Retaliation Cases

MARK HUEBNER, Plaintiff v. TRIANGLE RESEARCH COLLABORATIVE, a North Carolina Corporation, and THADDEUS K. SZOSTAK, Defendants No. COA08-70 (Filed 21 October 2008) Appeal and Error— notice of appeal — tolling of time requirement — actual notice of judgment Plaintiff could not use Appellate Rule 3(c) to toll the time for filing his notice of appeal based on lack of service where he had actual notice of entry of the judgment. The language of a Rule 60(b) motion, filed almost three years before plaintiffs notice of appeal, indicated actual notice of the underlying order and judgment, and that motion was denied approximately two years and nine months before notice of appeal. Appeal by plaintiff from an order and judgment entered 12 August 2004 by Judge Donald W. Stephens in Durham County Superior Court. Heard in the Court of. Appeals 23 September 2008. McDaniel & Anderson, L.L.P., by John M. Kirby, for plaintiff - appellant. Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for defendant-appellees. PER CURIAM. Mark Huebner (“plaintiff’) appeals from an order dismissing his complaint involuntarily and from a judgment in favor of Triangle Research Collaborative and Thaddeus K Szostak (“defendants”). For the reasons stated below, we dismiss this appeal. I. Background On 12 July 2002, plaintiff filed a complaint against defendants seeking: (1) unpaid wages, liquidated damages, and attorney’s fees pursuant to North Carolina’s Wage and Hour Act (N.C. Gen. Stat. §§ 95-25.1 to 95-25.25); and (2) an injunction, reinstatement to employment, and compensation for lost wages, benefits and other economic losses pursuant to North Carolina’s Retaliatory Employment Discrimination Act (N.C. Gen. Stat. §§ 95-240 to 95-245). On 16 September 2002, defendants filed an answer and counterclaim alleging that plaintiff had breached the confidentiality agreement contained in his employment contract. On 4 October 2002, Jeffrey L. Starkweather filed a notice of appearance on plaintiffs behalf, and Elizabeth P. McLaughlin filed a motion to withdraw as plaintiffs counsel. The trial court allowed Ms. McLaughlin’s motion to withdraw on 24 April 2003. On 16 May 2003, defendants filed a motion to continue and a motion for partial summary judgment. On 20 May 2003, the trial court entered an order continuing the trial; the court administrator rescheduled trial for 11 August 2003; and defendants’ counsel and Mr. Starkweather agreed to extend the deadline for mediation until 21 July 2003. On 21 May 2003, defendants served Mr. Starkweather with notice that their motion for partial summary judgment would be heard on 17 July 2003. Neither plaintiff nor Mr. Starkweather appeared for a scheduled 14 July 2003 mediation, and on 23 July 2003, defendants filed a motion for sanctions. On that same date, plaintiff filed a notice of voluntary dismissal without prejudice pursuant to N.C.R. Civ. P. 41. In response, on 30 July 2003, defendants filed a motion to dismiss plaintiff’s complaint involuntarily. In support, defendant Triangle Research Collaborative asserted it had a pending compulsory counterclaim that it had not dismissed, and therefore, plaintiffs notice of yoluntary dismissal was ineffectual as it amounted to a failure to prosecute the action. Although Judge Stafford Bullock heard defendants’ motion to dismiss on 22 August 2003, he did not enter a ruling upon the motion. In a letter dated 12 May 2004, the court notified the parties that the case was set for trial on 28 June 2004. A notation on the letter indicated that-copies were sent to Ms. McLaughlin (plaintiff’s former counsel) and to Mr. Starkweather (plaintiff’s counsel at that time). Neither Mr. Starkweather nor plaintiff attended the 28 June 2004 hearing. During the hearing, Judge Donald Stephens stated that “[w]e’ve left messages with Jeffrey Starkweather’s office all morning and notified his office that this matter would be called this afternoon. He is not here. We’re proceeding without him. He certainly had notice from the printed calendar.” Judge Stephens further noted that Judge Bullock had signed an order on 28 June 2004 relinquishing jurisdiction over the motions which Judge Bullock had heard on 22 August 2003. After hearing defendants’ motion to dismiss, Judge Stephens allowed the defendant’s motion in open court. Defendants then presented evidence as to their counterclaim, and Judge Stephens found that plaintiff had violated the confidentiality terms of the parties’ employment contract. After permanently enjoining plaintiff from disclosing certain confidential information, Judge Stephens awarded $3,000.00 in attorney’s fees to defendants. On 28 June 2004, Judge Stephens signed one copy of an order dismissing plaintiff’s complaint; this order was entered on 12 August 2004. On 6 July 2004, he signed a duplicate copy of the same order which was entered on 29 October 2004. In a judgment signed on 6 July 2004 and entered on 19 October 2004, Judge Stephens ruled in defendants’ favor on the counterclaim. This copy also has a handwritten notation stating “Duplicate Copy Entered 12 Aug 04[.]” Judge Stephens signed a second copy of the same judgment on 12 August 2004, nunc pro tunc, 28 June 2004; however, the filing date for the second copy is unclear as the file stamp on the document provided in the record is illegible. This copy also contains a handwritten notation stating that “copies [were] mailed to atty” on 18 August 2004. In correspondence dated 17 September 2004 and file-stamped 22 