Retaliation Cases

Phyllis J. Dragonas vs. School Committee of Melrose & others. No. 04-P-98. Middlesex. March 3, 2005. - September 6, 2005. Present: Lenk, Kafker, & Katzmann, JJ. Practice, Civil, Summary judgment. Libel and Slander. Anti-Discrimination Law, Age, Employment, Prima facie case. Employment, Discrimination. A Superior Court judge improperly granted summary judgment in favor of the defendants (a school committee, a school superintendent, and a school principal) on a teacher’s claim of defamation, arising out of certain statements made by the principal, where genuine issues of material fact existed regarding whether the allegedly defamatory statements were false, and whether the conditional privilege of the principal to make such statements was abused due to malice [437-440]; likewise, a trial was warranted on the teacher’s claim of age discrimination under G. L. c. 151B, § 4(1C), where a fact finder could determine that the principal’s proffered assessment of the teacher’s performance was false and not a good faith judgment [440-445]. Civil action commenced in the Superior Court Department on November 9, 2001. The case was heard by Nonnie S. Bumes, J., on a motion for summary judgment. Alice Olsen Mann for the plaintiff. Mary Jo Hollender for the defendants. Daniel Burke and Charles Martin. Kafker, J. Phyllis Dragonas, a foreign languages teacher, brought this action against the school committee of Melrose; Charles Martin, former superintendent of the Melrose public schools; and Daniel Burke, principal of Melrose High School, alleging defamation and age discrimination. She claimed that Burke defamed her when he made derogatory comments about her at a meeting with parents concerning an overseas trip to be chaperoned by Dragonas. She also claimed age discrimination arising out of the failure to reappoint her as the lead foreign languages teacher in the school system. A Superior Court judge allowed the defendants’ motion for summary judgment. We reverse. Background. Because this is an appeal from a summary judgment decision, we view the evidence in a light most favorable to the plaintiff as the nonmoving party. Dattoli v. Hale Hosp., 400 Mass. 175, 178 (1987). Dragonas, who was born on November 26, 1930, has been employed as a foreign languages teacher in the Melrose school system since 1971. In addition to teaching Spanish and French, she served in various administrative roles during this time. In the summer of 1998, she was appointed lead teacher of foreign languages for the 1998-1999 school year. Lead teacher was a one-year stipendiary position that required appointment by the high school principal and approval by the superintendent. Lead teachers were responsible for teaching four classes daily and performing various administrative tasks on behalf of the foreign languages department. In addition to her teaching and administrative duties, Dragonas served as the coordinator of the German-American Partnership Program (GAPP), a student exchange program that she cofounded in 1975. In this program, German students would visit Melrose every other fall to study; Dragonas would chaperone Melrose students in Hamburg, Germany, for a month-long stay the following spring. Burke assumed the position of principal of Melrose High School in July, 1999, and, shortly thereafter, reappointed Dragonas as lead teacher for the 1999-2000 school year, which Martin approved. Burke met with Dragonas on December 3 and 22, 1999, to discuss his concerns about her ability to oversee the upcoming GAPP trip to Germany from April 12 to May 12, 2000. Burke stated in his affidavit and deposition that his concern arose from the following: (1) foreign language department and GAPP budgeting issues; (2) problems with two German students’ home placements during their stay in Melrose in October, 1999; (3) Dragonas’s attendance in Focus classes in October, 1999; (4) difficulties that tenth grade students traveling to Germany might have with the Massachusetts Comprehensive Assessment System (MCAS) examination upon their return in May, 2000; (5) her fluency and familiarity with German studies compared with those of a German language teacher; and (6) a report he received from two parents that, on a prior GAPP trip to Germany, Dragonas had left Hamburg during the Easter vacation and had been unavailable to a seriously ill student who was without any adult supervision. Dragonas stated in her affidavit and deposition that at the December 22 meeting she either denied the reports or at least attempted to explain them. She also requested that Burke put any issues he had in writing, although Burke denies this. Both agree that after Dragonas cited her twenty-five years of GAPP leadership and mentioned that people in the community would be upset if she were relieved of her GAPP