Retaliation Cases

William Vranos vs. Michael D. Skinner & others. No. 08-P-2006. Franklin. November 5, 2009. July 19, 2010. Present: McHugh, Vuono, & Meade, JJ. Practice, Civil, Motion to dismiss, Complaint. Contract, Performance and breach, Employment, Implied covenant of good faith and fair dealing, Interference with contractual relations. Doctor, Employment. Hospital, Peer review. Civil Rights, Coercion. Libel and Slander. In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claims of breach of contract and breach of the implied covenant of good faith and fair dealing, which were based on a theory that the hospital’s bylaws and staff policy created a contract between the hospital and the plaintiff, where the plaintiff failed to comply with the provisions in the bylaws containing extensive review processes; where the plaintiff could not demonstrate that a course of conduct, oral representations, or other aspects of the plaintiff’s tenure at the hospital somehow eroded the review process provisions; and where the plaintiff could not demonstrate that the provisions were facially invalid or that he was excused from complying with them. [287-290] In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claim alleging a violation of G. L. c. 12, § 111, the Massachusetts Civil Rights Act, where the defendants’ actions effected neither a surrender of the plaintiff’s right to work nor his right to express opinions [290]; further, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claim of interference with contractual and advantageous relations, where the plaintiff’s allegations that the defendants’ activities “jeopardized” the plaintiff’s existing or anticipated relationships were not sufficient to state a claim [290-291]. In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge did not err in granting summary judgment in favor of the defendants (the hospital, its president, and its director of surgical services) on the plaintiff’s defamation claims, where, to the extent the claims were based on the content of the summary suspension letter issued by the president, such a document constituted a peer review document and, by virtue of G. L. c. Ill, §§ 204(a) and 205(6), was inadmissible in any judicial proceeding and thus could not serve as a basis for a viable defamation claim [293-295]; further, the fact of the plaintiff’s suspension, by itself, could not serve as the basis for a defamation claim, where the suspension was the result of the peer review process, which is statutorily immunized from judicial review [295-296]; finally, allegedly defamatory statements that the president made to hospital staff, when considered in context, added nothing to whatever defamatory sting flowed from the suspension itself [296-297], Civil action commenced in the Superior Court Department on March 3, 2005. Following review by the Supreme Judicial Court, 448 Mass. 425 (2007), the case was heard by Constance M. Sweeney, J., on a motion for summary judgment. Thomas T. Merrigan (Peter M. Merrigan with him) for the plaintiff. Francis D. Dibble, Jr., for the defendants. Kenneth Gaspard and Franklin Medical Center. McHugh, J. After his staff privileges at Franklin Medical Center (FMC) were summarily suspended, Dr. William Vranos, an orthopedic surgeon, commenced this action against FMC, Michael D. Skinner, R.N., who is the FMC president, and Kenneth Gaspard, R.N., FMC’s director of surgical and material services. Vranos’s complaint contains six counts: defamation against Gaspard (Count I); defamation against Skinner and FMC (Count II); breach of contract by FMC (Count III); violation of the duty of good faith and fair dealing by FMC (Count IV); violation of G. L. c. 12, § 111, the Massachusetts Civil Rights Act, against Skinner and FMC (Count V); and interference with contractual and advantageous relations by Skinner (Count VI). Early in the case, a judge of the Superior Court allowed the defendants’ motion to dismiss all counts of the complaint save the two alleging defamation. Discovery followed and, among other things, produced a dispute regarding the application and impact of the peer review statute, G. L. c. 111, §§ 203-205. The Supreme Judicial Court resolved that dispute, see Vranos v. Franklin Med. Center, 448 Mass. 425 (2007), and discovery proceeded to a conclusion. The defendants then moved for summary judgment on the defamation counts. The same Superior Court judge allowed the motion, and the resulting judgment dismissed the entire case. Now Vranos appeals, seeking reinstatement of all counts except Count I, which asserted the defamation claim against Gaspard. We affirm, though for reasons that do not in all instances track those set out by the motion judge in her thoughtful memorandum of decision. Because the complaint provides a context for all of the claims at issue on this appeal, we begin our review by examining the allegations it contains and the four claims dismissed for facial insufficiency. Then, using a different standard, we turn to the defamation claim and to the additional facts supplied by the affidavits and other materials the parties filed in connection with the summary judgment proceedings. 1. The motion to dismiss (Counts III through VI). a. Facts. Our initial approach to the complaint’s allegations is a limited one. Counts III through VI were dismissed pursuant to Mass. R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a claim on which relief could be granted. Accordingly, in reviewing that dismissal, we are limited to facts alleged in the complaint itself and to the inferences reasonably drawn when those allegations are viewed in the light most favorable to the plaintiff. See, e.g., Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998); Karty v. Mid-America Energy, Inc., 74 Mass. App. Ct. 25, 26 (2009). Read with that standard in mind, the complaint reveals that Vranos, a board-certified orthopedic surgeon, had been on the FMC staff since July, 1996. From January, 2002, through November, 2004, he had been chief of the FMC department of surgery. Throughout that period, Vranos was also a partner in the Franklin Orthopedic Group, which is not affiliated with FMC. Both FMC and the Franklin Orthopedic Group are located in Greenfield. For several months before the summary suspension at the heart of this case, Skinner tried to recruit Vranos to leave the Franklin Orthopedic Group and establish a competing practice at FMC. In late August, 2004, Vranos declined and, instead, accepted a position at Brattleboro Memorial Hospital, across the Vermont State line less than twenty miles north of Greenfield. The new position was effective January 1, 2005, and Skinner was concerned that Vranos’s move would produce a loss of orthopedic surgical cases at FMC. Vranos’s year-end departure, however, was not the only event roiling the surgical services department at FMC in the fall of 2004. On October 19, forty-nine members of the department of surgery, including Vranos, signed a “Memorandum of Concern” relating to Gaspard and his assistant, Kim Cotter. The memorandum, copies of which were delivered to Skinner, Gaspard, and Cotter, focused on whether Gaspard and Cotter were fit to manage the FMC surgical department. The specific events that led to this lawsuit began on October 28, 2004, when Vranos attended a regular meeting of the FMC surgical services support committee. The other three attendees were Dr. Henry K. Godek, chief of anesthesia, Gaspard, and Cotter. At the meeting, a heated disagreement between Vranos and Gaspard over a surgical services policy quickly ensued. Gaspard insisted that Vranos sign the policy and, when Vranos refused, Gaspard threatened to cancel all of Vranos’s surgical cases for the day. The animated exchange lasted about five minutes, after which the meeting ended and Vranos returned to his medical responsibilities, performed surgeries, and interacted without incident with Gaspard and Cotter during the course of the day. At some point shortly after the meeting, Gaspard reported to Skinner, falsely the complaint alleges, that Vranos had physically threatened and verbally abused him during the meeting and that Vranos had previously engaged in disruptive behavior and unprofessional conduct. Cotter also informed Skinner that Vranos had offended her on several occasions, though the complaint does not allege that those reports were false. Late in the afternoon of October 29, 2004, Skinner delivered to Vranos a letter imposing a summary suspension on Vranos’s medical staff membership and clinical privileges at FMC. In material part, the letter stated: “The grounds for this summary suspension are an incident that occurred on October 28, 2004, in the context of a history of disruptive behavior and unprofessional conduct by you at FMC. On October 28, 2004, in a meeting of the Operating Room Management Committee, you used intimidating, abusive, and hostile language and exhibited threatening behavior, including picking up a stack of papers and slamming them down on the table, picking up a chair and slamming it down in the conference room, and placing yourself physically close to one or more individuals while speaking in a loud, angry, and confrontational manner. Your behavior and conduct during this incident and at FMC has been perceived to be intimidating, abusive, hostile, and physically threatening.