Retaliation Cases

SILBERSTEIN v PRO-GOLF OF AMERICA, INC Docket No. 275195. Submitted February 12, 2008, at Detroit. Decided April 1, 2008, at 9:10 a.m. Leave to appeal sought. Ronald N. Silberstein brought an action in the Oakland Circuit Court against Pro-Golf of America, Inc., and others, seeking damages for wrongful discharge from employment in violation of public policy, tortious interference with an advantageous business relationship or expectancy, and conversion. Pro-Golf of America, Inc., filed a counterclaim against the plaintiff, alleging breach of contract, breach of fiduciary obligations, and fraud. The defendants moved for summary disposition on all the counts and the plaintiff moved for summary disposition of the counterclaim. The court, Rae Lee Chabot, J., granted summary disposition in favor of the plaintiff with regard to the claims of breach of contract and breach of fiduciary obligations, but denied summary disposition with regard to the fraud claim. The motion to dismiss the claim of wrongful termination was denied in part and the motion to dismiss the claim for conversion was granted. The court ruled that there was sufficient evidence to show that the defendants’ claim that the plaintiff was terminated because of a work force reduction was a pretext and the jury should consider the issue. The court also ruled that, because the after-acquired-evidence doctrine serves to limit damages, not to limit claims, the doctrine was not applicable with regard to the motion for summary disposition, but it could be considered in determining damages. The court’s order provided that summary disposition was granted in favor of the plaintiff regarding the counterclaim concerning purported referral fees or kickbacks. At trial, the court, Charles W. Simon, Jr., J., refused to admit evidence of alleged kickbacks and the jury returned a verdict for the plaintiff. The court entered a judgment for the plaintiff and denied the defendants’ subsequent motions for a new trial, judgment notwithstanding the verdict, and remittitur. The defendants appealed. The Court of Appeals held,-. 1. The trial court properly instructed the jury that the plaintiff had the burden to prove that “one of the reasons” for his discharge was his refusal or failure to violate the law. He was not required to prove that his refusal or failure to violate the law was “the” exclusive reason for his discharge. 2. The trial court did not err in denying the defendants’ motion for a directed verdict. There was more than enough evidence presented to allow a reasonable juror to conclude that one of the reasons for the plaintiffs termination from employment was his refusal or failure to violate the law. 3. The trial court properly granted the plaintiffs motion for summary disposition with regard to the counterclaim for disgorgement because there was no genuine issue of material fact to support the claim. 4. The evidence of alleged kickbacks was properly excluded by the trial court on the basis that the evidence was not admissible. 5. The trial court properly exercised its discretion in declining to instruct the jury on after-acquired evidence. 6. The trial court properly denied the motion for remittitur. The evidence supported use of a discount rate of 4.5 percent in reducing the award of future damages to present cash value. There was sufficient evidence to support the award of damages for emotional injury. Affirmed. 1. Labor Relations — At-Will Employment — Discharge in Violation of Public Policy. A cause of action for wrongful discharge from at-will employment may be implied where the alleged reason for the discharge was a failure or refusal to violate a law in the course of employment; such failure or refusal need only be one of the reasons for the employee’s discharge and need not be the single reason for the discharge. 2. Damages — Future Damages — Present Cash Value. The civil jury instruction regarding reducing an award of future damages to its present cash value provides for the use of a five percent discount rate for such purposes; there is a rebuttable presumption in favor of the use of the five percent rate (M Civ JI 53.03). 3. Evidence — Emotional Damages. A plaintiff may testify regarding his or her own subjective feelings in order to place damages for emotional injury at issue. Morris & Doherty, P.C. (by E. Michael Morris), for the plaintiff. Jeffery D. Meek & Associates (by Jeffery D. Meek) for the defendants. Before: BECKERING, P.J., and SAWYER and FORT HOOD, JJ. PER CURIAM. In this action seeking damages for wrongful discharge, defendants appeal as of right the November 8, 2006, judgment entered in plaintiffs favor. Defendants also appeal the March 20, 2006, order granting, in part, plaintiffs motion for summary disposition and the December 6, 2006, order denying defendants’ motion for remittitur. We affirm. In August of 1999, defendant Ajay Sports, Inc. (Ajay), hired plaintiff Ronald Silberstein as its chief financial officer (CFO) and chief administrative officer (CAO). Thereafter, plaintiff became the CFO and CAO for defendants Pro-Golf International, Inc. (PGI), Pro-Golf, com, Inc. (PGC), and Pro-Golf of America, Inc. (PGOA). Ajay is the publicly traded parent company of PGI, PGC, and PGOA, a franchise company. Tom Itin is the chief executive officer (CEO) and chairman of the board for all four corporate defendants. Defendants terminated plaintiffs employment on January 5, 2004. Itin testified that Ajay and its subsidiary companies suffered financially from 1999 to 2003, and that the board of directors voted to discharge plaintiff in order to reduce costs. Plaintiff subsequently filed a complaint against defendants, alleging wrongful discharge in violation of public policy, tortious interference with an advantageous business relationship or expectancy, and conversion. Specifically, plaintiff alleged that Itin pressured him to “cook the books” by making accounting entries in violation of securities and franchise laws and regulations, and that defendants discharged him because of his refusal to do so. Defendants then filed a motion for summary disposition on all counts, arguing that plaintiffs termination did not fall under the public-policy exception to the at-will employment doctrine, that he was terminated because of poor performance and work force reductions, and that his termination was justified by after-acquired evidence of his own misconduct. Defendants alleged that during discovery, they learned that plaintiff stored pornography on his company computer, sexually harassed other employees, received “kickbacks,” and made “questionable” expense charges. In March of 2004, PGOA filed a counterclaim against plaintiff, alleging breach of contract, breach of fiduciary obligations, and fraud. The counterclaim alleged that plaintiff breached his confidentiality agreement with PGOA, that he received “kickbacks” from PGOA’s independent auditors, and that he used PGOA funds to reimburse himself for personal expenses. PGOA asked that plaintiff disgorge any benefits that he wrongfully retained. Plaintiff subsequently filed a motion for summary disposition with regard to PGOA’s counterclaim. Following