy and N.C. Gen. Stat. § 95-126, et seq., which governs the occupational health and safety of North Carolina employees; Defendants’ actions amounted to negligent and intentional infliction of emotional distress; and Defendants defamed Plaintiff. On appeal, we must determine whether the trial court erred by dismissing Plaintiffs complaint pursuant to Defendants’ Rule 12(b)(6) motion. We affirm the order of the trial court. I: Factual and Procedural Background The record tends to show the following: Plaintiff was hired by Defendant Atlantic in 2001, and held numerous positions with Defendant Atlantic, including supervisor, certified crane operator, and rigger. Over the course of eight years with Defendant Atlantic, Plaintiff was promoted from the position of rigger to lifting rigger supervising coordinator. Plaintiff’s pay was, over time, increased to the rate of forty-four dollars per hour. Plaintiff reported to both Defendant Atlantic and Defendant Duke Energy. In February 2009, Plaintiff received a memorandum from Defendant Duke Energy alerting employees that new regulations, 13 N.C. Admin. Code 07F .0901, et seq., would affect crane operators and riggers, requiring them to be certified. The regulations were scheduled to take effect on 1 October 2009. Plaintiff brought the memorandum to the attention of his supervisors and proposed a process by which the operators could be trained and certified in a way which would not interfere with the operations of the plant during its busiest times. Plaintiff did not receive a response to his proposal. Plaintiff, however, continued to raise the issue of certification on a weekly basis, but Plaintiffs proposal and concerns were not addressed. In late March 2009, Defendant Atlantic asked Plaintiff to take a twenty-eight day vacation break from his position at the McGuire Duke Energy Nuclear Power Plant (“McGuire”) where he was currently working. On 30 March 2009, Plaintiff began his vacation, expecting to return to his former position as supervisor at a pay rate of forty-four dollars per hour, as he was assured by a staffing employee with Defendant Atlantic, Ms. Angie Green (“Ms. Green”). Shortly after beginning his vacation, Plaintiff received a phone call from Ms. Green, who asked Plaintiff whether he would be willing to assist Defendant Atlantic in staffing a fueling outage at Oconnee Nuclear Power Plant (“Oconnee”). Plaintiff agreed to assist on the condition that Ms. Green contact his supervisors at both Defendant Atlantic and Defendant Duke Energy to ensure that he would not lose his supervisory level position and salary upon his return to McGuire. Ms. Green agreed. Ms. Green later contacted Plaintiff, explaining that his supervisors had approved, but for purposes of the Oconnee assignment, Plaintiff would only be paid twenty-seven dollars per hour. Plaintiff accepted the temporary pay reduction. Several weeks into the Oconnee assignment, Ms. Green contacted Plaintiff, requesting that Plaintiff return to McGuire as an advanced rigger rather than a supervisor, at a pay rate of twenty-eight dollars per hour. Plaintiff was informed that this demotion would be temporary until the conclusion of the “fall outage” period, at which time Plaintiff would return to his prior position. Plaintiff continued to be concerned about the certification of the operators as required by 13 N.C. Admin. Code 07F .0901, et seq., and “feared that Defendants’ explanations for his demotion in pay were a pretext in order to remove him from a supervisor position.” Plaintiff was told that since he was no longer a supervisor, “the issue of the certification was not his to address.” On 24 August 2009, Plaintiff called Defendant Duke Energy’s “ethics hotline” and reported the alleged “retaliatory treatment” he had received. Plaintiff believed the hotline was a confidential resource. However, Plaintiff was asked to provide his identity and the names of “persons who concerned him.” Plaintiff named Mike Henline (“Henline”) of Defendant Atlantic, Jimmy Shelton (“Shelton”) of Defendant Duke Energy, Donny Lawing (“Lawing”) of Defendant Duke Energy, Maurice Horn (“Horn”) of Defendant Duke Energy, and Joe Bates (“Bates”) of Defendant Duke Energy. Plaintiff called the hotline on multiple other occasions after his first call. During September of 2010, Plaintiff felt that “workplace conditions became increasingly adverse.” Specifically, Plaintiff felt that his schedule was being arbitrarily changed and interrupted, such that he could not get sufficient hours to support his family. On Friday, 19 September 2010, Plaintiff was advised that on Monday, 21 September 2010, Plaintiff would begin on the nightshift. As a result of the change, Plaintiff filled out his timecard on Friday morning—rather than Monday morning, as was his usual practice— estimating the hours he was required to work on Friday based on his instructions from Shelton. Shortly after filling out his timecard, Plaintiff learned that his wife had possibly had a heart attack, and she had been transported to the hospital. Plaintiff left the plant to go to the hospital and called Mr. Leroy Price (“Price”) to explain his absence. Price advised Defendant to “see to his wife, and ... the time card issues would be resolved the following week.” On the evening of 19 September 2009, a “Site Maintenance Lifting Coordinator” for Defendant Duke Energy sent an email to Defendant Atlantic stating, “I have document proof that [Plaintiff] has falsified his timesheet . . . [Henline] is in the process of pulling [Plaintiffs] badge.” However, at Plaintiffs, request, Henline later corrected Plaintiffs timecard and initialed his corrections. Henline assured Plaintiff that “he would suffer no adverse consequences from the mistakes in completing the card.” On Monday, 21 September 2009, Plaintiff called Henline and was told not to report for his shift but to come in the next day. Plaintiff was told “he would be written up but that the timecard would be corrected.” On 23 September 2009, Plaintiff was again told not to come in but to report the next morning. When Plaintiff arrived on 24 September 2009, Henline and Bates terminated Plaintiffs employment, asked him to return his badge, and removed Plaintiff from the premises. Plaintiff reviewed the documents regarding his termination and discovered that the basis of his termination was “falsification of a time-card[.]” Defendant Duke Energy reported Plaintiff to the Nuclear Regulatory Commission, barring Plaintiff from “unescorted access to facilities around the nation.” Plaintiff alleges this “per manently damag[ed] his reputation and his ability to obtain suitable similar employment.” Plaintiff appealed his termination in human resources, but his appeal was unsuccessful. On 16 August 2010, Plaintiff filed a complaint against Defendants. Both Defendant Duke Energy and Defendant Atlantic filed motions for an extension of time to file their answers, and both Defendants received a thirty day extension. Defendant Duke Energy filed their answer on 12 October 2010 and alleged that Plaintiffs complaint failed to state a claim upon which relief may be granted. Defendant Atlantic also filed an N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss Plaintiffs complaint on 20 October 2010. On 17 November 2010, Plaintiff filed a motion to amend the complaint. In Plaintiffs amended complaint, also filed 17 November 2010, he realleges the following: Defendants violated the Retaliatory Employment Discrimination Act; Plaintiff was wrongfully discharged in violation of public policy and N.C. Gen. Stat. § 95-126, et seq., which governs the occupational health and safety of North Carolina employees; Defendants’ actions amounted to negligent and intentional infliction of emotional distress; and Defendants defamed Plaintiff. Defendant Duke Energy filed an additional N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss on 28 November 2010. On 3 February 2011, the trial court entered an order granting Defendants’ N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss Plaintiff’s complaint. From this order, Plaintiff appeals. II: Standard of Review “On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.” Stunzi v. Medlin Motors, Inc., _ N.C. App. _, _, 714 S.E.2d 770, 773 (2011) (quotation omitted). “The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.” Id. (quotation omitted). Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: “(1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.” Id. at _, 714 S.E.2d at 773-74. III: Motion to Dismiss In Plaintiffs argument on appeal, he contends the trial court erred by dismissing his complaint against Defendants pursuant to Defendants’ N.C. Gen Stat § 1A-1, 12(b)(6) motion. Specifically, Plaintiff argues that the allegations in each of the five counts in Plaintiffs complaint, treated as true, are sufficient in this case to state a claim upon which relief may be granted. We address each count in turn, and ultimately conclude the trial court did not err by dismissing Plaintiffs complaint. A: Retaliatory Employment Discrimination Act Plaintiff first contends the trial court erred by dismissing Plaintiffs allegation that Defendants violated the Retaliatory Employment Discrimination Act (“REDA”). We disagree. N.C. Gen. Stat. § 95-241(a) (2011) provides that “[n]o person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to . . . [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to . . . Article 16 of this Chapter[,]” the Occupational Safety and Health Act of North Carolina (“OSHA”), N.C. Gen. Stat. § 95-126 (2011), et. seq. “In order to state a claim under REDA, a plaintiff must show (1) that he exercised his rights as listed under N.C. Gen. Stat. § 95-241(a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a).” Wiley v. UPS, Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004) (citation omitted). An adverse action includes “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” N.C. Gen. Stat. § 95-240(2) (2011). “If plaintiff presents a prima facie case of retaliatory discrimination, then the burden shifts to the defendant to show that he ‘would have taken the same unfavorable action in the absence of the protected activity of the employee.’ ” UPS, Inc., 164 N.C. App. at 186, 594 S.E.2d at 811. (quoting N.C. Gen. Stat. § 95-241(b)). “Although evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation.” Id. at 187, 594 S.E.2d at 811 (quotation omitted). In this case, the parties do not dispute that Plaintiff “suffered an adverse employment action[.]” Id. at 186, 594 S.E.2d at 811. However, the parties dispute whether Plaintiff “exercised his rights as listed under N.C. Gen. Stat. § 95-241(a)” and whether “the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a).” Id. Plaintiff contends he exercised his rights as listed under N.C. Gen. Stat. § 95-241 (a) by “initiating] any inquiry. . . with respect to” OSHA. N.C. Gen. Stat. § 95-241(a). Specifically, Plaintiff states that he initiated an inquiry when he “submitted a proposed plan that would provide certification of the crane operators in compliance with the upcoming regulatory change.” Plaintiff further contends, “[t]hereafter, [Plaintiff] complained to his [Defendant Atlantic] and [Defendant Duke Energy] supervisors weekly of [Defendants] failure to begin certifying crane operators.” Plaintiffs complaint alleges the following with regard to Plaintiffs initiation of an inquiry pursuant to N.C. Gen. Stat. § 95-241(a): 34. Defendants’ decision to terminate [Plaintiffs] employment was in retaliation for his making complaints and providing information with regard .to an ongoing workplace situation with regard to Occupational Safety and Health issues affecting nuclear power facilities in North Carolina operated by Defendants, including but not limited to the McGuire Nuclear Facility. 35. By communicating with his supervisors on numerous occasions concerning safety and health and training issues, and with the Duke Ethics Hotline, [Plaintiff] exercised his rights as listed under N.C. Gen. Stat. § 95-241(a). Our Courts have not defined or addressed what it means to “initiate [an] inquiry” pursuant to N.C. Gen. Stat. § 95-241(a) with respect to OSHA. Id. We find the logic of several decisions of federal courts persuasive authority as to the definition of initiating an inquiry. See State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984) (stating that federal decisions, with the exception of the United States Supreme Court, are not binding upon this Court; however, State courts should treat “decisions of the United States Supreme Court as binding and accordf] to decisions of lower federal courts such persuasiveness as these decisions might reasonably command”); see also Signature Dev., LLC v. Sandler Commer. at Union, L.L.C., _ N.C. App. _, _, 701 S.E.2d 300, 307 (2010) (stating; “[a]lthough, as an unpublished case, [it] does not establish binding legal precedent, we are persuaded by [the] Court’s reasoning in that case”). The United States District Court for the Middle District of North Carolina addressed the question of what it means to initiate an inquiry pursuant to N.C. Gen. Stat. § 95-241(a) in the context of OSHA in Jurrissen v. Keystone Foods, LLC, 2008 U.S. Dist. LEXIS 63901, 15-16 (2008). The Court stated: As noted, REDA states that no person shall take any retaliatory action against an employee because the employee “file[s] a claim or complaint, initiate[s] any inquiry, investigation, inspection, proceeding or other action, or testifies] orprovidefs] information to any person with respect to . . . [OSHANC].” N.C. GEN. STAT. § 95-241(a) (emphasis added). By its plain language, it is clear that REDA does not limit protected activities to the sole act of filing a formal claim under OSHANC. At the other end of the-spectrum, however, courts have held that merely talking to an internal supervisor about potential safety concerns is not a “protected activity” under REDA. Id.; see also, e.g., Delon v. McLaurin Parking Co., 367 F. Supp. 2d 893, 902, aff’d, 146 Fed. Appx. 655 (2005) (“The complaint that Plaintiff made to [a manager] [i]s not . . . protected under REDA[;] [r]ather, it was merely a complaint to a manager about a supervisor”); Cromer v. Perdue Farms, Inc., 900 F. Supp. 795, 801 n.6 (1994), aff’d, 1995 U.S. App. LEXIS 25327 (1995) (explaining that “North Carolina has never recognized a cause of action for wrongful discharge in favor of employees who orally complained to their employers about unsafe working conditions” and noting that the plaintiff “did not initiate a complaint with the Occupational Safety and Health Review Commission or threaten to initiate any such complaint”); Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 222, 618 S.E.2d 750, 753 (2005) (holding the plaintiff’s act of requesting that her employer pay for a medical evaluation of a work-related inj

CHARISSA YOUNG, Plaintiff v. KIMBERLY-CLARK CORPORATION, FRED HART, individually and BRETT SAMUELS, individually, Defendants No. COA11-1020 (Filed 21 February 2012) 1. Appeal and Error—interlocutory orders and appeals—substantial right—compelling discovery Plaintiff’s appeal from an interlocutory discovery order requiring her to produce information and documents, which she claimed were protected by various privileges, affected a substantial right and was immediately appealable. 2. Discovery—medical records—emotional distress claim— waiver The superior court did not abuse its discretion in a wrongful termination case by ordering the production of plaintiff’s medical records that allegedly involved purely physical conditions unrelated to her mental or emotional condition. Plaintiff’s arguments were speculative and hypothetical. Further, the statutory privileges accorded communications between a patient and various medical providers is impliedly waived if the patient brings a claim for emotional distress since this type of claim places her medical condition at issue. 3. Discovery—names of persons contacted by counsel—work-product doctrine inapplicable—identification The trial court did not err in a wrongful termination case by requiring plaintiff to disclose the names of persons contacted by her counsel even though plaintiff contended it violated the work-product doctrine and her right against disclosure of trial witnesses until prior to trial. Contrary to plaintiff’s assertion, the order only required plaintiff to comply with her already existing discovery obligations and merely required identification of the persons contacted. 4. Discovery—tax returns—mitigation defense—loss of past and future earnings—certification The trial court did not err in a wrongful termination case by ordering plaintiff to disclose her tax returns even though plaintiff contended the information contained in them was available from other sources. Information from the tax returns was relevant to the subject matter as it related to both the mitigation defense of the party seeking discovery and plaintiffs claim for loss of past and future earnings. Further, plaintiffs own certification as to her income was available only on the income tax returns themselves. Appeal by plaintiff from order entered 28 February 2011 by Judge Gary M. Gavenus in Superior Court, Haywood County. Heard in the Court of Appeals 9 February 2012. Law Offices of Glen C. Shults, by Glen G. Shults, for plaintiff-appellant. Goldsmith, Goldsmith & Dews, P.A., by G. Frank Goldsmith, Jr., for defendants-appellees. STROUD, Judge. Charissa Young (“plaintiff’) appeals from an order compelling discovery of medical records and information, identification of persons contacted by plaintiff or her counsel as to her claim, and plaintiffs federal and state income tax returns. For the reasons stated below, we affirm. I. Background Plaintiff was employed by defendant Kimberly-Clark Corporation from “in or about 1991” until June 2008, when plaintiff alleges that she was wrongfully terminated by defendant Kimberly-Clark, as a result of her filing a workers’ compensation claim for a compensable injury she suffered on 5 December 2007. Plaintiff filed a complaint against the