Retaliation Cases

Joulé, Inc., & others vs. Randi Simmons & another. Suffolk. November 1, 2010. March 10, 2011. Present: Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Arbitration, Termination of employment. Contract, Arbitration. Employment, Discrimination. Practice, Civil, Interlocutory appeal. Massachusetts Commission Against Discrimination. Massachusetts Arbitration Act. Federal Arbitration Act. Public Policy. This court concluded that even where an employee has signed a presumptively valid employment agreement requiring arbitration of any claim arising from the employee’s employment, including a claim of discrimination, the Massachusetts Commission Against Discrimination (MCAD) has authority under G. L. c. 151B, § 5, to conduct its own independent proceeding based on such an employee’s complaint of discrimination, and that nothing in such an arbitration provision prohibits the employee from testifying before the MCAD or from providing information, materials, or responses that are necessary for investigation of the case. [93-98] In a civil action seeking to compel arbitration of a claim of discrimination in employment, the judge erred in granting a stay of further proceedings, where, assuming the validity of the arbitration provision in an employment agreement between the parties, the effect of such a stay was to place in the Massachusetts Commission Against Discrimination primary jurisdiction over the employee’s discrimination-based claims rather than to enforce the agreement to arbitrate. [98-100] Civil action commenced in the Superior Court Department on November 19, 2009. A motion to intervene was heard by Thomas E. Connolly, J., and a motion to compel arbitration was heard by Paul E. Troy, J. The Supreme Judicial Court granted an application for direct appellate review. Thomas A. Reed (Eugene J. Sullivan, III, with him) for the plaintiffs. Barbara A. Robb (Nancy S. Shilepsky with her) for the defendant. Catherine C. Ziehl for the intervener. The following submitted briefs for amici curiae: Andrew M. Abraham & J. Michael Conley for The Massachusetts Academy of Trial Attorneys. John Pagliaro & Martin J. Newhouse for New England Legal Foundation & another. Robert S. Mantell for Massachusetts Employment Lawyers Association. Martha Coakley, Attorney General, & Maura T. Healey & Jonathan B. Miller, Assistant Attorneys General, for the Commonwealth. Anne L. Josephson & Heidi S. Alexander for American Civil Liberties Union of Massachusetts & others. Joulé Technical Staffing, Inc.; John G. Wellman; Kristin Motta Zwickau; and Kari Burke. Massachusetts Commission Against Discrimination, intervener. Botsford, J. The plaintiff Joulé Technical Staffing, Inc. (Joulé), employed the defendant, Ranch Simmons, from 2008 to 2009. Both were parties to an employment agreement containing an arbitration provision that purported to cover claims of employment discrimination expressly. Simmons was terminated from her position in July, 2009. Simmons, who claims that her termination was based on discrimination and retaliation by Joulé, did not file a claim for arbitration under the arbitration provision, but did file a complaint of discrimination with the Massachusetts Commission Against Discrimination (MCAD). In response, Joulé filed in the Superior Court a complaint and a motion to compel arbitration of Simmons’s discrimination claim. Before us is Joulé’s interlocutory appeal from the order of a Superior Court judge that in principal part denied Joulé’s motion to compel arbitration and stayed all further proceedings in the Superior Court case pending the outcome of the MCAD proceeding. We conclude that pursuant to G. L. c. 15IB, § 5, the MCAD may conduct its own, independent proceeding based on Simmons’s complaint. With respect to Joulé and Simmons, however, if the arbitration provision in Simmons’s employment agreement is valid — an issue that remains to be resolved — Joulé has a right to compel arbitration of a dispute between it and Simmons concerning her claim. Accordingly, we vacate the order of the Superior Court and remand for further proceedings. 1. Facts and procedural history. Joulé is in the business of providing staffing and business systems support to companies in various States. Joulé hired Randi Simmons for its Boston office in February, 2008, as “selling branch manager.” In accepting the position, Simmons turned down another full-time job offer with another company. At some point after she began to work for the company, Joulé provided Simmons with a document titled “Employment Agreement with Confidentiality, Non-Competition, and Arbitration Provisions” (employment agreement, or agreement). The agreement contains an arbitration provision, quoted in the margin. Simmons had not received a copy or been informed of the employment agreement before starting her job. The agreement provides that Simmons had a right to consult an attorney prior to signing it, but that she would not “be offered employment until [she] sign[ed] and retum[ed] this [agreement.” Simmons did not sign the agreement immediately but, rather, delayed until a “specific request was made for it by the human resources department,” because she “felt apprehensive and uncomfortable about certain restrictions therein.” At the time Simmons was hired and thereafter presented with the employment agreement, she was pregnant, and the baby was bom in due course. Simmons alleges that she was subjected to a hostile work environment and was denied a promotion and salary increase because of Joulé’s biases against pregnant women and against women with children. She complained about the issue to Kristin Motta Zwickau, the director of Joulé’s Boston office. On July 30, 2009, Joulé terminated Simmons’s employment. On August 25, 2009, Simmons filed a complaint with the MCAD asserting discrimination on the basis of sex and pregnancy in violation of G. L. c. 151B, §§ 4 (1) and (11A); G. L. c. 149, § 105D; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006) (Title VII); and retaliation in violation of G. L. c. 15IB, § 4 (4). As previously stated, Simmons did not initiate arbitration proceedings pursuant to the arbitration provision in the employment agreement. On November 19, 2009, Joulé filed its complaint and motion to compel arbitration in the Superior Court. Joulé requested the court to declare that the agreement was valid and binding on Simmons; that Simmons was required to submit to arbitration any claim against Joulé based on the facts alleged in her MCAD complaint; and that Simmons was precluded from acting as a litigant or party in any MCAD proceeding against Joulé. Simmons opposed the motion to compel arbitration, arguing that the arbitration provision in the agreement was unconscionable and did not unmistakably cover discrimination claims; and that in any event, her MCAD complaint or charge could proceed and she was entitled to “participate in the proceeding as the complainant.” The MCAD thereafter filed an emergency motion to intervene that was allowed by a Superior Court judge. After a hearing, a different Superior Court judge (motion judge) accepted the MCAD’s argument that its authority to conduct an investigation and adjudication of Simmons’s claim of discrimination was not affected by the parties’ agreement to arbitrate, and ordered that Joulé’s motion to