September 2004, plaintiff informed Court Administrator Kathy Shuart that he was terminating the services of Mr. Starkweather. On 27 October 2004, attorney Michael A. Jones filed a motion on plaintiff’s behalf pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 60(b) (2007). The Rule 60(b) motion sought relief from the “Order Dismissing Plaintiff’s Complaint Involuntarilyf,]” filed on 12 August 2004 and from the “Findings of Fact, Conclusions of Law, and Judgment on Counterclaimf,]” filed on 12 August 2004. This language exactly tracked the labels in Judge Stephens’ order and judgment. Following a November 2004 hearing on the Rule 60(b) motion, Judge Anthony M. Brannon entered an order denying said motion on 2 December 2004. On 11 September 2007, plaintiff gave notice of appeal from the order and judgment “filed on or about August 12, 2004” by Judge Stephens, which was approximately three years subsequent to the filing of his Rule 60(b) motion and approximately two years and nine months after entry of the order denying said motion. In the notice of appeal, plaintiff asserted that the order and judgment had “never been served as required by Rule 58.” On 27 March 2008, defendants filed a motion to dismiss plaintiff’s appeal asserting that the notice of appeal was untimely. Plaintiff contends that he was never served with Judge Stephens’ order and judgment in accordance with Rule 58 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 58 (2007). Defendants do not contest plaintiffs assertion, and the record before us.does not show that defendants ever served plaintiff with Judge Stephens’ underlying judgment and order in accordance with Rule 58. II. Analysis Plaintiff argues that defendants’ failure to serve him with Judge Stephens’ order and judgment in accordance with Rule 58 triggered Rule 3(c) of the North Carolina Rules of Appellate Procedure which tolled the time for the filing of his notice of appeal, consequently rendering his notice of appeal timely. N.C.R. App. P. 3(c). Appellate Rule 3(c) states: In civil actions ... a party must file and serve a notice of appeal . . . within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 . . . or . . . within 30 days after service upon the party of a copy of the judgment if service was not made within that three-day periodf.] N.C.R. App. P. 3(c). In other words, the operation of Appellate Rule 3(c) is directly tied to Rule 58, which governs entry of judgment. “[T]he purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered.” Durling v. King, 146 N.C. App. 483, 494, 554 S.E.2d 1, 7 (2001) (citations omitted). The relevant part of Rule 58 states: Subject to the provisions of Rule 54(b), a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. If service is by mail, three days shall be added to the time periods prescribed by Rule 50(b), Rule 52(b), and Rule 59. All time periods within which a party may further act pursuant to Rule 50(b), Rule 52(b), or Rule 59 shall be tolled for the duration of any period of noncompliance with this service requirement, provided however that no time period under Rule 50(b), Rule 52(b) or Rule 59 shall be tolled longer than 90 days from the date the judgment is entered. N.C.R. Civ. P. 58. In other words, like Appellate Rule 3(c), Rule 58 has its own tolling provision, which expands the time in which a party can bring certain post-trial motions when the judgment is not properly served in accordance with Rule 58. Id. However, Rule 58 explicitly caps the tolling of time for bringing these motions at ninety days from entry of judgment. Id. In addition, under Rule 58, the issue of whether service of the judgment is proper does not affect whether judgment was entered. Durling, 146 N.C. App. at 493, 554 S.E.2d at 7. Plaintiff argues that Rule 3(c)’s language establishes that the time for filing notice of appeal is tolled until a party is properly served with the judgment pursuant to Rule 58 regardless of the amount of time that passes between entry of judgment and the filing of the notice of appeal. Plaintiff further contends that this Court’s opinion in Davis v. Kelly, 147 N.C. App. 102, 554 S.E.2d 402 (2001), conclusively establishes that this is true even if: (1) the time and entry of judgment is easily identifiable; (2) an appellant has actual notice of entry of judgment; and (3) an appellant has actual notice of the content of the judgment. Plaintiff also claims that Davis holds that an appellant does not waive the benefit of Rule 3(c)’s tolling provision by improperly filing a notice of appeal without first objecting to improper service of the judgment. In sum, plaintiff argues that Davis conclusively establishes that his notice of appeal was timely. For the reasons discussed below, we reject plaintiff’s arguments. In Davis, judgment was entered against the defendant on 24 August 2000, and the defendant was served with the judgment on 1 September 2000. Id. at 105, 554 S.E.2d at 404. On 20 September 2000, the defendant served a proper notice of appeal on the plaintiff but filed the notice of appeal in the wrong court. Id. The defendant corrected the mistake on 10 October 2000; however, the plaintiff filed a motion to dismiss alleging that the 10 October notice of appeal was untimely because it was filed outside the thirty day period mandated by Appellate Rule 3(c). Id. The Court rejected the plaintiff’s argument, noting that the “plaintiff [had] not fully complied] with the service requirements of Rule 58 ... until 26 October 2000” because he