a February 2006 hearing, Judge Rae Lee Chabot ruled on both parties’ motions for summary disposition. The court stated, in relevant part: All right, as to Plaintiffs motion for summary disposition as to the counter-claim, as to the breach of contract claim, the Court is granting that motion. [Defendants] have failed to present any evidence that Plaintiff breached the confidentiality agreement other than speculation. ... Regarding the breach of fiduciary duty claim, this is also dismissed, or granted, as Defendants have failed to provide sufficient evidence in support of this claim. However, the claim for fraud relating to the expense account, the summary disposition is denied. There is sufficient evidence that Plaintiff has charged certain items to the corporate Defendants during his employment and has failed to return those items after his termination, thus, that portion of the motion is denied. All right, regarding [Defendants’] motion for summary disposition. Again, I’m going to grant in part and deny in part. The motion to dismiss the claim for wrongful termination is denied as Plaintiff has alleged he was terminated due to his refusal to violate not only generally accepted accounting principles [GAAP], but also Sarbanes-Oxley, as well as SEC and FTC rules and regulations. However, to the extent that Plaintiff claims he was terminated for failure to disobey GAAP this claim is dismissed pursuant to [Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692; 316 NW2d 710 (1982)]. All right, [Defendants’] assertion that Plaintiff was terminated due to a work force reduction is denied as sufficient [evidence] has been presented to indicate this was a pretext for the wrongful termination such that the issue should be decided by the ultimate fact finder. [Defendants’] assertion that Plaintiffs claim is barred by the After Acquired Evidence Doctrine is also denied. This doctrine serves to limit damages, not to limit claims. Thus, that portion of the motion is denied but it may be considered as to damages. Finally, regarding Plaintiffs claim for conversion, this claim is dismissed ... as Plaintiff has failed to sufficiently allege or to present substantively admissible evidence in support of this claim. I think I hit them all. The court issued its findings in an order dated March 20, 2006, reiterating that plaintiffs motion for summary disposition was granted with regard to PGOA’s counterclaim “concerning purported ‘referral fees’ and/or ‘kickbacks At trial, Judge Charles W Simon, Jr., refused to admit evidence of plaintiffs alleged “kickbacks” in light of the March 20, 2006, order. The jury returned a verdict in favor of plaintiff, awarding him $700,000 in economic damages and $150,000 in damages for emotional injury. Thereafter, the trial court issued an amended judgment for $1,320,168.43, including the $850,000 jury verdict, attorney fees, costs, and interest. Defendants subsequently filed a motion for a new trial, judgment notwithstanding the verdict (JNOV), and remittitur. Following a December 6, 2006, hearing, the trial court denied the motion. I Defendants first argue that the trial court improperly instructed the jury on the public-policy exception to the at-will employment doctrine. We disagree. Claims of instructional error are generally reviewed de novo on appeal. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 8; 651 NW2d 356 (2002). But, when the standard jury instructions do not adequately cover an area and a party requests a supplemental instruction, the trial court is obligated to give the instruction if it properly informs the jury of the applicable law and is supported by the evidence. Bouverette v Westinghouse Electric Corp, 245 Mich App 391, 401-402; 628 NW2d 86 (2001). The determination whether a supplemental instruction is applicable and accurate is within the trial court’s discretion. Stoddard v Manufacturers Nat’l Bank of Grand Rapids, 234 Mich App 140, 162; 593 NW2d 630 (1999). Generally, employment relationships are terminable at will, with or without cause, “at any time for any, or no, reason.” Suchodolski, supra at 695. There is, however, an exception to the at-will employment doctrine “based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable.” Id. A cause of action for wrongful discharge may be implied “where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment.” Id. Defendants argue that this public-policy exception only applies where the reason for the employee’s discharge was the failure or refusal to violate the law and that the trial court improperly instructed the jury that defendants were liable for wrongful discharge if one of the reasons for plaintiffs discharge was the refusal or failure to violate the law. In so arguing, defendants rely on our Supreme Court’s pronouncement in Suchodolski, supra at 695, that “a cause of action for wrongful termination .. . has been found to be implied where the alleged reason for the discharge of the employee was the failure or refusal to violate a law... Id. (emphasis added). Suchodolski, however, sets forth the facts that a plaintiff must allege to bring a cause of action for discharge in violation of public policy. Contrary to defendants’ argument, Suchodolski does not address a plaintiffs burden of proof on a claim of discharge in violation of public police. In Pratt v Brown Machine Co, 855 F2d 1225 (CA 6, 1988), the plaintiffs brought a claim for public-policy discharge, relying in part on our Supreme Court’s decision in Suchodolski. Pratt, supra at 1227, 1236. In Pratt, the district court instructed the jury that the plaintiffs were required to prove that the employee’s refusal to violate the law “ ‘was a determinative factor in the [employer’s] decision to terminate the employment relationship.’ ” Id. at 1236 (emphasis added). On appeal, the court determined that this was a proper instruction on the parties’ relative burdens of proof. Id. at 1238. Defendants additionally argue that the trial court erred in basing its jury instructions on the instructions for other types of employment actions. But, as plaintiff correctly asserts, courts of this state have recognized that public-policy claims are analogous to claims made under § 2 of the Whistleblowers’ Protection Act (WPA), MCL 15.362, and that the WPA is analogous to antiretaliation provisions of other employment-discrimination statutes. In fact, restrictions on an employer’s ability to terminate an at-will employment agreement are most often found in explicit legislation, such as the WPA and § 701 of the Civil Rights Act (CRA), MCL 37.2701. Suchodolski, supra at 695. See also Dudewicz v Norris Schmid, Inc, 443 Mich 68, 79-80; 503 NW2d 645 (1993), overruled in part on other grounds Brown v Detroit Mayor, 478 Mich 589 (2007). The model civil jury instruction for WPA claims states, in part: [The] protected activity must be one of the motives or reasons defendant [discharged / or / threatened / or / discriminated against] the plaintiff. Protected activity does not have to be the only reason, or even the main reason, but it does have to be one of the reasons that made a difference in defendant’s decision to [discharge / or / threaten / or / discriminate against] the plaintiff. [M Civ JI 107.03 (original emphasis omitted, new emphasis added).] The model jury instruction for employment-discrimination claims states, in part: Your verdict will be for the plaintiff if you find that defendant [discharged / failed to hire / failed to promote / failed to train / harassed / [other]] the plaintiff, and that [religion / race / color / national origin / age / sex / height / weight / marital status] was one of the motives or reasons which made a difference in determining to [discharge / fail to hire / fail to promote / fail to train / harass / [other]] the plaintiff [M Civ JI 105.04 (original emphasis omitted, new emphasis added).] It is apparent that employment claims analogous to the claim at issue do not require the plaintiff to show that the protected trait or activity is the exclusive reason for discharge. If plaintiffs bringing a claim of discharge in violation of public policy were required to meet such a high burden of proof, as defendants assert, employers could avoid liability simply by raising other, contributing reasons for discharge. Accordingly, we conclude that the trial court properly instructed the jury with regard to plaintiffs burden of proof on his claim of wrongful discharge. II Next, defendants argue that the trial court erred in denying their motion for a directed verdict. We disagree. A trial court’s decision on a motion for a directed verdict is reviewed de novo on appeal. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). We review all the evidence presented up to the time of the motion in the light most favorable to the nonmoving party to determine whether a question of fact existed. Id., Zantel Marketing Agency v Whitesell Corp, 265 Mich App 559, 568; 696 NW2d 735 (2005). “If reasonable jurors could honestly have reached different conclusions, this Court may not substitute its judgment for that of the jury.” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 491; 668 NW2d 402 (2003). In challenging the trial court’s denial of their motion for a directed verdict, defendants again rely on our Supreme Court’s decision in Suchodolski. In that case, the plaintiff alleged that he was discharged for attempting to report his employer’s improper accounting practices. Suchodolski, supra at 694. The plaintiff relied on two sources to establish that he was discharged in violation of public policy: the internal code of ethics of the Institute of Internal Auditors and the Public Service Commission’s regulation of the accounting systems of public utilities. Id. at 696. The Suchodolski Court found that neither source was sufficient to establish public policy and that the plaintiffs allegations involved nothing more than “a corporate management dispute” with regard to internal accounting practices. Id. In this case, however, plaintiff alleged that Itin pressured him to violate laws and regulations specifically designed to protect the public, i.e., the Sarbanes-Oxley Act, the Securities Exchange Act, and the Code of Federal Regulations. Section 302 of the Sarbanes-Oxley Act requires that all publicly traded companies such as Ajay file financial information with the Securities Exchange Commission (SEC), and that all such information be true and fairly representative of the financial condition of the company. PL 107-204, § 302, 116 Stat 745, 15 USC 7241; see 15 USC 78(m). Likewise, the rules and regulations promulgated by the Federal Trade Commission (FTC) require franchisors such as PGOA to provide accurate written financial disclosures to potential franchisees. 16 CFR 436. At trial, plaintiff testified that Itin pressured him to “cook the books” with regard to three accounting transactions: the “Vero Beach Sale,” “Franchise Fees,” and the “MBNA Advance.” According to plaintiff, the proceeds from the sale of the Vero Beach property should have been recorded on the books of PGI, the company that sold the property. But, Itin insisted that the proceeds be recorded on PGOA’s books instead. Kathy Dix, a certified public accountant (CPA) and former controller for defendants, testified that she was present when Itin instructed plaintiff to make the Vero Beach entry incorrectly. In December of 2003, defendants received two franchise fees and an advance from MBNA Corporation. Several CPAs testified that the franchise fees could not be recorded as income before PGOA performed its obligations to the franchisees and that the MBNA advance could not be recorded as income. Nonetheless, Itin instructed plaintiff to record the franchise fees and the MBNA advance as income for 2003. Joseph White, the former president of PGOA and PGI, testified that Itin put pressure on plaintiff to record the franchise fees and the MBNA advance in violation of FTC and SEC regulations. According to White’s testimony, plaintiffs refusal to record the MBNA advance as income was, in his opinion, “the straw that broke the camel’s back.” Viewing this evidence in the light most favorable to plaintiff, defendants cannot establish that no question of fact existed regarding the reason for plaintiffs termination. There was more than enough evidence presented at trial for a reasonable juror to conclude that one of the reasons for plaintiffs termination was refusal or failure to violate the law. Therefore, we conclude that the trial court properly denied defendants’ motion for a directed verdict. III Defendants also argue t

TONDI HOLT, Plaintiff v. ALBEMARLE REGIONAL HEALTH SERVICES BOARD, and JERRY L. PARKS, in his official capacity as Health Director, Defendants No. COA07-262 (Filed 15 January 2008) 1. Public Officers and Employees— retaliatory discharge— whistleblower action — conduct not protected Summary judgment was correctly granted for defendants in a whistleblower action alleging retaliatory discharge where plaintiff was not able to establish that her conduct was protected within the meaning of the Whistleblower Act. Plaintiff alleged protected activity in stating that she would testify truthfully if a dismissed employee brought litigation, but the dispute ultimately was an individual termination action that did not implicate broader matters of public policy. 2. Public Officers and Employees— retaliatory discharge— whistleblower action — legitimate reason for discharge Summary judgment was properly granted in a whistleblower action where defendant offered a legitimate, nonretaliatory reason for plaintiff’s discharge. Plaintiff, who worked for a regional health services board, committed a breach of confidentiality in disclosing patient records, and there was also evidence that termination was appropriate. 3. Public Officers and Employees— retaliatory discharge— whistleblower action — no issue of pretext Summary judgment was properly granted in a whistleblower action for retaliatory discharge where, after defendants established a nonretaliatory reason for the discharge, plaintiff was not able to raise a factual issue of pretext. Appeal by plaintiff from an order entered 20 November 2006 by Judge Clifton W. Everett, Jr. in Pasquotank County Superior Court. Heard in the Court of Appeals 1 November 2007. Homthal, Riley, Ellis & Maland, L.L.R, by John D. Leidy, for plaintiff-appellant. Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Mary Nell Craven, for defendant-appellees. HUNTER, Judge. Tondi Holt (“plaintiff”) appeals the trial court’s grant of Albermarle Regional Health Services Board’s (“ARHS”) and Jerry L. Parks’s (“Parks”) (collectively “defendants”) motion for summary judgment. After careful consideration, we affirm. In early 2004, plaintiff was employed as a Finance Officer for ARHS. She was also involved with the personnel department and helped develop and implement agency policies. ARHS is a district health department and a public authority under N.C. Gen: Stat. § 130A-36(a) (2005) and N.C. Gen. Stat. § 159-7(b)(l) (2005). As a state institution, ARHS is barred from terminating an employee for reporting a violation of state policy as defined by N.C. Gen. Stat. § 126-84 (2005). N.C. Gen. Stat. § 126-85 (2005). No employee of a state agency who serves in a supervisory capacity may terminate an employee for reporting a violation of state policy. Id. On 28 January 2004, plaintiff was terminated from her employment with ARHS by Parks. Plaintiff claims her termination is a violation of the above referenced statutes (“the Whistleblower Act”). See N.C. Gen. Stat. § 126-84, et seq. (2005). Defendants, however, argue that plaintiff was in fact terminated for breaching her confidentiality obligations, which defendants characterized as “unacceptable personal conduct[.]” In November 2003, Parks told plaintiff that ARHS would terminate the agency’s safety director, “L,” an employee with thirty years’ service to ARHS. According to plaintiff, Parks informed her that a member of ARHS’s executive board wanted to terminate L because L had not done his job in thirty years. Plaintiff also stated that Parks told her that L had been placed in the position of safety director until he could retire, and it was time to let L go. Plaintiff told Parks that there was no cause to fire L, and she did not want to be part of any termination proceeding against him. During ARHS’s executive board meeting, the discussion of terminating L came up. Plaintiff asked to be excused from the meeting and she was. According to plaintiff, in December 2003, ARHS’s personnel consultant, Sylvia Johnson (“Johnson”), told her that a reduction in work force would be used to terminate L. Plaintiff told Johnson that she thought such action was illegal and wrong, and she did not want to be part of any termination proceedings against L. Plaintiff also stated that she was warned not to meddle with the board’s actions to terminate L, as the board was behind the decision. On 19 December 2003, L met with Parks offsite in order that, according to plaintiff, she would not be involved in the termination. At the meeting, L was terminated. According to plaintiff, Parks informed L that if anyone else became involved with his termination that they were putting their jobs at risk. On 6 January 2004, plaintiff met with Parks and Johnson. According to plaintiff, she told them that if there was litigation between defendants and L, she would testify truthfully and felt that she needed her own legal representation. Johnson, however, testified that plaintiff provided little context as to why the meeting was being held and that she continually sought reassurances that her job would be protected were L to “do something.” According to Johnson, Parks reassured her that her job would be protected. Johnson also said that there was no discussion as to whether plaintiff would be provided with legal representation were L to bring an action because they were unaware as to what L was planning. Plaintiff was ultimately terminated on 22 January 2004. Defendants contend plaintiff was terminated for violating confidentiality requirements imposed by the Health Information Portability and Accountability Act (“HIPAA”) and agency policy. Defendants’ evidence is summarized below. In January 2004, Parks was notified by Dennis Harrington (“Harrington”) of the Department of Health and Human Services (“DHHS”) of suspected violations of state and local law involving plaintiff and Allen Jones (“Jones”). According to Parks, he learned that during December 2003 confidential patient health information had been illegally generated at ARHS at plaintiff’s direction. The reports contained confidential information for Medicaid clinical services provided at another county health department, the Martin Tyrrell Washington District Health Department (“WHD”). According to Parks, the reports indicated that WHD had approximately 1.6 million dollars in Medicaid funds which had gone uncollected. The records were given by plaintiff to Jones and contained plaintiff’s handwritten notes. Jones took the documentation to WHD and told its director, Keith Patton (“Patton”), that he would assist them in collecting the money owed in exchange for twenty-five percent of the funds collected. Jones told Patton that he received the documentation from ARHS and that it had been reviewed and given to him by plaintiff. In January 2004, Patton logged a formal complaint against ARHS. The complaint alleged that ARHS staff had improperly accessed confidential patient information in the WHD. After meeting with state representatives about the incident, Parks understood that plaintiff’s actions violated HIPAA, state, and local privacy laws. After receiving assurances that plaintiff had violated the law from Jill Moore, a specialist with the Institute of Government, Parks scheduled a pre-dismissal conference with plaintiff. At the conference, plaintiff did not deny the allegations against her and conceded that she had written the summaries of the reports and given them to Jones. Defendants then terminated plaintiff. Plaintiff raises the following issues for this Court’s review: (1) whether the evidence establishes that plaintiff’s conduct was protected under the Whistleblower Act; and (2) whether the evidence shows that defendants’ reason for termination was a pretext for firing plaintiff for protected conduct. We review a trial court’s grant of summary judgment de novo. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004). “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [a] party is entitled to a judgment as a matter of law.’ ” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (alteration in original) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). “Evidence presented by the parties is viewed in the light most favorable to the non-movant.” Id. I. The North Carolina Whistleblower Act, N.C. Gen. Stat. §§ 126-84 to 88 (2005), requires a plaintiff to prove the following three essential elements by a preponderance of the evidence in order to establish a prima facie case: “(1) that the plaintiff engaged in a protected activity, (2) that the defendant took adverse action against the plaintiff in his or her employment, and (3) that there is a causal connection between the protected activity and the adverse action taken against the plaintiff.” Newberne v. Department of Crime Control & Pub. Safety, 359 N.C. 782, 788, 618 S.E.2d 201, 206 (2005). We first address whether plaintiff, taking the evidence in the light most favorable to her, engaged in protected conduct. To be protected, the whistleblowing activity must constitute a report about “matters affecting general public policy.” Hodge v. N.C. Dep’t of Transp., 175 N.C. App. 110, 117, 622 S.E.2d 702, 707 (2005). The WTiistleblower Act establishes a state policy to encourage its employees to report violations of state or federal law, rules or regulation; fraud; misappropriation of state resources; “[substantial and specific danger to the public health and safety; or [g]ross mismanagement, a gross waste of monies, or gross abuse of authority;” and it further protects State employees from intimidation or harassment when they report on “matters of public concern.” N.C. Gen. Stat. § 126-84 (2003). Employees who report activities under this statute are protected from retaliation under N.C. Gen. Stat. § 126-85 (2003). Id,, at 116, 622 S.E.2d at 706 (alterations in original). In the instant case, plaintiff alleges that her protected activity was announcing that she intended to testify truthfully were L to bring litigation. In Hodge, the “plaintiff’s ‘report’ was [a] lawsuit seeking reinstatement to his former position.” Id. at 117, 622 S.E.2d at 707. This Court held that the lawsuit did not concern matters affecting general public policy because it “related only tangentially at best to a potential violation of the North Carolina Administrative Code.” Id. This Court has therefore declined “to extend the definition of a protected activity to individual employment actions that do not implicate broader matters of public concern.” Id. In so concluding, the Court in Hodge reasoned that “the General Assembly [did not] intend[] N.C. Gen. Stat. § 126-84 to protect a [s]tate employee’s right to institute a civil action concerning employee grievance matters.” Id. Like the plaintiff in Hodge, plaintiff in this case has made only conclusory allegations that L’s termination was the result of “unlawful age discrimination, and a violation of the State Personnel Act.” Nowhere are there specific statements made by plaintiff that L was fired due to his age; instead, plaintiff concedes that L had a history of poor job performance, that plaintiff herself advocated his termination in prior years, and that defendants did not violate their own policy by not offering a new position to L. Ultimately, the dispute between the parties is an individual termination action that does not implicate broader matters of public concern. This Court has applied whistleblower protection to those “who allege retaliation after cooperating in investigations regarding misconduct by their supervisors].]” Id. at 116-17, 622 S.E.2d at 706 (citing Caudill v. Dellinger, 129 N.C. App. 649, 655, 501 S.E.2d 99, 103 (1998) “(employee terminated after cooperating with State Bureau of Investigation regarding misconduct by her supervisor was able to make out a prima facie case under N.C. Gen. Stat. § 126-84)”). Unlike in Caudill, however, plaintiff merely stated that she would testify truthfully and never actually testified or cooperated with any investigating agency regarding the termination of L. Moreover, Caudill held that “[i]t is the public policy of this state that citizens cooperate with law enforcement officials in the investigation of crimes.” Caudill, 129 N.C. App. at 657, 501 S.E.2d at 104. In the instant case, there has been no investigation or substantiated allegations that the termination of L was in violation of any state laws or regulations. Instead, this case is more in line with Hodge: It involves an individual employment action, the termination of L, and there is no evidence that defendants engaged in “[g]ross mismanagement” or a “violation of State or federal law, rule or regulation” that would afford plaintiff protection under the Whistleblower Act. See N.C. Gen. Stat. § 126-84(a) (statement of policy). Instead, plaintiff could have filed a grievance with defendants after her termination. Accordingly, plaintiffs conduct, even construing the evidence in her favor, is insufficient to establish a prima facie case, and plaintiffs assignment of error as to this issue is rejected. As plaintiff is unable to establish that her conduct was protected within the meaning of the Act, we need not address whether the other elements of a prima facie case have been established. However, in the alternative, we also discuss in Section II of this opinion whether defendants presented a legitimate, non-retaliatory reason for terminating plaintiff. II. Once a plaintiff has established a prima facie case, the employer must proffer a legitimate, non-retaliatory reason for firing the plaintiff. Wells v. N.C. Dep’t of Corr., 152 N.C. App. 307, 317, 567 S.E.2d 803, 811 (2002). At that point, “ ‘the burden [of production] shifts to the plaintiff to present evidence, raising a genuine issue of fact, that his [engagement in a protected activity] . . . [was] a substantial causative factor in the adverse employment action, or provide an excuse for not doing so.’ ” Id. (citation omitted) (alterations in original). Thüs, even if we assume that plaintiff has established a prima facie case, we must determine whether defendant offered a legitimate, non-retaliatory reason to terminate plaintiff and whether plaintiff met her burden of production. Our review of the evidence reveals that defendant offered such a reason and plaintiff is unable to raise a genuine issue of material fact that the termination was a pretext for protected activity. This Court has held that where a plaintiff acknowledges that an employer had “legitimate explanations for the actions [plaintiff] alleged were retaliatory^]” summary judgment in favor of the employer is appropriate. Hodge, 175 N.C. App. at 118, 622 S.E.2d at 707. The undisputed evidence shows that plaintiff committed a breach of confidentiality by disclosing patient records to Jones. Jones later attempted to use those records for personal, monetary gain. Plaintiff acknowledged in her deposition that she gave Jones the stack of documents. Moreover, when confronted by Parks regarding the disclosure of confidential patient information, plaintiff did not dispute the allegation and acknowledged that she also gave Jones a handwritten summary of the information. Plaintiff also admitted that she did not generate the information as part of her job. Indeed, she knew that part of her job description was to safeguard such information and that HIPAA made it illegal for her to access the information when it was not necessary for her job duties. She also conceded that it was not part of her job description to be concerned as to what Medicaid funds were owed WHD. In addition to plaintiffs own remarks, defendants have presented evidence that terminating plaintiff due to the breach of confidentiality was appropriate. Harrington, from DHHS, characterized plaintiffs conduct as a gross violation of law such that any disciplinary action short of termination would have been unacceptable. Harrington also said that plaintiffs disclosure violated the ethical duty imposed on county health departments and was “a severe breach of trust between the ARHS and its patients.” Additionally, Curtis Dickson, the