compel arbitration be denied, that the Superior Court action be stayed pending resolution of the MCAD’s proceeding, and that the arbitration provision in the employment agreement did not preclude Simmons from participating as a party in the pending MCAD matter. Joulé appealed from the motion judge’s order pursuant to G. L. c. 251, § 18 (a) (1). We granted the applications for direct appellate review filed by Simmons and the MCAD. 2. Discussion. General Laws c. 251, § 18 (a) (1), authorizes a party to appeal directly from the denial of an application to compel arbitration. See, e.g., Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 394 (2009) (Warfield). All parties agree, therefore, that Joulé’s interlocutory appeal from the motion judge’s order is properly before us. We review the judge’s order de novo. See Feeney v. Dell Inc., 454 Mass. 192, 199 (2009), citing Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844 (2007). See also Warfield, supra at 395 (motion to compel arbitration treated summarily and judge’s order reviewed de novo). a. Effect of the employment agreement’s arbitration provision on the MCAD. We consider first the effect of the arbitration provision on the MCAD’s ability to pursue its investigation and resolution of Simmons’s MCAD complaint. “The MCAD was established to enforce the Commonwealth’s antidiscrimination laws.” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College). The MCAD has the power to investigate claims of discrimination on its own, but also has the authority — and generally follows this course — to investigate and pursue complaints filed by individuals. See G. L. c. 151B, § 5. In the latter circumstance, although the complaint is filed by the individual, the agency proceeds in its own name. See Stonehill College, supra (in proceeding under G. L. c. 151B, § 5, “it is the MCAD, and not the complainant, that prosecutes the discrimination claim”). We review briefly the MCAD’s procedure in investigating such complaints. See generally G. L. c. 151B, § 5. Any individual alleging discrimination in employment (or otherwise), or the Attorney General, may file a complaint with the MCAD. 804 Code Mass. Regs. § 1.10(1) (1999). The chairperson of the MCAD then designates a single commissioner to investigate the complaint promptly. 804 Code Mass. Regs. § 1.10. If the investigating commissioner finds no probable cause for crediting the allegations of the complaint, the commissioner issues a lack of probable cause finding and dismisses the complaint. 804 Code Mass. Regs. § 1.15(7)(b) (2008). If, however, the commissioner determines that probable cause does exist for crediting the allegations, he or she issues a probable cause finding. Id. At that point, the investigating commissioner endeavors to “eliminate the unlawful practice complained of through conference, conciliation and persuasion.” 804 Code Mass. Regs. § 1.18 (2005). If conciliation is unsuccessful it may be terminated, see 804 Code Mass. Regs. § 1.18(l)(d), and if the investigating commissioner determines that the public interest requires a certification of issues to public hearing, the commissioner issues a complaint in the name of the MCAD. 804 Code Mass. Regs. § 1.20(3) (2004). Such a public hearing is conducted by an MCAD commissioner other than the investigating commissioner, or by a designated hearing officer, or by the full commission. 804 Code Mass. Regs. § 1.21(1) (1999). The case is prosecuted by an MCAD attorney or other staff member, or in some instances by the complainant’s attorney whom the MCAD has designated its agent for the purpose. 804 Code Mass. Regs. § 1.09(5)(a), (b) (1999). A complainant may be permitted to intervene as a party in the case, in the commissioner’s discretion, and also be allowed to testify at the hearing. 804 Code Mass. Regs. § 1.20(4) (2004). If, after the hearing, the MCAD finds that the respondent employer has engaged in an unlawful practice as defined in the statute, the MCAD may require the respondent to “cease and desist from such unlawful practice,” and may grant relief specific to the complaining individual such as “hiring, reinstatement or upgrading of [the] employee[], with or without back pay ... as, in the judgment of the [MCAD], will effectuate the purposes of this chapter.” G. L. c. 151B, § 5. See 804 Code Mass. Regs. § 1.22 (1999). Under both Federal and Massachusetts arbitration statutes, it is clear that parties can agree to arbitrate claims of employment discrimination. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991); Warfield, 454 Mass, at 395-396; Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 17-21 (1st Cir. 1999). By its express terms, the arbitration provision in Simmons’s employment agreement is governed both by the Massachusetts Arbitration Act, G. L. c. 251, § 2 (MAA), and by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA). For agreements governed by the FAA, the statute’s presumption of arbitrability means that “in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA] . . . due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration” (citation omitted). Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-476 (1989). In Warfield, supra at 398, we acknowledged this point, but also held that, in view of the strong public policy against discrimination in employment, any agreement to arbitrate claims of discrimination must be stated clearly and unmistakably. Even where there is a clear and unmistakable provision in an employment agreement requiring arbitration of discrimination claims, however, it would not affect the MCAD’s authority under G. L. c. 151B, § 5. “The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it ‘does not require parties to arbitrate when they have not agreed to do so’. . . . ‘Arbitration under the [FAA] is a matter of consent, not coercion.’ ” EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 294 (2002) (Waffle House), quoting Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. at 478, 479. The MCAD is not a party to the employment agreement at issue here, has not agreed to arbitration of Simmons’s MCAD complaint, and cannot be bound by the agreement’s arbitration provision. “[T]he proarbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so.” Waffle House, supra at 294. Accordingly, assuming the validity of the agreement’s arbitration provision, nothing in it precludes the MCAD from proceeding with its investigation and resolution of Simmons’s discrimination complaint — including, if the evidence warrants, granting relief specific to Simmons. This conclusion is consistent with, and advances, the broad statutory responsibility and authority of the MCAD to investigate and remedy instances of discrimination in the Commonwealth. See Stonehill College, 441 Mass, at 562-563, and cases cited (“While the main object of a judicial proceeding under [G. L. c. 15IB,] § 9[,] is to recover damages for the individual victim of unlawful discrimination, . . . the primary purpose of an administrative proceeding before the MCAD is to vindicate the public’s interest in reducing discrimination in the workplace by deterring, and punishing, instances of discrimination by employers against employees” [citation omitted]). See also Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 534 (2001), quoting Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 