Retaliation Cases

LEWANDOWSKI v NUCLEAR MANAGEMENT COMPANY, LLC Docket No. 268511. Submitted August 8, 2006, at Grand Rapids. Decided August 17, 2006, at 9:10 a.m. Michael Lewandowski brought an action in the Van Burén Circuit Court against Nuclear Management Company, LLC; and Consumers Energy Company. The plaintiff alleged a wrongful discharge in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., after he reported incidents at the nuclear plant where he worked to the Nuclear Regulatory Commission (NRC). Consumers was dismissed by stipulation. Nuclear Management then moved for summary disposition on the ground that the NRC is not a “public body” as defined by the WPA. The court, William C. Buhl, J., granted the motion. The plaintiff then moved to amend his complaint to claim that his discharge was wrongful because it violated public policy. The court denied the motion, concluding that the amendment would be futile. The plaintiff appealed. The Court of Appeals held: 1. The trial court did not err by concluding that the NRC is not a public body to which the WPA applies. The language and the context of MCL 15.361(d)(¿¿¿) clearly indicate that federal agencies and commissions are not included within the definition of “public body” in that part of the statute. While MCL 15.361(d)(u) includes federal law enforcement agencies within the definition of “public body,” the NRC is a regulatory agency rather than a law enforcement agency. 2. The trial court did not abuse its discretion by denying the plaintiffs motion to amend his complaint. While employment in Michigan is generally at will, an employee can bring an action for wrongful discharge if the grounds for discharge violated public policy. A public-policy claim, however, may only be sustained if there is no applicable statute prohibiting retaliatory discharge for the conduct at issue. As the trial court determined, the prohibition in 42 USC 5851 against retaliatory discharge rendered the proposed amendment futile. Affirmed. Master and Servant — Wrongful Discharge - Whistleblowers’ Protection Act — Public Bodies. A federal agency or commission that is not a law enforcement agency is not a public body to which the Whistleblowers’ Protection Act applies; a federal regulatory agency, such as the Nuclear Regulatory Commission, is not a law enforcement agency (MCL 15.361[d]). Chambers, Steiner & Sturm, P.L.C. (by William P Webster, Jr.), for the plaintiff. Straub, Seaman & Allen, PC. (by James M. Straub and Donna B. Howard), for the defendant. Before: ZAHRA, EJ., and NEFF and OWENS, JJ. PER CURIAM. Plaintiff appeals as of right a grant of summary disposition to defendant pursuant to MCR 2..116(C)(8), as well as the subsequent denial of plaintiffs motion to amend his complaint. This case arose when defendant terminated plaintiffs employment after plaintiff reported defendant to the Nuclear Regulatory Commission (NRC). We affirm. Plaintiff began working full-time for Consumers Energy Company in 1978. In 1981, he transferred to the Palisades Nuclear Plant. In July 2001, defendant began managing the station. According to plaintiffs supervisor, James Ridley, he gave plaintiff a C rating in plaintiffs 2002 year-end performance evaluation. A C rating was the lowest rating an employee could receive, and it resulted in the initiation of a 90-day performance improvement plan. Plaintiffs performance improvement plan required plaintiff to file three corrective action programs (CAPs). CAPs were designed to identify and resolve problems, and the NRC’s on-site inspector had access to the CAPs. By March 11, 2003, plaintiff had filed two of the three CAPs. On March 23, 2003, a crane operator pushed aside a “lock high radiation area” barricade while operating the crane. Plaintiff claimed that he was told not to file a CAP about the incident, so he contacted the NRC’s on-site inspector. The NRC initiated an investigation. The NRC also investigated other allegations by plaintiff. In March 2004, plaintiff applied for short-term disability. He was terminated June 25, 2004; the reason given for termination was plaintiffs failure to comply with requests for medical records, which resulted in his being absent without approval since June 21, 2004. Plaintiff filed suit against defendant and Consumers Energy under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., claiming that he was wrongfully discharged. Consumers Energy was dismissed from the lawsuit by stipulation and order. The complaint was amended by stipulation, first to add a claim under the Family and Medical Leave Act (FMLA), 29 USC 2601 et seq., then to remove references to Consumers Energy as a defendant. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) on the ground that plaintiff could not establish a claim under the WPA because the NRC was not a “public body” as defined by the WPA. The trial court granted defendant summary disposition. Plaintiff moved to amend the complaint to add a claim of public-policy wrongful discharge. After oral argument, the court denied plaintiffs motion on the ground that amendment would be futile. Plaintiff first argues that the trial court erred when it determined that the NRC was not a public body. We disagree. A trial court’s grant of summary disposition pursuant to MCR 2.116(C)(8) is reviewed de novo. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). Whether a plaintiff has established a prima facie violation of the WPA is also considered de novo. Manzo v Petrella, 261 Mich App 705, 711; 683 NW2d 699 (2004). Under the WPA, an employer may not discharge an employee because the employee reports a violation of a federal law to a public body. MCL 15.362. Plaintiff claimed he was discharged in violation of the act because he reported defendant’s violations to the NRC. The trial court granted defendant summary disposition because it found that the NRC, as a federal agency, was not a “public body” as defined by the act. When a statute provides a definition for a term, the term must be applied as defined. Barrett v Kirtland Community College, 245 Mich App 306, 314; 628 NW2d 63 (2001). MCL 15.361(d) defines “public body” in relevant part as: (i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government. (ii) An agency, board, commission, council, member, or employee of the legislative branch of state government. (Hi) A county, city, township, village, intercounty, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof. (iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body. Cv) A law enforcement agency or any member or employee of a law enforcement agency. (vi) The judiciary and any member or employee of the judiciary. Specifically, plaintiff argues that MCL 15.361(d)(iii) contains three series separated by “or,” and thus the third series, “a board, department, commission, council, agency, or any member or employee thereof,” is not limited to state or local authority. In Breighner v Michigan High School Athletic Ass’n, Inc, 471 Mich 217, 232; 683 NW2d 639 (2004), our Supreme Court did not interpret a similar definition of “public body,” found in MCL 15.232(d)(iii), in the same fashion. MCL 15.232(d)(iii) provides that a public body is [a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof. The Court found that this subsection “designates several distinct governmental units as public bodies, and proceeds to include in this definition any ‘agency’ of such a governmental unit.” Breighner, supra at 232. The subsection before us ends with “or any member or employee thereof” rather than “or agency thereof.” MCL 15.361(d)(iii). Nevertheless, because the adjective “any” refers to both “member” and “employee,” the phrase “any member or employee” is a singular term like “agency,” and, thus, the difference in wording does not require an interpretation of MCL 15.361(d)(iii) different from the interpretation in Breighner. Moreover, when interpreting a clause in a statute, courts must consider the context in which the clause was used. Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521, 533; 697 NW2d 895 (2005). Here, the first subsection of MCL 15.361(d) refers to the executive branch of state government. MCL 15.361(d)(i). The second subsection refers to the legislative branch of state government. MCL 15.361(d)(ii). The first and second series of the third subsection clearly refer to local government. MCL 15.361(d)(iii). The fourth subsection refers to any other body created by or funded by or through state or local authority and, hence, does not encompass the federal government. MCL 15.361(d)(ic). Given the clearly state and local context of the first four subsections, to interpret the third series of the third subsection to include federal agencies or commissions would be to interpret the series out of context. Griffith, supra at 533. Hence, plaintiff cannot sustain his argument under MCL 15.361(d)(iii). Plaintiff also argues that the NRC, as a law enforcement agency, would be a public body under MCL 15.361(d)(c). Unlike MCL 15.361(d)(i) through (Hi), MCL 15.361(d)(u) and (vi) do not contain language hmiting their application to state or local government. Construing “law enforcement agency” under MCL 15.361(d)(c) to include a federal law enforcement agency would be consistent with the Supreme Court’s determination in Dolan v Continental Airlines/Continental Express, 454 Mich 373, 375, 382-383; 563 NW2d 23 (1997), a case in which the plaintiff reported suspected violations by third parties to the federal Drug Enforcement Agency. Therefore, the question is whether the NRC could be considered a law enforcement agency. Having reviewed the authority cited by plaintiff, we conclude that it fails to resolve the issue. Instead, we note that 44 USC 3502(5) specifically designates the NRC as an independent regulatory agency; 21 USC 872a(a) and (b)(2), 23 USC 127(a)(12)(C), and 31 USC 310(b)(2)(E) all refer to law enforcement and regulatory agencies separately, which indicates that a regulatory agency is not considered a law enforcement agency. Additionally, MCL 761.1(p) (definition of “federal law enforcement officer”) and MCL 764.15d (enumerating the power of a federal law enforcement officer to enforce state law) are both contained in the Code of Criminal Procedure, MCL 760.1 et seq., indicating that “law enforcement” refers to the prevention of criminal activities rather than the regulation of industries. Furthermore, of the 153 published Michigan cases since 1933 containing the term “law enforcement agency,” none referred to the term to define a civil regulatory agency. Words or phrases in a statute should be given their ordinary and commonly understood meanings. Campbell v Sullins, 257 Mich App 179, 188; 667 NW2d 887 (2003). Thus, the NRC is not a law enforcement agency as contemplated by the WPA. Plaintiff next argues that the trial court abused its discretion in denying his motion to amend his complaint to add a claim of public-policy wrongful discharge because plaintiff still had viable claims under the second and third prongs of Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-696; 316 NW2d 710 (1982). We disagree. A trial court’s denial of leave to amend pleadings is reviewed for an abuse of discretion. Ormsby v Capital Welding, Inc, 471 Mich 45, 53; 684 NW2d 320 (2004). Leave to amend the pleadings should be freely granted to the nonprevailing party upon a grant of summary disposition unless the amendment would be futile or otherwise unjustified. Id. at 52-53. The trial court denied plaintiffs motion to amend his pleadings to include a claim of public-policy wrongful discharge on the ground that the amendment would have been futile. In Suchodolski, supra at 694-695, our Supreme Court found that although employment in Michigan was generally at will, an employee could bring suit for wrongful discharge if the grounds for discharge violated public policy. It noted that public policy is violated when (a) a statute specifically prohibits the discharge, (b) the employee is discharged for refusing to violate the law, or (c) the employee is discharged for exercising a well-established statutory right. Id. at 695-696. The first prong involves an express cause of action, while the second and third prongs involve implied causes of action. Id. However, if a statute provides a remedy for a violation of a right, and no common-law counterpart right exists, the statutory remedy is typically the exclusive remedy. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78; 503 NW2d 645 (1993). Moreover, an employee has no common-law right to avoid termination when he or she reports an employer’s violation of the law. Id. In other words, a public-policy claim may only be sustained if there is no applicable statute prohibiting retaliatory discharge for the conduct at issue. Id. at 80. Citing Driver v Hanley (After Remand), 226 Mich App 558, 566; 575 NW2d 31 (1997), plaintiff argues that if the WPA provides no remedy at all, it cannot be a plaintiffs exclusive remedy. While Driver does stand for this proposition, the trial court did not find plaintiffs proposed amendment futile on the basis of the WPA; rather, it determined that the prohibition in 42 USC 5851 against retaliatory discharge rendered the proposed amendment futile. 42 USC 5851(a)(1) prohibits an employer from discharging an employee on the ground that the employee (1) notified the employer of a purported violation, (2) refused to violate the Atomic Energy Act, or (3) caused a proceeding to commence under the act. And a public-policy violation can be premised on a violation of a federal statute. Garavaglia v Centra, Inc, 211 Mich App 625, 631; 536 NW2d 805 (1995). Hence, plaintiffs claim clearly does not survive the first prong of Suchodolski. The question is whether plaintiffs claim based on the same express statute can survive under the second or third implied prong when it could not survive under the first express prong. Citing Edelberg v Leco Corp, 236 Mich App 177, 180 n 2; 599 NW2d 785 (1999), plaintiff argues that Dudewicz only precludes a cause of action under the first prong of Suchodolski when an express statutory right exists. The footnote in Edelberg cited here by plaintiff addressed an issue not raised by either of the parties and, thus, was merely nonbinding dicta. Edelberg, supra at 183. The Edelberg Court properly addressed the plaintiffs rather convoluted argument with respect to the third prong of Suchodolski as presented, but noted in the footnote that the plaintiffs claim would not have survived under Dudewicz', its casual reference to “the first prong” did not indicate that a cause of action could survive under the second and third prongs when it failed to survive under the first prong. See id. at 180 n 2. Notably, in Dudewicz, after determining that a specific statutory prohibition against retaliatory discharge rendered a public-policy wrongful discharge claim unviable, the Supreme Court did not then analyze the public-policy wrongful discharge claim under the second and third prongs of Suchodolski. Dudewicz, supra at 79-80. Plaintiff here did not cite any case in which a public-policy wrongful discharge claim was found inapplicable because of an express statutory prohibition against discharge, but a public-policy wrongful discharge claim was then found viable under the second or third prong of Suchodolski. Even in Edelberg, supra at 184, this Court found that the plaintiffs claim under the third prong of Suchodolski failed. Therefore, plaintiffs argument fails here. Affirmed. The parties present many facts with respect to plaintiffs work performance and medical condition. The court granted summary disposition on the ground that the NRC was not a public body within the meaning of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and denied plaintiffs motion to amend his complaint because the proposed count was barred by law. Because consideration of plaintiffs work performance and medical condition is unnecessary to resolve the issues on appeal, a detailed rendition of these facts is not presented. Defendant also moved for, and was granted, summary disposition on plaintiffs FMLA count; because plaintiff has not appealed summary disposition with respect to this count, the circumstances surrounding the court’s decision on this ground are not discussed. The Dolan Court did not address whether the Drug Enforcement Agency was a “public body” as defined by the WPA. Plaintiff also relies on 42 USC 5846 to support his public-policy wrongful discharge claim. 42 USC 5846 provides that a responsible officer who fails to notify the commission of a failure to comply with a safety regulation or of a defect will be subject to a civil penalty. This statute does not confer a right on plaintiff; however, assuming plaintiff is considered a responsible officer within the meaning of the statute, it may impose a duty. Moreover, plaintiff arguably was refusing to violate this statute when he notified the NRC of the purported violations. Nevertheless, 42 USC 5846 is part of the same act as 42 USC 5851, which provides a statutory right. But see Calabrese v Tendercare of Michigan, Inc, 262 Mich App 256, 266; 685 NW2d 313 (2004), in which this Court noted that if preemption had been raised in Garavaglia with respect to the National Labor Relations Act, the Court would have found the plaintiffs state claim preempted.