had not filed a certificate of service as required by N.C. Gen. Stat. § 1A-1, Rule 5(d) until that date. Id. The Court concluded that “[t]he running of the time for filing and serving a notice of appeal was tolled pursuant to N.C.R. App. P. 3 until plaintiff’s compliance [with Rule 58], and defendant’s notice of appeal is, therefore, timely.” Id. Contrary to plaintiff’s assertions, we do not read Davis as conclusively resolving the issues of actual notice and waiver. While it appears that similar to plaintiff here, the defendant in Davis had actual notice of entry of judgment and the judgment’s content, the Court did not discuss the issue of actual notice. In addition, while the defendant in Davis had filed a notice of appeal without objecting to the improper proof of service, the Court also did not discuss or address waiver. Furthermore, unlike in the instant case, the defendant in Davis actually filed and served a proper notice of appeal (albeit in the wrong court), that would have been timely without the benefit of Appellate Rule 3(c)’s tolling provision. Even more importantly, in Davis, the defendant corrected his filing mistake approximately forty days after receiving service of the judgment and twenty days after filing the notice of appeal in the wrong court. Here, plaintiff did not file his notice of appeal until almost three years after he filed his Rule 60(b) motion and approximately two years and nine months after the entry of the order, denying said motion. Based on the lack of discussion of actual notice and waiver in Davis and the critical factual distinctions between that case and the instant one, we do not believe that Davis forecloses dismissal of an appeal based on waiver due to an appellant’s extended delay in filing the notice of appeal where the record clearly indicates that an appellant has actual notice of the entry of judgment and its content. Furthermore, we do not believe the purposes of Rule 58 are served by allowing a party with actual notice to file a notice of appeal and allege timeliness based on lack of proper service when almost three years had passed since the party had filed its Rule 60(b) motion and the entry of an order denying it. Hence, we conclude that because: (1) the language of plaintiff’s Rule 60(b) motion demonstrates that he had actual notice of the time and entry of Judge Stephens’ order and judgment as well as their content; (2) almost three years had passed between the time plaintiff respectively filed his Rule 60(b) motion and his notice of appeal; and (3) approximately two years and nine months had passed between the entry of the order denying the Rule 60(b) motion and the filing of the notice of appeal, plaintiff cannot now utilize Appellate Rule 3(c) to toll the time for filing his notice of appeal. Thus, plaintiff has waived the benefit of Rule 3(c) by failing to take timely action with regard to his notice of appeal. Without the benefit of the tolling provision, plaintiff’s notice of appeal is untimely. “Failure to give timely notice of appeal in compliance with . . . Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and -an untimely attempt to appeal must be dismissed.”' Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983) (citations omitted). Plaintiff asks us to “exercise [our] discretion ... to accept this case under [our] powers of certiorari” in the event that we “ha[ve] any substantial question about the timeliness of this appeal[.]” N.C.R. App. P. 21(a)(1) permits this Court to issue a writ of certiorari to allow us to review a trial court’s judgments and orders “when the right to prosecute an appeal has been lost by failure to take timely action[.]” However, N.C.R. App. P. 21(c) provides that a party’s “petition [for writ of certiorari] shall be filed without unreasonable delay[.]” Under the facts here, we conclude that defendant’s request for certiorari has not been filed without unreasonable delay. Consequently, we decline to exercise our discretionary powers pursuant to Appellate Rule 21 to review plaintiff’s appeal. Accordingly, we allow defendants’ motion to dismiss plaintiff’s appeal. Appeal dismissed. Panel consisting of Judges HUNTER, ELMORE, and GEER.

Melissa Romero vs. UHS of Westwood Pembroke, Inc., & another. No. 07-P-931. Middlesex. May 5, 2008. - September 8, 2008. Present: Grasso, Trainor, & Wolohojian, JJ. Health Care Facility. Employment, Retaliation, Discrimination, Termination. Anti-Discrimination Law, Sex, Termination of employment. Unlawful Interference. Contract, Interference with contractual relations. In a civil action alleging a violation of G. L. c. 149, § 187, the Massachusetts medical provider whistleblower statute, the judge properly granted summary judgment in favor of the defendant, a health care facility, where the plaintiff failed to demonstrate that she objected to any existing activity, policy, or practice of the defendant; where the record contained no evidence that tire proposal to which the plaintiff objected (which was never adopted) violated any law, rule, regulation, or professional standard of practice; and where the claimed retaliatory conduct occurred before the plaintiff voiced her objection to the proposal. [540-543] In a civil action alleging employment discrimination based on pregnancy, the judge properly granted summary judgment in favor of the defendant employer, where the record did not support the claim that an administrative reorganization was an adverse employment event, and the plaintiff did not produce