523 (1990) (“the MCAD ‘has been charged with the task of combating discrimination in the Commonwealth’ ”); College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156,170 (1987) (“commission is given broad authority to remedy discrimination”); 804 Code Mass. Regs. § 1.13(4) (1999) (“No waiver agreement signed by any individual shall affect the [MCAD’s] right and statutory duty to enforce [ ] G. L. c. 151B . . . or to investigate any complaint filed before it”). The United States Supreme Court reached the same result in the Waffle House case where an employee alleging handicap discrimination declined to initiate arbitration proceedings mandated by his employment agreement, but instead timely filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) under Title VII. Waffle House, 534 U.S. at 283, 285. The Court concluded that the EEOC was authorized to bring its own enforcement action against the employer, notwithstanding the arbitration agreement between the employer and employee. Id. at 291-292, 296. It further stated that “once a charge is filed ... the EEOC is in command of the process. . . . Absent textual support for a contrary view, it is the public agency’s province — not that of the court — to determine whether public resources should be committed to the recovery of victim-specific relief.” Id. at 291-292., Joulé appears to agree both that the MCAD is empowered and entitled to pursue investigation of Simmons’s discrimination complaint under G. L. c. 151B, § 5, and also that nothing in the arbitration provision of the parties’ employment agreement does, or could, preclude Simmons from filing a complaint with the MCAD. Joulé argues, however, that beyond filing a complaint with the MCAD, under the arbitration provision, Simmons is barred from being a litigant or party to the MCAD proceeding, and that the motion judge erred in ruling otherwise. Again, if the arbitration provision in Simmons’s employment agreement is valid (see Part 2[b], infra), we would agree. When a complainant files a request to intervene, see 804 Code Mass. Regs. § 1.20(4), she must certify her “allegations of discrimination.” 804 Code Mass. Regs. § 1.20(3)(a) (2004). Thus, in essence, the complainant is required to advance a claim of discrimination in her own name. Allowing Simmons to seek to intervene as a party in the MCAD proceeding and to assert directly her individual claim of discrimination would contravene the requirement of the arbitration provision that she resolve her own disputes with Joulé through arbitration. The question whether Simmons may participate in the MCAD proceeding is a different matter. Nothing in the arbitration provision prevents her from testifying before the MCAD, see G. L. c. 151B, § 5, or from “providing] information, materials or responses to [Joulé’s] submissions which are necessary for investigation of the case” to obviate administrative foreclosure in accordance with 804 Code Mass. Regs. § 1.15(5)(b) (1999). b. Stay of court proceedings. It is Joulé’s position that the motion judge erred in granting the stay of further proceedings in its Superior Court action because, in accordance with War-field, the terms of the arbitration provision are clear and unmistakable, and Simmons lacks any ground sufficient to revoke her agreement to arbitrate. See Warfield, 454 Mass, at 398. We agree that the stay should not have been granted, but for different reasons. The motion judge assumed in effect that the arbitration provision was valid and, by staying Joulé’s court action until the MCAD concluded its proceeding, appears to have adopted the premise advanced by the MCAD, namely, that the agency’s proceeding takes precedence over any arbitration. However, “when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.” Preston v. Ferrer, 552 U.S. 346, 349-350 (2008). In staying further proceedings in Joulé’s action to enforce the parties’ agreement to arbitrate, the motion judge in effect placed primary jurisdiction over Simmons’s discrimination-based claims in the MCAD. This was error. If an employer and employee enter into a valid and sufficiently clear agreement to arbitrate any and all disputes relating to discrimination, then the party seeking arbitration of such a dispute is entitled to have the agreement enforced. See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844-849 (2007) (arbitration provision enforced where dispute “falls squa

Darrell Green vs. Harvard Vanguard Medical Associates, Inc. No. 09-P-2092. Norfolk. November 18, 2010. March 3, 2011. Present: Lenk, Vuono, & Rubin, JJ. Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Contract, Performance and breach. Fraud. In a civil action alleging discrimination in employment based on race, the judge erred in granting summary judgment in favor of the defendant employer on the employee’s claim of a hostile work environment, where, as a matter of law, a supervisor’s use of an offensive and hurtful racial epithet in a single, brief conversation was sufficiently severe or pervasive to give rise to a claim of a racially hostile work environment, and a release contained in a salary continuation agreement that the plaintiff employee signed did not bar such a claim, in that genuine issues of material fact existed whether the parties intended that agreement to be a complete and integrated contract; whether the employer committed a breach of that agreement by failing to provide the employee with suitable employment; and whether the employer fraudulently induced the employee to sign the release contained in the agreement. [7-13] In a civil action alleging discrimination in employment based on race, the judge erred in granting summary judgment in favor of the defendant employer on the employee’s claim of retaliation, where genuine issues of material fact existed whether the employee was intentionally recommended for and hired into a job for which he was not qualified and from which he was consequently bound to separate such that his resignation amounted to a constructive discharge, and whether the employer’s decision to take this course of action was a result of the employee’s having complained about his supervisor’s allegedly racially discriminatory conduct. [13-14] Civil action commenced in the Superior Court Department on April 9, 2008. The case was heard by Janet L. Sanders, J., on a motion for summary judgment. Christopher J. Trombetta for the plaintiff. Eugene J. Sullivan, III, for the defendant. Rubin, J. For the third time in as many years, we address an antidiscrimination suit under G. L. c. 15 IB involving the alleged workplace use against an African American of the racial epithet that is widely regarded as the most hateful and offensive in our culture. See Thomas O’Connor Constructors, Inc. v. Massachusetts Commn. Against Discrimination, 72 Mass. App. Ct. 549 (2008); Augis Corp. v. Massachusetts Commn. Against Discrimination, 75 Mass. App. Ct. 398 (2009). Here, the Superior Court judge granted summary judgment in favor of the defendant, Harvard Vanguard Medical Associates, Inc. (Harvard Vanguard). The plaintiff, Darrell Green, now appeals. In reviewing an order granting summary judgment, as we do in this case, the standard of review is the familiar one. We review de novo the propriety of the order granting summary judgment, viewing the evidence