Retaliation Cases

ANZALDUA v NEOGEN CORPORATION Docket No. 296978. Submitted May 13, 2011, at Lansing. Decided May 17, 2011, at 9:20 a.m. Sharon Anzaldua brought an action in the Ingham Circuit Court against Neogen Corporation, alleging retaliatory discharge in violation of Michigan’s public policy. In May 2007, plaintiff had cooperated with a state official who performed a boiler inspection, which led to a citation being issued to defendant. Plaintiff was terminated in June 2007. Plaintiff filed her complaint in May 2009. Defendant moved for summary disposition under MCR 2.116(C)(7) (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact). The court, Rosemarie E. Aquilina, J., granted the motion, concluding that the gravamen of plaintiffs complaint essentially alleged that she had been engaged in activity protected under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Therefore, the court concluded that the WPA provided the exclusive remedy for plaintiffs claim and that her failure to bring her claim within the 90-day period of limitations set forth in MCL 15.363(1) required that summary disposition be granted in defendant’s favor. Plaintiff appealed. Defendant cross-appealed, arguing that the trial court had improperly made a finding of fact when deciding the motion for summary disposition. The Court of Appeals held: 1. The WPA provides employees protection from discharge from employment or other retaliation when, among other things, the employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body. The term “inquiry” encompasses an administrative search. Thus, plaintiff was engaged in protected activity under the WPA when she cooperated with a state officer performing a boiler inspection, and her claim was subject to the WPA’s exclusive remedy. Plaintiffs attempt to characterize her claim as one for retaliatory termination in violation of public policy, rather than a claim under the WPA, failed. Thus, plaintiff was bound by the 90-day limitations period set forth in the WHPA, and the trial court did not err by granting summary disposition in defendant’s favor. 2. The trial court’s decision to grant summary disposition was not premature even though discovery was not complete because plaintiff did not demonstrate a fair likelihood that further discovery could reveal anything to refute the trial court’s correct conclusion that plaintiffs exclusive remedy was under the WPA. 3. Defendant argued on cross-appeal that the trial court improperly made a factual finding that plaintiff was terminated because of her participation in the boiler inspector’s investigation. While a trial court may not make findings of fact or credibility determinations when deciding a motion for summary disposition, MCR 2.116(C)(8) requires a trial court to accept all well-pleaded factual allegations as true. Thus, it was apparent that the challenged statement in the trial court’s order was a summary of plaintiffs allegations rather than an improper finding of fact. Defendant failed to establish that the trial court’s statement was improper. Affirmed. 1. Statutes — Whistleblowers’ Protection Act — Protected Activity — Inquiry. The Whistleblower’s Protection Act provides employees protection from discharge from employment or other retaliation when, among other things, the employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body; an inquiry includes an administrative search (MCL 15.362). 2. Statutes — Whistleblowers’ Protection Act — Exclusive Remedy — Period of Limitations. A plaintiff asserting a claim that arises from circumstances that establish a claim for relief under the Whistleblower’s Protection Act is subject to that act’s exclusive remedy and cannot evade the act’s 90-day limitations period by recasting the claim as one for retaliatory discharge in violation of public policy. Pitt McGehee Palmer Rivers & Golden, PC (by Robert W. Palmer and Beth M. Rivers), for Sharon Anzaldua. Oade, Stroud & Kleiman, P.C. (by Ted W. Stroud), for Neogen Corporation. Before: OWENS, P.J., and O’CONNELL and METER, JJ. PER CURIAM. Plaintiff appeals as of right the trial court’s order granting defendant’s motion for summary disposition under MCR 2.116(C)(7) (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact). Defendant cross-appeals, arguing that the trial court made an improper finding of fact when deciding its motion. We affirm. I. FACTS AND PROCEEDINGS This action arose from defendant’s termination of plaintiffs employment in June 2007. In May and June 2007, defendant was in the process of establishing a laboratory for the manufacture of an equine botulism vaccine. The manufacture of this vaccine is regulated by federal and state agencies to avoid safety hazards and security breaches pertaining to the botulism organism used in the manufacturing process. Plaintiff had been selected as the Select Agent Program Alternate Responsible Official in defendant’s Lansing facility. Under applicable regulations, no one could be admitted to the restricted laboratory areas (the Bot suite) without the presence and authorization of plaintiff or the primary responsible official. However, these restrictions were not to be in effect until defendant actually received the botulism agent in October 2007. Plaintiff alleged that she was terminated from her employment with defendant in June 2007 in retaliation for her compliance with a state Department of Labor deputy boiler inspector, A1 Ladd. Plaintiff had escorted Ladd through the facility when he arrived for an unannounced inspection on May 3, 2007. The inspector discovered an unregistered boiler in the facility and issued a citation requiring defendant to bring the boiler into conformity with state regulations. When the inspector returned on May 14, 2007, defendant’s maintenance manager, A1 Meredith, informed plaintiff that Meredith, not plaintiff, would escort Ladd through the facility for the inspection. Meredith instructed plaintiff not to talk to Ladd and to channel all communications through Meredith. Nonetheless, plaintiff accompanied Ladd to the Bot suit and cooperated with him when he asked questions about another unregistered boiler. Plaintiff filed this action in May 2009, alleging a claim for retaliatory discharge in violation of public policy because she was terminated for complying with her statutory duty to grant Ladd access to the facility to inspect the boilers. Defendant moved for summary disposition under MCE 2.116(C)(7), (8), and (10), arguing that there was no genuine issue of material fact that plaintiffs claim arose under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., that plaintiff had failed to state a cognizable claim independent of the WPA, and that plaintiffs claim was untimely under the WPA’s 90-day limitations period, MCL 15.363. Plaintiff denied that she was engaged in protected activity under the WPA and maintained that she had pleaded a valid claim for retaliatory discharge contrary to public policy. The trial court agreed with defendant and granted its motion. II. STANDARD OF REVIEW This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Doe v Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich App 632, 638; 692 NW2d 398 (2004). When reviewing a motion under MCE 2.116(C)(7), a reviewing court must consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings and evidence in favor of the nonmoving party. Id. “Absent a disputed question of fact, the determination whether a cause of action is barred by a statute of limitation is a question of law that this Court reviews de novo.” Id. A motion brought under MCR 2.116(C)(8) tests whether the complaint states a claim as a matter of law. Teel v Meredith, 284 Mich App 660, 662; 774 NW2d 527 (2009). In reviewing the motion, the court accepts as true all well-pleaded allegations and construes them in a light most favorable to the nonmoving party. Id. The motion should be granted if no factual development could possibly justify discovery. Id. A motion under MCR 2.116(C)(10) tests the factual support for a claim and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Driver v Naini, 287 Mich App 339, 344; 788 NW2d 848 (2010). The nonmoving party may not rest on the allegations in the pleadings, but must set forth, through documentary evidence, specific facts demonstrating a genuine issue for trial. Id. III. ANALYSIS The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body. MCL 15.362; MCL 15.363; Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 610; 566 NW2d 571 (1997). The WPA provides that an employer shall not discharge or otherwise retaliate against an employee because the employee “reports or is about to report... a violation or a suspected violation of a law or regulation” or because “an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body.” MCL 15.362. A prima facie case under the WPA arises when (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 adverse employment decision. Shaw v City of Ecorse, 283 Mich App 1, 8; 770 NW2d 31 (2009). The underlying purpose of the WPA is protection of the public. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378; 563 NW2d 23 (1997). The statute “meets this objective by protecting the whistle-blowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.” Id. at 378-379. The WPA is a remedial statute and must be liberally construed to favor the persons that the Legislature intended to benefit. Chandler v Dowell Schlumberger, Inc, 456 Mich 395, 406; 572 NW2d 210 (1998). The WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 70, 78-79; 503 NW2d 645 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich 589, 595 n 2 (2007). However, if the WPA does not apply, it provides no remedy and there is no preemption. Driver v Hanley (After Remand), 226 Mich App 558, 566; 575 NW2d 31 (1997). The WPA imposes a 90-day limitations period for a civil action arising from a violation of the act. MCL 15.363(1). In determining whether a statute of limitations applies, this Court looks to the true nature of a complaint, reading the complaint as a whole and looking beyond the parties’ labels to determine the exact nature of the claim. Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399 (2007). Accordingly, a plaintiff asserting a claim for termination in violation of public policy that arises from circumstances that establish a claim for relief under the WPA will be subject to the WPA’s exclusive remedy and will not be permitted to evade the 90-day limitations period by recasting the claim as a public-policy claim. Plaintiff argues that she was not engaged in protected activity under the WPA with respect to the boiler inspection because she was not requested by a public body to participate in an “investigation” or “inquiry” as those terms are used in the WPA. The WPA defines a “public body” as including “[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.” MCL 15.361(d)(¿). The deputy boiler inspector, as a state officer, thus falls within the definition of a public body under the WPA. However, plaintiff characterizes Ladd’s boiler inspection as a “routine inspection” that cannot be classified as an investigation or inquiry under the WPA. The WPA does not define the terms “investigation” or “inquiry.” Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for definitions. Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). Black’s Law Dictionary (8th ed), p 844, defines “investigate” as “[t]o inquire into (a matter) systematically” or “[t]o make an official inquiry.” It defines “inquiry” in the context of parliamentary law as “[a] request for information, either procedural or substantive” and in the context of international law as fact-finding. Id. at 808. Random House Webster’s College Dictionary (2000) defines “inquiry” as “1. a seeking or request for truth, information, or knowledge. 2. an investigation, as into an incident. 3. a question; query.” The general dictionary definition of “inquiry” meshes with the legal dictionary’s definition of the term “administrative search,” which is defined in Black’s Law Dictionary (8th ed), p 1378, as “[a] search of public or commercial premises carried out by a regulatory authority for the purpose of enforcing compliance with health, safety, or security regulations.” The activity of an administrative search thus involves an inquiry as defined in Random House Webster’s College Dictionary as a seeking or request for truth, information, or knowledge. Reading these definitions together, and in view of the WPA’s delineation of protected activity, it is apparent that the term “inquiry” in the WPA encompasses an administrative search such as the inspection carried out here by the boiler inspector. Thus, plaintiff was engaged in protected activity when she cooperated with Ladd’s inspection, and her claim was therefore subject to the WPA’s exclusive remedy. Dudewicz, 443 Mich at 70. Accordingly, plaintiff failed to plead a cognizable public-policy claim independent of the WPA. Plaintiffs reliance on Messenger v Dep’t of Consumer & Indus Servs, 238 Mich App 524; 606 NW2d 38 (1999), in support of her argument that the boiler inspection was not an investigation within the meaning of the WPA is misplaced. In Messenger, the plaintiff, a licensed physician, was prosecuted for and acquitted of manslaughter for withdrawing life support from his infant son. Id. at 527. The plaintiff presented a request under the Freedom of Information Act (FOIA), MCL 15.321 et seq., for information that the defendant, the Department of Consumer and Industry Services, had compiled regarding the plaintiffs prosecution. Messenger, 238 Mich App at 527. The defendant contended that the information was exempt from disclosure under the Public Health Code (PHC), specifically MCL 333.16238(1), which classified as confidential any information obtained in an investigation before the issuance of an administrative complaint. Messenger, 238 Mich App at 527-528. This Court held that the FOIA exemption did not apply because there had not been an investigation within the meaning of MCL 333.16238(1), explaining: The PHC does not expressly define the term “investigation.” In the absence of a statutory definition of a term, a court may consult dictionary