evidence that she and the person to whom she reported as a result of the reorganization were similarly situated [543-545]; and where, with respect to the plaintiff’s termination as part of a layoff, the plaintiff failed to meet her burden of producing sufficient credible evidence that the employer’s proffered nondiscriminatory reasons for her layoff were merely a pretext [545-548]. In a civil action alleging intentional interference with advantageous business relations, the judge properly granted summary judgment in favor of the defendant, where the plaintiff, as a matter of law, could not satisfy the element of “improper motive or means” required to make out an interference claim. [548] Civil action commenced in the Superior Court Department on September 10, 2003. A motion for partial summary judgment was heard by Julian T. Houston, J., and the remaining counts were also heard by him on a motion for summary judgment. Jeffrey R. Mazer for the plaintiff. Barbara S. Hamelburg (.Laura Bernardo Sorafine with her) for the defendants. Robert Spiegel. Wolohojian, J. The plaintiff, formerly the director of a partial hospitalization program (the Boston Center) of the defendant, UHS of Westwood Pembroke, Inc. (Westwood), appeals from the dismissal on summary judgment of her claims for (1) violation of G. L. c. 149, § 187, the Massachusetts medical provider whistleblower statute; (2) violation of G. L. c. 15IB; and (3) intentional interference with advantageous business relations. The claims were based on an administrative reorganization of staff conducted by Westwood in April, 2002, that resulted in the plaintiff reporting to someone new, and on the plaintiff’s subsequent termination as part of a reduction in force in July, 2002. In broad summary, the plaintiff claimed that both the reorganization and her subsequent termination were unlawful responses to her (a) objecting to proposed patient-to-staff ratio increases; and (b) notifying her employer that she was pregnant. On appeal, we view the record in the light most favorable to the plaintiff, Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), and “consider the record and the legal principles involved without deference to the motion judge’s reasoning.” Zielinski v. Connecticut Valley Sanitary Waste Disposal, Inc., 70 Mass. App. Ct. 326, 334 (2007). We discuss each claim in turn below. 1. General Laws c. 149, § 187. Section 187 of G. L. c. 149 provides a cause of action to health care providers who are retaliated against for disclosing problems within health care facilities. Section 187(6) prohibits health care facilities from “refus[ing] to hire, terminat[ing] a contractual agreement with or tak[ing] any retaliatory action against a health care provider” for engaging in any of the acts protected under the section. The protected acts include those contained in § 187(6)(3), on which the plaintiff relies: “objecting] to or refusing] to participate in any activity, policy or practice of the health care facility . . . which the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” A claim under § 187(¿>)(3) requires the plaintiff to establish that (1) she objected to, or refused to participate in, an activity, policy or practice that (2) she reasonably believed to be in violation of a law, rule, regulation, or professional standard of practice, (3) which she reasonably believed posed a risk to public health, and (4) she was retaliated against as a result. Summary judgment was properly entered on this claim for several reasons, not least of which being that the record does not show that the plaintiff objected to any existing “activity, policy, or practice” at Westwood. Instead, the record reflects that the plaintiff objected to a proposed increase in the patient census which, as a result of objections raised by her and others, was in fact never adopted., General Laws c. 149, § 187, does not extend to mere proposals. Instead, the plain language of the statute refers only to existing activities, policies, and practices of a health care facility that are (the statute itself using the present tense) in violation of a statute, rule, regulation, or professional standard. The policies underlying the statute would be undermined were we to extend it to include objections to proposals, particularly to proposals such as the one at issue in this case, that are never adopted. As reflected in the provision of the statute requiring that a health care facility be given notice of an objection in cases Where the health care provider initially objects to a third party, a significant purpose of the statute is to “afford[] the health care facility a reasonable opportunity to correct the activity, policy or practice.” G. L. c. 149, § 187(c)(1). In those cases, if the health care facility corrects the problem, the objecting health care provider has no claim. Ibid. For the same reason, the plaintiff should have no claim here: she and others objected to the proposed increase in the pediatric patient census and, as a result, the proposal was abandoned. This salutary internal debate among health care professionals regarding how best to handle their medical practice is not the basis for a claim under G. L. c. 149, § 187. Summary judgment was also appropriately entered on this claim because the record contains no evidence that the proposal violated any law, rule, regulation or professional standard of practice. The record contains no evidence of any law, rule, regulation or professional standard governing the