Iris Bray vs. Community Newspaper Company, Inc., & others. No. 05-P-854. Essex. March 15, 2006. August 3, 2006. Present: Greenberg, Duffly, & Katzmann, JJ. Anti-Discrimination Law, Age, Employment, Prima facie case, Burden of proof. Employment, Discrimination. Unlawful Interference. Malice. Practice, Civil, Summary judgment. A Superior Court judge erred in granting summary judgment in favor of the defendant in an action alleging employment discrimination and intentional interference with contractual relations, where the materials submitted by the plaintiff raised genuine issues of material fact as to both counts of the complaint. [43-48] Civil action commenced in the Superior Court Department on February 14, 2003. The case was heard by David A. Lowy, J., on a motion for summary judgment. Jeffrey R. Mazer for the plaintiff. Judith A. Miller for the defendants. Robert Tisi, Ellin Carroll, and Michael Moses. Greenberg, J. At age sixty, after ten years of continuous at-will employment with the defendant Community Newspaper Company, Inc. (company), the plaintiff resigned her position as an advertising sales person. In her complaint in the Superior Court, she alleged that the defendants, starting in September, 1999, took at least seven distinct adverse actions against her because of her age, in violation of G. L. c. 151B, § 4(1B), which caused her to resign from the job on February 16, 2000 (Count I). She also alleged that the individual defendants intentionally interfered with her employment with the company (Count Ü). The defendants filed a motion for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). A judge of the Superior Court allowed the defendants’ motion, and the plaintiff filed this appeal. In an appeal from summary judgment, “[o]ur reading of the summary judgment materials is in a light most favorable to the nonmoving party, here the plaintiff.” Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996), citing Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 438 (1995). Based upon the submitted materials and with inferences favorable to the plaintiff, Hub Assocs., Inc. v. Goode, 357 Mass. 449, 451 (1970), we conclude that the plaintiff raises genuine issues of material fact as to both counts of the complaint. Where, as here, “intent is at the core of a controversy, summary judgment seldom lies.” Madden v. Estin, 28 Mass. App. Ct. 392, 395 (1990). See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005). We therefore reverse the judgment. In analyzing discrimination claims brought under G. L. c. 151B, we look to the familiar three-stage analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) (McDonnell Douglas). See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-137 & n.5 (1976). For recent articulations of the standard by the Supreme Judicial Court, see Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116-118 (2000); Knight v. Avon Prod., Inc., 438 Mass. 413, 420 n.4 (2003); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 39-41. See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 6 & n.8 (1998). “In stage one, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. In stage two, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its actions. Finally, in stage three, the burden shifts back to the plaintiff to show that the employer’s articulated reason is not the true reason, but rather a pretext.” Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 660-661 (1997) (citations omitted). “[I]f successful in stage three, ‘the plaintiff is entitled to recover for illegal discrimination under G. L. c. 151B.’ ” Id. at 661, quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 444-445 (footnote omitted). 1. Prima facie case. The defendants argue that the plaintiff failed to establish a prima facie case because she suffered no adverse employment action or real, objective harm. See MacCormack v. Boston Edison Co., 423 Mass. 652, 663 (1996) (“subjective feelings of disappointment and disillusionment” do not constitute an adverse employment action). The cases upon which the defendants rely for this proposition involve instances where courts have recognized that an employer’s need for wide latitude in setting the conditions of employment supersedes the affected employee’s sensibilities concerning a particular decision. For example, in Knight v. Avon Prod., Inc., 438 Mass. at 421-422, an older employee was given the sales district in which she wanted to work, and thus, putting a younger person in her prior sales district did not amount to an adverse employment action. See also Lewis v. Gillette, 22 F.3d 22 (1st Cir. 1994) (holding that no adverse employment action was established merely because the affected employee reported being watched and stared at by fellow employees in the workplace). Standing on a different footing, however, are the allegations in the plaintiff’s complaint and deposition testimony. The plaintiff’s deposition testimony was to the effect that the general atmosphere at work did not favor older workers. She claims to have suffered through a number of events, beginning in September, 1999, and continuing through February, 2000, that could constitute an “adverse employment action” based upon her age. Besides changing her sales territory with such frequency that it made it difficult for her to generate sales, the defendant Robert Tisi, the company’s sales manager, would delay the issuance of credits to advertisers the plaintiff solicited who were legitimately entitled to them. In addition to criticizing the plaintiff for her lack of professionalism in handling a telephone complaint from a vexatious customer, Tisi issued to the plaintiff a written warning that she alleges contained unfounded allegations that she had mismanaged her Melrose territory, none of which had appeared in any of her prior performance evaluations. Moreover, it appears from the summary judgment materials that the criticism regarding mismanagement of the Melrose territory was unfounded, because at the time Tisi wrote a memorandum on the subject, the plaintiff had been working there for a period of only three months and the sales figures for that period indicated that she had achieved 133 percent of her sales target for that territory, an increase from that achieved by her predecessor in the same territory. Despite these positive results, in January, 2000, she was removed from the Melrose territory and assigned elsewhere. The Melrose territory was assigned to another salesperson who was significantly younger than the defendant and who also received a $3,000 pay increase. It serves