in the summary judgment record in the light most favorable to the nonmoving party, in this case the plaintiff. See Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000). I. The summary judgment record reveals the following: Green applied for a position and was hired in June, 2005, by Harvard Vanguard to work as a medical secretary in Harvard Vanguard’s physical therapy department at its Kenmore Square location. According to Green’s affidavit, Mary Beth Walsh, who was to be his supervisor, told him that, although the job formally was for only twenty hours per week, Green would be able to work forty hours per week. Green accepted the position based on that representation. Green completed not only secretarial tasks in the position but assisted with other needs of the physical therapy department. According to Green’s affidavit, Walsh praised Green for his performance and did not criticize him or his work. Walsh, however, only inconsistently provided additional work for Green above the twenty hours required by the job. Without the twenty additional hours per week, Green was unable to earn sufficient income to support himself or his child. It is undisputed that sometime in August, 2005, Green went to Harvard Vanguard’s human resources department, where he spoke with Michelle Guamieri, who worked in that department. Green informed Guamieri that Walsh had promised him twenty additional hours of work each week but that she had failed to provide him with that work. Guamieri indicated that Walsh had neither the authority nor the ability to promise these additional hours. Subsequently, Guamieri apparently informed Walsh about her conversation with Green. According to Green, shortly after he spoke with Guamieri, near the end of a work day, Walsh walked up to him, stood very close within his personal space, pointed her finger at his face, and yelled at him, saying, “How dare you go to Human Resources and report me.” Green responded that all he wanted was a forty-hour work week, which is what he was told he would be given when he started working. Walsh responded, “You’re not going to get it. Now I don’t even want to see you. Who do you think you are? Who do you think they are going to believe, me, a valued employee of over ten years or a dirty fucking nigger?” The parties agree that Green immediately reported this alleged incident to the human resources department. According to Green, Walsh subsequently issued Green a “letter of concern.” This letter outlined alleged deficiencies in job performance that were purported to have occurred prior to the angry interaction between Walsh and Green. One involved calling in sick, which Walsh wrote that Green, as a probationary employee, was not permitted to do. The second involved an allegation that Green interrupted a conversation between an optical department supervisor and a patient in order to seek reimbursement for eyeglasses that Green had obtained as a Harvard Vanguard patient prior to his employment by Harvard Vanguard. According to Guarnieri’s own affidavit, after Green spoke with her about the incident with Walsh, she “decided that it would not be in [Harvard Vanguard’s] best interest to continue to employ him.” She asserts that this conclusion was not made in retaliation for his reporting the incident, but was based upon the behavior described in Walsh’s letter of concern as well as certain other alleged workplace incidents. According to Green’s testimony, Guarnieri. told Green that he would have to avoid Walsh and that Walsh intended to force Green out of Harvard Vanguard. Subsequently, Guarnieri indicated to Green that in order to avoid remaining in Walsh’s department, he would have to resign his position. Green testified that he was told that this measure would be temporary and that Harvard Vanguard would rehire him to a future position as soon as one became available. Although the “letter of concern” extended Green’s time as a probationary employee — and thus extended the time until he could become a member of the union — according to Green, Guarnieri indicated that in the new position he would be able to work the time necessary for union admission. Green also testified that Guarnieri told him that he would be paid while he awaited this new position and that he would not lose any compensation or benefits. Green agreed to this proposal. At Guarnieri’s request he signed a letter of resignation. He also signed a “salary continuation agreement” (agreement). It provided that for four weeks, or until Green commenced other employment comparable to his position as a medical secretary, Harvard Vanguard would continue to pay Green’s salary and would pay for his health insurance. Contrary to Green’s testimony, Guarnieri testified in her affidavit that, upon providing Green the agreement, she told him that after his resignation he could apply for jobs at Harvard Vanguard on the same basis as anyone else. The agreement also contained a clause entitled “Release.” This clause states that “[t]his Agreement constitutes the entire agreement between Mr. Green and [Harvard Vanguard] with respect to all matters pertaining hereto and provides the only benefits that Mr. Green shall receive in connection with his resignation and is in full settlement of all claims Mr. Green now has or may have against [Harvard Vanguard]. Mr. Green agrees to release and forever discharge [Harvard Vanguard]” from any claims that he may have had “by reason of any cause or matter occurring on or prior to the date of this Agreement.” The agreement was executed on August 30, 2005, by Harvard Vanguard and was signed by Green on September 2, 2005. According to Green, while he was still receiving the four weeks’ pay referenced in the agreement, Guamieri called him and offered him a position, for which he had not applied, as a medical assistant in the cardiology department. This was a full time, forty hours per week position. Green’s assertion that he had not applied for this position is supported by a detailed listing of his applications for positions at Harvard Vanguard produced during discovery that does not indicate that he applied for the cardiology department position. The job description for this position indicates that among the essential functions of the job are “[o]btain[ing] relevant information and takfing] vital signs”; possibly “advis[ing] patient[s] of preparation required for” examinations or additional testing specific to the cardiology department; obtaining “information from or providing information to outside doctors, hospitals, health or social service agencies, and insurance agencies”; answering telephones in conformance with “emergency and departmental protocols”; “relaying] messages to providers”; “[a]ssist[ing] with data collection activities for statistical reports or required studies”; and “ensuring data is properly collected and accurate.” A bachelor’s degree, an associate’s degree in medical assisting, or completion of a certificate program were preferred qualifications for the job, and Green testified that all the other individuals holding the same position had such qualifications. According to Green, who has an associate’s degree in electrical engineering from Wentworth Institute of Technology and whose prior customer service experience was limited to many years of work in the travel industry, he