patient census or imposing a particular patient-to-staff ratio for a facility such as the Boston Center. In the absence of any such evidence, as a matter of law, the plaintiff could not have had an objectively reasonable belief that the proposed patient census increase was in violation of any statute, rule, regulation or professional standard. See Lynch v. Boston, 180 F.3d 1, 17 (1st Cir. 1999) (construing G. L. c. 149, § 185). The plaintiff’s personal views on the proposed patient census increase, unsupported by reference to any statutory, regulatory or professional standard of practice, were not enough to support her claim. Finally, to the extent that the plaintiff claims that the administrative reorganization that was announced on April 10, 2002, was retaliatory conduct within the meaning of § 187, that argument fails because the reorganization was announced before the plaintiff objected to the proposed patient census increase. The plaintiff has pointed to nothing in the record reflecting any date on which she aired her objection to the proposal apart from May 7, 2002, the date she sent a memorandum voicing her objections. It is logically and legally impossible for the claimed retaliatory conduct to have occurred before the plaintiff voiced her objection. For each of these reasons, summary judgment was appropriately entered in Westwood’s favor on the plaintiff’s claim under G. L. c. 149, § 187. 2. General Laws c. 15IB. In March, 2002, approximately six months after she was hired, the plaintiff informed her supervisor that she was pregnant with an expected delivery date in September. She contends that, as a result of this disclosure, West-wood took the same two adverse employment actions against her upon which she rested her whistleblower claim: i.e., as part of the administrative reorganization, she no longer reported directly to the chief executive officer, Robert Spiegel, and she was terminated as part of a reduction in force. A plaintiff must prove four elements to succeed on a claim under G. L. c. 151B: “membership in a protected class, harm, discriminatory animus, and causation.” Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). There is no dispute in this case as to the first element: the plaintiff was pregnant. As to the second element, there is no dispute that her termination constituted actionable harm, but there is disagreement whether the structural reorganization did. In an indirect evidence case, such as this one, the third and fourth elements may be established using the familiar three-stage, burden-shifting paradigm, which we set out in the margin. a. The April reorganization. It was undisputed that Spiegel, Westwood’s chief executive officer, “began to consider the restructuring of Westwood’s child and adolescent partial hospitalization programs” in late January or early February, 2002 — in other words, before the plaintiff informed him that she was pregnant. Contrary to Westwood’s argument, however, this does not dispose of the plaintiff’s claim, because Spiegel never stated when he decided to go forward with the restructuring or when he decided to have the plaintiff report to a newly-created director of child and adolescent partial hospitalization services. Summary judgment, however, was properly granted because the record did not support a finding that the administrative restructuring was an adverse employment event. The plaintiff concedes that the restructuring did not change her job duties or her pay. She also admits that the restructuring did not “cause any difficulties for [her] in terms of [her] job function,” or in her “employee status.” However, she argues that “the restructuring [created] a redundancy” between her duties and those of her new supervisor, which facilitated her later termination as part of the reduction in force. This argument might have had some appeal had the plaintiff pointed to anything in the record to support her assertion that redundancies were created. Absent any such evidence, the reorganization did nothing more than create a new layer of reporting between the plaintiff and Spiegel. As a result of the reorganization, the plaintiff, instead of reporting directly to Spiegel, reported to Daniel Litwack (who was appointed the director of child and adolescent partial hospitalization services), who in turn reported to Spiegel. Standing alone, this was insufficient to constitute an adverse employment action. See Mac-Cormack v. Boston Edison Co., 423 Mass. 652, 663 (1996) (the fact that “[d]uties were rearranged and new reporting structures devised” did not amount to adverse employment action). Summary judgment was also appropriate because the plaintiff came forward with no evidence to show that Litwack and the plaintiff were similarly situated. The plaintiff provides no comparison of Litwack’s position, duties, pay, and experience with her own, whether in his new position or in his previous position at Westwood. Westwood’s undisputed evidence, on the other hand, was that Litwack had been employed longer at Westwood and had greater previous experience than the plaintiff. In the face of this evidence presented by Westwood, the plaintiff did not meet her burden of presenting evidence sufficient to withstand summary judgment with respect to the reorganization. b. The July layoff. The plaintiff’s claim arising from her termination as part of a layoff in July, 2002, is more complicated. As the motion judge found, the plaintiff satisfied her burden in coming forward with sufficient