duties, Burke warned her to “not go political because [he] had been there.” At this meeting, Burke also informed Dragonas that her position as lead teacher of foreign languages would be abolished at the end of the 1999-2000 school year. Burke stated that his concerns about the upcoming GAPP trip did not abate in the spring of 2000. In addition to the unresolved housing and MCAS issues, he questioned the prudence of allowing one student with poor attendance and grades to go to Germany. On March 3, 2000, Burke issued a memorandum to Dragonas stating his “desire to reorganize lead teachers . . . along the lines of the MCAS Curriculum and testing areas.” He also stated, “I have a number of serious concerns about the Foreign Language Program at Melrose High School that need[] . . . to be addressed.” On March 7, 2000, Martin met with Dragonas and Barbara Quinlan, the business manager for the Melrose schools, and informed Dragonas that he would recommend that her lead teacher position be abolished at the end of the school year due to the MCAS. Martin then offered Dragonas the option of retiring at the end of the school year and suggested that if she backdated her notice of departure to December 23, 1999, she would be eligible to receive a $10,000 sick leave buyback bonus. If she decided to retire, Martin also offered to secure a part-time position for her as administrative assistant to the middle school principal. Dragonas indicated that she was not interested. Martin gave Dragonas a week to accept the offer in case she changed her mind, which she did not. On March 9 or 11, Burke convened an “emergency” meeting of twenty-five to thirty GAPP parents to discuss his concerns about Dragonas’s leadership of the impending trip to Germany. Burke stated that he did not invite Dragonas to the ninety-minute meeting because he felt that “her overall aggressiveness and defensiveness” would prevent him from getting an “objective and fair view” from the parents. According to parents in attendance, Burke questioned Dragonas’s competency to lead the GAPP program and her ability to speak German and stated that, on a previous trip, she had left a student ill and unattended while on a sightseeing trip. In their affidavits, the parents stated that Burke made disparaging comments about Dragonas’s character, claiming she had accused him of sexual harassment (which she denied in her deposition). They also attested that Burke stated that Dragonas was someone who would “rip your face off.” Burke testified that when he asked the parents whether they wanted him to find another teacher to accompany the students to Germany, they were still willing to have Dragonas accompany the students because of her experience and the trip’s imminence. In response to some of the parents’ objections to Dragonas’s absence from the meeting, Burke apologized to her shortly thereafter. When Dragonas returned from Germany in May, 2000, Burke did not ask her to participate in hiring new teachers for the foreign languages department — even though this was one of the lead teacher’s responsibilities — because he expected her position to be eliminated. Dragonas stated that she felt she was treated as a “persona non grata.” After the school committee decided to retain the lead teacher position (see note 7, supra), Martin posted the position within the foreign languages department and advertised the position in the Boston Globe. Three people submitted applications: Dragonas; Mariastella Cocchiara, an Italian and Spanish teacher for twenty-one years in the Melrose public schools, whom Burke had personally encouraged to apply; and a teacher at Salem High School. A hiring committee comprised of Burke; Thomas Brow, the Melrose Middle School principal; and Gayle Means, an elementary school principal, interviewed the prospective candidates. As summarized by Burke in his affidavit, based on the review of the written applications and interviews, “Mr. Brow, Ms. Means and I agreed that Ms. Cocchiara was far better qualified for the position of Lead Teacher for foreign languages than plaintiff.” The hiring committee concluded that “Cocchiara had a strong educational and employment record which, when combined with her additional professional accomplishments, indicated that she would be capable of assuming a leadership role in the foreign language department. Moreover, her computer skills and interpersonal skills led to the conclusion that she was better suited for the position than plaintiff, notwithstanding the fact that plaintiff had served in the same or similar position previously.” Burke added that Cocchiara had specific ideas, based on her training and prior experience, about how to integrate computers and the Internet into the curriculum, which was important due to State directives and the school committee’s recent