Director for Hertford County Public Health Authority, and Johnson, the former Regional Personnel Director for DHHS, both testified that plaintiffs actions were illegal and Johnson advised Parks that plaintiff committed a dismissible offense. Finally, the evidence shows that the breach of confidentiality was brought to Parks’s attention by Patton, a third party with no knowledge of L’s termination. This is not a case where defendants were creating a false paper trail in order to justify their termination of plaintiff on pretextual grounds. We find additional support for our decision in Shoaf v. Kimberly-Clark Corp., 294 F. Supp. 2d 746 (M.D.N.C. 2003). In that case, the plaintiff filed an employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Id. at 749. The plaintiff admitted to disclosing information in violation of his confidentiality agreement with the defendant. Id. at 752. The Shoaf Court then granted summary judgment because the evidence presented showed that defendant “focused only upon Plaintiffs breach of his duties of confidentiality and loyalty owed to Defendant as a basis for their decision to discharge Plaintiff.” Id. at 758 (footnote omitted). The same circumstances being presented here, we thus conclude that defendants have established a legitimate non-retaliatory reason for their adverse employment decision. Accordingly, the burden now shifts to plaintiff to establish that her engagement in protected activity was a substantial causative factor of her termination. In order to raise a factual issue regarding pretext, “the plaintiff’s evidence must go beyond that which was necessary to make a prima facie showing by pointing to specific, non-speculative facts which discredit the defendant’s non-retaliatory motive.” Wells, 152 N.C. App. at 317, 567 S.E.2d at 811. Plaintiff has failed to carry this burden. In the instant case, the only direct evidence presented by plaintiff that defendants terminated her employment in retaliation for her opposition to L’s release was a statement to L by Parks not to discuss his termination with anyone as it could cost them their jobs. That comment, however, was taken out of context. During L’s and Parks’s meeting together, L had requested a copy of his personnel file. At that point, Parks instructed L to go through appropriate channels for any information he needed because accessing such information through employees that did not have authorization to such information could cost them their jobs. L corroborates this during his deposition when he stated, in relation to the conversation he had with Parks, that: “I know it was in reference to some personnel issues and that I should keep those things in confidence, and that it could possibly cause other people problems.” This evidence fails to discredit defendants’ legitimate, non-retaliatory reason to terminate plaintiff. Plaintiff argues that there was a close temporal proximity between her protected activity and her firing. This circumstantial evidence, plaintiff argues, is sufficient to prove retaliatory termination. In support of this proposition, plaintiff cites this Court’s opinion in Caudill. In that case, the plaintiff was terminated “almost immediately” upon the defendant learning that the plaintiff was cooperating with the State Bureau of Investigation. Caudill, 129 N.C. App. at 655, 501 S.E.2d at 103. In this case, plaintiff was terminated ten weeks after her initial complaint and fourteen days after her last complaint regarding L’s termination. More importantly, the plaintiff in Caudill forecasted evidence that she

Olga St. Fleur vs. WPI Cable Systems/Mutron. Middlesex. November 5, 2007. January 4, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Federal Arbitration Act. Anti-Discrimination Law, Arbitration, Uniform Arbitration Act. Contract, Arbitration, Specific performance. Fraud. Statute, Federal preemption. Words, “Proceed summarily.” In the circumstances of an action to enforce an arbitration agreement, a Massachusetts court is not required to follow the procedure set forth in 9 U.S.C. § 4, the Federal Arbitration Act (Federal act), in the application of State-law contract defenses to determine the validity of the arbitration agreement, but rather may apply the provisions of the Massachusetts counterpart, G. L. c. 251, § 2, which requires an expedited evidentiary hearing on a dispute as to a material fact, a procedure which, by placing arbitration agreements on at least the same footing as other contracts, does not undermine the purposes of the Federal act and is thus not preempted by it. [348-354] In an action brought in Superior Court by an employee against her former employer, alleging claims of discrimination and harassment based on the employee’s race, sex, and national origin, the judge erred in denying the employer’s motion to dismiss the complaint and compel arbitration, brought on the ground that the employee had signed an agreement to arbitrate such claims, where the judge mistakenly concluded that the employer bore the risk of the employee’s ignorance of the nature and contents of the arbitration agreement and that the court would only enforce an arbitration agreement where “appropriate” [354-355]; further, where the judge failed to conduct an evidentiary hearing to determine the existence of such an agreement, in light of the employee’s production of evidence sufficient to sustain a claim of fraud in the inducement, this court remanded the matter to the Superior Court for such proceedings [355-356], In an action in Superior Court to enforce an arbitration agreement, a claim that the plaintiff was fraudulently induced to enter into the agreement, an issue that went solely to the making of the agreement to arbitrate, was one for a judge, and not an arbitrator, to resolve. [356] Civil action commenced in the Superior Court Department on February 3, 2005. A motion to compel arbitration and to dismiss the complaint was heard by Leila R. Kern, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph F. Hardcastle for the defendant. Howard I. Wilgoren for the plaintiff. The following submitted briefs for amici curiae: Beverly I. Ward for Massachusetts Commission Against Discrimination. Robert S. Mantell & Patti A. Prunhuber for Massachusetts Employment Lawyers Association & another. Ben Robbins, Martin J. Newhouse, & Jo Ann Shotwell Kaplan for New England Legal Foundation. Spina, J. WPI Cable Systems/Mutron (WPI) appeals pursuant to G. L. c. 251, § 18 (a) (1), from the denial of its motion to dismiss the discrimination complaint of Olga St. Fleur, a former employee, and to compel arbitration of that complaint, where the subject matter of her complaint was covered expressly by an arbitration agreement. We transferred the case to this court on our own motion. We now vacate the order denying WPI’s motion and remand this case to the Superior Court for a hearing to determine whether the parties entered into an agreement to arbitrate. Background. In July, 2000, WPI hired St. Fleur to work at its assembly plant in Chelsea. In February, 2002, she was asked to sign a document under conditions that are hotly disputed. St. Fleur presented an affidavit in