definitions to determine the common meaning of a word. Popma v Auto Club Ins Ass’n, 446 Mich 460, 470; 521 NW2d 831 (1994); Weisman v US Blades, Inc, 217 Mich App 565, 568; 552 NW2d 484 (1996). Random House Webster’s College Dictionary (2d ed.), p 668, defines an “investigation” as “the act or process of investigating or the condition of being investigated” or “a searching inquiry for ascertaining facts; detailed or careful examination.” Similarly, to “investigate” is “to search or examine into the particulars of; examine in detail.” Id. Further, §§ 16221 and 16233 of the PHC, MCL 333.16221, 333.16233, instruct that, during the course of an investigation, the department may hold hearings, take testimony, and administer written, oral, and practical tests to a licensee as investigatory tools. Applying the general principles of statutory construction and the common meaning of “investigation” to the facts of this case, we find that defendant’s conduct did not amount to an “investigation” as contemplated by the PHC. Defendant did not engage in a searching inquiry for ascertaining facts, nor did it conduct a detailed or careful examination of the events surrounding plaintiffs alleged misconduct. Rather, by its own admission, defendant conducted only an “administrative review,” a “monitoring and a preliminary compilation of information,” a “preliminary review,” and a “preliminary information gathering process ... limited to non-intrusive measures” that preceded a “formal field investigation.” Indeed, defendant’s passive efforts at collecting information concerning the manslaughter charges filed against plaintiff consisted of nothing more than obtaining documents from public agencies and monitoring the criminal proceeding. On this record, we find that defendant’s conduct is properly classified as that which precedes a formal “investigation” and does not rise to the level of an “investigation” as contemplated by the PHC. [Id. at 534-535 (citations omitted).] Plaintiff contends that the boiler inspector’s visits did not rise to the level of an investigation because they did not involve “a searching inquiry for ascertaining facts” or “a detailed or careful examination of the events surrounding” alleged misconduct. However, we are not persuaded that this Court’s construction of the term “investigation” as used in the PHC, MCL 333.16238(1), requires a similarly restrictive interpretation of the terms “investigation” and “inquiry” as used in the WPA. Whereas the WPA’s inclusions of protected persons must be construed broadly, Chandler, 456 Mich at 406, exemptions from disclosure under the FOIA must be narrowly construed, Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 232; 507 NW2d 422 (1993). Moreover, the WOPA’s protection is not limited only to persons who participate in investigations, but extends to employees who are requested by a public body to participate in “an investigation, hearing, or inquiry held by that public body.” MCL 15.362 (emphasis added). Indeed, the Messenger Court’s construction of the term “investigation” as used in the PHC builds on the term “inquiry”; an investigation encompasses “a searching inquiry for ascertaining facts; detailed or careful examination.” This is consistent with the Black’s Law Dictionary definition of “investigation” as including an “official inquiry” and to “systematically” inquire into a matter. Read together, these definitions suggest a hierarchy of governmental acquisition of information, with probing or formal investigations being required to apply the FOIA exemption and with less intrusive and less formal inquiries being sufficient to come within the scope of the WPA. The boiler inspector’s inspection fits the definition of “inquiry” in the WPA. Accordingly, an employee who participates in an investigation or inquiry, which includes an administrative search or inspection, is a protected person under the WPA. Consequently, plaintiffs action was subject to the WPA’s exclusive remedy and was therefore barred by the 90-day limitations period in that act. Dudewicz, 443 Mich at 70; MCL 15.363. Accordingly, summary disposition was proper under MCR 2.116(C)(7), because plaintiffs claim was untimely, and also under MCR 2.116(C)(8) and (10), because plaintiff failed to plead or support a claim that was not subject to the WPA’s exclusive remedy. Because we conclude that the WPA was plaintiffs exclusive remedy, it is unnecessary to consider the merits of plaintiffs public-policy theory. We also disagree with plaintiffs argument

Psy-Ed Corporation & another vs. Stanley Klein & another; David Hirsch & others, third-party defendants (and a companion case). Middlesex. January 3, 2011. May 12, 2011. Present: Ireland, C.J., Spina, Cordy, & Botsford, JJ. Employment, Termination. Anti-Discrimination Law, Termination of employment. Employment, Retaliation. Abuse of Process. Contract, Interference with contractual relations. Consumer Protection Act, Businessman’s claim. Damages, Emotional distress, Attorney’s fees. Discussion of G. L. c. 151B, § 4 (4) and (4A), which prohibits retaliation and adverse employment actions, and of the limits that State and Federal constitutional rights to seek judicial resolution of disputes impose on the scope of the statute in circumstances in which the filing of a lawsuit is the alleged retaliatory act. [706-708, 709-710] In a civil action, the judge, in determining that a former employee had established a claim of retaliation by her employer in violation of G. L. c. 151B, § 4 (4) and (4A), properly concluded that the employee had engaged in legally protected conduct in bringing a claim of discrimination in employment before the Massachusetts Commission Against Discrimination (commission), that the civil action that the employer and an officer and director of the employer brought against the employee was an adverse employment action that was baseless, that there was a causal connection between the protected conduct and the adverse action, and that the employee acted reasonably and in good faith in believing that she had suffered discrimination and reasonably responded to that belief by filing a complaint with the commission. [710-712] In a civil action in which a former employee brought a counterclaim against his former employer for retaliation in violation of G. L. c. 151B, § 4 (4) and (4A), the judge erred in granting summary judgment in favor of the employer, on the ground that the retaliatory acts alleged occurred more than two years after the employment relationship between the two parties had been terminated, where a person need not be a current employee to enjoy the protection of the statute. [708-709, 712-713] This court vacated a judgment in a civil action in favor of two former employees on counterclaims alleging abuse of process against their former employer and an officer and director of the employer, where the judge erroneously relied on the standard for the separate tort of malicious prosecution and, with respect to one employee, did not indicate whether he adopted or rejected the employee’s position that the employer and the officer