told Guamieri that he was not qualified for the position that she had suggested. Guamieri, however, told him not to worry. According to Green’s deposition, she told Green that he would receive training such that his asserted lack of qualifications would not be an issue. According to the affidavit of Zufan Araya, the supervisor of the cardiology department at Harvard Vanguard’s Kenmore Square location, Guamieri called Araya about Green. Araya testified in the affidavit that Guamieri strongly recommended Green for the medical assistant position due to his experience in his position in the physical therapy department and said that he would be a good fit for answering patients’ telephone calls in the cardiology department. According to Araya, Guamieri did not tell Araya of any of the problems in his prior employment at Harvard Vanguard that Guamieri herself describes in her affidavit. Indeed, Araya’s affidavit states that Guamieri did not say anything negative about Green. Araya testified that she was not aware that Green had resigned his prior position, nor was she aware of any alleged performance issues Green had had there. After meeting Green for an interview, Araya hired him for the medical assistant position. After several days of training, Green joined the cardiology department. As part of his responsibilities, he was required to answer the telephone and to communicate with patients with respect to their heart conditions. According to Green, he did not understand the terminology concerning the nature of the conditions or of their treatment. At one point, according to Green’s affidavit, a coworker told a patient that Green was “an idiot.” Less than two weeks after Green joined the cardiology department, on October 12, 2005, his supervisor, Araya, issued him a “letter of concern.” This letter referred to incidents on October 5 and 6. With respect to the incident on October 6, the letter described Green speaking to a caller while a medical assistant training him was listening in. The medical assistant would feed Green information to repeat to the caller. Rather than attempting to repeat the directive, Green asked the caller “if they heard what the assistant said.” With respect to the October 5 incident, the letter asserts that while speaking in the same circumstances to a patient with whom there was a “clear language barrier,” Green failed to address the patient as “sir,” as directed by the assistant, but instead continued to attempt to pronounce the patient’s last name. In his affidavit, Green stated that both incidents resulted from his inability to understand and use the necessary medical terminology. He asserted that this was the basis of the October 6 incident, and that the problem on October 5 did not actually concern the pronunciation of the patient’s last name but rather, again, the meaning and use of medical terminology. On the same day in which he received the letter of concern, Green spoke with Guamieri. According to his affidavit, he explained that he did not understand the terminology being used in the cardiology department. She indicated that he would be unable to continue in the new position. When he asked if he could obtain a position in a different department instead, Guamieri said no. She said, “They don’t want you here.” Guamieri indicated to Green that he should sign a letter of resignation, apparently so that he would be eligible for severance payments, and Green did so. Guamieri also told Green that he would have to sign another release in order to obtain severance payments. Green refused to sign any such release. Harvard Vanguard nonetheless did make severance payments to Green. n. Green brought this action for racial discrimination in employment in violation of G. L. c. 151B. He alleges both that Harvard Vanguard subjected him to a hostile work environment while he worked in the physical therapy department under Walsh, see Thomas O’Connor Constructors, Inc. v. Massachusetts Commn. Against Discrimination, 72 Mass. App. Ct. at 560, and that it retaliated against him for his assertion of his discrimination claim. A. Hostile environment discrimination. There can be no doubt that if the facts recited above were proven at trial, they would suffice, in the absence of the release contained in the agreement, to support a finding of liability on the part of Harvard Vanguard for racial discrimination against Green in violation of G. L. c. 15IB, § 4(1), during his employment in its physical therapy department. See Augis Corp. v. Massachusetts Commn. Against Discrimination, 75 Mass. App. Ct. at 408-409. As we explained just last year, “a supervisor who calls a black subordinate a ‘fucking nigger’ has engaged in conduct so powerfully offensive” that liability for racial discrimination under G. L. c. 151B, § 4, may be based “on a single instance. That term inflicts cruel injury by its very utterance. It is degrading, it is humiliating, and it is freighted with a long and shameful history of humiliation, the ugly effects of which continue to haunt us all. The words have no legitimate place in the working environment — indeed, they have no legitimate place — and there is no conceivable justification for their use by a workplace supervisor.” Ibid. Harvard Vanguard does not argue, as it did below, before our decision in Augis, that, as a matter of law, a supervisor’s use of the language alleged in a single “two to three minute” private conversation is not sufficiently “severe or pervasive” to give rise to a claim of a racially hostile work environment. See Thomas O’Connor Constructors, Inc. v. Massachusetts Commn. Against Discrimination, 72 Mass. App. Ct. at 560 (stating that discrimination must be severe or pervasive to amount to actionable discrimination). The use of these disgusting, demeaning, and humiliating words, and the impact of their use upon those to whom they are directed, is a grave matter. Among the purposes of our Commonwealth’s antidiscrimination laws is the elimination from the workplace of this offensive and hurtful racial epithet — and of all others — and of the discriminatory injury inhering in their use. Harvard Vanguard does not disagree, but argues that the release contained in the agreement bars any discrimination claim based upon Walsh’s alleged conduct while Green worked in its physical therapy department because any such conduct occurred prior to the signing of the agreement. Green disagrees. He argues that there are genuine issues of material fact both whether the defendant breached its agreement with him by failing to provide him with a suitable new position, and whether he was fraudulently induced into signing the release. 1. Breach of the agreement. Harvard Vanguard asserts that the release in the agreement bars Green from raising a discrimination claim against it based upon its treatment of Green prior to the date on which the agreement was executed, including the entire period when he was employed in the physical therapy department. Green, however, alleges that at the same time he signed the agreement, the defendant orally undertook, as part of the agreement between the parties, the obligation to find him a suitable position elsewhere at Harvard Vanguard, and that it breached this obligation. A material breach by Harvard Vanguard of its agreement with Green would excuse Green from his obligations under the agreement. See, e.g., Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. 