which she asserts that the general manager of the WPI facility approached her in February, 2002. He asked her, “Can you please sign this for me?” “What is this?” she replied. He answered, “It is nothing. It is just something if we have a disagreement by signing this it tells you that you agree to sit down and discuss it with us.” The general manager gave her a single page to sign, and St. Fleur asked him where the rest of the document was. He said that the office manager was working on it, and he told St. Fleur, “Don’t worry about it. I will put the paper you signed with the rest of the papers that [the office manager] is working on.” He also told her, “The papers [the office manager] is working on say what I just told you,” and “Everybody is getting the same thing and you have to sign it.” The page that St. Fleur signed does not contain the word arbitration, and the general manager did not tell her that she was signing an arbitration agreement. WPI, on the other hand, presented an affidavit from Joseph Galli, St. Fleur’s supervisor at the time, asserting that, in September, 2001, he delivered to St. Fleur the company’s new arbitration policy, a memorandum explaining the new policy, and the arbitration agreement itself. Her supervisor also explained that St. Fleur should feel free to have a lawyer look at the agreement. WPI presented, in addition, an affidavit from Nicolletta Crowley, a WPI human resources administrator, asserting that most WPI employees signed the arbitration agreement in September, 2001. St. Fleur, however, did not. To employees who had not yet signed the arbitration agreement, WPI sent in February, 2002, a memorandum asking them either to sign the arbitration agreement or to confirm their refusal to sign the arbitration agreement. Two of St. Fleur’s colleagues confirmed their refusal to sign, but St. Fleur chose to sign the arbitration agreement. The arbitration agreement provides that the parties to the agreement waive all rights to a jury trial and agree to resolve through arbitration any claims against WPI arising out of the employee’s employment with or termination from WPI. The agreement specifically states that the parties are to resolve through arbitration any claims of discrimination or harassment based on race, sex, or national origin. In June, 2004, St. Fleur filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging that, on account of her race, sex, and national origin, she had suffered discrimination and harassment at WPI. Specifically, she claimed that she was subjected to “harassment, disparate terms and conditions of employment, a hostile work environment, and wrongful termination.” MCAD dismissed her complaint for lack of probable cause. Thereafter, St. Fleur filed her complaint in the Superior Court alleging claims of discrimination and harassment based on her race, sex, and national origin. WPI moved to dismiss the complaint and compel arbitration or, alternatively, to stay proceedings (WPI’s motion) on the ground that St. Fleur had agreed to arbitrate her claims of employment discrimination and harassment. St. Fleur contends that the alleged arbitration agreement was unenforceable because her supervisor had induced her to sign the agreement by misrepresenting the nature and contents of the agreement. After a nonevidentiary hearing on WPI’s motion, a judge in the Superior Court denied the motion, apparently on the grounds that WPI bore the risk of St. Fleur’s ignorance and that enforcement of the arbitration agreement would not have been “appropriate.” At no time did the judge conduct an evidentiary hearing or trial to determine whether the parties entered into an agreement to arbitrate. Discussion. WPI seeks to dismiss or stay St. Fleur’s discrimination suit and compel arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (Federal Act). St. Fleur, on the other hand, argues that she can avoid submitting her claims to arbitration because she fraudulently was induced to sign her arbitration agreement. This dispute falls within the scope of the Federal Act because it centers on an agreement to arbitrate controversies arising from employment at WPI and because it is undisputed that WPI is involved in interstate commerce. See 9 U.S.C. §§ 1-2 (disputes involving interstate commerce fall within scope of Federal Arbitration Act); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). State courts have jurisdiction, concurrent with Federal courts, to enforce the Federal Act. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983). The Federal Act, 9 U.S.C. § 2, provides in part: “A written provision in. . .a contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” By enacting this statute, Congress intended to put arbitration agreements on “the same footing as other contracts.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974), quoting H.R. Rep. No. 96, 68th Cong., 1st Sess. 1, 2 (1924). That is, it sought “to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate,” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-220 (1985), and to prevent State courts from “singling out arbitration provisions for suspect status.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). “While the language [of the statute] might plausibly be read to support a broader construction, consideration of the legislative history reveals that what the Congress intended was merely to overrule by legislation long-standing judicial precedent, which declared agreements to submit judicable controversies to arbitration contrary to public policy . . . .” American Airlines, Inc. v. Louisville & Jefferson County Air Bd., 269 F.2d 811, 816 (6th Cir. 1959). See Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 477 (1989). The Federal Act preempts State law only to the extent that it conflicts with the Federal Act. See id., quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (Federal Act preempts State law “to the extent that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”); Societe Generale de Surveillance v. Raytheon European Mgt. & Sys. Co., 643 F.2d 863, 867 (1st Cir. 1981) (Federal Act preempts “only that state law inconsistent with its express provisions”). Similar to the Federal Act, the Massachusetts Act “expresses] a strong public policy favoring arbitration.” Home Gas Corp. of Mass., Inc. v. Walter’s of Hadley, Inc., 403 Mass. 772, 774 (1989), quoting Danvers v. Wexler Constr. Co., 12 Mass. App. Ct. 160, 163 (1981). The Massachusetts Act, G. L. c. 251, § 1, provides in part: “A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Both the Federal and State Acts deem arbitration agreements enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. 