[]” The letter also described the appellate rights available to Vranos under the FMC bylaws. Before issuing the letter, Skinner did not ask Vranos for his version of events, nor did he contact Godek to obtain his recollections and observations. The suspension, Vranos alleges, was issued in retaliation for his decision to move his practice to Vermont and his challenge of Gaspard and Cotter’s management style. Under an FMC bylaw provision, Vranos’s summary suspension was automatically and quickly presented to the FMC medical staff summary suspension review committee (review committee) on which Skinner served as one of four members. Ultimately, the committee recommended that the suspension be lifted on three conditions, one of which was that Vranos resign as FMC’s chief of surgery. That recommendation was promptly approved by the FMC board of trustees (trustees). Vranos alleges in his complaint that he was not “allowed to appear before and make a presentation to” the review committee or to the trustees. However, before issuing its decision, the review committee considered a written submission from Vranos, along with written submissions from Godek, other physicians who supported Vranos, and “documentation concerning prior incidents of disruptive behavior by [Vranos] at FMC.” All of the parties agree that the FMC medical staff bylaws (bylaws) and staff regulations apply, and, as the motion judge noted, these bylaws and regulations govern the summary suspension letter and the subsequent committee actions. Three segments of those documents are of particular importance to our review of the motion to dismiss. The first is appendix 3, part 2, § 2.1, of the bylaws. That section provides that a summary suspension may only be imposed “whenever the failure to take such action may result in an imminent danger to the life, health, or safety of an individual or otherwise whenever a practitioner’s acts or conduct require that immediate action be taken: “(a) To protect the life of any patient; “(b) To reduce the substantial likelihood of injury or damage to the health or safety of any patient, employee, or other person at the Medical Center; or “(c) For the continued effective operation of the Medical Center.” If those criteria are met, § 2.1 authorizes a number of FMC officials, including Skinner, to suspend summarily a physician’s medical staff membership or clinical privileges or both. Within three business days following a summary suspension, however, a review committee must convene to review the summary suspension and advise the trustees “to continue, modify, or terminate the terms of the summary suspension.” The review committee may also “recommend additional corrective action concerning the [physician], up to and including termination of the [physician’s] Medical Staff membership or all or any portion of the [physician’s] clinical privileges, or both.” Part 2 of the appendix is followed by additional parts dealing with such things as hearings after adverse action, procedures for the conduct of hearings, including the right to counsel, the right to call witnesses, the right to cross-examine adverse witnesses, and appellate review of adverse hearing results. The appendix ends with part 10, containing § 10.2, the second of the three provisions of particular importance. In material part, § 10.2 provides: “Whenever any adverse recommendation or [other] adverse action ... is recommended or taken, the practitioner shall be entitled only to the remedies afforded by this Appendix 3, Corrective Actions and Fair Hearings, and shall exhaust such remedies. By requesting a hearing or appellate review under this Appendix 3, the practitioner agrees that any final action of the Board of Trustees following such hearing or appellate review shall be final and binding on the practitioner.” It is undisputed that the action taken by the trustees was “adverse action” within the meaning of § 10.2. Finally, the third pertinent provision comes from FMC’s medical staff policy on disruptive behavior, which requires that reports of disruptive behavior be documented in writing and submitted to the FMC patient care assessment coordinator for review, investigation, and any necessary corrective action. The affected staff member must be given notice of the report and an opportunity to respond, though the policy also states that it is not intended to preempt or interfere with other corrective action and disciplinary action described in the bylaws. The policy defines “disruptive behavior” broadly to include “[b]ehavior or conduct, whether verbal or physical, that has, or potentially may have, an adverse effect on the delivery of quality patient care, or that disrupts, or has the potential to disrupt, FMC or Medical Staff operations.” b. Discussion. In assessing the adequacy of a complaint, we read the complaint’s allegations generously and in the plaintiff’s favor. To withstand dismissal, the complaint’s factual allegations, so read, “must be enough to raise a right to relief above the speculative level.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). We therefore look to see whether there are in the complaint “ ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief, in order to ‘reflect[] the threshold requirement of [Mass.R.Civ.P.] 8(a)(2) that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.” ’ ” Ibid., quoting from Bell Atl. Corp. v. Twombly, supra at 557. (i) Counts III & IV — breach of contract & breach of the covenant of good faith and fair dealing. The complaint alleges that the FMC bylaws and staff policy on disruptive behavior constitute a contract between FMC and Vranos. The complaint also alleges that the suspension and actions surrounding its issuance and removal breached the contract and one of its implied terms. The complaint does not allege, however, that Vranos availed himself of the extensive review processes the bylaws contain. Unless compliance with those processes is somehow excused, that is an insurmountable problem, for our cases have established that “[w]here employment rights are contractual, and the contract establishes an internal grievance procedure for resolving disputes, the procedure ought to be followed.” Berkowitz v. President & Fellows of Harvard College, 58 Mass. App. Ct. 262, 275 (2003) (tenure selection). Accord O’Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 696 (1996). Although the contractual relationship between Vranos and FMC was not, strictly speaking, an “employment” relationship, the relationship governed Vranos’s ability to perform surgery and otherwise treat patients at FMC, and it provided the basis for oversight, peer and other, of his interaction with patients. The peer review process, which formed an important part of that relationship, was driven by public policy and patient care considerations embodied in statutory mandates. See, e.g., G. L. c. 111, § 203. See generally Carr v. Howard, 426 Mass. 514, 518 (1998); Mass. G. Evid. § 513 (2010). Consequently, the importance of complying with the contractual review processes is no less compelling in this case than it is when the contract covers the ordinary employer-employee relationship. See generally Katz v. Children’s Hosp. Corp., 33 Mass. App. Ct. 574 (1992). Indeed, because the review processes may have an impact on patient care even if patient care was not immediately affected by the conduct under review, compliance with the internal review processes is even more important than it is in the typical employer-employee relationship. Vranos’s arguments to the contrary are unpersuasive. His claim that “[t]he allegations [of the complaint] are sufficient to permit proof of an oral contract or a contract implied infact, and the evidence may show that the by-laws’ limitations on the employees’ privileges were not controlling,” Hobson v. McLean Hasp. Corp., 402 Mass. 413, 416 (1988), is simply not borne out by the contents of the complaint even when read with the requisite indulgence. The complaint does not allege, nor does it plausibly point to, a course of conduct, oral representations, or other aspects of Vranos’s tenure at FMC that somehow implicitly eroded the extensive and carefully constructed bylaws and other provisions he seeks to avoid, provisions driven by patient care concerns governing statutes embrace. Next, Vranos’s argument that the finality provisions of appendix 3, § 10.2, unfairly deprive him of all access to judicial review amounts to a facial attack on the elaborate hearing and appeal provisions appendix 3 contains. Like most such attacks, see, e.g., O’Brien’s Case, 424 Mass. 16, 23-24 (1996); Commonwealth v. Blair, 60 Mass. App. Ct. 741, 749 n.15 (2004), Vranos’s challenge necessarily and inappropriately assumes that the process will inevitably produce an unfair result. Neither a particular component of the review provisions nor the provisions as a whole describe a deck so stacked that unfairness is the likely outcome. On the contrary, the review process includes the right to counsel, the right to confront witnesses, the right to discovery, and other procedural devices that lie at the very heart of the judicial system. While the “Office of the [FMC] CEO” appoints the hearing panel, it must do so “after considering any recommendations of the President of the Medical Staff or of the Chair of the Board of Trustees,” it must appoint an “impartial Hearing Officer,” and any results the process produces must be approved by the trustees before they become effective. Beyond that, similar “finality” provisions are common ingredients of other nonjudicial mechanisms for grievance resolution, and those provisions have not eliminated the ability to obtain some judicial review of resulting decisions. See, e.g., Acmat Corp. v. Daniel O’Connell’s Sons, Inc., 17 Mass. App. Ct. 44, 49 (1983); Katz. v. Children’s Hosp. Corp., 33 Mass. App. Ct. at 575. There is no reason to assume that an appropriate level of review would be unavailable here. Finally, Vranos claims that he was excused from following the grievance procedures bec