Kimberly-Clark Corporation; Fred Hart, individually; and Brett Samuels, individually (collectively referred to herein as “defendants”) on 30 June 2009, alleging claims against defendant Kimberly-Clark for violation of the Retaliatory Employment Discrimination Act (N.C. Gen. Stat. § 95-240 et seq.) and wrongful discharge in violation of public policy and claims against all three defendants for gross negligence, negligent infliction of emotional distress, and tortious interference with a contract. Plaintiff sought damages including both past and future “lost wages, bonus payments, employment benefits, and interest” as well as “compensatory damages for emotional distress and/or pain and suffering[.]” On 3 January 2011, defendant Kimberly-Clark filed a motion to compel discovery from plaintiff “regarding Plaintiff’s health care providers and her physical and mental health;” identification of “all individuals from whom Plaintiff has obtained a statement or affidavit and ... all Kimberly-Clark employees who have been contacted in connection with Plaintiffs claim;” and “copies of Plaintiff’s tax returns from January 1, 2007 to the present.” On 28 February 2011, the trial court entered an order allowing in part and denying in part defendant Kimberly-Clark’s motion to compel discovery from plaintiff. Plaintiff timely appealed from this order. II. Interlocutory order The order compelling discovery is an interlocutory order, and interlocutory orders are normally not immediately appealable. Mims v. Wright, 157 N.C. App. 339, 341, 578 S.E.2d 606, 608 (2003). Orders that are interlocutory are subject to immediate appeal when they affect a substantial right of a party. [Mims v. Wright, 157 N.C. App. 339, 341, 578 S.E.2d 606, 608 (2003)] “ ‘[W]hen, as here, a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right. . . .’ ” Id. (quoting Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999)). Midkiff v. Compton, 204 N.C. App. 21, 24, 693 S.E.2d 172, 174, cert. denied, 364 N.C. 326, 700 S.E.2d 922 (2010). Because plaintiff claims that the discovery order requires her to produce information and documents which are protected by various privileges, the order affects a substantial right and is immediately appealable. See Sharpe v. Worland, 351 N.C. 159, 165-66, 522 S.E.2d 577, 580-81 (1999). III. Standard of Review When reviewing a trial court’s ruling on a discovery issue, our Court reviews the order of the trial court for an abuse of discretion. Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 737, 294 S.E.2d 386, 388 (1982) (noting that ordinarily, orders relating to discovery are addressed to the discretion of the trial court and are to be reviewed for abuse of discretion). “Abuse of discretion results where the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Midkiff, 204 N.C. App. at 24, 693 S.E.2d at 175. On appeal plaintiff argues that the trial court erred in ordering her to produce (1) her medical records; (2) the names of persons contacted by her counsel; and (3) her tax returns. IV. Medical records The trial court’s order compelling discovery addressed defendant’s request for production of plaintiffs medical records as follows: 1. Interrogatories 4 and 5. Document Production Requests 15 and 16. These requests seek information and records concerning plaintiff’s medical treatment (including treatment for mental or emotional conditions) within the ten years prior to service of the requests. Plaintiff refused to provide any such information except for the period after December 5, 2007, when she injured her knee at work. The Court finds defendant’s requests to be proper and to be within the scope of discovery as set forth in Rule 26, N.C.R. Civ. P, as plaintiff has placed her mental and emotional health in issue by asserting a claim for infliction of emotional distress and by seeking emotional distress damages in other claims in this action, and her medical records may reasonably be sources of information on that issue. In addition, plaintiff’s medical condition is relevant to her ability to earn income from other employment. However, the Court, in its discretion, finds that five years from service of the requests, rather than the ten years sought by defendant, is a reasonable period for the scope of defendant’s request, absent a showing that a longer period is necessary for the discovery of such information. Defendant’s motion to compel discovery as to these requests is, therefore, ALLOWED, and plaintiff is ORDERED to answer fully Interrogatories 4 and 5, and to produce the documents requested in Document Production Requests 15 and 16 (or to execute a release permitting defendant to obtain them), except that such answers and production shall cover the period beginning five years prior to service of the requests. Plaintiff shall answer the interrogatories and produce the requested documents or executed release as soon as possible, so as not to delay further this litigation, and in any event within ten days from the entry of this order. Plaintiff first argues that the “superior court erred in ordering the production of plaintiffs medical records that involve purely physical conditions, which are unrelated to her mental or emotional condition.” Plaintiff contends that the trial court failed to draw a distinction between records regarding “purely physical conditions that caused no emotional distress” and physical conditions which did cause emotional distress. Plaintiff notes that “[t]he medical records would presumably show whether Young experienced any emotional distress for any of the physical or emotional conditions for which she sought treatment, and only those records should be produced.” (emphasis added). She argues at length about the failure of the trial court to make any “finding of a causal or historical relationship between Plaintiffs emotional distress claims and the records ordered to be produced.” Defendants counter that the trial court did not abuse its discretion in compelling plaintiff to produce her medical records as she waived the patient-physician privilege when she brought an action which placed her medical condition at issue. Even if we assume arguendo that the trial court could make any sort of clear distinction between “purely physical conditions” and physical conditions which cause emotional distress based merely upon perusal of medical records—a proposition we sincerely doubt—we first note that in order for the trial court to make this type of determination as to the information which may be revealed in plaintiffs medical records, plaintiff would have had to produce the records to the trial court for in camera review; this she did not do. Plaintiffs arguments in this regard are speculative and hypothetical. In addition, our Court has held specifically that the statutory privileges accorded communications between a patient and various medical providers is impliedly waived if the patient brings a claim for emotional distress, as this type of claim places her medical condition at issue. North Carolina has created by statute a privilege for communications between a physician and patient. See N.C. Gen. Stat. § 8-53 (2005) (for doctors); see also N.C. Gen. Stat. § 8-53.3 (2005) (for psychologists); N.C. Gen. Stat. § 8-53.7 (2005) (for social workers); N.C. Gen. Stat. § 8-53.8 (2005) (for counselors). “It is the purpose of such statutes to induce the patient to make full disclosure that proper treatment may be given, to prevent public disclosure of socially stigmatized diseases, and in some instances to protect patients from self-incrimination.” Sims v. Charlotte Liberty Mut. Insurance Co., 257 N.C. 32, 36, 125 S.E.2d 326, 329 (1962). The privilege “extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe.” Smith v. John L. Roper Lumber Co., 147 N.C. 62, 64, 60 S.E. 717, 718 (1908). This patient-physician privilege is not absolute, however, and may be waived, either by express waiver or by waiver implied from the patient’s conduct. Mims v. Wright, 157 N.C. App. 339, 342, 578 S.E.2d 606, 609 (2003). We have recognized that a patient impliedly waives this privilege when she opens the door to her medical history by bringing an action, counterclaim, or defense that places her medical condition at issue. Id. at 342-43, 578 S.E.2d at 609. Here, by bringing a claim for emotional distress, which alleges that defendants’ actions caused decedent to withdraw from her college studies and caused an overall loss in decedent’s enjoyment of life, we find that plaintiff has placed decedent’s mental health and history of substance abuse at issue. Thus, plaintiff has impliedly waived the patient-physician privilege conferred by § 8-53 et seq. Spangler v. Olchowski, 187 N.C. App. 684, 691, 654 S.E.2d 507, 512-13 (2007). The trial court did not abuse its discretion by ordering plaintiff’s production of the requested medical records for a period beginning five years prior to service of the discovery request. Plaintiff’s argument is without merit. V. Attorney work product Plaintiff next argues that the trial court’s order “requiring plaintiff