no purpose to outline other alleged adverse actions which subsequently led to the plaintiffs resignation, except to say that, if believed, a trier of fact could conclude that these events were to her “material disadvantage,” and not merely “subjective feelings of disappointment and disillusionment.” MacCormack v. Boston Edison Co., 423 Mass. at 662-663. The burden is also on the plaintiff at stage one of the McDonnell Douglas formulation to establish a discriminatory animus. See, e.g., Scotti v. Arrow Electronics, Inc., 37 Mass. App. Ct. 954, 955 (1994); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 40-41. In opposition to the defendants’ motion for summary judgment, the plaintiff furnished the motion judge with an affidavit of Douglas Booth, one of her supervisors at the Danvers office. Booth states that there was an “unspoken policy” at the company for managers to cut costs as much as possible, and that one of the ways to accomplish this was to “eliminate older workers who were generally more experienced and who commanded higher salaries.” He corroborated the plaintiff s deposition testimony concerning this practice and Tisi’s preference to work with younger, attractive women. He stated that one way of accomplishing the cost cutting “was to set artificially high sales goals for older workers and if they were then unable to meet those goals, they could be, and in some cases were[,] terminated and younger workers brought in at lower salaries.” Combined with the defendant’s deposition testimony of other disparate treatment of similarly situated younger employees, see Scotti v. Arrow Electronics, Inc., 37 Mass. App. Ct. at 955 (noting that although much of the evidence presented by the plaintiff was insufficient to survive summary judgment, there was at least a “toehold” which warranted further proceedings), a discriminatory animus can be readily inferred. There was also other evidence that persons similarly situated were treated differently. The assignment of a younger salesperson with less experience than the plaintiff to the Melrose territory, together with a salary increase, and a corresponding decrease in the defendant’s salary are illustrative. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129. In contrast to other employees during this same period, the plaintiff was required to provide a doctor’s note when too sick to work. She received a reprimand for alleged inappropriate dress while others similarly clad were not so reprimanded. Last, there was a telephone call made by Tisi himself to the plaintiff who was sick at home, in which he said, “You’re not sick, you’re just upset.” Although the defendants proffer various neutral explanations for these events, there exists a genuine issue of material fact warranting a tidal on these issues. The plaintiff does not dispute that the defendants have articulated some neutral nondiscriminatory explanations for the adverse actions that led to her resignation. We need not embark on an exegesis of the specific rationales contained in the defendants’ summary judgment materials, except to say that the defendants did meet their burden under stage two of the McDonnell Douglas test. However, our reading of the summary judgment materials in a light most favorable to the plaintiff indicates that there exists a genuine issue of material fact whether the proffered reasons were a pretext. The Booth affidavit satisfies the plaintiff’s burden. That submission, of course, does not mean that a trier of fact would be required to find for the plaintiff, only that for summary judgment purposes, it suffices. Abramian v. President & Fellows of Harvard College, 432 Mass. at 117. In addition to the prima facie evidence to which we have referred, which “remains as evidence in the case,” Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 413 (1998), to demonstrate pretext the plaintiff offered evidence that she was satisfactorily performing her position throughout the ten years of her employment as evidenced by her performance reviews and a 1999 performance award. Although the defendants’ summary judgment materials showed that the plaintiff received a disciplinary warning in December, 1999, the defendants did not submit any evidence that her performance in managing her territory was worse than the performance of other employees and did not assert that employees other than Tisi had registered complaints about her professional conduct. 2. Intentional interference with contractual relations. The motion judge granted summary judgment on this claim because of his ruling that the plaintiff had “no reasonable expectation of establishing a prima facie case of discrimination.” This meant that “her proffered showing of intentional interference by way of improper motive or means also fails.” He also ruled that the evidence did not “support an inference that the individual defendants acted with actual malice.” However, under our analysis, the plaintiff did establish a prima facie case of discrimination, and the Booth affidavit points to improper motive or means. All of the defendants knew that the plaintiff had a reasonable expectancy of continued employment and, so far as appears from her materials, interfered with her employment relationship by subjecting her to a pattern of discrimination based on her age. Their actions constitute improper motive and are not privileged. “[A] defendant may escape liability if the interference [is] privileged as part of his employment responsibilities.” Williams v. B & K Med. Sys., Inc., 49 Mass. App. Ct. 563, 574 (2000), quoting from Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 273 (1977). Supervisors do not, however, “have blanket authority to interfere with the contractual relations of their employees.” Draghetti v. Chmielewski, 416 Mass. 808, 817 (1994). When the conduct is based on improper motive, no privilege exists. Ibid. Discrimination constitutes an improper means or motive for purposes of an interference claim, and constitutes actual malice that, if proved, would defeat the defendants’ conditional privilege. Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001). The plaintiff has therefore also presented sufficient evidence to survive summary judgment on this claim. Judgment reversed. On February 14, 2003, the plaintiff filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging age and gender discrimination. After an investigation, the MCAD found probable cause to credit her allegations of age discrimination and lack of probable cause to support her claims of gender discrimination and constructive discharge.