599, 610 (2003); Ward v. American Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100 (1983) (“It is well established that a material breach by one party excuses the other party from further performance under the contract”). Harvard Vanguard points to the language of the release and argues that it resolves the question. In essence, this amounts to an argument that the agreement is a complete and integrated contract, and that any oral promises made to Green are irrelevant. Whether an agreement is integrated “is an issue of fact for the decision of the trial judge, entirely preliminary to any application of the parol evidence rule.” Wang Labs., Inc. v. Docktor Pet Centers, Inc., 12 Mass. App. Ct. 213, 219 (1981). It is “a question of fact which turns upon the intention of the parties.” Holmes Really Trust v. Granite City Storage Co., 25 Mass. App. Ct. 272, 275 (1988). The judge was not asked to, and did not, make a determination on the question of integration. Nor would one have been appropriate at this stage of the proceedings based solely on the summary judgment record. As this court’s decisions have made clear, even apparently straightforward contractual language asserting integration will not always compel a conclusion that a writing reflects a complete and integrated agreement. Thus, for example, in Holmes Realty Trust, despite a contract containing clear language asserted to demonstrate integration, we found summary judgment based on the agreement being complete and integrated inappropriate. See ibid. Green testified in his affidavit that he was in fact promised in return for his resignation and his signing the agreement not only four weeks’ severance, but that he would be given another job that would be suitable to allow him to continue his employment at Harvard Vanguard, to retain his benefits, and to become eligible for union membership. Guarnieri, on the other hand, testified that contemporaneous with asking Green to sign the release, she told him only that after his resignation he could apply for jobs at Harvard Vanguard on the same basis as anyone else. Indeed, it is her testimony that she had determined that he should not be employed at Harvard Vanguard. Consistent with Green’s testimony, ho

LAMEZ WILLIAMS, Plaintiff v. AMERICAN EAGLE AIRLINES, INC., Defendant No. COA10-267 (Filed 7 December 2010) 1. Appeal and Error — preservation of issues — failure to argue Issues related to the trial court’s rulings that were not specifically addressed in Defendant’s brief or for which no reason or argument were made were deemed abandoned under N.C. R. App. P. 28(b)(6). 2. Jurisdiction— subject matter jurisdiction — breach of employment contract — tortious interference with contract— Railway Labor Act The trial court lacked subject matter jurisdiction over plaintiff’s claims for breach of employment contract and tortious interference with contract because those claims were preempted by the Railway Labor Act. Appeal by Defendant from orders entered 3 June and 5 November 2009, by Judge Allen Baddour in Durham County Superior Court. Heard in the Court of Appeals 16 September 2010. Ross S. Sohm and Bartina L. Edwards, for plaintiff-appellee. Ogletree, Deakins, Nash, Smoak & Stewart, P.G., by Thomas A. Farr and Phillip J. Strach, for defendant-appellant. JACKSON, Judge. American Eagle Airlines, Inc. (“Defendant”) appeals from orders entered on 3 June and 5 November 2009 denying Defendant’s motion for judgment notwithstanding the verdict (“JNOV”) and alternative motion for new trial made after entry of judgment upon a jury verdict in favor of Lamez Williams (“plaintiff’) in the amount of $232,000.00. For the reasons stated herein, we vacate the judgment of the trial court and remand. Defendant is a Delaware corporation engaged in the business of commercial aviation, conducting business in North Carolina, and employing more than 13,000 employees. Plaintiff was employed by Defendant as a fleet service clerk at Raleigh-Durham Airport on a part-time basis, working approximately twenty hours per week, beginning 13 December 2004 and ending with her termination on 23 April 2007. Plaintiffs duties as a fleet service clerk included marshaling planes into the gate area, pushing planes away from the gate, collecting luggage from the ticketing area, loading and unloading luggage, cleaning the interiors of planes, and loading and unloading the galley areas with refreshments. The terms and conditions of plaintiffs employment with Defendant as a fleet service clerk were governed by a collective bargaining agreement (“CBA”) between Defendant and the Transport Worker’s Union of America, AFL-CIO (“Union”). Plaintiff was a member of the Union and had served as a shop steward. The CBA states in its preamble that it is “made and entered in accordance with the provisions of the Railway Labor Act. . . .” The Railway Labor Act (“RLA”) is codified at Title 45, Chapter 8 of the United States Code. See 45 U.S.C. § 151 (2006) (providing that “[t]his Act may be cited as the ‘Railway Labor Act.’ ”). The CBA further provides that Defendant recognizes the Union “as the sole bargaining agent for all Fleet Service employees employed by [Defendant]” and that, “in their behalf[,]” the Union has the authority “to negotiate and conclude an Agreement with [Defendant] with respect to rates of pay, rules and working conditions for all employees covered under this agreement. . . .” Article 9 of the CBA addresses matters related to the seniority rights of fleet service clerks and consists of paragraphs labeled A through M. Paragraph H addresses factors which have a negative impact upon seniority status. In relevant part, it provides that, “ [resignation, discharge for just cause, or failure to accept recall from layoff will result in forfeiture of seniority and all rights thereto.” (emphasis added). Article 12 of the CBA addresses matters related to the probationary period for fleet service clerks. Specifically, paragraph A of Article 12 states that “[n]ew employees will be considered on probation for the first six (6) months of active service.” Paragraph A further specifies that, during the probationary period, “[probationary employees may be disciplined or discharged without recourse to the grievance and arbitration provisions . . . .” The grievance and arbitration provisions referred to in paragraph A of Article 12 are set forth in Articles 21 and 22 of the CBA, respectively. Article 21 of the CBA establishes the grievance procedure for fleet service clerks. Paragraph A of Article 21 establishes a grievance procedure for employees who believe that they have been “unjustly dealt with or that any provisions of [the] agreement [have] not been properly applied or interpreted . . . .” The grievance procedure set forth in Article 21 provides for the presentation and possible resolution of an employee grievance beginning with the employee’s supervisor. If the decision of the supervisor is not satisfactory, the employee may appeal the supervisor’s decision to the Regional Vice President of Field Service. If the decision of the Regional Vice President of Field Service is not satisfactory, that decision “may be appealed to the American Eagle Airlines, Inc. Board of Adjustment as