to disclose the names of persons contacted by her counsel violates the work-product doctrine, and plaintiff’s right against disclosure of trial witnesses until prior to trial.” Defendants counter that plaintiffs argument “inaccurately characterizes” the trial court’s order because the order does not require her to disclose information protected by the attorney work product doctrine but “only requires [her] to comply with her already existing discovery obligations.” The trial court’s order regarding this issue states as follows: 2. Interrogatories 17 and 18. These interrogatories ask the plaintiff for information about current or former employees of the defendant that she or anyone on her behalf (such as her counsel) has contacted regarding her claims in this action, and about any persons from whom she has obtained any verbal or written statement or affidavit. Plaintiff objected to these questions and refused to answer them insofar as they seek information obtained by her counsel, contending that such information is protected by the attorney work product doctrine. The Court notes that in Interrogatory 2, defendant asked plaintiff to identify all persons having knowledge or information relating to the subject matter of this action, and plaintiff answered that interrogatory and agreed to supplement her response as additional information is obtained. The Court finds that supplemental answers to Interrogatory 2 will satisfy defendant’s need for most, if not all, of the information requested in Interrogatories 17 and 18. Therefore defendant’s motion to compel answers to Interrogatories 17 and 18 is DENIED, except that plaintiff is ORDERED to supplement her answers to Interrogatory 2 by providing the information requested in that interrogatory as to all persons having knowledge or information relating to the subject matter of this action, including persons contacted by plaintiff or her counsel; regardless of whether the information supports one side or the other. Plaintiff, citing generally Wright, Miller & Marcus, Federal Practice & Procedure: Civil § 2028, argues that “[t]he work-product doctrine protects from disclosure the identities of persons contacted by a party’s counsel, absent showing of a particular need.” Even if this treatise were a binding authority for this Court—and it is not—plaintiff’s argument mischaracterizes the content of Section 2028. Plaintiff cites no applicable authority in support of this argument and her argument entirely ignores the definition of the work product doctrine as set forth by North Carolina’s courts. In Boyce & Isley, PLLC v. Cooper, 195 N.C. App. 625, 673 S.E.2d 694, disc. review denied, 363 N.C. 651, 686 S.E.2d 512 (2009), this Court clearly stated the circumstances under which the attorney work product doctrine applies: In order to successfully assert protection based on the work product doctrine, the party asserting the protection . . . bears the burden of showing (1) that the material consists of documents or tangible things, (2) which were prepared in anticipation of litigation or for trial, and (3) by or for another party or its representatives which may include an attorney, consultant ... or agent. [Isom v. Bank of Am., N.A., 177 N.C. App. 406, 412-13, 628 S.E.2d 458, 463 (2006)] (citations and internal quotation marks omitted; second alteration in original). Although not a privilege, the exception is a “qualified immunity” and extends to all materials prepared “in anticipation of litigation or for trial by or for another party or by or for that other party’s consultant, surety, indemnitor, insurer, or agent. ” The protection is allowed not only [for] materials prepared after the other party has secured an attorney, but those prepared under circumstances in which a reasonable person might anticipate a possibility of litigation. Materials prepared in the ordinary course of business are not protected, nor does the protection extend to facts known by any party. Willis v. Power Co., 291 N.C. 19, 35, 229 S.E.2d 191, 201 (1976) (citations omitted). “[N]o discovery whatsoever of [work product containing] the ‘mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party’ concerning the litigation at bar ... is permitted under [N.C.R. Civ. P. 26(b)(3)].” Id. at 36, 229 S.E.2d at 201 (citation omitted). However, documents that constitute work product but that do not contain or reflect the aforementioned input of an attorney or other representative may be discoverable “[u]pon a showing of ‘substantial need’ and ‘undue hardship’ involved in obtaining the substantial equivalentf.]” Id. “In the interests of justice, the trial judge may require in camera inspection and may allow discovery of only parts of some documents.” Id. Id. at 637-38, 673 S.E.2d at 702 (emphasis in original). The portion of the trial court’s order which is at issue in this appeal required plaintiff to identify “all persons having knowledge or information relating to the subject matter of this action, including persons contacted by plaintiff or her counsel. . . .” The identification of a person is clearly not (1) a “document[] or tangible thing[], (2) which [was] prepared in anticipation of litigation or for trial, and (3) by or for another party or its representatives which may include an attorney, consultant ... or agent.” See id. The trial court’s order does not require the production of any witness statements which may have been taken by plaintiffs counsel or any information at all beyond identification of the persons contacted. Therefore, we find no abuse of discretion. Plaintiff, citing King v. Koucouliotes, 108 N.C. App. 751, 425 S.E.2d 462 (1993), also argues that “[u]nder North Carolina law, a party may discover the names of the opposing party’s trial witnesses at the pretrial conference, and even earlier in the litigation upon a showing of particular need[,]” and that as defendant Kimberly Clark has shown no particular need, it is not entitled to discovery. (Emphasis added.) This is true, but irrelevant. The trial court’s order does not require plaintiff to identify persons she may call as witnesses at trial; it requires identification of persons contacted, “regardless of whether the information supports one side or the other.” This argument is also without merit. VI. Income tax returns The last portion of the trial court’s order challenged by plaintiff provides as follows: 3. Document Production Request 9. This request asked plaintiff to produce documents reflecting her income from January 1, 2007, through the conclusion of this action, including her state and federal income tax returns. The Court finds that this request is proper, reasonable in scope, and reasonably calculated to lead to the discovery of admissible evidence, inasmuch as plaintiff’s earnings from other employment are relevant to the issue of whether she has mitigated her alleged damages, and the inclusion of income from the year 2007 is necessary to provide a baseline against which to measure income received in s

Chelsea D. Scott & another vs. Encore Images, Inc., & another. No. 10-P-1222. Essex. March 7, 2011. - October 18, 2011. Present: McHugh, Smith, & Carhart, JJ. Anti-Discrimination Law, Employment, Handicap, Termination of employment. Handicapped Persons. Employment, Discrimination, Termination. In a civil action claiming discrimination in employment on the basis of handicap, the judge did not err in granting summary judgment in favor of the defendant employer, where the plaintiff failed to demonstrate that he was a qualified handicapped person when he was terminated, in that, three months prior to the time the plaintiff claimed he would have been able to return to work, he accepted a lump-sum workers’ compensation settlement, which created a statutory presumption that he was unable to work, even with reasonable accommodation, for thirty months, and the record contained no rebuttal of that presumption; further, given that the record was clear that, at the time of the termination of his employment, the plaintiff was not capable of performing any of the essential requirements of his job, the employer was not required to give him another job or to give him an indefinite leave of absence. [665-668] In a civil action claiming that the defendant employer harassed and terminated the plaintiff wife because of her husband’s disability and in retaliation for confronting the employer about the harassment, even assuming that the wife had “associational” standing to pursue those claims, the judge properly granted summary judgment in favor of the employer, where the record did not support the wife’s claim that the employer’s actions created a hostile work environment, and where the wife had no reasonable expectation of proving that her termination constituted retaliation as a result of her husband’s protected activity. [668-670] Civil action commenced in the Superior Court Department on November 17, 2008. The case was heard by Mitchell H. Kaplan, J., on a motion for summary judgment. Sol J. Cohen for the plaintiffs. Joseph F. Hardcastle for the defendants. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. Tina Brelin-Penney. Laurel Mervis. McHugh, J. Chelsea D. Scott and Tina Brelin-Penney, husband and wife, appeal from a Superior Court judgment dismissing employment discrimination claims they brought against their former employer, Encore Images, Inc. (Encore), and Laurel Mervis. The claims stem from an injury Scott suffered while he was employed by Encore as a warehouse coordinator. The injury resulted in a disability, a workers’ compensation proceeding and, they claim, their discharge. Both plaintiffs filed claims with the Massachusetts Commission Against Discrimination (MCAD) asserting that they had been terminated in violation of G. L. c. 151B. Later, they filed claims in Superior Court where, after completion of customary preliminaries, Encore moved for summary judgment. A judge of that court allowed the motion in a comprehensive and thoughtful memorandum. Judgment of dismissal soon entered, and this appeal followed. We affirm. Background. It appears that Encore is a small manufacturer of toner ink cartridges for printers and facsimile machines, and provides in-house servicing and repairs for its customers. The company, which employs approximately fourteen people, is owned and operated by Paul and Laurel Mervis. Encore employed Scott as its warehouse coordinator. The position was described as involving “constant lifting of items of varying weights and sizes anywhere from a few ounces up to approx [fifty pounds]. The majority of job time is spent with the up and down, off and on part of a ‘warehouse coordinator’ position.” Scott’s other responsibilities included maintaining and managing the warehouse, shipping and receiving functions such as packaging and shipping orders to customers, and assisting clients and technicians with loading and unloading their cars. Scott worked in the warehouse, and Brelin-Penney worked as Encore’s bookkeeper. On September 11, 2006, Scott fell from a ladder in Encore’s warehouse and injured his left shoulder. Three days later, a representative from Quadrant Health Strategies, to which Scott had gone for medical care, wrote that Scott could “resume work with limits,” which included prohibitions on repetitive motion of his left arm, on reaching above his shoulders or below his knees, and on lifting, pushing, or pulling more than ten pounds. On September 27, 2006, Dr. Freedman of Quadrant Health Strategies changed those limits to prohibit Scott from pushing, pulling, or lifting anything over five pounds. As a result of the September 27 report, Encore hired an ergonomist to “job shadow” Scott in an effort to find techniques that would allow him to do his job despite the injury and the limitations the doctor imposed. The effort failed. By November 7, 2006, Scott’s prognosis worsened when Dr. Fehnel, an orthopedic surgeon, reported he needed surgery for a tom cartilage in his left rotator cuff. As a result, Dr. Fehnel stated that Scott was prohibited from any lifting and should do “desk work only.” A day later, Scott informed Laurel Mervis that because he needed surgery, he would not be able to return to work. He did not provide her with an anticipated return date and, in fact, never worked at Encore again. Scott had shoulder surgery on December 11, 2006. Postoperative orders prohibited him from using his left arm and required that he keep it in a sling for four weeks. The four weeks passed, but a January 17, 2007, medical report revealed that he continued to experience “quite a bit of pain” and that for at least six more weeks he was to lift nothing heavier than a cup of coffee. In that report, Dr. Fehnel observed that he “[would] not have [Scott] return to any warehouse lifting or anything, until he is at least 3, if not 4 months, from the time of his surgery.” Moreover, Dr. Fehnel stated that Scott would “remain out of work until [he] reassess [ed] him in mid to end February to assess his progress with therapy and potential modified work capacity in the future.” Notwithstanding a variety of different approaches to treatment, Scott’s condition did not improve over the ensuing months. Indeed, on April 26, 2007, Dr. Fehnel reported that Scott was experiencing so much pain that he required emergency room treatment. That report, the last one the record contains, also suggested for the first time that Scott’s disability might be permanent. On June 6, 2007, Scott reached a $45,000 lump-sum settlement with Encore’s workers’ compensation insurer for future weekly workers’ compensation benefits. The settlement was based on an average weekly wage of approximately $700. The Department of Industrial Accidents approved the settlement on July 2, 2007. See G. L. c. 152, § 48. A provisional worker, whom Encore had hired in January to fill Scott’s position until he returned, continued to work at Encore until August 7, 2007, and was subsequently replaced with a permanent employee. By mid-October, Scott’s health had improved to the point that he was ready to return to work, though by then he was involved in this litigation and did not inform Encore of his recovery. Instead, he enrolled in a six-week truck driver training program. He successfully completed the program and found employment as a tractor-trailer truck driver within a month thereafter. As for Brelin-Penney, she claims she and Laurel Mervis enjoyed a friendly relationship before Scott’s injury. Beginning in early 2007, she claims, Mervis began to harass her. The harassment consisted of asking her questions on more than five occasions between January and May about Scott’s progress and his anticipated return to work. Brelin-Penney characterizes Mervis’s tone as accusatory during these conversations, and claims that Mervis would pull Brelin-Penney’s employee file and make notes in it while they spoke. Brelin-Penney consistently told Mervis that Scott would return when his doctors cleared him to do so. The rift between Brelin-Penney and Mervis came to a head on May 17, 2007. On that date, Mervis had been speaking with a man named A1 Rizzo, who worked with Brelin-Penney’s son, Isaiah, in a nearby warehouse where Mervis had helped him get a job. During the conversation, Mervis mentioned that Isaiah was planning to return to college the following month, something Rizzo apparently did not know. She then mentioned the conversation to Brelin-Penney, asking her why Isaiah had not divulged his plans to his employer. That question outraged Brelin-Penney, who accused Mervis of trying to meddle in her family life and trying to get Isaiah fired. The exchange escalated until BrelinPenney, voice raised in anger, told Mervis that Isaiah thought she was “the rudest fucking person he’s ever met,” and left the office for home, loudly slamming the door behind her. Mervis, who has multiple sclerosis and whose physicians had advised her to avoid stressful situations, was extremely upset by the incident. Through a relative who acted as Encore’s lawyer, she informed Brelin-Penney that evening that she was not to return to work at Encore again. A letter from Encore informing Brelin-Penney that she had been terminated soon followed. Discussion. We review the allowance of a motion for summary judgment de novo, see Miller v. Cotter, 448 Mass. 671, 676 (2007), seeking 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). See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). a. Scott’s claim. To make out a prima facie case of employment discrimination based on a disability, Scott must show that he was a “qualified handicapped person” and that he was terminated from his job at Encore because of his handicap. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002). For purposes of summary judgment, Encore concedes that Scott was employed by Encore, that his shoulder injury amounted to a handicap as defined by G. L. c. 15IB, § 1(17), and that he was terminated from his position because of his handicap.