Samantha Smith & others vs. Winter Place LLC & others. Suffolk. April 3, 2006. - August 1, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Statute, Construction. Administrative Law, Agency, Agency’s interpretation of statute. Labor, Wages. Employment, Retaliation. Attorney General. This court concluded that G. L. c. 149, § 48, prohibits employers from retaliating against employees who complain to the management of the employer with a reasonable belief that the wages they have been paid violate the laws governing wages and hours, and that the statute’s protective reach is not limited to those employees who make an official complaint to a person involved in the civil or criminal enforcement of those laws. [366-368] A maitre d’ who merely conveyed to higher management complaints of the servers at the restaurant at which the maitre d’ and the servers were employed was not asserting the servers’ rights or complaining on their behalf, and therefore, the maitre d’ could not claim that his subsequent firing constituted retaliation prohibited under G. L. c. 149, § 48. [368-369] Civil action commenced in the Superior Court Department on March 7, 2002. A motion for summary judgment was heard by Nancy Staffier Holtz, J., and a question of law was reported to the Appeals Court by Ralph D. Gants, J. The Supreme Judicial Court granted an application for direct appellate review. Shannon Liss-Riordan for the plaintiffs. Gordon P. Katz for the defendants. The following submitted briefs for amici curiae: John E. Coyne & Kevin P. Sweeney for Massachusetts Restaurant Association. Ingrid Nava, Audrey R. Richardson, Patti A. Prunhuber, & Donald J. Siegel for Greater Boston Legal Services & others. Julia J. Carabillo & Andrea C. Kramer for The Women’s Bar Association of Massachusetts. Charles Kimball, Pierre Sosnitsky, and the administratrix of the estate of Bruce Porter. Doing business as Locke-Ober Company. Paul Licari and Lydia Shire, owners of the Locke-Ober Company. Cordy, J. Samantha Smith, Bruce Porter, and Charles Kimball were servers at the landmark Boston restaurant Locke-Ober; Pierre Sosnitsky was the maitre d’ and a manager. They contend that the defendants terminated their employment in violation of the retaliation provision of the Massachusetts wage laws, G. L. c. 149, § 148A, for complaining about what they perceived to be violations of the statute’s tip pooling provision, G. L. c. 149, § 152A. A Superior Court judge granted the defendants’ motion for summary judgment with respect to Kimball and Sosnitsky because their “complaints” about the alleged wage law violations were made only internally to management and not to the Attorney General’s office. The judge denied the motion for summary judgment as to Smith and Porter because there was evidence that they had each complained to the Attorney General’s office before being terminated. Subsequent to the ruling on the motion for summary judgment, another judge granted the plaintiffs’ motion to report the central legal question in the case to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996). We granted the plaintiffs’ application for direct appellate review. The question now before us is: “Does G. L. c. 149, § 148A, prohibit employers from retaliating against employees for making internal allegations of wage violations, even if those employees never brought their allegations to the attention of the Attorney General?” For the reasons set forth below, we answer the question in the affirmative. Accordingly, we reverse the entry of summary judgment against Kimball, and affirm the denial of summary judgment against Smith and Porter. We also affirm summary judgment against Sosnitsky, insofar as his conduct, the mere passing on of the servers’ complaints to the defendants, was not activity protected by the retaliation statute.* ** 1. Background. We recite the evidence in the summary judgment record, in its light most favorable to the plaintiffs. LockeOber reopened in November, 2001, under the ownership of the defendants Paul Licari and Lydia Shire. Sosnitsky was hired as the maitre d’. When the restaurant reopened, it instituted a tip pooling system. The system was proposed and designed by Sosnitsky, based on his experience working in another Boston restaurant. It required servers to share their tips with busboys, bartenders, and the maitre d’ at each shift according to a point system. The system met with immediate controversy; servers complained that they were not receiving all of their tips, and in particular, they complained that Sosnitsky should not be sharing in their tip pool. Based on the publicity that tip pooling had received in other contexts, and a pamphlet prepared and distributed by the Attorney General’s office entitled Commonly Asked Questions about the Massachusetts Wage and Hour Laws, the servers believed that the policy adopted by the defendants violated the Massachusetts wage laws. Smith and Porter complained about the tip pooling system to the Attorney General’s office prior to their termination. All of the server plaintiffs complained about the tip system to Sosnitsky. Sosnitsky advised Licari that the servers were upset about the tip pooling system, were upset that a manager was receiving a portion of their tips, and believed that the tip system was illegal. Licari’s response was that “we should just get rid of them.” The servers were subsequently fired by Sosnitsky. Shortly thereafter, Licari fired Sosnitsky. Sosnitsky claims that Licari was unhappy with him for bringing the servers’ complaints to his attention and that he was fired as a result. 2. Discussion, a. The reported question. General Laws c. 149, § 148A, provides: “No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter. “Any employer who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person, or assists the attorney general in any investigation under this chapter, or has instituted, or caused to be instituted any proceedings under or related to this chapter, or has testified or is about to testify in any such proceedings, shall have violated this section and shall be punished or shall be subject to civil citation or order as provided in [§] 27C” (emphasis added). The plain language of the first paragraph of § 148A extends the protection of the statute to employees who are penalized for taking “any action” to seek their rights under the laws governing wages and hours. A complaint made to an employer (or a manager of the employer) by an employee who reasonably believes that the wages he or she has been paid violate such laws readily qualifies as such an “action.” See, e.g., Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985) (“starting point of our analysis is the language of the statute”). We decline the defendants’ invitation to interpret the second paragraph as narrowing the statute’s protective reach to those employees who make an official complaint to a person involved in the civil or criminal enforcement of the wage and hour laws. Statute 1998, c. 236, § 11, which added the second paragraph to G. L. c. 149, § 148A, is consistent with, and indeed expands the range of employees whose actions are protected in the first paragraph. Of particular significance, it protects employees from retaliation for making a “complaint to the attorney general or any other person.” While we need not decide whether the Legislature intended this provision to include complaints made to persons unrelated to either the business enterprise or the enforcement of the wage laws, it certainly includes complaints made to the management of the employer. The Attorney General’s office has also interpreted G. L. c. 149, § 148A, as amended, to protect both employees who make complaints to the Attorney General and those who take “any other action to seek statutory wage and hour rights.” Advisory 2004/3, at 5, Attorney General’s fair labor and business practices division. Insofar as the Attorney General’s office is the department charged with enforcing the wage and hour laws, its interpretation of the protections provided thereunder is entitled to substantial deference, at least where it is not inconsistent with the plain language of the statutory provisions. See Dahill v. Police Dep’t of Boston, 434 Mass. 233, 239 (2001) (State agency charged with enforcement of statute entitled to “substantial deference” in interpretation of statute through its issued guidelines). The defendants’ interpretation of § 148A, in addition to being contrary to its plain language, would discourage employees from bringing complaints to their employers’ attention directly and attempting informally and amicably to resolve disputes regarding the wage