and director brought a lawsuit against her in order to gain a collateral advantage, i.e., to discourage her from pursuing her claims before the Massachusetts Commission Against Discrimination, to distract her from those claims and impose legal costs on her, and to induce her to abandon those claims [713-715]; and where, with respect to the other employee, the judge’s findings did not clearly identify what, if any, ulterior purpose and collateral advantage the employer and the officer and director sought in bringing suit against the employee [715]. This court vacated a judgment in a civil action in favor of a former employee on a counterclaim of tortious interference with his contract with his former employer, brought against an executive officer and director of the employer, where the judge made no findings on the issue whether the officer and director induced the employer to commit a breach of a contract (a promissory note) to which the officer and director was not himself a party, nor on the antecedent issue whether the vote by the board of directors of the employer (board) to suspend payments on the promissory note caused the employer to commit a breach of the contract [715-718]; further, this court reversed the judgment in favor of the former employee on his claim against the other board members for tortious interference with his contract with the employer, where the former employee failed to demonstrate actual malice [718-719]. In a civil action, the judge did not err in concluding that a former employee had not established a claim of a violation of G. L. c. 93A, § 11, against his former employer, a director and officer of the employer, and members of the board of directors (board) of the employer, where the dispute arose out of a private transaction between the board and the former employee in his role as an employee and shareholder of the company, a context in which they were operating as a single business enterprise. [719-720] In a civil action, the judge erred in dismissing the counterclaims of the defendants, an employer and an officer and director of the employer, against a former employee, on the ground that the defendants’ efforts to amend a complaint they had filed in a separate, earlier action against the former employee to raise the same claims had been denied as untimely, where the defendants’ counterclaims were not so closely connected to the claims in their own, earlier complaint as to be derivative of that pending action. [720] In a civil action in which a judge other than the trial judge held a posttrial, nonevidentiary hearing to determine damages on the successful counterclaims of two parties, the second judge acted within her discretion in her award of damages to one of the parties for emotional distress [720-721]; however, she erred in declining to hold at least a limited evidentiary hearing on the issue of attorney’s fees [722], Civil actions commenced in the Superior Court Department on December 17, 1999, and December 12, 2002. Following consolidation, the case was heard by Julian T. Houston, J., and a hearing on damages was had before Sandra L. Hamlin, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jeffrey S. Robbins (A.W. Phinney, III, with him) for Psy-Ed Corporation & another. Donna M. Brewer for David Hirsch & others. Kurt S. Kusiak (A. Hether Cahill with him) for C. Kenneth Mehrling. George P. Field for Stanley D. Klein. Dahlia C. Rudavsky (Kevin C. Merritt with her) for Kimberly Schive. The following submitted briefs for amici curiae: Jack F. St. Clair for International Committee Against Mental Illness & others. Anne L. Josephson, Heidi S. Alexander, & Nina Joan Kimball for Charles Hamilton Houston Institute for Race and Justice & others. Robert S. Mantell, Elizabeth A. Rodgers, Sara Smolik, & Tara M. Swartz for Massachusetts Employment Lawyers Association. Simone R. Liebman & Catherine Ziehl for Massachusetts Commission Against Discrimination. Joseph Valenzano, Jr. Kimberly Schive. Robert Striano, Donald S. Chadwick, and C. Kenneth Mehrling. Stanley D. Klein vs. Psy-Ed Corporation & another. Botsford, J. This case involves bitter litigation spanning more than a decade. It raises the question, among others, whether actions taken by an employer against a former employee may violate G. L. c. 15IB, § 4 (4) and (4A), sections of the anti-discrimination law that respectively prohibit retaliation and interference with a protected right. On this question, we conclude that an employer or other person may be liable to a former employee under these sections for retaliatory or interfering conduct that occurs after the employment relationship has terminated. We defer all discussion of the additional issues raised until later in this opinion. 1. Background, a. Introduction. Before us are cross appeals from judgments in two actions in the Superior Court. The first was brought in 1999 by Psy-Ed Corporation (Psy-Ed, or company) and Joseph Valenzano, Jr., against Dr. Stanley Klein and Kimberly Schive. Klein brought the second action in 2002 against Valenzano and Psy-Ed, setting out a claim of retaliation. The two actions were consolidated prior to trial, which took place in 2006. We summarize first the facts as the trial judge found them, followed by a summary of the procedural history of the two actions. We reserve for later discussion the posttrial proceedings. b. Facts. Klein, Maxwell Schleifer, and a third man founded Psy-Ed in 1969. In 1971, Psy-Ed began publishing Exceptional Parent (EP), a magazine for families of children with disabilities and special health care needs; Klein and Schleifer served as copublishers. In the early 1990s, Psy-Ed began to have financial problems, and in 1993, Valenzano was approached to evaluate Psy-Ed as an investment opportunity. He decided to invest, and brought in about forty other investors. In the resulting restructuring of the company, Psy-Ed bought Schleifer’s shares, Klein remained with the company and became editor-in-chief of EP, Valenzano joined Psy-Ed as president, chief executive officer, a member of the company’s board of directors (board), and publisher, and the company opened a second office in New Jersey in addition to its original Massachusetts office. At various times after 1993, the third-party defendants, Kenneth Rossano, Dr. David Hirsch, Robert Striano, Donald S. Chadwick, and Robert K. Hopkins, served as members of the board. During Klein’s employment as editor-in-chief, there were disagreements between him and the board. From 1993 until 1996, Schive worked for Psy-Ed in the Massachusetts office, first as an assistant editor of EP and later as associate editor. Schive, who is deaf, required certain accommodations to be provided by her employer, including an interpreter at meetings. On several occasions, she was not provided an interpreter at meetings, and she perceived Valenzano to be impatient and angry at questions she asked while attempting to follow the discussion. In the summer of 1996, during the restructuring process initiated by Valenzano’s new management team, certain functions were moved to New Jersey, and