* ** Accordingly, the only disputed issue is whether Scott was a “qualified handicapped person” when he was terminated. General Laws c. 151B, § 1(16), as inserted by St. 1983, c. 533, § 2, defines a “qualified handicapped person” as “a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” For two reasons, Scott did not meet that definition. First, on July 2, 2007, three months before Scott now claims that he would have been able to return to work, he accepted a $45,000 lump-sum workers’ compensation settlement. Acceptance of the settlement triggered the provisions of G. L. c. 152, § 48(4), as appearing in St. 1991, c. 398, § 75, which in material part state that: “the acceptance of any amount in return for the right to claim future weekly benefits shall create a presumption that the employee is physically incapable of returning to work with the employer where the alleged injury occurred. Such presumption shall continue for a period of one month for each fifteen hundred dollar amount included in the settlement for future weekly benefits. No re-employment rights shall inure to such employee under this chapter during any period of presumption of incapacity as herein provided.” Under the terms of the statute, then, Scott’s acceptance of the settlement created a presumption that he was unable to work, even with reasonable accommodation, for thirty months, or until January, 2010. See Safford vs. Wyman Gordon Co., U.S. Dist. Ct., No. 96-40185-NMG, slip op. at 6 (D. Mass Nov. 10, 1997). Although § 48(4) creates a presumption, the presumption is rebuttable. Here, though, the record contains no rebuttal. Indeed, Scott has not discussed, or even cited, the statute, and the record is devoid of any evidence that Scott ever received medical clearance to resume work as a warehouse coordinator. Instead, he underwent retraining and found another line of work. Even if one puts § 48(4) entirely to one side, Scott faces a second insurmountable problem. The record will not support his claim to be a qualified handicapped person, i.e., a person who could, with reasonable accommodation, perform the essential functions of his job. By April 26, 2007, almost eight months after the accident, the record is clear that he was not capable of performing any of the essential requirements of the job. Nevertheless, Encore had installed a placeholder and had kept the job open pending Scott’s recovery. At that point, only two accommodations were possible. One would have been to provide Scott with a different job. But the record contains no evidence that Encore had another job to give Scott and, even if it did, it was not required to do so. See, e.g., Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454; Tompson v. Department of Mental Health, 76 Mass. App. Ct. 586, 596 (2010). The other would have been to give him an indefinite leave of absence, another step Encore was not required to take. Russell, supra at 455-457. On this record, therefore, Scott was not a “qualified handicapped person” and Encore did not impermissibly discriminate against him when it discharged him from his employment. Consequently, the judge properly allowed Encore’s motion for summary judgment dismissing his claim. b. Brelin-Penney’s claim. Brelin-Penney claims that Encore harassed and terminated her because of Scott’s disability and in retaliation for confronting Laurel Mervis about the harassment. She does not claim that she, herself, is disabled or that she was terminated because of her own disability, but claims “associational standing” to pursue the claims just described. Encore resists Brelin-Penney’s claim by asserting that G. L. c. 15IB provides no basis for an “associational” claim like the one she proffers. It acknowledges that the MCAD, in three opinions issued over the past thirty years, has allowed such claims to proceed but states that, in doing so, the MCAD exceeded its authority. The language of the statute does not embrace such claims, Encore asserts, and it points to Macauley v. Massachusetts Commn. Against Discrimination, 379 Mass. 279, 280 (1979), for the proposition that the MCAD has no power to stretch the statute so as to encompass claims the Legislature did not include. This is a case of first impression for this court, but this is not the record on which to decide it, for even if Brelin-Penney has associational standing, her claim fails. To make out a prima facie case for retaliation based on Scott’s disability, BrelinPenney has the burden to show that Scott engaged in a protected activity, here the filing of a workers’ compensation claim; that Encore was aware of the protected activity; that Encore engaged in an adverse employment action against Brelin-Penney; and that but for Scott’s actions, Encore would not have taken the adverse action. See MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (1996); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997); Mole v. University of Mass., 442 Mass. 582, 591-592 (2004). Encore does not contest that it knew that Scott filed a workers’ compensation claim, nor does it contest that the filing of the claim is protected activity. Accordingly, the only disputed issues are whether Brelin-Penney suffered any adverse employment action and, if so, whether the adverse action constituted retaliation as a result of Scott’s protected activity. Brelin-Penney claims that Encore’s adverse action consisted of two elements: Laurel Mervis’s harassment, which created a hostile work environment, and Brelin-Penney’s termination. A hostile work environment however, may only serve as the basis for a retaliation charge if it is “objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. Boca Raton, 524 U.S. 775, 787 (1998). In considering the totality of the circumstances, including the severity, frequency, and threatening nature of the alleged harassment and whether it interfered with Brelin-Penney’s work performance, id. at 787-788, this record does not support Brelin-Penney’s claim that Mervis’s actions created a hostile work environment. Brelin-Penney’s harassment claim arises out of the more than five instances between January and May, 2007, on which Mervis asked her questions in an accusatory tone about Scott’s progress and his anticipated return to work, often making notes in her employment file as they spoke. These interchanges cannot be characterized as “severe or pervasive harassment that materially altered the conditions of [Brelin-Penney’s] employment.” Noviello v. Boston, 398 F.3d 76, 92 (1st Cir. 2005). BrelinPenney testified that at no time did Mervis threaten her or her job. In addition, there are no allegations that Brelin-Penney’s work performance was hampered during this period. In December, 2006, she received an “above average” performance review from Mervis which was accompanied with a salary increase. Moreover, through the spring of 2007, well after Scott’s workers’ compensation claim had been filed, Mervis, consistent with her friendly relationship with Brelin-Penney, continued giving her gifts and financial assistance. As for Brelin-Penney’s discharge, though it is undisputed that termination from employment is an adverse employment action, this claim fails as well because she has no reasonable expectation of proving causation, an essential element of a viable retaliation claim. Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 705 (1992). In rebuttal to Brelin-Penney’s claim that she was fired because of Scott’s actions, Encore presented evidence that Brelin-Penney was fired because of the way she conducted herself and the language she used during the argument she had with Mervis about Mervis’s conversation with A1 Rizzo. Upon Encore’s submission of a reason for her lawful termination, the burden shifted back to Brelin-Penney to show that Encore’s reasons were pretextual. Mole, 442 Mass. at 591-592. However, Brelin-Penney does not deny her part in the argument, does not deny Mervis’s pre-existing condition, and does not deny the impact Brelin-Penney’s conduct had on Mervis. Her claim fails as a matter of law. Judgment affirmed. No claim is made that they failed to exhaust their administrative remedies before filing their complaint in Supei Court. This is a generous reading of the record, which contains no medical evidence that Scott was ever capable of returning to his warehouse coordinator position. Indeed, Brelin-Penney testified in her deposition that she did not know if Scott’s physicians had ever cleared him for return to work at Encore. In his deposition, Scott twice said he “guessed” he was able to return to work at Encore in the fall of 2007. That is all the record contains regarding his ability to return. In her brief, Brelin-Penney also asserts that, at some point, Mervis told two other Encore employees, in essence, that Scott was only remaining out of work so that he could get a “huge” workers’ compensation settlement. BrelinPenney’s deposition testimony is hearsay to which Encore objects here, and to which it objected in the Superior Court. The motion judge did not mention the statements in his comprehensive recitation of the facts, thus impliedly sustaining the objection. We likewise ignore these hearsay statements. See Madsen v. Erwin, 395 Mass. 715, 721 (1985); Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 338 (2003). Brelin-Penney and Scott claim that during Brelin-Penney’s May 17