laws. Rather, it would encourage employees immediately to lodge official complaints with the Attorney General’s office and begin adversary proceedings. It would also encourage employers to terminate employees as soon as they caught wind of any internal concerns about potential wage violations, so that they might obviate potential penalties and retaliation claims under provisions of G. L. c. 149, § 148A. Such outcomes would directly contravene the purpose of the statute, to encourage enforcement of the wage laws by protecting employees who complain about violations of the same. b. Summary judgment. Having concluded that the complaints made by the plaintiff servers to Sosnitsky fall within the actions protected under § 148A, we reverse the grant of summary judgment as to Kimball, and affirm the denial of summary judgment as to Smith and Porter. We decline, however, to conclude that the conduct of Sosnitsky, the maitre d’, is covered by G. L. c. 149, § 148A. The plain language of the first paragraph protects only actians taken by an employee “to seek his or her rights” and does not provide similar protection for actions undertaken by a third party on behalf of another employee. Although the language of the second paragraph expands the range of persons and conduct protected by the statute, and likely would protect an employee (or manager) from being punished for asserting the right of another employee or complaining to management on that employee’s behalf, that is not this case. There is no evidence that Sosnitsky did either of these things, or took any other action protected under § 148A before his termination. See note 11, supra. The mere conveying of employee complaints by Sosnitsky to higher management (about a system Sosnitsky himself created and implemented) does not amount to asserting their rights, or complaining on their behalf. Cf. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2004) (under Title IX of Education Amendments of 1972, public high school girls’ basketball coach who complained that his team was not receiving equal funding and access to equipment and facilities and who was eventually fired could assert retaliation claim even though he was not victim of discrimination that was subject of his original complaints). 3. Conclusion. The answer to the reported question is, “Yes.” The judgment is affirmed in part and reversed in part, and the case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered. The judge also granted summary judgment for the defendants on the plaintiff servers’ claims that the defendants had violated G. L. c. 149, § 152A. That ruling has not been appealed, and the plaintiffs have now explicitly waived those claims. In the context of a retaliation claim brought under our discrimination laws, G. L. c. 151B, § 4 (4), we have held that a claim for “[retaliation is a separate and independent cause of action” from a claim of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000). Its viability does not depend on the success of the underlying discrimination claim, so long as the plaintiff can prove that he “reasonably and in good faith believed the [employer] was engaged in wrongful discrimination,” and that the “[employer’s] desire to retaliate against [him] was a determinative factor in its decision to terminate [his] employment.” Id., quoting Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). We see no reason to inteipret the retaliation provision of the wage laws differently. In granting the plaintiffs’ application for direct appellate review, we stated that we would review “all issues addressed by the interlocutory order.” Insofar as the plaintiffs have waived their claims under G. L. c. 149, § 152A, we only consider the summary judgment decisions regarding the retaliation claims. We had solicited amicus briefs and acknowledge briefs filed by Greater Boston Legal Services, Western Massachusetts Legal Services, and the Massachusetts AFL-CIO; the Massachusetts Restaurant Association, and The Women’s Bar Association of Massachusetts. Each position received a number of points and the tips were distributed to the servers, busboys, bartenders and the maitre d’ in proportion to the number of points designated for his or her respective position. In the Attorney General’s pamphlet, the following question was posed: “Can service employees be required to pool their tips?” The answer: “No. Under [G. L. c. 149, § 152A], it is illegal for an employer to require an employee in the service of food or beverage to pool, split or share their tips with management or other employees. . . .” General Laws c. 149, § 152A, was amended in 2004. See St. 2004, c. 125, § 13. It now permits an employer to set up a tip pool for the purpose of tip sharing among “wait staff employee[s],” “service employee[s],” and “service bartender[s],” who have “no managerial responsibility.” The amended statute does not apply to this case. The defendants contest the plaintiffs’ evidence on this point and had presented evidence that each server was terminated for other reasons, such as absence from work, unsatisfactory performance, and disciplinary issues. As disputed issues of material facts, these are for the fact finder to resolve. The defendants assert that Sosnitsky was fired because of complaints from customers and the servers about his performance and because Licari wanted to change the organization of the dining room to eliminate the maitre d’ position. For example, the category of “employee” protected from retaliation for making a complaint is not limited to an employee acting to “seek his or her rights.” Also protected is any person who “assists the attorney general in any investigation,” or has “testified” or is “about to testify” in proceedings brought under the statute. This would presumably include employees (and managers) whose own wages are not violative of the statute, and who have not filed a complaint with the Attorney General or anyone else, but are cooperating with the Attorney General’s investigation or have agreed to testify in enforcement proceedings. Prior to 1999, only the Attorney General could bring an action against an employer for violating the provisions of G. L. c. 149, § 148A. In 1999, the Legislature amended G. L. c. 149, § 150, adding § 148A to the list of sections that permit a private right of action for aggrieved employees. The present action is brought under G. L. c. 149, § 150. Summary judgment against Smith and Porter was denied in the Superior Court. They have joined in this appeal because, although there is evidence that they complained to the Attorney General’s office, they contend that the internal complaints they made to management are central to their claims of retaliation.

FEYZ v MERCY MEMORIAL HOSPITAL Docket No. 128059. Argued May 2, 2006 (Calendar No. 5). Decided July 24, 2006. Bruce B. Feyz, M.D., brought an action in the Monroe Circuit Court against Mercy Memorial Hospital, a private hospital, and members of its staff, seeking injunctive relief and damages relating to his placement on indefinite probation by the defendants. The plaintiffs complaint included civil rights, contract, and tort claims. The court, Joseph A. Costello, Jr., J., granted summary disposition for the defendants, citing the doctrine of judicial nonintervention in the staffing decisions of private hospitals, as well as statutory immunity arising from the peer review committee referral of the plaintiff for psychological evaluation. The plaintiff appealed. The Court of Appeals, Sawyer and Smolenski, JJ. (Murray, PJ., concurring in part and dissenting in part), affirmed in part, reversed in part, and remanded the matter to the trial court for further proceedings. 264 Mich App 699 (2005). The Court of Appeals concluded that peer review immunity does not apply to statutory civil rights claims, that an alleged civil rights violation was not within the scope of peer review, and that an alleged civil rights violation was “a malicious act.” The Court also held that the nonintervention doctrine did not prevent the plaintiff from pursuing his civil rights claims, nor did the doctrine generally preclude the plaintiffs contract and tort claims. Finally, the Court held that a private hospital’s staffing decisions are subject to the same level of judicial review as would apply to the actions of any other private entity. The Supreme Court granted the defendants’ application for leave to appeal. 474 Mich 957 (2005). In an opinion by Justice Young, joined by Chief Justice Taylor and Justices Corrigan and Markman, the Supreme Court held-. 