Schive was told she would continue to have a role at Psy-Ed. However, she was offered only a three-month position as a part-time consultant, and thereafter she no longer worked for the company. On February 13, 1997, Schive filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD). On June 13, 1997, at Valenzano’s request and despite misgivings of which Valenzano was aware, Klein signed an affidavit generally supportive of Psy-Ed’s position in Schive’s MCAD matter. Klein was informed in June, 1997, that his employment contract with Psy-Ed was due to expire on June 30, and that it would not be renewed. Klein still held a twenty-one per cent interest in the company, however, and he proposed an alternative slate of Psy-Ed directors for election at a shareholders’ meeting on September 30, 1997. Valenzano, meanwhile, promoted the election of his own preferred slate. Klein’s attempt to have Psy-Ed shareholders elect his slate of directors failed at the September shareholder meeting. His proxy fight lost, Klein entered into negotiations with representatives of Psy-Ed for a complete and permanent separation from the company. Valenzano began negotiating with third-party defendant C. Kenneth Mehrling to arrange financing for the acquisition of Klein’s shares. On March 27, 1998, Klein, Psy-Ed, and Valenzano executed a settlement agreement that included a mutual release of all claims (settlement agreement). Under the terms of the settlement agreement, Klein received an initial payment of $45,000 and a promissory note specifying sixteen quarterly payments of $13,797.19, for a total of $265,755, while Psy-Ed reacquired all of Klein’s shares in the company. On October 6, 1997, without Valenzano’s knowledge and while the negotiations over buying out Klein’s Psy-Ed shares were in process, Klein signed a second affidavit in connection with Schive’s MCAD charge against Valenzano and Psy-Ed. In his second affidavit, which was filed with the MCAD, Klein stated that after preparing his June, 1997, affidavit, he had become aware of and dissatisfied with the company’s response to Schive’s charge, as well as the manner in which his earlier affidavit had been characterized in that response. Klein also stated in the second affidavit that after completing the first affidavit, he had been reminded of certain incidents by former members of the Massachusetts staff. In September, 1999, Valenzano became aware of Klein’s second affidavit in the Schive MCAD matter. He became aware as well that a former Psy-Ed sales and marketing contractor, Lawrence Qualiano, also had signed an affidavit in support of Schive’s claim. At the next formal meeting of Psy-Ed’s board of directors, held on September 30, 1999, the directors addressed the affidavits of Klein and Qualiano. They decided to terminate the company’s involvement in an ongoing mediation of Schive’s discrimination complaint before the MCAD, and agreed to “litigate this matter aggressively.” On December 2, 1999, the MCAD issued a probable cause determination in Schive’s favor on her complaint. On December 17, 1999, Psy-Ed and Valenzano filed a complaint against Klein and Schive in which they alleged defamation, violation of G. L. c. 93A, § 11, civil conspiracy, and tortious interference with contractual and business relations (1999 action). Before serving either defendant, the board met on December 23, 1999, and voted five-to-one to discontinue further payments to Klein under the promissory note attached to the settlement agreement until Klein signed a settlement agreement between Psy-Ed and Qualiano, and until authorized by the board “based on the opinion of Boston counsel and their assessment and evaluation of alternative scenarios and their estimate of legal costs associated with the litigation the company has filed against Stan Klein and Km Schive.” Rossano’s was the sole dissenting vote. c. Prior proceedings. As just stated, Psy-Ed and Valenzano filed their action against Kein and Schive in December, 1999. In response, Klein counterclaimed against Psy-Ed and Valenzano and brought a third-party complaint against Rossano and the other members of the board. In his counterclaim and third-party complaint, Klein alleged interference with contractual relations by Valenzano, Rossano, and the other board members. He also alleged abuse of process by Psy-Ed and Valenzano, and violations of G. L. c. 93A, § 11, by Psy-Ed, Valenzano, and the board members. On account of Psy-Ed’s 1999 action, Schive filed another complaint with the MCAD on February 17, 2000, asserting a claim of retaliation in violation of G. L. c. 151B against Psy-Ed and Valenzano. Thereafter, as authorized by G. L. c. 151B, § 9, she brought this retaliation claim in the Superior Court as a counterclaim in the 1999 action. At the same time, Schive counterclaimed against Psy-Ed and Valenzano for abuse of process. Psy-Ed and Valenzano moved to amend their complaint in November, 2000, to add an allegation that by executing the settlement agreement without disclosing his second affidavit, Klein fraudulently induced them to enter the settlement agreement. A Superior Court judge (the eventual trial judge) denied Psy-Ed’s and Valenzano’s motion as untimely under the tracking order applicable to the case. In 2002, Klein filed a separate complaint against Psy-Ed and Valenzano alleging retaliation in violation of G. L. c. 15IB, § 4 (4) and (4A) (§ 4 [4] and [4A]) (2002 action). In response, Psy-Ed and Valenzano counterclaimed, alleging breach of contract and fraud. On December 1, 2003, a Superior Court judge allowed Klein’s motion to dismiss the counterclaims because in the 1999 action, Psy-Ed and Valenzano’s attempt to add a breach of contract claim had been dismissed as untimely, and the allegation of fraud arose out of the same transaction as the barred breach of contract claim. In April, 2005, a different Superior Court judge (motion judge) entered judgment sua sponte against Klein on his retaliation claims because the alleged conduct had occurred when he was no longer an employee. By the time of trial, in June, 2006, no claims remained in Psy-Ed’s and Valenzano’s 1999 action against Schive, and only one claim, for defamation, remained against Klein. The trial judge tried that claim and the remaining counterclaims and third-party claims of Klein and Schive in a jury-waived trial, and thereafter issued findings of fact, rulings of law, and an order of judgment. He rejected Psy-Ed’s and Valenzano’s claim of defamation. The judge found in favor of Klein on his claim of tortious interference with contractual relations, in favor of Klein and Schive on their respective claims of abuse of process, and in favor of Schive on her retaliation claim. He found against Klein on his remaining claims, including violation of G. L. c. 93A, § 11. In his order, the trial judge indicated a hearing would be held to determine damages with respect to those counterclaims on which he had found liability. However, the trial judge retired before holding such a hearing. As we explain in more detail below, a different Superior Court judge (posttrial judge) held