evidence to establish a prima facie case for purposes of stage one of the burden-shifting paradigm. The motion judge also properly determined that Westwood had amply met its burden of articulating nondiscriminatory reasons for the layoff and of presenting credible evidence that its reasons were the real reasons for laying off the plaintiff. This case, therefore, falls squarely within the analytical framework of Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 (2005), in which the Supreme Judicial Court reviewed the granting of summary judgment in a case involving a reduction in force. Sullivan turned, as this case does, on whether the plaintiff had come forward with sufficient “credible evidence that [the employer’s] proffered reasons for her layoff were merely a pretext for a true intent of [pregnancy] discrimination.” Id. at 55. “This may be accomplished by showing that the reasons advanced by [Westwood] for making the adverse decision are not true.” Ibid., quoting from Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117 (2000). Westwood pointed to ample evidence in the summary judgment record that the July, 2002, systemwide layoff was necessitated by financial losses. See note 9, supra. The Boston Center alone had posted pretax losses of more than $96,000 through June, 2002. The plaintiff herself acknowledged her understanding that if the patient census did not improve, staffing at the Boston Center would need to be reduced. The plaintiff does not attack or dispute the evidence of financial losses. Instead, she argues that pretext can be inferred from the facts that (a) Litwack was not terminated; (b) the director of the Lowell program (a nonpregnant woman) was not terminated; and (c) unlike four of the six employees who were terminated (all nonpregnant women), the plaintiff was not offered a comparable position at Westwood after her termination. None of these rebuts Westwood’s “proffered reasons for laying off [the plaintiff] and does not, by itself, create reasonable inferences of discriminatory animus and causation.” Sullivan v. Liberty Mut. Ins. Co., supra at 55. In large part, this is so because the record does not contain the information necessary to permit a reasonable inference of pretext to be drawn in this case. The plaintiff is correct that Litwack was not terminated as a part of the reduction in force. However, in order for a reasonable inference of pretext to be drawn, the plaintiff needed to provide evidence of more than the fact that he was a man; she needed to show that he was similarly situated. As set out above, the plaintiff failed to do so. Moreover, Westwood presented evidence of Litwack’s greater experience, both at Westwood and at previous employers. Similarly, the record contains no evidence that the director of the Lowell program was similarly situated to the plaintiff. West-wood’s uncontroverted evidence was that the Lowell program was not comparable to that of the Boston Center. Specifically, the Lowell program was a large inpatient facility whereas the Boston Center was a “partial” (i.e., outpatient) program only. Again, absent evidence that the director of the Lowell program was similarly situated, no reasonable inference could be drawn simply from the fact that she was neither pregnant nor terminated. Finally, the plaintiff argues that pretext can be inferred from the fact that she was not offered the directorship of the partial program at Pembroke Hospital. She points to the fact that of the six employees laid off as part of the July, 2002, reduction-in-force, four (nonpregnant women) were offered comparable positions within Westwood whereas she was not.* As the motion judge found, however, the plaintiff presented no evidence of an available suitable opening at Westwood. Westwood presented evidence — that was uncontradicted — that the Pembroke Hospital was a separate entity with different management from Westwood. No reasonable inference of discriminatory animus could be drawn from Westwood’s failure to offer a position that was not its to give. For these reasons, summary judgment was properly granted on the plaintiff’s claim under G. L. c. 151B. 3. Intentional interference with advantageous business relations. The plaintiff, an at-will employee, brought this claim against Spiegel, alleging that she had a reasonable expectation of continued employment at Westwood with which he improperly interfered by selecting her to be laid off because she was pregnant. Because her interference claim depends entirely on her discrimination claim, it fails for the reasons set forth in the preceding section. Absent a legally sufficient claim for discrimination, the plaintiff, as a matter of law, cannot satisfy the element of “improper motive or means” required to make out her interference claim, and summary judgment was properly allowed. See Alba v. Sampson, 44 Mass. App. Ct. 311, 314 (1998) (elements of interference claim). For the reasons set out above, summary judgment was properly entered on all claims. Judgments affirmed. The section largely tracks the language of the Massachusetts whistleblower statute, which is not limited to health care providers. See G. L. c. 149, § 185. For purposes of this section, a plaintiff’s belief must be objectively reasonable. See Lynch v. Boston, 180 F.3d 1, 17 (1st Cir. 1999) (construing G. L. c. 149, § 185). The objection must be “a substantial or motivating part” of the adverse employment action. See Taylor v. Freetown, 479 F. Supp. 2d 227, 241 (D. Mass. 