decision to invest in a new computer-driven language laboratory. Cocchiara had also explained how she would incorporate foreign languages into the elementary school. Burke stated that Cocchiara was committed to bringing the foreign language teachers together around a common goal and eliminating the “division” and “frustration” they experienced under Dragonas’s leadership. Burke also “felt that plaintiffs prior service during the time I observed her had been lackluster at best.” In addition, Burke said that Dragonas interviewed poorly, particularly with respect to her vision for the future and her ideas for integrating technology into the curriculum. In his view, Dragonas essentially stated that she would continue doing what she had done in the past. Her responses to technology questions were unsatisfactory. When asked what “www” and “URL” meant, Dragonas did not know. Burke also stated that Dragonas did not have a plan for introducing foreign languages to fifth graders. Conversely, Dragonas stated that she did not recall being asked any substantive, in-depth questions about her plans for the elementary schools or technological integration. She described herself as a “visionary.” She also said that she “knew what the needs of the department were . . . and . . . was providing resources under certain conditions and circumstances which were budgetary restraints . . . and . . . was hoping . . . what [she] was providing for could be perpetuated for the future . . . and that we could have a good . . . elementary school program.” Her sense was that she was “doing everything that needed to be done and more.” She also described her computer skills as “adequate” and pointed out that she had taken at least two computer courses for instructional purposes prior to 2000; however, she did not indicate that she had shared this informatian with the hiring committee. She denied friction or divisions in the department or that her performance was in any way deficient. The record also contained evidence that Dragonas had very favorable references in regard to her handling of the GAPP program and her position as lead teacher, including from the former superintendent of the Melrose public schools, who was then the Commissioner of Education. In June, 2000, the hiring committee unanimously recommended Cocchiara, who was twenty-four years Dragonas’s junior. Martin subsequently approved Cocchiara’s appointment. Dragonas commenced the present action in November, 2001, seeking damages and injunctive relief for, inter alla, the defendants’ alleged violations of G. L. c. 151B, § 4(1C) (counts one and two), and, against Burke and Martin only, aiding and abetting violations of c. 151B (count four), and defamation (count six). Following discovery, the defendants moved for summary judgment on all counts of the complaint, which Dragonas opposed. After a hearing, the judge granted summary judgment for the defendants and allowed, in part, the defendants’ motion to strike certain materials submitted by Dragonas in opposition to the motion. On September 25, 2003, judgment was entered for the defendants. On October 1, 2003, Dragonas moved for reconsideration. On the same day, a different judge denied Dragonas’s motion to strike portions of the summary judgment materials submitted by the defendants. While the motion for reconsideration was pending, Dragonas filed a timely notice of appeal from the judgment and related orders. After the judge declined to reconsider the summary judgment decision, Dragonas filed a second notice of appeal. Standard of review. “[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), [365 Mass. 824 (1974),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Defamation. To prove defamation, the plaintiff must establish that “the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss” (footnote omitted). White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004), citing Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003). Dragonas’s defamation claim is based upon Burke’s statements to the GAPP parents at the meeting in early March, 2000, which she claims impugned her professional character and competence. Specifically, Dragonas finds fault with (1) Burke’s statement that on a previous GAPP trip, she went on a sightseeing trip and was unavailable to an ill and unattended student in Hamburg; and (2) Burke’s statements questioning her fluency in German. She also highlights his “hyperbolic” statement that she was someone “who would rip your face off.” In their memorandum in support of summary judgment, the defendants argued that the statements were either true, nonactionable matters of opinion, or subject to Burke’s conditional privilege as Dragonas’s supervisor. The motion judge held that Burke was entitled to summary judgment because, even assuming that