a nonevidentiary hearing on damages on January 4, 2008. On March 13, 2009, she awarded Klein $125,000 in emotional distress damages in connection with his claims of abuse of process and tortious interference with contractual relations, $124,174.71 plus prejudgment interest in connection with the unpaid principal on the promissory note, $510,960.23 in attorney’s fees, and $17,002.50 in costs. The same day, she awarded Schive $125,000 in emotional distress damages, $443,040.95 in attorney’s fees, and $20,407.65 in costs. In Schive’s case, judgment entered against Psy-Ed and Valenzano, the only defendants named in her counterclaims. All amounts due to Klein, however, were awarded and assessed jointly and severally against Psy-Ed, Valenzano, and four of the six third-party defendants: Hirsch, Striano, Chadwick, and Mehrling. Before us are multiple appeals. Psy-Ed and Valenzano appeal from and argue error in the judgments against them on Klein’s claims of tortious interference with contractual relations and abuse of process, and on Schive’s claims of abuse of process and retaliation. Psy-Ed and Valenzano also argue abuse of discretion or other error of law in the denial of Psy-Ed’s and Valenzano’s motion to amend the complaint in the 1999 action and in awarding damages without conducting further evidentiary hearings. Hirsch, Chadwick, Striano, and Mehrling appeal from and claim error in the judgments against them on Klein’s claim of tortious interference with contractual relations. Finally, Klein appeals and challenges the entry of summary judgment on his claims of retaliation under § 4 (4) and (4A) and the entry of judgment against him on his claim of unfair or deceptive conduct under G. L. c. 93A, § 11. 2. Retaliation, a. Generally. Both Schive and Klein claim they were the victims of retaliation in violation of G. L. c. 151B. Chapter 151B, however, does not actually use the word “retaliation.” Rather, § 4 (4) makes it unlawful for “any person ... to discharge, expel or otherwise discriminate against any person because he has . . . filed a complaint, testified or assisted in any proceeding under [G. L. c. 15IB, § 5],” while § 4 (4A) makes it unlawful for “any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.” A claim of retaliation may succeed even if the underlying claim of discrimination fails, provided that in asserting her discrimination claim, the claimant can “prove that [she] reasonably and in good faith believed that the [employer] was engaged in wrongful discrimination.” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000), quoting Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). In the absence of direct evidence of a retaliatory motive, to make out a prim

JAMES L. McDOWELL, Plaintiff v. CENTRAL STATION ORIGINAL INTERIORS, INC., Defendant No. COA10-324 (Filed 19 April 2011) 1. Employer and Employee— Retaliatory Employment Discrimination Act— reason for termination — summary judgment improper The trial court erred by granting defendant employer’s motion for summary judgment in a case alleging termination in violation of the Retaliatory Employment Discrimination Act. There was a genuine issue of material fact as to why plaintiff was terminated after he exercised his right to file a workers’ compensation claim. Appeal by plaintiff from order entered 11 December 2009 by Judge Edgar B. Gregory in Superior Court, Guilford County. Heard in the Court of Appeals 11 October 2010. Morgan, Herring, Morgan, Green, & Rosenblutt, L.L.R by Todd J. Combs, for plaintiff-appellant. Clayton B. Krohn, for defendant-appellee. STROUD, Judge. Plaintiff filed a complaint alleging defendant terminated him in violation of the Retaliatory Employment Discrimination Act. The trial court granted defendant’s motion for summary judgment, and plaintiff appeals. As we conclude that plaintiff has forecast a genuine issue as to a material fact, we reverse. I. Background On 27 February 2009, plaintiff sued defendant alleging in pertinent part: 8. On or about November 5, 2007 Plaintiff was injured at work in a job related hernia injury and received medical care resulting in Plaintiff being out of work as a result of the job related injury through March 1, 2008. 9. After Plaintiff’s hernia injury on November 5, 2007, Plaintiff filed a workers’ compensation claim due to his health injuries and said claim was reported to the Defendant. 10. On or about March 3, 2008 Plaintiff returned to his employment. After March 3, 2008, the Plaintiff returned to work with unrestricted duty. 11. For the approximate fifteen (15) month period the Plaintiff was employed by Defendant, he only missed work during the above stated period of time due to his hernia injury, when the Plaintiff was in that hospital for three (3) day[s] during the summer of 2007 due to a blood disorder and Plaintiff was tardy on only one (1) occasion. 12. When Plaintiff returned to work, Lisa Hyatt, Chief Financial Officer of Defendant, informed Plaintiff that his job had been “cut”, that Plaintiff had been assigned to “clean up duty”, that Plaintiff had been put on probation for ninety (90) days due to Plaintiffs “sorry” work record, and that Plaintiff had done nothing except “cost the company money” since Plaintiff had been there and that Plaintiff was a “risk to the company”. 13. On or about March 18, 2008 at 5:30 P.M. Plaintiff fell on his back porch steps when he saw a snake and injured his back. 14. On or about March 19, 2008 at 6:30 A.M. Plaintiff contacted his supervisor, Defendant employee Derek Latham that Plaintiff hurt his back and that he had to go see a doctor. Plaintiff’s doctor instructed Plaintiff to have bed rest for the rest of the week and Plaintiff relayed this information to his supervisor Derek Latham. 15. Plaintiff was instructed by Derek Latham that he had to talk to Lisa Hyatt who requested that Plaintiff provide her with a doctor’s note. Plaintiff presented Lisa Hyatt with a doctor[’]s note on the morning of March 19, 2008 and Plaintiff was terminated by Defendant on March 19, 2008. Lisa Hyatt told Plaintiff he was on ninety (90) day probation since [he] had had [sic] returned to work on March 3, 2008 and that now Plaintiff was “out the door” and “fired.” 