Angel Mercado vs. Manny’s T.V. and Appliance, Inc. No. 09-P-520. Hampden. April 7, 2010. June 28, 2010. Present: Mills, Smith, & Trainor, JJ. Practice, Civil, Directed verdict. Public Policy. Employment, Termination, Retaliation. Contract, Employment. Anti-Discrimination Law, Handicap. Family and Medical Leave Act. Words, “Handicap.” At the trial of a civil action brought by a plaintiff alleging that his former employer (defendant) had wrongfully discharged him in violation of public policy, the judge erred in granting a directed verdict in favor of the defendant, where a fact finder could conclude that the work performed by the plaintiff at the defendant’s direction (i.e., installing appliances without an electrical or plumbing license) was a violation of public policy and that the defendant terminated the plaintiff’s employment because the plaintiff did not want to continue violating that policy. [139-141] A plaintiff alleging employment discrimination on the basis of handicap in violation of G. L. c. 151B, as well as violations of the Family and Medical Leave Act (act), failed to demonstrate that his knee injury constituted a “handicap” within the meaning of G. L. c. 151B [142] or a “serious health condition” within the meaning of the act [143-144], A former employee could not maintain a claim of retaliatory termination of employment based on the filing of a worker’s compensation claim, in violation of G. L. c. 152, § 75B(2), where the employee had taken no action under the worker’s compensation act until after the termination of his employment. [144] The plaintiff in a civil action alleging, inter alia, employment discrimination on the basis of handicap failed to demonstrate that the trial judge’s exclusion from evidence of an employee handbook, even if error, was prejudicial to his case. [144] Civil action commenced in the Superior Court Department on March 27, 2006. The case was tried before Constance M. Sweeney, I. Michael O. Shea for the plaintiff. John B. Stewart (F. Michael Joseph with him) for the defendant. Smith, J. After the termination of his employment by the defendant, Manny’s T.V. and Appliance, Inc. (Manny’s), the plaintiff, Angel Mercado, filed a complaint in Superior Court alleging, inter alia, (1) discriminatory and retaliatory termination based on his handicap in violation of G. L. c. 151B; (2) retaliatory termination based on the filing of a worker’s compensation claim in violation of G. L. c. 152, § 75B(2); and (3) violations of the Family and Medical Leave Act (FMLA). An amended complaint further alleged that Mercado was wrongfully terminated in violation of public policy. Following the presentation of Mercado’s case to a jury, Manny’s moved for a directed verdict as to each of the enumerated claims. The judge granted the motion. On appeal, Mercado claims that the judge committed error in allowing Manny’s motion for a directed verdict on Mercado’s claims. He also claims that the judge improperly excluded an employee handbook from evidence. Background. We recite the relevant facts in the light most favorable to the plaintiff. Bonin v. Chestnut Hill Towers Realty Corp., 392 Mass. 58, 59 (1984). Between October, 2000, and June 21, 2004, Mercado worked for Manny’s, first as a driver and then as an appliance installer. He trained for his job by observing another installer for two weeks. During his time at Manny’s, Mercado installed thousands of appliances, including dishwashers, stoves, garbage disposals, and cook tops. The installation work routinely involved cutting and fitting gas pipes, cutting and fitting drain pipes, and running and installing electrical wire. Such work can only be performed legally by a licensed electrician, see G. L. c. 141, § 1A, or a licensed plumber, G. L. c. 142, § 3. Mercado was neither a licensed electrician nor a licensed plumber, nor was he informed as to any provisions of the electrical or plumbing codes. His coworker also was not licensed in those trades. Mercado’s supervisor, nevertheless, described Mercado as an “awesome” installer. In late May, 2004, Bernard Sears, the town of Wilbraham’s plumbing inspector, discovered Mercado and his coworker installing a dishwasher in a residence in Wilbraham without a plumber’s license and a permit, and ordered them off the job. After hearing about what had happened, Manny’s service manager told Mercado to stop collecting permits in Wilbraham and to avoid the inspector’s truck when he saw it. When Mercado later questioned his supervisor and Manny’s general manager, Eric Kosciusko, about whether the installations were legal, Kosciusko acknowledged that he was told that the installations were illegal, and repeated that Mercado should avoid the inspector’s truck. Mercado then commented that if the installations were not legal, he “[didn’t] feel like [he] should be doing [them] anymore.” Kosciusko, angered by Mercado’s comments, turned away and continued what he was doing. After the conversation, however, Mercado continued to install appliances in Wilbraham for a short time. To his knowledge, Manny’s never obtained permits for this work. Shortly thereafter, on June 16, 2004, a Wednesday, Mercado injured his knee while lifting a dishwasher at work. He immediately sought treatment at the Riverbend Medical Group in Springfield, and obtained a note from a physician’s assistant indicating that he should not work until the following Monday. That same day Mercado also reported his injury to one of his managers, Oscar Alicea, who told him to bring in a doctor’s note if he was going to be out of work. When Mercado called Alicea later to tell him that he needed to be out of work for two days, Alicea responded: “What do you mean you can’t come in? There is only two installers, just come in. . . . Bring in the note, and we’ll talk about it later.” When Mercado arrived at work the next day (Thursday), Alicea was not present. Another manager accepted the note, instructed Mercado to get in his truck, and informed Mercado that Alicea would contact him. Mercado, who was paid by the installation, worked a regular day. Toward the end of the day, Alicea told Mercado that only two or three installations were scheduled for Friday, and that Mercado should have his partner “do the big lifting.” Mercado did not express objections to Alicea’s instructions or to working. On Monday, June 21, 2004, Manny’s fired Mercado. At the time, no reason was given for his termination, but Mercado later learned that the purported reason was that he had called Kosciusko a “f***ing asshole gay,” an accusation Mercado denied. There was no evidence of any further communications between Mercado and Manny’s regarding a possible return to work. After his employment at Manny’s ended, Mercado continued to receive medical treatment for his knee injury. Magnetic resonance imaging revealed that his anterior cruciate ligament was tom, and Mercado underwent two surgeries to correct his injury. On a subsequent date not in evidence, Mercado also filed a worker’s compensation claim relating to the knee injury. In addition to having his medical bills covered, Mercado received a weekly payment for full disability for one to one and one-half years, partial disability for another year, and finally a lump-sum payment. After Mercado presented his case to the jury, Manny’s moved for a directed verdict on all remaining counts of the complaint. After hearing argument, the judge allowed the motion on the ground that Mercado provided insufficient medical evidence that he was handicapped for the purposes of G. L. c. 151B. On the worker’s compensation and FMLA claims, the judge likewise ruled on the ground of insufficient medical proof. The judge also determined that a directed verdict was warranted on the public policy count because, contrary to the allegations in his complaint, “[tjhere is an absence of showing that [Mercado] was required to continue to violate the law” by performing illegal appliance installations. Further facts will be set forth as necessary. Discussion. “In reviewing a mling on a directed verdict or a judgment notwithstanding the verdict, the question before us is the same: that is, ‘whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’ ” Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). Additionally, “[w]e do not weigh the evidence or consider the credibility of witnesses,” and we ignore evidence that contradicts the testimony of the nonmoving party. Doe v. Senechal, supra, quoting from Conway v. Smerling, 37 Mass. App. Ct. 1, 3 (1994). 1. Wrongful discharge in violation of public policy. Mercado argues that a directed verdict was inappropriate because a fact finder could conclude that the work performed by him at the direction of Manny’s was a violation of public policy and Manny’s terminated him because he did not want to continue violating that public policy. We agree. “It is well established that Massachusetts law does not protect at-will employees who claim to be fired for their complaints about internal company policies or the violation of company rules, even though the employees’ actions may be considered appropriate and ‘socially desirable.’ ” Falcon v. Leger, 62 Mass. App. Ct. 352, 362 (2004), quoting from Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150-151 (1989). See Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474-475 (1992). Nevertheless, “[i]n exceptional cases, for reasons of public policy, an at-will employee may maintain a cause of action and find redress where the termination results from the employee’s assertion of some legally guaranteed right, or refusal to engage in illegal or harmful conduct.” Parker v. North Brookfield, 68 Mass. App. Ct. 235, 240 (2007). “In such instances, we look essentially to the substance of the complaint rather than to whom it is presented.” Falcon, supra at 364. The public policy exception is interpreted narrowly to prevent “conver[sion of] the general rule . . . into a rule that requires just cause to terminate an at-will employee.” King v. Driscoll, 418 Mass. 576, 582 (1994), quoting from Smith-Pfeffer, supra at 150. We begin by determining, as a matter of law, whether the appliance installations were in violation of “a well-defined, important public policy.” Mello, supra at 561 n.7. There can be no question that the intent of the electrical and plumbing code is to protect public health, safety, and welfare. See generally Falcon, supra at 360 (electrical code); Barriere v. Depatie, 219 Mass. 33, 36 (1914) (licensing requirements for plumbers). Li-censure requirements form a critical part of those codes and guarantee that licensed electricians and plumbers have a minimum level of experience in the field. See 248 Code Mass. Regs. § 11.02; Leduc v. Commonwealth, 421 Mass. 433, 435 (1995), cert. denied, 519 U.S. 827 (1996) (“The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications”), citing Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 527-528 (1979). The importance of licensed electricians and qualified plumbers is underscored here by Mercado’s testimony that during an installation of a gas stove, he caused a gas leak, requiring the daughter of a customer to seek medical care. According to Mercado, this was only one of multiple incidents of gas leaks following appliance installations that he performed. The evidence demonstrates that Manny’s was aware that at least some of its appliance installations were illegal and in violation of public policy. Mercado and his coworker collected permits and engaged in serious plumbing and electrical work in performing their jobs at Manny’s, despite the fact that neither one of them had an electrical or plumbing license. Sears, the plumbing inspector, confirmed that Mercado’s installations were against the law. According to Sears, the Massachusetts Plumbing Code, 248 Code Mass. Regs. §§ 2.04 et seq., governs the types of installations Mercado performed, and requires that they be performed by a licensed plumber with a permit, “[t]o protect the safety and health of the public.” Wilbraham’s building inspector, Lance Trevallion, further testified that he informed Manny’s, after the inspection incident, that “a permit was required for such work, and a licensed plumber needed to take the permit out.” An inference could be drawn that Kosciusko received that information when he told Mercado that “they are . . . saying that what Manny’s is doing there is illegal.” The instruction to Mercado that he avoid the Wilbraham plumbing inspector also supports the conclusion that Manny’s was aware that the installations were illegal. No permits were issued for the installations that occurred in Wilbraham after Trevallion’s discussion with Manny’s. We conclude that the circumstances of this case are akin to those in cases in which courts have found a violation of public policy within the narrow strictures of the exception to the rule of at-will employment. Compare Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (hospital employee responsible for enforcing State fire safety regulations governing patient care, who performed her job accordingly and was fired, stated claim for wrongful termination); Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (summary judgment properly denied where factual dispute remained whether employee was discharged in retaliation for his cooperation with a law enforcement investigation); Falcon, supra at 363-365 (employee wrongfully terminated after he refused to lie to inspector about existence of electrical code violations). The violation here is also distinct from internal policy matters, which do not warrant recovery by an at-will employee. Contrast Mello v. Stop & Shop Cos., supra at 560-561 (report of false damage claims was internal company matter); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 150-151 (opposition to internal restructuring of a State school); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. at 474-475 (nurse’s report to a private professional organization about perceived managerial inadequacies at hospital was internal matter); Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994) (complaints regarding company’s trade practices, which employee claimed violated G. L. c. 93A, were internal matter). Lastly, whether there was sufficient evidence that Mercado adequately refused to engage in further illegal activity such that it was a factor in his termination is a factual question for the jury. Mercado presented evidence that he told Kosciusko that he did not want to continue performing illegal installations, was ordered to continue illegally installing appliances, and was fired a few weeks after his complaint. Mercado disputes Manny’s stated reason for firing him, but as previously noted on a motion for a directed verdict, we must ignore evidence that contradicts the testimony of the nonmoving party, here Mercado. The evidence presented on Mercado’s public policy claim is sufficient to withstand a motion for a directed verdict. 2. Discrimination claims. Mercado next claims that he was the subject of handicap discrimination and retaliatory termination in violation of G. L. c. 151B; G. L. c. 152, § 75B(2); and the FMLA. Each claim is based upon Manny’s “denial” of Mercado’s request for a two-day leave. To prevail on his handicap discrimination claim under G. L. c. 151B, § 4(16), Mercado must demonstrate that he has a qualifying handicap under the statute. Pursuant to G. L. c. 15IB, § 1(17), an employee has a “handicap” if he or she (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded by the employer as having such an impairment. See New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 (2003). More than a mere medical diagnosis of an impairment is required to show a handicap covered by the statute; an employee must show, by reference to his own experience, that the extent of the limitation caused by his impairment is substantial. Ibid. In this case, Mercado claims handicap status under the first prong of the statute. We conclude that he has failed to demonstrate that he suffered from a handicap during his employment at Manny’s. In order to be considered substantially limited in the major life activity of working, the employee must be able to show that his impairment prevented or restricted him from performing a class of jobs or broad range of jobs in various classes. See New Bedford, supra at 464; Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 637-641 (2004); Dube v. Middlesex Corp., 59 Mass. App. Ct. 734, 737 (2003). Here, Mercado testified that his knee injury affected his ability to lift and his mobility. He also testified, however, that he worked the two days following his injury as normal, with no objection. The fact that Mercado worked at his job as usual, despite his injury, severely undercuts his claim that he was handicapped at that time. Because Mercado failed to offer any evidence that he was unable to do his job, or that Manny’s perceived him as being unable to do so, the judge properly entered a directed verdict on Mercado’s G. L. c. 151B handicap discrimination claim., Mercado’s claim under the FMLA fails for the same reason. The FMLA provides that an eligible employee shall be entitled to a total of twelve weeks of leave during any twelve-month period because of a serious health condition that inhibits the employee from working. See 29 U.S.C. § 2612(a)(1)(D). In order for his injury to be considered a serious health condition, the employee must receive in-patient care or continuing treatment from a health care provider, as those terms are defined in the regulations. 29 U.S.C. § 2611(11). 29 C.F.R. § 825.113-115. As is relevant here, continuing treatment by a health care provider requires a period of incapacity that lasts more than three consecutive calendar days and involves medical treatment. 29 C.F.R. § 825.115(a). See Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-160 (1st Cir. 1998); Wheeler v. Pioneer Developmental Servs., 349 F. Supp. 2d 158, 165 (D. Mass. 2004). Thus, Mercado has no cause of action under the FMLA unless there is evidence from which a reasonable jury could find that he was incapacitated for more than three consecutive days. Mercado testified he worked the Thursday and Friday following his injury, despite the note he received from a physician’s assistant stating that he should refrain from working until Monday, June 21. Based on that testimony, as a matter of law, Mercado failed to prove that he was inhibited from working as required by the FMLA. See Peterson v. Exide Corp., 123 F. Supp. 2d 1265, 1271 (D. Kan. 2000) (finding employer was not bound by medical evidence when plaintiff’s own behavior indicated he did not have a serious health condition). Moving to Mercado’s G. L. c. 152, § 75B(2), claim, under that statute an employer shall not discharge an employee for exercising any right under the worker’s compensation act. Mercado, however, took no action under the act until after he had been terminated. Other than the timing of the termination, Mercado offers no evidence of a connection between his worker’s compensation claim and his discharge. Given that his claim was filed after his discharge, without further proof, we fail to see how Mercado’s discharge could possibly be related to any exercise of his rights under the