DR. YAN-MIN WANG, Petitioner v. UNC-CH SCHOOL OF MEDICINE and DR. WILLIAM SNIDER, Respondents No. COA10-1021 (Filed 4 October 2011) 1. Public Officers and Employees — Whistleblower Act — EPA non-faculty employee A de novo review revealed that the trial court did not err when it concluded that the Whistleblower Act applied to petitioner, an EPA non-faculty employee. 2. Public Officers and Employees — Whistleblower Act — sufficiency of findings of fact Although the trial court properly determined that petitioner was entitled to the protections of the Whistleblower Act, it erred by proceeding to determine that petitioner had been subjected to impermissible employment-related retaliation instead of remanding this issue to the Board of Governors (BOG) for appropriate findings of fact. The case was remanded to the superior court for further remand to the BOG. 3. Public Officers and Employees — doctor—failure to show gender, age, and national origin discrimination The trial court erred by reversing the Board of Governors’ (BOG) finding that a doctor had not discriminated against petitioner on the basis of her gender, age, and national origin. However, a remand was not necessary because there was competent, material, and substantial evidence in the record to support the BOG’s decision. 4. Constitutional Law — due process — equal protection The trial court erred by concluding that petitioner established the existence of valid due process or equal protection claims. Judge ELMORE concurring in part, concurring in result in part, and dissenting in part in separate opinion. Appeal by respondents from order entered 14 May 2010 by Judge Abraham Penn Jones in Orange County Superior Court. Heard in the Court of Appeals 9 February 2011. Alan McSurely for petitioner. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govertfor respondents. ERVIN, Judge. Respondents UNC-Chapel Hill School of Medicine and Dr. William Snider appeal an order reversing a decision of the Board of Governors of the University of North Carolina to the effect that Petitioner Dr. Yan-Min Wang had not been treated in an impermissible and unlawful manner in connection with her employment and ordering UNC-Chapel Hill to reinstate Petitioner to a position she previously held with the university, to pay Petitioner’s attorney’s fees, and to revise its grievance procedures. On appeal, Respondents argue that the trial court misapplied the whole record test in evaluating the BOG’s decision, erred reviewing the constitutional and other legal issues raised by Petitioner, and erred by reversing the BOG’s decision. After careful consideration of Respondents’ challenges to the trial court’s order in light of the record and the applicable law, we affirm the trial court’s order in part and reverse and remand the trial court’s order in part. I. Factual Background A. Substantive Facts On 1 August 2004, Dr. William Snider, the director of the Neuroscience Center at the UNC-Chapel Hill School of Medicine, appointed Petitioner to a part-time position as a research scientist. Dr. Snider leads a team that conducts experiments on the nerve processes of genetically modified mice. The funding necessary to support this work comes from grants provided by the National Institutes of Health and private foundations. Petitioner was initially appointed for a one year term, with her employment contingent upon the continued availability of the necessary funding and subject to the need for compliance with the University’s Employment Policies for EPA Non-Faculty Employees. In an e-mail sent prior to Petitioner’s appointment, Dr. Snider stated that, “if things go well” and the needed funding became available, Petitioner might obtain a full-time appointment as a non-tenure track research assistant professor in the future. On 27 April 2005, Dr. Snider submitted an application for a “reentry” grant from the NIH to fund Petitioner’s position as a full-time research assistant professor. On 1 August 2005, while the grant application was still pending, Petitioner was appointed to a second one-year term as a part-time research scientist. After her reappointment, Petitioner worked for Dr. Snider on a separate funding proposal involving the provision of support for Dr. Snider’s work using a line of experimental mice. As part of that process, Petitioner conducted preliminary genotyping tests on the mice used in the lab’s experiments for the purpose of confirming that the mice-in question were isletl-Cre positive as had been reported in the funding proposal. As a result of the tests that she performed, Petitioner concluded that the mice were not all isletl-Cre positive, a finding that she reported to Dr. Snider. Although the evidence concerning the extent to which there actually were any genotyping problems in the laboratory and what, if any, steps needed to be taken to identify and solve any genotyping problems was conflicting, the record indicates that, in early December 2005, Petitioner and Dr. Snider exchanged a series of e-mails in which they disputed the appropriateness of the tone that each had used in commrmicating with other during various conversations concerning the genotyping issue and the specifics of what each had said to the other during these conversations. On 12 December 2005, Dr. Snider learned that the NIH grant had been approved. In January 2006, Dr. Snider sent e-mails to Petitioner stressing the importance that the level of collegiality that she displayed while interacting with others would play in his decision concerning whether to reappoint Petitioner to another term of employment. On 31 January 2006, Dr. Snider informed Petitioner that he had decided not to recommend her for a research faculty appointment due to concerns about her tendency to make “intemperate comments” and engage in “harsh interactions.” However, Dr. Snider told Petitioner that, if she could “interact productively around the science,” he would set up a “mentoring committee” that would monitor Petitioner’s progress and advise him “if and when it is appropriate to make the research faculty appointment.” In February 2006, Petitioner met with Denise Vandervort, a human relations facilitator, for the purpose of expressing her concerns about Dr. Snider’s decision to refrain from recommending her for appointment to a full-time position. After discussing the matter with Petitioner and Dr. Snider, Ms. Vandervort and Dr. Snider “agreed that any further interactions between [Dr. Snider and Petitioner] should take place in the presence of a third party” and created a mentoring committee for the purpose of assisting in the resolution of the various issues that surrounded Petitioner’s employment. On 24 March 2006, the mentoring committee presented Petitioner with a “memorandum of understanding” detailing the terms under which she would be allowed to continue to work at the Center. However, Petitioner did not sign the MOU because she did not agree with its terms. On 31 March 2006, Petitioner met with Karen Silverburg, the Associate Dean of Human Resources, for the primary purpose of discussing her contention that Dr. Snider had “promised” to promote her to a full-time position. Although Plaintiff asserts in her brief before this Court that she “mentioned” problems with the mouse colony during this meeting, the record contains no indication that issues concerning laboratory procedures were addressed at that time. In late March and early April, 2006, Petitioner wrote a letter (referred to as the “Dear Dr.” letter) in which she complained about Dr. Snider’s “broken promises” to hire her as a full-time researcher. In addition, the “Dear Dr.” letter included a paragraph discussing Petitioner’s concerns about mouse genotyping in Dr. Snider’s lab. Petitioner e-mailed or gave this letter to Dr. James Anderson and Dr. Colin Hall, the chairs of the two departments in which Dr. Snider had an appointment; Associate Dean Karen Silverberg; Dr. Albert Collier, the University’s Scientific Integrity Officer; Wayne Blair and Dr. Laurie Mesibov, the University’s ombudsmen; and Dr. Anthony-Sam Lamantia, a professor in the Neurosciences Center and one of Dr. Snyder’s colleagues. According to applicable University policies, Drs. Anderson, Hall, Collier and Mesibov and Mr. Blair were faculty members or administrators to whom a complaint could appropriately be directed. However, Petitioner should not, under established University policy, have sent the “Dear Dr.” letter to Dr. Lamantia. After learning that Petitioner had sent a copy of the “Dear Dr.” letter to Dr. Lamantia, Dr. Snider decided that he could not work with Petitioner any longer. As a result, on 13 April 2006, Dr. Snider rejected the funding from the NIH grant which would have been used to employ Petitioner in a full-time position, instructed Petitioner to work at an off-campus site for the remainder of her contract, and notified Petitioner that she would not be reappointed. B. Procedural History On 23 April 2006, Petitioner filed a grievance with the EPA Non-Faculty Grievance Committee in which she alleged that Dr. Snider had failed to renew her appointment in retaliation for her decision to report his “broken promises” to promote her to a full-time position and the problems with mouse genotyping in his lab. On 1 June 2006, the Grievance Committee reported to Chancellor James Moeser that it had found “no basis to determine that Dr. Snider has engaged in unfair or retaliatory treatment toward the grievant or to other employees.” Petitioner appealed the Grievance Committee’s decision to the Chancellor, who rejected her appeal on 22 August 2006. At that point, Petitioner appealed to the Board of Trustees. On 20 December 2006, the BOT’s Grievance Panel remanded Petitioner’s grievance to the Grievance Committee in order to permit that body to make detailed factual findings concerning Petitioner’s grievance on the basis of a de novo review of the record