1. The doctrine of judicial nonintervention cannot supplement or supplant the statutory immunify granted by the Legislature through the peer review immunity statute. There is no basis to justify the application of a nonintervention doctrine to general staffing decisions of a private hospital. 2. The statutorily prescribed scope of judicial review over the peer review process is narrow. The Legislature codified limited judicial review of the peer review process, permitting judicial review only when peer review participants act with malice. 3. Malice, for purposes of MCL 331.531(4), can be established when a person supplying information or data to a peer review entity does so with knowledge of its falsity or with reckless disregard of its truth or falsity. A review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data that it communicates or upon which it acts. 4. A hospital is not a protected review entity under the peer review immunity statute. The immunity granted by the peer review immunity statute extends only to the communications made, and the participants who make them, in the peer review process, as well as to the communicative acts taken by a statutorily protected peer review entity acting within its scope, not to the hospital that makes the ultimate decision on staffing credential questions. Justice Cavanagh, joined by Justices Weaver and Kelly, concurring in part and dissenting in part, agreed that no justification exists in this state for recognizing the judicial nonintervention doctrine and that the doctrine should not be applied to a private hospital’s general staffing decisions, but dissented from the majority’s definition of “malice” as used in MCL 331.531. “Malice” should not be defined under the principles of “actual malice” used in defamation law. Rather, the term should be defined to mean the “intent, without justification or excuse, to commit a wrongful act” or “reckless disregard of the law or of a person’s legal rights.” To define the term otherwise ignores the statutory language. The trial court should be directed on remand to apply the appropriate legal definition of “malice.” Court of Appeals judgment vacated; case remanded to the trial court for further proceedings. 1. Hospitals — Staffing Decisions — Judicial Nonintervention Doctrine. The doctrine of judicial nonintervention, which suggests that the staffing decisions of a private hospital are generally beyond the scope of judicial review, is inconsistent with the statutory peer review process established by MCL 331.531 and is repudiated. 2. Hospitals — Peer Review Immunity — Exceptions — Malice. Malice, for purposes of the statutory hospital peer review process, exists when a person supplying information or data to a peer review entity does so with knowledge of its falsity or with reckless disregard of its truth or falsity; a peer review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of the information or data that it communicates or upon which it acts (MCL 331.531[4]). 3. Hospitals — Peer Review Immunity — Peer Review Entities. A hospital is not a protected review entity under the peer review immunity statute; the immunity granted by the peer review immunity statute extends only to the communications made, and the participants who make them, in the peer review process, as well as to the communicative acts taken by a statutorily protected peer review entity acting within its scope, not to the hospital that makes the ultimate decision on staffing credential questions. Jeffrey L. Herron for the plaintiff. Kitch Drutchas Wagner Valitutti & Sherbrook (by Susan Healy Zitterman and Karen B. Berkery) for the defendants. Amici Curiae: Clark Hill PLC (by Robert L. Weyhing and Paul C. Smith) for Michigan Osteopathic Association. Kerr, Russell and Weber, PLC (by Joanne Geha Swanson and Daniel J. Schulte), for Michigan State Medical Society. Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Ron D. Robinson, Assistant Attorney General, for the Michigan Civil Rights Commission and the Michigan Department of Civil Rights. Hall, Render, Killian, Heath & Lyman, PLLC (by Michael J. Philbrick), for Michigan Health & Hospital Association. YOUNG, J. Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. This lawsuit arises from an internecine dispute over nursing orders for patient intake at the defendant hospital. Plaintiffs insistence on requiring the nursing staff to use his special standing orders instead of defendant hospital’s standing orders eventually led to a conflict with defendant hospital and a peer review of plaintiffs professional practices as well as disciplinary action. Plaintiffs challenge of the peer review conducted by some of the defendants and the resulting disciplinary action taken against him requires that we consider the scope of immunity provided for peer review. In order to promote effective patient care in hospitals, the Legislature enacted MCL 331.531, commonly referred to as Michigan’s peer review immunity statute. The purpose of statutory peer review immunity is to foster the free exchange of information in investigations of hospital practices and practitioners, and thereby reduce patient mortality and improve patient care within hospitals. The Legislature obviously intended to protect peer review participants from liability for participation in this communicative and evaluative process. In order to create an environment in which such candid explorations of the quality of hospital patient care can occur, among other protections, the Legislature prohibited the discovery of communications made within the peer review process and granted immunity from liability to all who participate in peer review without “malice.” The primary question posed in this appeal is the scope of judicial review of peer review permitted under MCL 331.531. A secondary question is whether the judicially created “doctrine of nonintervention” — a doctrine suggesting that staffing decisions of private hospitals are generally beyond the scope of judicial review — is compatible with the peer review immunity statute. Finally, we must also construe the undefined peer review statutory term “malice.” Because the peer review immunity statute establishes qualified immunity from liability for peer review communication and participants who provide such communications, we conclude that there is no justification for recognizing the nonintervention doctrine that the lower courts in this state have applied in considering claims arising from peer review. We therefore hold that this doctrine cannot supplement or supplant the statutory immunity granted by our Legislature. Furthermore, there is no basis, statutory or otherwise, to justify the application of a nonintervention doctrine to general staffing decisions of a private hospital. We also hold that, consistent with the objects of the peer review immunity statute, malice should be defined as set forth by the Court of Appeals in Veldhuis v Allan. Thus, we hold that malice can be established when a “person supplying information or data [to a peer review entity] does so with knowledge of its falsity or with reckless disregard of its truth or falsity. Similarly, a review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data which it communicates or upon which it acts.” Accordingly, we vacate the judgment of the Court of Appeals and remand this case to the Monroe Circuit Court for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. Plaintiff was dissatisfied with defendant hospital’s standard nursing policy requiring nurses to document patients’ prescribed medications and dosages by either copying the label on their prescription containers or copying a list of medications carried by patients. As a consequence, plaintiff created his own specialized orders directing the nursing staff to obtain very specific information from plaintiffs incoming patients about their prescription drug use. Plaintiffs orders directed the nursing staff, as part of the admissions process for his patients, to assume a far more aggressive investigative role regarding patient medication. Defendants disapproved plaintiffs standing orders, and instructed the nursing staff to ignore them. In several cases where the nurses disregarded plaintiffs special orders and followed defendant hospital’s nursing directives, plaintiff prepared “incident reports” referring such cases to peer review committees for investigation of “potential medical errors.” Further, plaintiff began making notations in patient records that his disregarded orders were intended to “[p]revent serious medication errors in the past.” Defendants initiated peer review proceedings against plaintiff based on plaintiffs failure to complete medical records and his insistence that the nursing staff