16. The Defendant’s assertions said [sic] that it was proper to terminate the Plaintiff due to absenteeism, failure to follow safety procedures, and insubordination is a ploy used by the Defendant to terminate the Plaintiff’s employment because of Defendant’s retaliatory discharge for Plaintiff filing a workers’ compensation claim. Plaintiff alleged defendant terminated him contrary to the Retaliatory Employment Discrimination Act (“REDA”). Plaintiff requested, inter alia, “his back pay losses, prejudgment interest on back pay losses, front pay losses, job benefits, wage increases and diminished retirement benefits, emotional distress damages, punitive damages, and compensatory damages [,]” and “[t]hat the Defendant be ordered to implement procedures and policies to prevent illegal discriminatory activities and that the Defendant is enjoined from committing further violations of the Retaliatory Employment Discrimination Act[.]” On or about 20 November 2009, defendant filed an amended motion for summary judgment because “there [was] no genuine issue as to any material fact and that Central Station is entitled to judgment as a matter of law.” On 11 December 2009, the trial court granted summary judgment in favor of defendant and dismissed all of plaintiffs claims with prejudice. Plaintiff appeals. II. Summary Judgment Plaintiff argues that “the trial court committed reversible error by dismissing this action and granting Defendant’s Motion for Summary Judgment.” (Original in all caps.) “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted). “The evidence must be viewed in the light most favorable to the non-moving party.” Wiley v. United Parcel Service, Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004). N.C. Gen. Stat. § 95-241(a) provides in pertinent part 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 . . . Chapter 97 of the General Statutes. N.C. Gen. Stat. § 95-241(a) (2007). The statute [which REDA replaced] does not prohibit all discharges of employees who are involved in a workers’ compensation claim, it only prohibits those discharges made because the employee exercises his compensation rights. Furthermore, our appellate courts indicated in applying the former provision that a plaintiff fails to make out a case of retaliatory action where there is no close temporal connection between the filing of the claim and the alleged retaliatory act. Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 691, 575 S.E.2d 46, 50 (2003) (citation and quotation marks omitted). The North Carolina Retaliatory Employment Discrimination Act (REDA) prohibits discrimination or retaliation against an employee for filing a worker’s compensation claim. 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). 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. 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. 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. Wiley at 186-87, 594 S.E.2d at 811 (citations and quotation marks omitted). Here, there is no dispute that plaintiff “exercised his rights” to file a worker’s compensation claim and “that he suffered an adverse employment action” as he was terminated from employment. Id. at 186, 594 S.E.2d at 811. Thus, the only issue left in considering whether plaintiff properly brought a REDA claim is whether “the alleged retaliatory action was taken because . . . [plaintiff] exercised his rights” to file a worker’s compensation claim. Id. Ms. Lisa Hyatt, defendant’s Chief Financial Officer, stated in her affidavit that “plaintiff had excessive absences from work, failed to follow company procedures including, but not limited to, driving a forklift without certification, preparing the wrong products for shipment to customers, not following instructions of the manager and engaging in insubordinate behavior.” Ms. Hyatt stated that plaintiff “was terminated for not reporting to work and for excessive absenteeism.” However, Mr. Mike West, a former employee of defendant who worked as a shipping manager, filed an affidavit stating that plaintiff “was a very good employee and always on time.” Mr. West claimed he only knew of one time when plaintiff was tardy and that even then plaintiff informed him beforehand. Mr. West asserted that plaintiff only missed work “due to an illness or injury” and that Lisa told him that they “need to get rid of James before he gets hurt again.” In Mr. West’s deposition he also stated that he was told “they needed to get rid of [plaintiff] before he cost the company a bunch of money and that [he] needed to start writing him up for whatever [he] could.” Mr. Derek Latham, also a former employee of defendant and plaintiff’s former supervisor,-testified in his deposition that defendant had never been absent without a doctor’s note. Mr. Latham testified that he was present when plaintiff returned from his 5 November 2007 injury (“worker’s compensation injury”) and that Ms. Hyatt put plaintiff on ninety-days probation for plaintiff “not [to] get hurt[.]” Mr. Latham also testified that he believed plaintiff was fired “because he filed a health insurance claim[.]” During plaintiff’s deposition he stated that when he returned from his worker’s compensation injury, Ms. Hyatt told him he hadn’t “done nothing but cost the company money. Now [he’s] a risk to that company[.]” Thus, defendant has presented evidence that plaintiff was terminated for excessive absences, but plaintiff has presented evidence that he was terminated due to his “health claim[;]” the conflicting evidence creates a question of material fact. Plaintiff directs our attention to Tarrant v. Freeway Foods of Greensboro, Inc., wherein a district manager allegedly asked [the] plaintiff if she was going to behave and stated, “You’re not going to fall again, are you?” Similarly, when she was fired, [the] plaintiff was told that her job performance was fine, but she was being terminated because “she cost the company a lot of money.” 163 N.C. App. 504, 511, 593 S.E.2d 808, 813, disc. review denied, 358 N.C. 739, 603 S.E.2d 126 (2004). This Court determined that “[t]hese statements strongly suggest that [the] plaintiff was terminated because she instituted and later settled a workers’ compensation claim[,]” and therefore reversed the trial court’s dismissal of the plaintiff’s REDA claim. Id. Defendant states that Tarrant and this case are similar to the extent that employees alleged their employers told them they were costing the employer money but contends that the similarities end there. Defendant claims the “costs” statement made here is distinguishable from Tarrant because the statement was not made at the time defendant was being terminated; the basis for the statement was different as it involved plaintiffs absences and mistakes; defendant “never acknowledged” plaintiff “was a good worker[;]” and plaintiff was put on probation rather than terminated upon returning to work from his worker’s compensation injury. While we agree with defendant that there are factual differences between Tarrant and the present case, we do find the similar language used by the employers regarding “costs” compelling when considering this case. Here, the alleged “costs” statement was made when defendant returned to work from his worker’s compensation injury, on 3 March 2008, but defendant was not terminated until 19 March 2008; accordingly, defendant was terminated from employment within three weeks of the statement being made. The fact that defendant did not terminate plaintiff until three weeks after making the “costs” statement does not resolve the factual issue as to whether plaintiff was terminated in violation of REDA. See generally Tarrant at 511, 593 S.E.2d at 813 (“[A] long interval between the filing of a workers’ compensation claim and the termination of the employee could reveal that the two events were not causally related. However, such a concern does not arise where the employer openly admits that the firing was retaliatory. We believe that strictly requiring