and recommended that Petitioner be permitted to submit a new grievance. On 25 February 2007, Petitioner submitted a new statement of her grievances in which she asserted four claims: 1.) On April 13, 2006, Dr. Snider gave me a signed letter informing me that I was to [work off campus for the rest of my appointment.] This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006 .. . concerning] matters governed by . . . University policy and [the Whistleblower Act.] 2.) On April 13, 2006 in the same letter Dr. Snider informed me that my contract would not be renewed and that my reentry grant would be returned to NIH. This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006... concerning] matters governed by . . . University policy and [the Whistleblower Act.] 3.) During the entire period of my employment in his lab, Dr. Snider discriminated against me on the basis of my age (48), sex (female), and national origin (Chinese). After identifying the issues that it needed to address in order to resolve Petitioner’s grievance, the Grievance Committee reviewed documentary evidence, interviewed witnesses and conducted a hearing at which Petitioner and Dr. Snider presented their respective contentions. On 21 May 2007, the Grievance Committee issued a report concluding that it could not “find in favor of any of Dr. Wang’s claims.” On 4 June 2007, Petitioner appealed the Grievance Committee’s decision to the Chancellor. On 10 October 2007, Chancellor Moeser rejected Petitioner’s appeal. Petitioner appealed the Chancellor’s determination to the BOT, which rejected Petitioner’s appeal by means of a letter dated 26 February 2008. Petitioner appealed the BOT’s decision to the BOG on 11 July 2008. On 8 January 2009, the BOG’s Committee on Personnel and Tenure submitted a report addressing Petitioner’s allegations. The report was adopted by the BOG as its decision on the following day. In its decision, the BOG considered Petitioner’s arguments on a de novo basis. In response to Petitioner’s contention that she had been subjected to impermissible discrimination stemming from her age, sex, and national origin, the BOG concluded that, “based upon all of the evidence in the record and the legal precedents,” Petitioner had “failed to carry her burden of demonstrating that she was discriminated against.” Moreover, the BOG concluded that, given her status as an EPA Non-Faculty employee, Petitioner was not protected by the Whistleblower Act and that Petitioner was not entitled to relief on First Amendment grounds. In addition, the BOG stated that: Although we conclude that Dr. Wang does not have an appeal to this Board for retaliation under the whistleblower statute or the First Amendment, we note that the Record on Appeal does not show retaliation by Dr. Snider under either basis. It shows two people who simply could not get along, and a supervisor who finally reached the breaking point and ended the relationship. Finally, the BOG concluded that: in this appeal, Dr. Wang did not meet her burden of proving discrimination or retaliation. She did not show that discrimination or retaliation were the reasons she was not reappointed, the grant application was withdrawn, and/or she was barred from the lab. .. . Therefore, the Committee recommends that the Chancellor’s decision not to reappoint should be affirmed. On 9 February 2009, Petitioner filed a petition seeking judicial review of the BOG’s decision in the Orange County Superior Court. In her petition, Petitioner asserted that the BOG had erred in a number of respects, including allegations that: 1. The BOG erred by ruling that, as an EPA Non-Faculty employee, Petitioner was not protected by the Whistleblower Act. 2. The BOG erred by rejecting Petitioner’s claim to the protection of the First Amendment and analogous provisions of the North Carolina Constitution. 3. The BOG erred in its reliance on and interpretation of case law and its analysis of salaries paid to other employees in connection with its consideration of Petitioner’s discrimination claims[.] 4. The BOG erred by denying Petitioner’s request for copies of CD recordings of the witness interviews conducted in connection with the Grievance Committee’s investigation. 5. The BOG erred in its analysis of Petitioner’s retaliation and discrimination claims by failing to subject the record evidence to “a pretext or mixed motive analysis.” 6. The applicable grievance procedures, on their face and as applied to Petitioner, “violated Petitioner’s Constitutional rights under Article I of the North Carolina Constitution, particularly Sections 18 and 19, which provide for timely hearings and guaranteeing that the state will provide equal protection and the law of the land to all citizens, which includes the right to a fair, impartial hearing.” In addition, Petitioner asserted that the BOG’s decision was arbitrary and capricious and rested upon a misapplication of the applicable law. Petitioner’s petition came on for hearing before the trial court at the 25 January 2010 civil session of Orange County Superior Court. On 14 May 2010, the trial court entered an order reversing the BOG and ruling that: 1. Petitioner, an EPA Non-Faculty employee, was protected by the Whistleblower Act. 2. Dr. Wang’s distribution of the “Dear Dr.” letter was protected activity, and was “a substantial or motivating factor” in Dr. Snider’s decision not to renew her contract. 3. The BOG “arbitrarily and capriciously mis-stated and misapplied the appropriate law” to the evidence concerning Petitioner’s claims under the Whistleblower Act by failing to “subject the evidence to the pretext and mixed motive analyses.” 4. The BOG violated Petitioner’s rights under the North Carolina Constitution by failing to provide her with transcripts of its interviews with witnesses. 5. The applicable grievance procedures, which afford more procedural rights to career State employees who challenge the existence of just cause for an adverse employment action than to EPA Non-Faculty employees who file a grievance alleging discrimination or retaliation, violated Petitioner’s rights to due process and equal protection. Based upon these determinations, the trial court ordered the UNC School of Medicine to “reinstate, Petitioner in a comparable position with retroactive pay and benefits that she would now be entitled to as if she had been employed since the University banned her from her workplace!,] • • • reimburse her reasonable attorney’s fees and costs[,] . . . bring the University’s unconstitutional Grievance Procedure into compliance consistent with this Decision and Order, and . . . make available to all parties ... all testimonial evidence adduced in any grievance!.]” Respondents noted an appeal to this Court from the trial court’s order. II. Legal Analysis A. Standard of Review According to N.C. Gen. Stat. § 150B-43, “[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision.” N.C. Gen. Stat. § 150B-51(b) authorizes a trial court to reverse or modify an agency’s decision if the petitioner’s substantial rights have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence admissible under [N.C. Gen. Stat. §§] 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or (6) Arbitrary, capricious, or an abuse of discretion. “On judicial review of an administrative agency’s final decision, the substantive nature of each assignment of error dictates the standard of review.” N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004). The first four grounds are “law-based” inquiries warranting de novo review. The latter two grounds are “fact-based” inquiries warranting review under the whole-record test. Under de novo review, a court “considers the matter anew[] and freely substitutes its own judgment for the agency’s.” Under the whole-record test, a court “examines all the record evidence ... to determine whether there is substantial evidence to justify the agency’s decision.” Trayford v. N.C. Psychology Bd., 174 N.C. App. 118, 121, 619 S.E.2d 862, 863-64 (2005) (quoting Carroll, 358 N.C. at 659-60, 599 S.E.2d at 894-95), aff’d, 360 N.C. 396, 627 S.E.2d 462 (2006). “As to appellate review of a superior court order regarding an agency decision, ‘the appellate court examines the trial court’s order for error of law. 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 Triangle v. Commission for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). In reviewing “an agency decision, the trial court should state the standard of review it applied to resolve each issue.” Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 130, 560 S.E.2d 374, 380 (2002) (citing In re Appeal of Willis, 129 N.C. App. 499, 502, 500 S.E.2d 723, 726 (1998)). B. Whistleblower Act 1. Applicability N.C. Gen. Stat. Chapter 126, Article 14, §§ 126-84-88, which is commonly known as the “Whistleblower Act,” protects State employees who report serious misconduct to their superiors or other appropriate authorities. The determination of whether EPA Non-Faculty employees such as Petitioner are protected by the Whistleblower Act requires inte