9 U.S.C. § 2. That is, courts may apply generally applicable State-law contract defenses — such as fraud, duress, or unconscionability — to determine the validity of an arbitration agreement. Doctor’s Assocs., Inc. v. Casarotto, supra at 687 (Federal Act). Miller v. Cotter, 448 Mass. 671, 677 (2007) (Massachusetts Act). See Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987). St. Fleur alleges that she fraudulently was induced to sign the arbitration agreement. Because fraudulent inducement is a generally applicable State-law contract defense, a judge applies those State-law contract principles to determine whether it should invalidate the agreement. See Doctor’s Assocs., Inc. v. Casarotto, supra; Perry v. Thomas, supra (Federal Act); Miller v. Cotter, supra at 677 (Massachusetts Act). The judge applies those principles whether acting under the Federal or Massachusetts Act. Id. The parties do not dispute that Massachusetts contract law applies in this case. The parties do, however, dispute the procedure that a State court must follow in its application of that substantive law. More specifically, the parties argue over whether State courts must apply the procedures set forth in 9 U.S.C. § 4 of the Federal Act and, if those provisions do not apply, what procedures the court must apply in their stead. We determine that a State court need not apply the procedures set forth in 9 U.S.C. § 4. Title 9 U.S.C. § 4 states in part: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court ... for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default ... the court shall hear and determine such issue” (emphasis added).. Title 9 U.S.C. § 4 sets forth a procedure that only Federal courts must apply. The statute provides that an aggrieved party may petition any “United States district court.” Thereafter, the statute sets forth the procedure “the” court must follow. In this context, “the” court refers most naturally to the only court thus far mentioned in the statute — namely, a United States District Court. See Pennsylvania Mut. Life Ins. Co. v. Henderson, 244 F. 877, 880 (D.C. Fla. 1917) (interpreting word “the” as equivalent of “such”); People v. Enlow, 135 Colo. 249, 262-263 (1957) (“ ‘the’ [has] a specifying or particularizing effect, opposed to the indefinite or generalizing force of ‘a’ or ‘an’ ”). That is, “the” court refers to Federal courts and not to State courts. A further indication that the statute refers only to Federal courts is the directive in § 4 that a party serve process according to the Federal Rules of Civil Procedure. No mention is made of State rules of civil procedure. Finally, it would be a strained interpretation of the text to suppose that 9 U.S.C. § 4 refers to State courts even though the only courts mentioned are Federal courts, the only rules mentioned are Federal rules, and there is no mention at all in 9 U.S.C. § 4 of State courts. Other courts have held that the procedures set forth in 9 U.S.C. § 4 apply to Federal courts alone. See Aaacon Auto Transp., Inc. v. Newman, 77 Misc. 2d 1069, 1072 (N.Y. Sup. Ct. 1974) (9 U.S.C. § 4 is “neither intended to apply to State courts nor [does it] by [its] terms apply to any but the United States District Courts”). See also Atlantic Painting & Contr. Inc. v. Nashville Bridge Co., 670 S.W.2d 841, 846 (Ky. 1984) (“The federal Arbitration Act covers both substantive law and a procedure for federal courts to follow where a party to arbitration seeks to enforce or vacate an arbitration award in federal court [but the] procedural aspects are confined to federal cases” [emphasis in original]); Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 242 (2001) (“§ 4 of the [Federal Act] . . . expressly deal[s] only with the procedure to be followed by the federal courts”). Because the procedures in 9 U.S.C. § 4 do not apply to State courts, a State court may apply its own law. See Howlett v. Rose, 496 U.S. 356, 372 (1990) (States may apply “their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law”); Miller v. Cotter, supra at 678-679 (applying rules of Massachusetts Act because they did not stand as obstacle to purpose of Federal Act); Weston Sec. Corp. v. Aykanian, 46 Mass. App. Ct. 72, 75-77 (1998) (same). That is, because 9 U.S.C. § 4 does not apply in this situation, its Massachusetts counterpart, G. L. c. 251, § 2, applies unless that statute undermines the purposes of the Federal Act. See Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 477-478 (1989). We turn now, first, to consider what the provisions of G. L. c. 251, § 2, require and, second, to consider whether those provisions undermine the Federal Act’s purpose of placing arbitration agreements on an equal footing with other contracts. General Laws c. 251, § 2, provides in relevant part: “A party aggrieved by the failure or refusal of another to proceed to arbitration under an [arbitration agreement] may apply to the superior court for an order directing the parties to proceed to arbitration. If the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall, if it finds for the applicant, order arbitration; otherwise, the application shall be denied.” The statute thus provides that a judge shall “proceed summarily” to determine the existence of the arbitration agreement. Although G. L. c. 251 does not provide a definition of “proceed summarily,” the statute is modeled after the Uniform Arbitration Act, which has been adopted by other States that have interpreted the phrase. Specifically, those courts have interpreted “proceed summarily” to mean that a judge determines whether there is a dispute as to a material fact; and, if there is not such a dispute, the judge resolves the issue as a matter of law; but, if there is such a dispute, the judge conducts an expedited evidentiary hearing on the matter and then decides the issue. Merrill Lynch Pierce Fenner & Smith, Inc. v. Falowski, 425 So. 2d 129, 130 (Fla. Dist. Ct. App. 1982); Bass v. SMG, Inc., 328 Ill. App. 3d 492, 496 (2002); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). The absence of a right to a jury trial in these circumstances is consistent with a party’s rights in nonarbitration contractual disputes. A motion to compel arbitration is in essence a suit in equity to compel specific performance of an arbitration agreement. See Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal. 4th 394, 411 (1996). Typically, there is no right to a jury trial for actions seeking specific performance of a contract or for actions challenging the existence of a contract on the ground of fraudulent inducement. Shikes v. Gabelnick, 273 Mass. 201, 205, 207 (1930) (judge can decide in his discretion to deny or compel specific performance on account of fraud); Shapira v. D’Arcy, 180 Mass. 377, 378-379 (1902) (no right to jury trial for specific performance). However, a judge, in her discretion, may grant a jury trial. Bergeron v. Automobile Mut. Ins. Co., 261 Mass. 409, 411 (1927). Where a party, under G. L. c. 251, § 2, seeks specific performance of an arbitration agreement or where a party is challenging the existence of an arbitration agreement on the ground of fraudulent inducement, there is no reason to believe the Legislature intended to create a right to jury trial where none existed before, especially where the statute makes no reference to trial by jury. The Massachusetts Act merely applies the same basic procedure to arbitration agreements that is applied to other contracts. The procedure does not single out arbitration agreements for less favorable treatment. Rather, it places arbitration agreements on at least the same footing as other contracts. General Laws c. 251, § 2, therefore does