provided for in Article 22 of [the] agreement.. . .” Article 22 of the CBA establishes the Boards of Adjustment. Paragraph C of Article 22 establishes two types of boards of adjustment — a System Board and an Area Board — each having jurisdiction over particular types of matters. System Boards are granted jurisdiction “over disputes between, the Company and the Union or any employee governed by this Agreement growing out of grievances involving interpretations or applications of this Agreement.” Area Boards, on the other hand, are granted jurisdiction “over disputes between the Company and the Union involving discharge or discipline.” The boards of adjustment established by Article 22 of the CBA are for the purpose of conducting the arbitration system referred to in Article 12 of the CBA. Appeals related to discipline or discharge only can be resolved by majority vote of an Area Board. In the event a Board deadlocks, the final decision is made by a panel of three arbitrators consisting of a Company member of the Board, a Union member of the Board, and a jointly selected neutral arbitrator. On or about 27 August 2006, plaintiff injured her left shoulder while she was unloading luggage from a plane. Plaintiff reported the injury; then she sought and received medical treatment. On 1 September 2006, plaintiff’s doctor wrote a letter stating that plaintiff would be unable to return to work until 18 September 2006. On 5 September 2006, plaintiff signed two forms prepared by Defendant in connection with her work-related injury. The first form, entitled “Injured Employee Roles and Responsibilities,” set forth the ways in which plaintiff was required to cooperate in the claims process during the time she was being treated for her injury. The second form, entitled “Injured Employee Information Letter,” set forth twenty-three points of information for an injured employee, including the following relevant provisions: 18. Transitional Duty: You must notify your supervisor as soon as your doctor determines you can return to work. Both you and the company benefit when you return to work, even if your physical capabilities prevent you from performing your regular job. In most cases, Transitional Duty is available in your department. . . . Refusal of a Transitional Duty assignment may result in cancellation of state benefits, where applicable by state workers’ compensation law. 21. Fraud and Abuse: . . . Workers’ compensation fraud includes the following: • Working at another job, or performing tasks inconsistent with medical claims, while receiving workers’ compensation benefits Workers’ Compensation fraud is a violation of American Eagle’s Rules of Conduct #34, and any employee found to have engaged in such conduct will be subject to termination .... (original emphasis removed). Rule of Conduct #34 (“Rule 34”), referenced in the Injured Employee Information Letter, states that “Dishonesty of any kind in relations with the Company, such as . . . misrepresentation in obtaining employee benefits or privileges will be grounds for dismissal. . . .” (emphasis added). On 7 September 2006, plaintiff’s doctor completed a form indicating that plaintiff could return to work on 18 September 2006, subject to lifting restrictions to remain in effect through 21 September 2006. Plaintiff returned to work sometime after 21 September 2006 and reinjured herself. After plaintiff reinjured her shoulder, her treating physicians prescribed that she not return to work until 1 November 2006. On 7 November 2006, plaintiff’s doctor wrote a letter extending the time for plaintiff to remain out of work through 1 January 2007, with surgery scheduled for 13 December 2006 related to a disc herniation at the level of C5-6. At the time plaintiff had sustained the original injury to her shoulder on 27 August 2006, she also was employed on a full-time basis in an administrative capacity at Duke University (“Duke”). Following her injury, plaintiff advised Defendant’s human resources department that she still was working at Duke. Defendant did not object to the fact that plaintiff continued to work at Duke because the work restrictions placed upon plaintiff in September 2006 were compatible with her administrative duties at Duke. Plaintiff stopped working at her job at Duke at the time of her surgery in December 2006 but returned to work at that job at the end of January 2007. Plaintiff did not, however, return to work with Defendant or contact Defendant following her surgery. On or about 21 March 2007, Defendant received a letter from plaintiff’s doctor stating that she was able to return to work with restrictions, including no bending, no twisting, and no lifting over five pounds. Then, on 5 April 2007, plaintiff’s doctor followed up with another letter stating that plaintiff was unable to return to work until after an appointment scheduled for 14 June 2007. After receiving two letters from plaintiff’s doctor, which seemed to contradict each other, Defendant’s manager for worker’s compensation claims became suspicious of plaintiff’s actions. On 12 April 2007, as part of an investigation, Defendant’s worker’s compensation manager called plaintiff’s work number at Duke to determine whether plaintiff had returned to work there. When the worker’s compensation manager called, plaintiff answered, “This is Lamez.” The 12 April 2007 phone call established that plaintiff had returned to her job at Duke while continuing to receive worker’s compensation benefits from Defendant based upon the representation contained in the letter from plaintiff’s doctor dated 5 April 2007 that plaintiff was “advised ... not to return to work until after her [14 June 2007] appointment[.]” On 23 April 2007, Defendant terminated plaintiff’s employment with Defendant based upon the ground that plaintiff had committed worker’s compensation fraud in violation of Rule 34. Plaintiff did not avail herself of the grievance or arbitration procedures contained in the CBA, see supra; therefore, an Area Board was never constituted to review the merits of Defendant’s decision to terminate plaintiff. Rather, on 19 September 2007, plaintiff filed a complaint with the Employment Discrimination Bureau of the North Carolina Department of Labor (“NCDOL”), alleging that Defendant had violated the North Carolina Retaliatory Employment Discrimination Act (“REDA”) by terminating plaintiff’s employment in retaliation for plaintiff’s pursuit of a worker’s compensation claim. By letter dated 14 January 2008, NCDOL determined that there was insufficient evidence to substantiate plaintiff’s claim and notified plaintiff of the time within which plaintiff was required to act should she decide to pursue the matter further. On 11 April 2008, plaintiff filed suit against Defendant and asserted the following claims: (1) wrongful termination in violation of REDA; (2) wrongful discharge from employment in violation of North Carolina public policy; (3) breach of employee contract; (4) tortious interference with contract of employment; and (5) intentional infliction of emotional distress or alternatively, negligent infliction of emotional distress. On 18 April 2008, plaintiff amended her complaint, adding a sixth claim for “vicarious liability,” related to the conduct of a manager for Defendant alleged to have acted as Defendant’s agent