2007) (construing G. L. c. 149, § 185). In March, 2002, Robert Spiegel, the chief executive officer of Westwood, directed that the number of pediatric patients at the Boston Center be increased without an increase in staff. The plaintiff points to nothing in the record to indicate that she objected to this proposal before May 7, 2002, when she sent a memorandum that reflected her understanding that a census increase “has been proposed.” The plaintiff did not object to an increase in the pediatric patient census per se; her objection was to an increase in census “without a formal plan in place and/or with realistic patient to staff ratio under agreement.” Although the plaintiff argues in her brief that she objected to other items as well, such as the staffing grid, the record does not support her claim. The portions of the record to which she cites do not show that she informed anyone that she had an objection or complaint to any of those matters. In order to withstand summary judgment, the plaintiff was required, among other things, to put forward sufficient material to demonstrate that she voiced an objection. Lyon v. Morphew, 424 Mass. 828, 831 (1997), quoting from Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) (“A complete failure of proof concerning an essential element of the non-moving party’s case renders all other facts immaterial”). In stage one, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that (1) she was in a protected class; (2) she performed her job at an acceptable level; (3) she suffered an adverse employment event; and (4) her employer sought to fill her position with an individual with similar qualifications; or, in the case of a reduction in force, her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. See Abramian v. Presid

MARILYN WILLIAMS, Plaintiff v. NEW HOPE FOUNDATION, INC., Defendant No. COA08-19 (Filed 2 September 2008) Employer and Employee— retaliatory discharge — ratio of damages to attorney fees — no abuse of discretion The trial court did not abuse its discretion in a retaliatory discharge action by awarding $25,000.00 in attorney fees and $2,534.14 in costs to plaintiff pursuant to N.C.G.S. § 95-25.22(d) on damages of $72.00 (for unpaid wages and liquidated damages). .The purpose of the statute is to provide relief for a person who has sustained damage so small that defendant would have an unjustly superior bargaining position in settlement negotiations. Appeal by defendant from order entered on or after 18 June 2007 by Judge J. Richard Parker in Hertford County Superior Court. Heard in the Court of Appeals 20 August 2008. Glenn, Mills, Fisher & Mahoney, P.A., by Stewart W. Fisher, for plaintiff-appellee. Hairston Lane Brannon, P.A., by Anthony M. Brannon, for defendant-appellant. TYSON, Judge. New Hope Foundation, Inc. (“defendant”) appeals from order entered, which awarded Marilyn Williams (“plaintiff’) attorney’s fees and costs. We affirm. I. Background On or about 18 June 2005, plaintiff was discharged from her employment with defendant. Plaintiff filed an employment discrimination complaint with the North Carolina Department of Labor Workplace Retaliatory Discrimination Division (“DOL”). On or about 16 September 2005, the DOL issued a “Right to Sue” letter, to enable plaintiff the right to file a lawsuit under the North Carolina Retaliatory Employment Discrimination Act (“REDA”). On 26 November 2005, plaintiff filed a complaint, which alleged claims for relief under REDA and the North Carolina Wage and Hour Act (“Wage Act”). Defendant denied all allegations. An order allowing plaintiff to file an amended complaint, to add a claim for wrongful discharge, was granted on 26 February 2007. The case was tried the week of 9 April 2007 and the jury awarded plaintiff $36.00 in unpaid wages incurred as a result of unpaid travel expenses. The trial court then awarded an additional $36.00 in liquidated damages. Defendant did not appeal the jury’s verdict nor the judgment entered thereon. On 22 May 2007, plaintiff moved “for an award of attorney’s fees and costs[]” pursuant to N.C. Gen. Stat. § 95-25.22(d). Plaintiff requested $50,100.00 in attorney’s fees and $3,982.19 in costs. The trial court awarded plaintiff attorney’s fees of $25,000.00 and costs of $2,534.14 on 18 June 2007. Defendant appeals. II.Issue Defendant argues the trial court erred when it granted plaintiffs motion for attorney’s fees and costs. III.Standard of Review “The case law in North Carolina is clear that to overturn the trial judge’s determination [of attorney’s fees and costs], the defendant must show an abuse of discretion.” Hillman v. United States Liability Ins. Co., 59 N.C. App. 145, 155, 296 S.E.2d 302, 309 (1982) (citation omitted), disc. rev. denied, 307 N.C. 468, 299 S.E.2d 221 (1983). To show an abuse of discretion, the defendant must prove that the trial court’s ruling was “manifestly unsupported by reason. A ruling committed to a trial court’s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal citation omitted). IV.N.C. Gen. Stat. $ 95-25.22 Defendant argues the trial court abused its discretion when it awarded $25,000.00 in attorney’s fees and $2,534.14 in costs when a judgment of only $72.00 was awarded to plaintiff and the remaining claims for violation of REDA and wrongful discharge were dismissed with prejudice. We disagree. “The general rule is that attorney fees may not be recovered by the successful litigant as damages or a part of the court costs, unless expressly authorized by statute or a contractual obligation.” Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 466-67, 553 S.E.2d 431, 443 (2001) (citing Stillwell Enterprises, Inc. v. Interstate Equip. Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814 (1980)), disc. rev. denied, 356 N.C. 315, 571 S.E.2d 220 (2002). N.C. Gen. Stat. § 95-25.22(d) (2005) states, “[t]he court, in any action brought under this Article may, in addition to any judgment awarded plaintiff, order costs and fees of the action and reasonable attorneys’ fees to be paid by the defendant.” (Emphasis supplied). Before awarding attorney’s fees, the trial court must make specific findings of fact concerning: (1) the lawyer’s skill; (2) the lawyer’s hourly rate; and (3) the nature and scope of the legal services rendered. In re Baby Boy Searce, 81 N.C. App. 662, 663-64, 345 S.E.2d 411, 413, disc. rev. denied, 318 N.C. 415, 349 S.E.2d 590 (1986); see also Kelly v. N.C. Dep’t of Env’t & Natural Res., 192 N.C. App. 129, -, - S.E.2d -, - (2008) (“Although the award of attorney’s fees is within the discretion of the trial judge . . ., the trial court must make findings of fact ‘as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.’ ” (Quoting N.C. Dep’t of Corr. v. Myers, 120 N.C. App. 437, 442, 462 S.E.2d 824, 828, aff'd per curiam, 344 N.C. 626, 476 S.E.2d 364 (1996))). In Whiteside Estates, Inc., the defendant appealed attorney and expert witness fees awarded under the Sedimentation Pollution Control Act of 1973. 146. N.C. App. at 468, 553 S.E.2d at 444. The record on appeal revealed that “detailed invoices for legal fees were submitted to the trial court along with an affidavit of . . . [the] plaintiff’s counsel, which set forth the hourly rates for the legal services rendered, the fact that the hourly rates charged were commensurate with the type of work involved, and [were] within the range of such fees and charges customarily charged in the community.” Id. This Court affirmed the trial court’s award of attorney’s fees and stated, “[the] [defendant . . . presented no evidence that the trial court ignored its motion, responses, or arguments. Absent such a showing by [the] defendant, we cannot find an abuse of discretion.” Id. at 469, 553 S.E.2d at 444. Here, defendant concedes that the trial court’s factual findings with regard to the skill and hourly rate of plaintiff’s counsel are adequate, but disputes the trial court’s findings with regard to the nature and scope of the legal services rendered: (6) That the hours expended by [plaintiff’s counsel in order to obtain a verdict in [p]laintiff’s favor were reasonable considering the issues in this case and the manner in which the case was defended. (7) That the Court has taken into consideration the jury’s verdict on the [REDA] claim and the fact that the jury ultimately ruled in favor of [defendant on its affirmative defense. That the Court is not awarding fees for this cause of action. (8) That the Court has taken into account the nature of the settlement negotiations between the parties and finds that it was reasonable and necessary for [p]laintiff to seek a jury trial of her case. (9) That the fees being awarded by the Court were necessary to the prosecution of this case and the rendering of a final judgment in favor of [p]laintiff on her claim for unpaid wages under the Wage and Hour Act. Defendant has failed to show that the trial court, in making these findings: (1) did not hear all of the attorneys’ arguments; (2) observe their litigation strategies; (3) watch their examination of witnesses; (4) rule on their evidentiary objections; (5) read their briefs; (6) listen to their summations of the evidence; and (7) consider their post-trial motions. “Absent such a showing by defendant, we cannot find an abuse of discretion.” Id. Adopting the position advocated by defendant could hinder future parties from litigating claims when attorney fees and costs might outweigh the award received. In Hicks v. Albertson, our Supreme Court reviewed an award of attorney’s fees in a property damage claim case. 284 N.C. 236, 200 S.E.2d 40 (1973). Our Supreme Court affirmed the trial court’s award and stated: The obvious purpose of th[e] statute [at issue was] to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that is not economically feasible to bring suit on his claim. In such a situation the Legislature apparently concluded that the defendant, though at fault, would have an unjustly superior bargaining power in settlement negotiations. Id. at 239, 200 S.E.2d at 42. Here, although plaintiff’s claim for attorney’s fees and costs stemmed from a jury’s verdict awarding plaintiff unpaid wages, the same reasoning articulated by our Supreme Court in Hicks is equally applicable. 284 N.C. at 239, 200 S.E.2d at 42. Based upon our Supreme Court’s reasoning in Hicks and this Court’s reasoning in Whiteside Estates, Inc., defendant has failed to show the trial court abused its discretion when it awarded to plaintiff attorney’s fees and costs pursuant to N.C. Gen. Stat. § 95-25.22. Hicks, 284 N.C. at 239, 200 S.E.2d at 42; Whiteside Estates, Inc. -, 146 N.C. App. at 469, 553 S.E.2d at 444. This assignment of error is overruled. V. Conclusion Defendant failed to show that the trial court’s order “was so arbitrary that it could not have been the result of a reasoned decision.” White, 312 N.C. at 777, 324 S.E.2d at 833. The trial court’s order, which awarded attorney’s fees and costs to plaintiff, is affirmed. Affirmed. Judges CALABRIA and ELMORE concur.