Douglas Godfrey vs. Globe Newspaper Company, Inc. Suffolk. February 11, 2010. June 16, 2010. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Termination of employment, Handicap. Employment, Discrimination, Termination. Handicapped Persons. Practice, Civil, Summary judgment. Words, “Qualified handicapped person,” “Essential functions.” Discussion of the standard of review applicable to a grant of summary judgment in an action alleging discrimination in employment. [118-119] Discussion of the elements necessary to establish a prima facie case of discrimination in employment on the basis of handicap [119-120]. In a civil action alleging discrimination in employment on the basis of handicap, the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff did not establish that he was a qualified handicapped person within the meaning of G. L. c. 151B, § 1 (16), in that there was no material dispute (based on the plaintiff’s concession in his response to the defendant’s statement of undisputed facts) that the plaintiff could not perform an essential function of his job [120-121]; further, there was no material question of disputed fact whether a reasonable accommodation was possible, in that, with regard to the plaintiff’s initial request for an accommodation of a reduced schedule, he received the accommodation he sought, even without demonstrating that he was a qualified handicapped person or that the accommodation requested was reasonable [122-123], and in that an accommodation that the plaintiff sought after he had been terminated from his position was not reasonable, given that it would necessitate the creation of a position that did not require essential functions that the plaintiff could not perform or an assignment to a new position altogether [123-125]. In a civil action alleging discrimination in employment on the basis of handicap, the judge properly granted summary judgment in favor of the defendant employer on a claim that the employer violated G. L. c. 151B, § 4 (16), by failing to offer the plaintiff placement in a light-duty position, where the plaintiff did not establish that the employer had a policy of placing injured employees in light-duty positions on return from workers’ compensation leave. [125-126] In a civil action in which the plaintiff claimed that the reason offered for the termination of his employment was a pretext for discrimination on the ground of his disability, in violation of the workers’ compensation act, G. L. c. 152, § 75B, the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff could not establish that he was a qualified handicapped person within the meaning of the statute. [126-127] Civil action commenced in the Superior Court Department on January 28, 2005. The case was heard by Paul E. Troy, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Mark W. Batten for the defendant. Paul H. Merry (Andrea L. Haas with him) for the plaintiff. Cowin, J. The plaintiff was disabled as a result of injuries sustained during the course of his employment. He contends that he is a qualified handicapped person under G. L. c. 151B, § 1 (16), and that, in violation of G. L. c. 151B, § 4 (16), his employer refused to offer him a reasonable accommodation to enable him to continue to work as an assistant press foreman after his injury. In addition, the plaintiff claims that, shortly after he requested such accommodation, his employment was terminated and the reasons offered for his discharge were a pretext for unlawful discrimination under G. L. c. 15IB. He contends also that his employer contravened provisions of the workers’ compensation act by discriminating against him because of his disability, in violation of G. L. c. 152, § 75B. Following the dismissal of his complaint by the Massachusetts Commission Against Discrimination, the plaintiff filed a complaint in the Superior Court. See G. L. c. 151B, §§ 5, 9; Everett v. 357 Corp., 453 Mass. 585, 599-600 (2009). Summary judgment in favor of the defendant was granted on all counts. Background. We summarize the facts derived from the summary judgment record, relying primarily on the parties’ statements of undisputed facts, see Rule 9A(b)(5) of the Rules of the Superior Court (2004), and reserving certain facts for later discussion in "conjunction with specific issues. The facts are undisputed except as noted. The plaintiff, Douglas Godfrey, worked for the defendant, Globe Newspaper Company, Inc. (Globe), for over twenty years. He started in 1977 as a substitute newspaper handler, later worked as a press operator (pressman), and became an assistant press foreman in 1997. The position of pressman consisted of loading and operating the presses to produce the printed newspapers and involved frequent climbing on the machinery. While the assistant press foreman position involved supervision of a “crew” of pressmen, it also required climbing on the presses to ensure that the paper was loaded properly and to resolve production problems. In January, 2002, the plaintiff slipped on oil while working on the printing floor and was seriously injured. He was placed on extended medical leave and was out of work for most of the following one and one-half years. While on leave, the plaintiff underwent multiple surgeries on his shoulder and knee, the last one in March, 2003. Throughout this period, pursuant to its policy for supervisory employees injured on the job, the Globe continued to pay the plaintiff his full salary. In turn, the Globe required that the plaintiff remit to the Globe all workers’ compensation payments that he received that related to the injury. Although still in pain, the plaintiff returned to work on June 3, 2003. He asserts that he brought with him a letter from his physician stating that he was unable to work for more than five hours at a time and that his work schedule should be limited to five hours per day.® The plaintiff claims that he showed this letter to Frank Volpe, the general foreman, who derided the plaintiff and took no action on the plaintiff’s request. The plaintiff states further that another assistant press foreman, James Alexander, took the letter from the plaintiff, tore it up while Volpe watched, and said that if the plaintiff was unable to work a full shift, he should not have come back to work. The plaintiff continued working until July 21, 2003, but suffered severe pain and had to leave early or not report to work a minimum of several days each week. At his deposition, the plaintiff was unable to recall how frequently he left work early, but stated that he believed he had not worked even three days per week for the entire seven-week period. He did not recall any occasion on which his request to leave early was denied. His condition continued to deteriorate, and on July 21,2003, he took another leave due to workplace injury pursuant to the terms of the workers’ compensation act. On August 11, 2003, while on leave, the plaintiff was asked to come to work and meet with Globe managers concerning the remittance of workers’ compensation checks that the plaintiff had not signed over to the Globe. On August 13, 2003, the plaintiff was examined by a physician employed by the Globe’s workers’ compensation insurer. The physician’s report, dated August 14, 2003, states that the plaintiff was unable to work at all at that time. On August 20, 2003, the plaintiff was informed by letter that his employment was terminated because of his failure to return the workers’ compensation payments. After his termination, the plaintiff underwent additional surgeries on both of his knees during 2004. A letter from a workers’ compensation physician in November, 2004, stated that, if his condition continued to improve, the plaintiff might be able to return to work as a full-time pressman. In December, 2004, more than fifteen months after the termination, and without acknowledging that his employment had been terminated, the plaintiff sent a letter to the Globe seeking an “accommodation to permit [his] return” to work. The letter asserted that the plaintiff believed light-duty positions existed that would not require him to stand or climb on the presses. The Globe declined to offer the plaintiff the sedentary position he sought (or, indeed, any position). In January, 2005, after his complaint before the Massachusetts Commission Against Discrimination was dismissed for lack of probable cause, the plaintiff filed a complaint in the Superior Court alleging unlawful discrimination in employment under G. L. c. 15IB (count I); failure to give preference in hiring under the terms of the workers’ compensation act, G. L. c. 152, § 75A (count II); unlawful discrimination because of the filing of the workers’ compensation claim, G. L. c. 152, § 75B (count HI); defamation (count IV); wrongful termination in violation of public policy based on complaints to the Occupational Safety and Health Administration concerning workplace safety conditions at the Globe (count V); and invasion of privacy (count VE).’ A judge in the Superior Court granted the Globe’s motion for summary judgment on all claims. The plaintiff appealed from the ensuing final judgment as to count I (discrimination due to disability), count II (failure to give preference in hiring), and count HI (discrimination for exercising rights under the workers’ compensation act). The Appeals Court affirmed the motion judge’s decision on the preferential hiring claim, but vacated the judge’s decision on the two unlawful discrimination claims. See Godfrey v. Boston Globe Newspaper, Inc., 73 Mass. App. Ct. 1123 (2009). We allowed the defendant’s petition for further appellate review with respect to the plaintiff’s claims on counts I and III, and we affirm the judge’s decision on both counts. Discussion. The plaintiff argues that, when he returned to work in June, 2003, he was denied the reasonable accommodation he sought to enable him to perform his duties as an assistant press foreman, in violation of G. L. c. 151B, § 4; that, because no reasonable accommodation was offered, he was forced to take a second workers’ compensation leave; and that, shortly after he exercised his rights under the workers’ compensation act at the end of July, 2003, and without engaging in any discussion of possible reasonable accommodations, the Globe terminated his employment, in violation of both G. L. c. 151B, § 4, and G. L. c. 152, § 75B. The plaintiff contends that the reason offered by the Globe for the termination was a pretext for unlawful discrimination because of his physical disability and his exercise of rights under the workers’ compensation act. Asserting that there are genuine issues of material fact concerning whether he is a “qualified handicapped person” under the terms of both statutes, the plaintiff contends that the judge erred in granting the Globe’s motion for summary judgment on both the G. L. c. 151B, § 4, and G. L. c. 152, § 75B, claims. The Globe contends that there is no material dispute of fact and that the judge determined correctly that the plaintiff is not a “qualified handicapped person” pursuant to G. L. c. 151B, § 4, and G. L. c. 152, § 75B. The Globe maintains also that, because the plaintiff is not entitled to protection under either statute, it is not necessary to determine whether the reason for the termination of employment was a pretext. The Globe asserts also that it terminated the plaintiff’s employment not because of his disability or his exercise of rights under the workers’ compensation act, but because he failed to remit to the Globe more than one year’s worth of workers’ compensation checks. 1. Standard of review. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002). In deciding a motion for summary judgment, the motion judge must consider all factual allegations, and draw all reasonable inferences therefrom, in favor of the nonmoving party. See Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 242-243 (2007). We review the material evidence in the light most favorable to the nonmoving party. See Correia v. Fagan, 452 Mass. 120,130 (2008). Summary judgment is generally disfavored in cases involving employment discrimination because the question of intent requires a credibility determination. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-440 (1995). Nonetheless, summary judgment on an employment discrimination claim may at times be appropriate. See Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 705 (1992); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 438 (1989). 2. Discrimination in employment on the basis of disability. Pursuant to G. L. c. 15IB, § 4 (16), it is unlawful for an employer “to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” A “qualified handicapped person” is one who is “capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with a reasonable accommodation to his handicap.” See G. L. c. 151B, § 1 (16). A “qualified handicapped person” is entitled to a “reasonable accommodation” that will enable him to perform the essential functions of his job, so long as the accommodation does not place an undue burden or hardship on the employer. See G. L. c. 151B, § 4 (16); Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383, 386 n.3 (1993). The employee bears the initial burden of producing some evidence that an accommodation that would allow him or her to perform the essential functions of the position would be possible, and therefore that he or she is a “qualified handicapped person.” See id. at 386 n.3. Once an employee “make[s] at least a facial showing that reasonable accommodation is possible,” the burden of proof (of both production and persuasion) shifts to the employer to establish that a suggested accommodation would impose an undue hardship. See id. If the accommodation proposed by the employee appears unduly onerous, the employer has an obligation to work with the employee to determine whether another accommodation is possible. See Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 603-604 & n.19 (2004). To establish a prima facie case of employment discrimination on the basis of handicap under G. L. c. 15IB, § 4 (16), the plaintiff must show that he is “handicapped” within the meaning of the statute; that he is a “qualified handicapped person” capable of performing the essential functions of his job either without accommodation or with a reasonable accommodation; and that he was subject to an adverse employment action because of his handicap. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002). Since the parties do not dispute that the plaintiff is “handicapped” within the meaning of the statute, we turn to whether he is a “qualified handicapped person.” a. Essential job function. The plaintiff contends that there is a material dispute of fact whether climbing on the newspaper presses (a task that he admits he was incapable of performing in the summer of 2003) is an “essential function” of his position as an assistant press foreman. The plaintiff argues that, although climbing on the presses is an essential job function for a press operator, most of the duties of an assistant press foreman involve supervision of the press “crew” and troubleshooting rather than physically adjusting the presses. This argument is unavailing. Based on the plaintiff’s own statement during the summary judgment proceedings, there is no factual dispute concerning an assistant press foreman’s essential job functions. The Globe asserted in its statement of undisputed material facts, filed with its motion for summary judgment, see Rule 9A(b)(5) of the Rules of the Superior Court, that “[c]limb-ing on the presses is an essential function of the job, both for a journeyman pressman and for the assistant foreman position that [the plaintiff] held.” In his response to that statement, the plaintiff replied that that fact was “[u]ndisputed.” The plaintiff is correct that whether a particular job duty is an “essential job function” is “intensely fact-based,” requiring “individualized inquiry and . . . appropriate findings of fact.” See Cargill v. Harvard Univ., supra at 587-588, quoting Cox v. New England Tel. & Tel. Co., supra at 383-384. The plaintiff is also correct that evidence in the record disputes whether climbing on the presses was an essential function of an assistant press foreman. However, this evidence cannot overcome the plaintiff’s concession in his response to the statement of undisputed facts and thus does not create a material dispute of fact. See Mass. R. Civ. R 56 (c), as amended, 436 Mass. 1404 (2002); Curly Customs, Inc. v. Bank of Boston, N.A., 49 Mass. App. Ct. 197, 199 n.2 (2000). If the statement of undisputed facts is to have any meaning, the motion judge must be able to rely on it. See Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34, 46 n.18 (2005), quoting Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399 (2002) (Rule 9A[b][5] “ ‘is an “anti-ferreting” rule designed to assist a trial judge in the all too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge,’ who must then determine whether the record contains any material facts in dispute”). b. Reasonable accommodation. The plaintiff maintains that, even if climbing is an essential function, there is a material question of disputed fact whether a reasonable accommodation was possible. He argues that the Globe failed to consider two accommodations he sought, either assignment to a shorter work day or placement in a light-duty position. He asserts further that, on those occasions when climbing was necessary, he need not have climbed the presses but rather could have instructed another employee regarding the needed adjustments. He states that a determination whether such accommodations would have been unduly burdensome to the Globe requires a trial. (i) Initial request for accommodation. We consider first the question of reasonable accommodation from the time the plaintiff initially requested one on June 3, 2003, until he went on leave at the end of July, 2003. According to his doctor, at that point the plaintiff was capable of working for five hours per day. The plaintiff testified that he sought an accommodation of a reduced schedule. See Russell v. Cooley Dickinson Hosp., Inc., supra at 457, quoting Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert, denied, 519 U.S. 1029 (1996) (employee has initial burden to request reasonable accommodation in order to be able to perform his existing position). The plaintiff testified further that this request was effectively denied when the press room supervisor stood by as an assistant press foreman ripped up the doctor’s letter and told the plaintiff that if he could not work full time, he should not have returned to work. The plaintiff continued to work less than three shifts per week for the next seven weeks; he admits that he never worked a full week during that period. In addition, the plaintiff left work early on numer