a close temporal connection would allow employers to circumvent the statute. By simply delaying the retaliatory firing for several months, an employer could prevent a REDA claim from ever going forward, even where there is direct evidence of a wrongful motive.”). Next, while defendant is correct that the “costs” statement could be interpreted as being based upon the cost of plaintiffs absences and mistakes, we must consider the evidence in the light most favorable to plaintiff. See Wiley at 186, 594 S.E.2d at 811. In this light, the “costs” statement could easily be interpreted as referring to the cost of plaintiffs worker’s compensation claim, particularly as the statement was made on the very day that plaintiff returned to work from his worker’s compensation injury. Also, while defendant may have “never acknowledged . . . [plaintiff] was a good worker[,]” defendant does acknowledge that “the issue is not whether the appellant worked hard or was punctual; it is whether the termination was a result of the filing of the workers’ comp claim.” While plaintiff’s work performance is relevant in the analysis of defendant’s motive in terminating plaintiff’s employment, evidence that plaintiff was a “bad” worker does not preclude the possibility that plaintiff’s employment was terminated in violation of REDA. In addition, plaintiff has presented evidence from Mr. West that plaintiff “was a very good employee” and from Mr. Latham that plaintiff was never absent without a doctor’s note. Lastly, although defendant was put on probation instead of immediately being terminated upon his return to work from his worker’s compensation injury, we again note that “strictly requiring a close temporal connection would allow employers to circumvent the statute. By simply delaying the retaliatory firing for several months, an employer could prevent a REDA claim from ever going forward, even where there is direct evidence of a wrongful motive.” Tarrant at 511, 593 S.E.2d at 813. One method of “delaying the retaliatory firing” could be putting an employee on probation. Id. Defendant contends that this case is “on point” with Salter. In Salter, on 2 June 1999, the plaintiff fell at work and broke her foot. 155 N.C. App. at 687, 575 S.E.2d at 47. The plaintiff alleged that her supervisor was opposed to her seeking worker’s compensation, while plaintiff’s supervisor denied such allegations; however, “it has never been contested that plaintiff has failed to get all the workers’ compensation to which she was entitled.” Id. at 687, 575 S.E.2d at 48. After two and one-half months of light duty, on 16 August 1999, plaintiff reinjured her foot while away from work when she tripped at her home. . . . Plaintiff had a scheduled appointment with her physician on 24 August 1999, and planned to return to work after this appointment. Prior to August 24th, however, plaintiff was summoned to work to pick up her check and discuss some things with Frances Ivey[, plaintiff’s supervisor]. On 23 August 1999, Ms. Ivey gave plaintiff her check along with a letter that had been faxed to her from defendant’s head office. Id. at 687-88, 575 S.E.2d at 48. The letter essentially informed plaintiff that her leave due to her injury would be without pay and that she would be allowed to return to work if an appropriate position was available though one was not guaranteed; the letter also provided that a failure to follow the employer’s “procedure” would result in “immediate dismissal.” Id. at 688, 575 S.E.2d at 48. The plaintiff claimed that upon receiving the letter her supervisor informed her she must sign it or be terminated from employment. Id. Plaintiff filed suit, and defendant filed a motion for summary judgment which the trial court granted in defendant’s favor. Id. at 689, 575 S.E.2d at 49. Plaintiff appealed because “the trial court erred in granting summary judgment to defendant because genuine issues of material fact existed as to whether defendant took retaliatory action against her because she filed a workers’ compensation claim, in violation of REDA, N.C. Gen. Stat. § 95-240, et. seq. (2001).” Id. at 690, 575 S.E.2d at 49-50. This Court determined that [s]everal things are wrong with plaintiff’s claim. First, there is no close temporal connection between plaintiff’s instituting a workers’ compensation claim and her termination. Second, plaintiff offers little more than mere speculation that defendant gave her the letter because she filed a workers’ compensation claim. Nothing in the letter refers to workers’ compensation. Plaintiff was allowed to return to work after filing her workers’ compensation claim. Defendant filed all necessary papers for plaintiff to receive benefits, and plaintiff indeed received them. It was not until the second injury occurred and plaintiff was out of work for a full week following a sustained period of light duty was she offered the letter. To recover, plaintiff must show that her discharge was caused by her good faith institution of the workers’ compensation proceedings. This she fails to do. Despite plaintiff’s assertions that one of defendant’s employees was less than cordial, her allegations do not raise a triable, material issue of fact. Thus, summary judgment on plaintiff’s REDA claim is affirmed. Id. at 691-92, 575 S.E.2d at 50-51 (2003) (citation, quotation marks, and ellipses omitted). Here, we do not believe Salter is “on point” with the present case. In Salter, the plaintiff returned to work from her worker’s compensation injury and worked for two and one-half months. Id. at 687, 575 S.E.2d at 48. It was only after the Salter plaintiff’s second non-worker’s compensation injury that she received the letter. Id. at 687-88, 575 S.E.2d at 48. Here, however, plaintiff was allegedly told he had “done nothing except ‘cost the company money’ ” upon his return to work from his worker’s compensation injury. In other words, in Salter, it appears that the plaintiff simply returned to work after her worker’s compensation injury and proceeded to work for two and one-half months before she received the letter, see id., but here, plaintiff was told he “cost the company money” and placed on probation the very day he returned to work from his worker’s compensation injury. Finally, defendant spends a large portion of its brief addressing various statements by Mr. West, Mr. Latham, and plaintiff and how these statements are “speculation[.]” While defendant is correct in noting that more than speculation is required to create a genuine issue of material fact, Wiley at 187, 594 S.E.2d at 811, we do not believe that the testimonies of Mr. West, Mr. Latham, and plaintiff can be completely characterized as such. Mr. West testified that Ms. Hyatt told him that they “need to get rid of James before he gets hurt again[;]” Mr. Latham testified that Ms. Hyatt put plaintiff on ninety-days probation for plaintiff “not [to] get hurt[;]” and during plaintiff’s deposition he stated that when he returned from his worker’s compensation injury, Ms. Hyatt told him he hadn’t “done nothing but cost the company money. Now [he’s] a risk to th