in relation to the claims asserted by plaintiff. On 16 June 2008, Defendant filed an answer, denying the material allegations of plaintiff’s complaint and asserting multiple affirmative defenses. A jury trial commenced on 3 March 2009. On 9 March 2009, the trial court granted Defendant’s motion for a directed verdict with respect to plaintiff’s claims for wrongful discharge in violation of public policy, intentional infliction of emotional distress, and negligent infliction of emotional distress. On 10 March 2009, the jury found in favor of plaintiff with respect to her claims for breach of the agreement and tortious interference with contract, awarding her damages in the amount of $232,000.00. However, the jury returned a verdict in favor of Defendant with respect to plaintiff’s REDA claim. A judgment consistent with the jury’s verdict was entered by the trial court on 14 September 2009. Following entry of judgment, Defendant filed a motion for JNOV, or in the alternative, for a new trial. The trial court entered an order on 5 November 2009 denying both motions. On 18 November 2009, Defendant gave its notice of appeal, enumerating ten rulings by the trial court from which appeal is taken. On appeal, however, the arguments presented in Defendant’s brief are limited to the trial court’s denial of its motion for JNOV and, in the alternative, for new trial. Accordingly, issues related to the trial court’s rulings that are not specifically addressed in Defendant’s brief or for which no reason or argument has been made, are deemed to be abandoned. See N.C. R. App. P. 28(b)(6) (2009). On appeal, Defendant argues that plaintiff’s claims for breach of employee contract and for tortious interference with contract are preempted by the RLA and, therefore, the trial court lacked subject matter jurisdiction over those claims, thereby rendering the judgment entered on the jury’s verdict a legal nullity. We agree. “Whether a trial court has subject-matter jurisdiction is a question of law, which is reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). Subject matter jurisdiction properly is determined by “the state of affairs existing at the time it is invoked.” In re Peoples, 296 N.C. 109, 144, 250 S.E.2d 890, 910 (1978) (citations omitted), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979). It is a time-honored principle that “proceedings of a court without jurisdiction over the subject matter are a nul.lity and its judgment [is] without effect either on the person or property.” Hart v. Motors., 244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956) (citations omitted). The United States Supreme Court has held that, when an employee’s claim is “firmly rooted in a breach of [a collective bargaining agreement]” and asserts no rights independent of that agreement, such claim is preempted by the RLA. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 257-58, 129 L. Ed. 2d 203, 214 (1994). See also Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 323, 32 L. Ed. 2d 95, 99 (1972) (noting a prior Supreme Court decision that held, “before a state court action could be maintained for breach of such a contract, the employee must first ‘attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.’”) (quoting Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 13 L. Ed. 2d 580, 583 (1965) (emphasis in original)). In the case sub judice, the third claim for relief set forth in plaintiff’s complaint, entitled “BREACH OF EMPLOYEE CONTRACT,” is firmly rooted in, and asserts no rights independent of the CBA and, therefore, is preempted by the RLA. Hawaiian Airlines, 512 U.S. at 257-58, 129 L. Ed. 2d at 214. The claim for breach of the employee contract pleaded in plaintiff’s complaint alleges that, “by terminating Plaintiff from her position without just cause,. . . Defendant breached its contract with the Union and the Plaintiff.” (Original underline replaced with italics). As is evidenced on the face of the complaint, the basis of plaintiff’s claim for breach is Defendant’s alleged lack of just cause to terminate plaintiff’s employment. An obligation of just cause as a condition precedent to the termination of employment could arise only out of the CBA. See Bowen v. United States Postal Service, 459 U.S. 212, 220, 74 L. Ed. 2d 402, 411 (1983) (recognizing that “a collective-bargaining agreement is much more than traditional common-law employment terminable at will. Rather, it is an agreement creating relationships and interests under the federal common law of labor policy.”). Therefore, it is axiomatic that plaintiff’s claim for breach of employment contract, premised upon a lack of just cause, is firmly rooted in and asserts no rights independent of the CBA, and the claim is preempted by the RLA. Hawaiian Airlines, 512 U.S. at 257-58, 129 L. Ed. 2d at 214. Plaintiff argues that her claim for breach of employee contract is not premised solely upon the CBA. According to plaintiff, Rule 34 created additional contractual obligations between Defendant and plaintiff that were violated upon Defendant’s termination of plaintiff’s employment. However, during oral argument counsel for plaintiff conceded that the agreement at issue with respect to the claim of breach was the CBA. The apparent contradiction in plaintiff’s argument notwithstanding, plaintiff’s argument that Rule 34 created contractual obligations between plaintiff and Defendant lacks merit for two reasons. First, it is a well-established principle of federal labor law that individual employees within a bargaining unit may not negotiate their own employment contract with their employer. See, e.g., J. I. Case Co. v. National Lab. Rel. Bd., 321 U.S. 332, 337-39, 88 L. Ed. 762, 767-69 (1944). Second, the CBA, by its terms, explicitly recognizes the Union as the solé bargaining agent for all Fleet Service employees employed by Defendant, with the exclusive power to negotiate and conclude an agreement with Defendant “with respect to rates of pay, rules and working conditions for all employees covered under this agreement....” (emphasis added). Therefore, in view of established legal precedent as well as the express language of the CBA itself, Rule 34 could not create any contractual rights or obligations between plaintiff and Defendant. Because plaintiffs breach of contract claim was preempted by the RLA, and because “the jurisdiction of a court depends upon the state of affairs existing at the time it is invoked,” In re Peoples, 296 N.C. at 144, 250 S.E.2d at 910, the trial court lacked subject matter jurisdiction over plaintiff’s claim for breach of the CBA and the judgment on this claim cannot stand. As our State Supreme Court has said, “proceedings of a court without jurisdiction over the subject matter are a nullity and its judgment [is] without effect either on the person or property.” Hart, 244 N.C. at 90, 92 S.E.2d at 678. Similarly, plaintiff’s claim for tortious interference with contract of employment also is preempted. To establish a claim for tortious interference with contract, a plaintiff must show: (1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the Defendant knows of the contract; (3) the Defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff. Gupton v. Son-Lan Development Co., Inc., 205 N.C. App. 133, 142, 695 S.E.2d 763, 770 (2010) (quoting Sellers v.