ALOHA E. BRYSON, M.D., Ph.D., Plaintiff v. HAYWOOD REGIONAL MEDICAL CENTER, PRIMEDOC MANAGEMENT SERVICES, INC. and PRIMEDOC OF HAYWOOD COUNTY, P.A., Defendants No. COA09-270 (Filed 15 June 2010) 1. Appeal and Error— interlocutory order and appeal — statutory privilege asserted — medical review committee records An appeal was properly before the Court of Appeals even though it was interlocutory where it involved an assertion of statutory privilege in medical review committee records. 2. Discovery— medical review committee records — privilege not established The trial court did not err by entering an order compelling discovery of certain documents in an employment action involving a hospital where defendant contended that the documents had been produced by a medical review committee and were protected from discovery under N.C.G.S. § 131E-95(b). The documents did not appear to be privileged on their face, and defendant submitted no affidavits or other evidence to support its claim. Appeal by defendant Haywood Regional Medical Center from order entered 19 December 2008 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 16 September 2009. Elliot Pishko Morgan, P.A., by Robert M. Elliot, for plaintiffappellee. Van Winkle, Buck, Wall, Starnes & Davis P.A., by Allan R. Tarleton, for defendant-appellant Haywood Regional Medical Center. GEER, Judge. Defendant Haywood Regional Medical Center (“HRMC”) appeals from the trial court’s order granting in part plaintiff Dr. Aloha E. Bryson’s motion to compel discovery of certain documents. On appeal, HRMC contends the trial court erred in concluding that the documents were not privileged under N.C. Gen. Stat. § 131E-95(b) (2009) and in ordering HRMC to produce and disclose those documents to plaintiff. Because HRMC has failed to meet its burden of showing that the documents fall into one of the three categories of privileged material under N.C. Gen. Stat. § 131E-95(b), we affirm. Facts On 26 February 2008, plaintiff filed a complaint in Haywood County Superior Court against HRMC, as well as Primedoc Management Services, Inc. and Primedoc of Haywood County, P.A. (“the Primedoc defendants”). Plaintiff, an internist hired by the Primedoc defendants to work at HRMC from March 2005 to December 2007, alleged that, during her time at HRMC, she became concerned about patient safety issues in the Intensive Care Unit (“ICU”) and Definitive Observation Care Unit (“DOCU”). Plaintiff alleged that she observed numerous nursing errors in the ICU and DOCU, including (1) mistakes in the dosing and administration of patient medication; (2) failure to accurately and completely follow doctors’ orders; and (3) instances of nurses, while on duty, text messaging, using cell phones for personal calls, sleeping, and shopping online. Plaintiff documented these patient safety issues by filing occurrence reports with HRMC’s risk manager in accordance with hospital policy. According to plaintiff, HRMC officials began pressuring her to cease filing occurrence reports. Plaintiff alleged HRMC gave false information to the Primedoc defendants about her work and directed that her employment be terminated in retaliation for her complaints about patient care. Plaintiff asserted claims for wrongful interference with contract and defamation against HRMC. Plaintiff also asserted claims for breach of contract, breach of the covenant of good faith and fair dealing, and constructive discharge against the Primedoc defendants. Plaintiff also brought claims for civil conspiracy, punitive damages, and unfair and deceptive trade practices against all defendants. On 29 February 2008, plaintiff served HRMC with her first set of interrogatories and her first set of requests for production of documents. In its responses, HRMC refused to respond to several of plaintiff’s requests, contending that they sought disclosure of the proceedings, records, and materials produced or considered by a medical review committee, which constituted information protected from discovery under N.C. Gen. Stat. § 131E-95(b). On 16 September 2008, plaintiff filed a motion to compel discovery. Although HRMC filed a written response to the motion to compel, it did not submit any affidavits or other evidence supporting its claims of privilege. In an order entered 24 October 2008, the trial court directed HRMC to respond to most of plaintiff’s discovery requests. With respect, however, to certain interrogatories and requests for production, the trial court ordered HRMC to submit the documents and information for its in camera review. After conducting the in camera review, the trial court entered an order on 19 December 2008 granting an order protecting some of the documents and ordering others to be produced. HRMC timely appealed to this Court. Discussion The trial court’s order granting in part plaintiff’s motion to compel discovery is an interlocutory order. “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999). N.C. Gen. Stat. § 7A-27(d)(l) (2009), however, authorizes an appeal from an interlocutory order that affects a substantial right. “[W]hen, as here, a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right under sections l-277(a) and 7A-27(d)(1).” Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. This appeal is, therefore, properly before us. See Armstrong v. Barnes, 171 N.C. App. 287, 290-91, 614 S.E.2d 371, 374 (holding challenged discovery order affected substantial right because “assertions of statutory privilege relate directly to the matters to be disclosed under the trial court’s interlocutory discovery order”), disc. review denied, 360 N.C. 60, 621 S.E.2d 173 (2005). The sole issue on appeal is whether the trial court erred in compelling HRMC to disclose certain documents to plaintiff in discovery. “ ‘Whether or not the party’s motion to compel discovery should be granted or denied is within the trial court’s sound discretion and will not be reversed absent an abuse of discretion.’ ” Hayes v. Premier Living, Inc., 181 N.C. App. 747, 751, 641 S.E.2d 316, 318-19 (2007) (quoting Wagoner v. Elkin City Schs. Bd. of Educ., 113 N.C. App. 579, 585, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994)). It is well established, however, that this Court reviews questions of law, as well as questions of statutory construction, de novo. Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 264, 664 S.E.2d 569, 575 (2008). Thus, we review de novo whether the requested documents are privileged under N.C. Gen. Stat. § 131E-95(b). The information that HRMC contends on appeal is protected from disclosure can be grouped into two categories. The first category contains three internal documents of HRMC. One document is an e-mail dated 17 December 2007 from Shirley Trantham, HRMC’s director of Risk Management, to Janet Ledford with the subject of “Peer Review Request.” In the e-mail Trantham reviews six instances of patient care at HRMC. The e-mail summarizes each incident, notes whether any occurrence reports were received, and discusses any quality concerns. It does not identify Ms. Ledford, what position she held, or even for whom she worked. Nor does the e-mail indicate who requested the information or for what purpose it was generated. The second document is a memorandum dated 18 December 2007 with a title indicating that Shirley Harris, former director of Clinical Services at HRMC, requested a review of patient charts. The document, which contains summaries and analyses of six instances of patient care, does not indicate who authored the document, for what purpose it was generated, or who received it. The third document is a memorandum dated 19 December 2007, authored by Dr. Harry Lipham, Chairman of the Intensive Care Unit at HRMC, and addressed to Shirley Harris and Dr. Nancy Freeman. The memorandum indicates it was authored by Dr. Lipham at the request of “Dr. Freeman from the Hospital Board for information concerning allegations that have been made by Dr. Aloha Bryson concerning [certain patients’] care.” It summarizes six patient charts and analyzes the appropriateness of the care provided. The document does not identify who Dr. Freeman is or the purpose for which she requested the information. The documents in the second category were apparently transmitted between HRMC and an outside company called MDReview. They include (1) a letter to Eileen Lipham of HRMC, written on letterhead with the name “MDReview,” that thanks her “for calling on MDReview to assist [her] with [her] peer review needs”; (2) six documents entitled “Peer Review Report” authored by Scott A. Eisman, M.D.; and (3) Dr. Eisman’s curriculum vitae. Each of the reports warn that “THIS IS A CONFIDENTIAL PEER REVIEW DOCUMENT” and state that the document “was prepared at the request of [HRMC] in order to provide an independent professional opinion of the care rendered” to a specifically-referenced patient. “ ‘It is for the party objecting to discovery [of privileged information] to raise the objection in the first instance and he has the burden of establishing the existence of the privilege.’ ” Adams v. Lovette, 105 N.C. App. 23, 28, 411 S.E.2d 620, 624 (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2016 (1970)), aff’d per curiam, 332 N.C. 659, 422 S.E.2d 575 (1992). HRMC, therefore, has the burden of establishing that these documents are protected. HRMC contends the documents are protected by N.C. Gen. Stat. § 131E-95(b), which provides in part: The proceedings of a medical review committee, the records and materials it produces and the materials it considers shall be confidential and . . . shall not be subject to discovery or introduction into evidence in any civil action against a hospital . . . which results from matters which are the subject of evaluation and review by the committee. N.C. Gen. Stat. § 131E-76(5) (2009) in turn defines “[mjedical review committee”: (5) “Medical review committee” means any of the following committees formed for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing: a. A committee of a state or local professional society. b. A committee of a medical staff of a hospital. c. A committee of a hospital or hospital system, if created by the governing board or medical staff of the hospital or system or operating under written procedures adopted by the governing board or medical staff of the hospital or system. d. A committee of a peer review corporation or organization. “By its plain language, N.C. Gen. Stat. § 131E-95 creates three categories of information protected from discovery and admissibility at trial in a civil action: (1) proceedings of a medical review committee, (2) records and materials produced by a medical review committee, and (3) materials considered by a medical review committee.” Woods v. Moses Cone Health Sys., 198 N.C. App. 120, 126, 678 S.E.2d 787, 791-92 (2009), disc. review denied, 363 N.C. 813, 693 S.E.2d 253 (2010). The statute also, however, provides that “information, documents, or other records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee.” N.C. Gen. Stat. § 131E-95(b). The Supreme Court construed these provisions in Shelton v. Morehead Mem’l Hosp., 318 N.C. 76, 83, 347 S.E.2d 824, 829 (1986): These provisions mean that information, in whatever form available, from original sources other than the medical review committee is not immune from discovery or use at trial merely because it was presented during medical review committee proceedings; neither should one who is a member of a medical review committee be prevented from testifying regarding information he learned from sources other than the committee itself, even though that information might have been shared by the committee. The Court explained further: “The statute is designed to encourage candor and objectivity in the internal workings of medical review committees. Permitting access to information not generated by the committee itself but merely presented to it does not impinge on this statutory purpose. These kinds of materials may be discovered and used in evidence even though they were considered by the medical review committee.” Id. at 83-84, 347 S.E.2d at 829. See also Cunningham v. Charles A. Cannon Jr. Mem’l Hosp., Inc., 187 N.C. App. 732, 737, 654 S.E.2d 24, 27 (2007) (“However, § 131E-95 applies to the information generated by a medical review committee. . . . Regardless of its form, the information sought by plaintiff was generated by defendant [physician], not the [medical review committee]. Therefore, the information is discoverable and the trial court did not abuse its discretion in denying defendant’s motion for a protective order.”), disc. review denied, 362 N.C. 356, 661 S.E.2d 244 (2008). HRMC argues that the e-mail and memoranda in the first category of documents are privileged because they relate to internal peer review investigations of patient charts requested by its Risk Management Department. HRMC contends that it is clear from the face of these documents that they were written for the purpose of evaluating the quality of health care and, therefore, that we can assume they were generated by or for a medical review committee. We do not agree. In Hayes, 181 N.C. App. at 752, 641 S.E.2d at 319, this Court stressed that mere assertions that documents constitute peer review materials and meet the requirements of Shelton are insufficient. A trial court properly grants a motion to compel when the “defendants [do] not present any evidence tending to show that the disputed incident reports were (1) part of the [medical review committee’s] proceedings, (2) produced by the [medical review committee], or (3) considered by the [medical review committee] as required by N.C. Gen. Stat. § 131E-107.” Hayes, 181 N.C. App. at 752, 641 S.E.2d at 319. As this Court explained, the statutory requirements are substantive, not formal, requirements. Thus, in order to determine whether the peer review privilege applies, a court must consider the circumstances surrounding the actual preparation and use of the disputed documents involved in each particular case. The title, description, or stated purpose attached to a document by its creator is not dispositive, nor can a party shield an otherwise available document from discovery merely by having it presented to or considered by a quality review committee. Id. at 752, 641 S.E.2d at 319. In the analogous attorney-client privilege context, this Court has similarly held that “[m]ere assertions” that privilege applies “will not suffice.” Multimedia Publ’g of N.C., Inc. v. Henderson County, 136 N.C. App. 567, 576, 525 S.E.2d 786, 792, disc. review denied, 351 N.C. 474, 543 S.E.2d 492 (2000). The party claiming privilege must instead proffer “some objective indicia” that the privilege applies. Id. Here, however, HRMC did not submit any “evidence,” as required by Hayes, or “objective indicia,” as required by Multimedia Publishing. Instead, like the Court in Brown v. Am. Partners Fed. Credit Union, 183 N.C. App. 529, 539, 645 S.E.2d 117, 124 (2007), addressing the attorney-client privilege, “we can only determine the applicability of the privilege based upon what the [documents] reveal on their face.” Starting with the first category of documents, HRMC has pointed to no evidence in the record that Shirley Trantham, who sent the 17 December 2007 e-mail, or Janet Ledford, who received it, were members of a medical review committee. The author and recipients of the 18 December 2007 memorandum are not even identified. Neither of these documents explicitly states that it was generated by members of a medical review committee or for a medical review committee’s consideration. There is absolutely no evidence in the record from which this Court can infer that either document is privileged under § 131E-95(b). See Brown, 183 N.C. App. at 535, 645 S.E.2d at 122 (holding that defendant failed to establish that board of directors meeting minutes were protected by attorney-client privilege because documents listed individuals as being present at meeting, but did not identify their positions and, therefore, defendant could not demonstrate that privilege had not been waived). The third document, the 19 December 2007 memorandum, indicates that it was authored by the Chair of the Intensive Care Unit at HRMC for Dr. Freeman “from the Hospital Board.” Nothing in the document itself and nothing in the record specifically identifies what “the Hospital Board” is. In plaintiff’s complaint, she alleges that she composed a letter to the Hospital Authority Board of Commissioners about her concerns. Even assuming arguendo that this is the “Hospital Board” to which the memorandum refers, the Supreme Court in Shelton, 318 N.C. at 84, 347 S.E.2d at 829-30, held that a hospital’s Board of Trustees does not fit the definition of a medical review committee. HRMC has, therefore, failed to present any evidence that the “Hospital Board” in the 19 December 2007 memorandum constituted a medical review committee within the meaning of N.C. Gen. Stat. § 131E-95(b). Turning to the second category of documents, HRMC contends that the six reports and Dr. Eisman’s curriculum vitae are documents generated by a medical review committee because MDReview, the apparent source of these documents, is a “peer review corporation or organization.” HRMC has, however, failed to point to any evidence in the record showing that MDReview is a peer review organization or corporation or that it authored those documents for that purpose. Although the reports identify themselves as peer review documents, as Hayes stated, “[t]he title, description, or stated purpose attached to a document by its creator is not dispositive ....” 181 N.C. App. at 752, 641 S.E.2d at 319. We, therefore, cannot conclude simply from a bare name that MDReview is a peer review organization or corporation. In any event, even if MDReview is a peer review organization or corporation, HRMC has not provided any evidence, as required by N.C. Gen. Stat. § 131E-76(5), that the reports were generated by “[a] committee of a peer review corporation or organization.” (Emphasis added.) In sum, HRMC submitted no affidavits or other evidence to support its claim that the documents at issue were protected from discovery under N.C. Gen. Stat. § 131E-95(b). In addition, the documents on their face do not establish that they are privileged. Thus, HRMC has failed to meet its burden of proof, and accordingly, we affirm the trial court’s order compelling discovery. Affirmed. Judges STROUD and ERVIN concur.