follow his standing orders rather than comply with hospital policy. An ad hoc investigatory committee reviewed plaintiffs conduct and released its findings to the executive committee of defendant medical staff. Relying on the ad hoc committee’s report, the executive committee referred plaintiff to the Health Professionals Recovery Program (HPRP) for a psychiatric examination. Plaintiff was placed on temporary probation. Plaintiff alleges that he ceased writing his standard orders because, in compromise, defendant hospital gave plaintiff use of the pharmacy consult service to implement plaintiffs special orders. It appears that plaintiffs orders regarding patient medication overburdened the staff of the pharmacy consult service, so the hospital eventually discontinued this arrangement. Thereafter, plaintiff resumed placing his specialized orders in patients’ medical charts. As a consequence, defendants took further action and placed plaintiff on indefinite probation. Plaintiff continues to practice medicine and retains privileges at defendant hospital, but is restricted from using defendant hospital’s pharmacy consult service or insisting on compliance with his special orders. Plaintiff filed a complaint alleging violations of the Persons with Disabilities Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973,* and 42 USC 1983 and 1985; invasion of privacy; breach of fiduciary and public duties; and breach of contract. The trial court granted summary disposition to defendants, concluding that all of defendants’ actions arose out of the peer review process and therefore defendants were immune from liability under MCL 331.531. The court, as an alternative basis for granting summary disposition, relied on the doctrine of judicial nonintervention, which provides that courts will not review private hospitals’ staffing decisions. The Court of Appeals, in a split decision, partially reversed the trial court’s award of summary disposition in favor of defendants, concluding that peer review immunity did not apply to statutory civil rights claims. The majority concluded that an alleged civil rights violation was not within the scope of peer review and that an alleged civil rights violation was “a malicious act.” Furthermore, the majority held that the nonintervention doctrine did not prevent plaintiff from pursuing his civil rights claims, nor did the doctrine generally preclude plaintiffs contract and tort claims. The majority held that the doctrine stands for the limited proposition that a private hospital’s staffing decisions are not subject to constitutional due process challenges. The majority concluded that the nonintervention doctrine did not create any greater insulation from judicial scrutiny than that enjoyed by any other private entity. In other words, the majority held that a private hospital’s staffing decisions are subject to the same level of judicial review as would apply to the actions of any other private entity. The Court of Appeals dissent agreed that an unlawful act of discrimination constituted malice, but disagreed that an unlawful discriminatory act was per se outside the scope of a peer review committee. The dissent would have affirmed the trial court’s dismissal of plaintiffs tort and contract counts. The dissent also concluded that the majority improperly limited the scope of the nonintervention doctrine. The dissent opined that the nonintervention doctrine precluded judicial review of contract and contract-related tort claims arising from hospital staffing decisions with regard to all defendants. This Court granted defendants’ application for leave to appeal. STANDARD OF REVIEW The trial court granted defendants summary disposition under MCR 2.116(C)(8). A trial court’s grant of summary disposition is reviewed de novo. A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the allegations of the pleadings alone. When a challenge to a complaint is made, the motion tests whether the complaint states a claim as a matter of law, and the motion should be granted if no factual development could possibly justify recovery. Questions of statutory interpretation, such as the proper construction of the peer review immunity statute, are reviewed de novo. Our role is to give effect to the intent of the Legislature, as expressed by the language of the statute. We apply clear and unambiguous statutes as written, under the assumption that the Legislature intended the meaning of the words it has used in the statute. In defining statutory words, we must consider the “plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” While words are construed according to their plain and ordinary meaning, words that have acquired a peculiar and appropriate meaning in the law are construed according to that peculiar and appropriate meaning. ANALYSIS In Michigan, the Legislature has commanded hospitals to establish peer review committees to review “professional practices” in order to “redue[e] morbidity and mortality and improv[e] the care provided in the hospital for patients.” That review must “include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.” In turn, hospitals use peer review evaluations when making staffing decisions. A. THE JUDICIAL NONINTERVENTION DOCTRINE AND THE SCOPE OF JUDICIAL REVIEW OF PEER REVIEW The judicial nonintervention doctrine is a judicially created common-law doctrine providing that courts will not intervene in a private hospital’s staffing decisions. The concerns that gave rise to this doctrine are twofold. The doctrine is premised, in part, on the distinction between public and private hospitals. While public hospitals are state actors impheating adherence to constitutional requirements, such as affording due process to physicians, private hospitals are not similarly constrained because they are not state actors. Therefore, it was posited that a private hospital’s staffing decisions merit less judicial scrutiny. The doctrine is also founded on the belief that courts are ill-equipped to review hospital staffing decisions because courts lack the specialized knowledge and skills required to adjudicate hospital staffing disputes. The judicial nonintervention doctrine, therefore, is a prudential doctrine not grounded in statutoiy or constitutional provisions that courts have invoked to resist adjudicating claims involving hospital staffing decisions and the decision-making process. In Shulman v Washington Hosp Ctr, a seminal case describing the doctrine, the United States District Court for the District of Columbia explained its foundational premises as follows: Judicial tribunals are not equipped to review the action of hospital authorities in selecting or refusing to appoint members of medical staffs, declining to renew appointments previously made, or excluding physicians or surgeons from hospital facilities. The authorities of a hospital necessarily and naturally endeavor to their utmost to serve in the best possible manner the sick and the afflicted who knock at their door. Not all professional men, be they physicians, lawyers, or members of other professions, are of identical ability, competence, or experience, or of equal reliability, character, and standards of ethics. The mere fact that a person is admitted or licensed to practice his profession does not justify any inference beyond the conclusion that he has met the minimum requirements and possesses the minimum qualifications for that purpose. Necessarily hospitals endeavor to secure the most competent and experienced staff for their patients. Without regard to the absence of any legal liability, the hospital in admitting a physician or surgeon to its facilities extends a moral imprimatur to him in the eyes of the public. Moreover not all professional men have a personality that enables them to work in harmony with others, and to inspire confidence in their fellows and in patients. These factors are of importance and here, too, there is room for selection. In matters such as these the courts are not in a position to substitute their judgment for that of professional groups. Relying on Shulman, the Michigan Court of Appeals adopted the doctrine of judicial nonintervention in Hoffman v Garden City Hosp. The plaintiff in Hoffman sued a private hospital for denying him staff privileges, claiming, in part, that the hospital’s decision to deny privileges was “arbitrary, capricious and unreasonable... ,” The defendant prevailed in the trial court on its motion for summary disposition. On appeal, the plaintiff urged the Court of Appeals to adopt the position that a private hospital holds a fiduciary duty to make its staffing decisions reasonably and for the pu