his comments were false and defamatory, he had a conditional privilege to express his concerns to parents. We conclude that (if false) the statement that Dragonas left a sick child unattended while she was out of town sightseeing was defamatory, particularly when it was combined with other derogatory comments Burke allegedly made about Dragonas’s temperament and competence. The truth of the statement is a disputed fact based on the record before us, as is the question whether Burke acted out of malice and thus lost the protection of the conditional privilege. As the school principal, Burke had a conditional privilege to convey relevant information regarding a teacher to parents planning on sending their children overseas in the teacher’s care. The school and the parents shared a common and legitimate interest in the communication of such information. See Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950); Foley v. Polaroid Corp., 400 Mass. 82, 95 (1987); Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 558 (2003). That information would include the teacher’s sense of responsibility for the students under her supervision, her temperament, and her command of the language of the country they were visiting. A conditional privilege may, however, be lost if the defendant abuses it. The burden of proving abuse of the privilege is on the plaintiff. Foley v. Polaroid Corp., 400 Mass. at 95. “The conditional privilege is lost if the defendant (1) knew the information was false, (2) had no reason to believe it to be true, or (3) recklessly published the information unnecessarily, unreasonably, or excessively.” Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. at 558, and cases cited. Lastly, the conditional privilege may be lost if the plaintiff proves the defendant acted out of malice. Malice, in this sense, occurs when the “defamatory words, although spoken on a privileged occasion, were not spoken pursuant to the right and duty which created the privilege but were spoken out of some base ulterior motive.” Dexter's Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct. 217, 223 (1987). This “may consist either in a direct intention to injure another,” Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 514 (1984), quoting from Retail ers Commercial Agency, Inc., petitioner, 342 Mass. 515, 521 (1961), or an “intent to abuse the occasion [giving rise to the privilege] by resorting to it ‘as a pretence,’ ... or ‘reckless disregard’ of the rights of another.” Ezekiel v. Jones Motor Co., 374 Mass. 382, 390 (1978). Reckless disregard of the rights of another can occur through “unnecessary, unreasonable or excessive publication.” Bratt v. International Bus. Machs. Corp., supra at 515. Although spite or ill will can support a finding of malice, it is not enough to show that the defendant merely disliked the plaintiff or that such animosity was part of the defendant’s motivation. Sack on Defamation § 9.3.1 (3d ed. 2005). See Restatement (Second) of Torts § 603 comment a, at 292 (1977) (“[I]f the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege”). Instead, the conditional privilege is lost only “if the publication is not made chiefly for the purpose of furthering the interest which is entitled to protection” (emphasis supplied). Ezekiel v. Jones Motor Co., 374 Mass. at 390 n.4. See Novecon Ltd. v. Bulgarian-Am. Enterprise Fund, 190 F.3d 556, 567 (D.C. Cir. 1999) (court looks to “primary motive”). Compare Restatement (Second) of Torts § 603 comment a, at 292 (abuse of privilege if publication is “made solely from spite or ill will”) (emphasis supplied). In the instant case, there is both a “privileged” and an “unprivileged” explanation for Burke’s conduct at the meeting. The privileged explanation was that he was thoroughly and honestly briefing the parents about all of his concerns regarding Dragonas’s conduct and competence to ensure that they made a fully informed decision about sending their children to Germany with her. The unprivileged explanation is that he used (he occasion as a pretext to demean a teacher he personally disliked, to generate parental opposition to her participation in a program that she had founded and cared deeply about, and to pressure her into retirement. Considering the facts in a light most favorable to Dragonas, we hold that a triable issue of fact remains whether Burke abused his conditional privilege. It could be inferred from the tone and substance of Burke’s statements — that Dragonas might “rip your face off” and that she had accused him of sexual harassment — that his motivation was not primarily to further a legitimate interest. There was also evidence that Burke had an ongoing antagonistic relationship with Dragonas. See Ezekiel v. Jones Moto

LEE ANN WHITINGS, Plaintiff v. WOLFSON CASING CORP., Defendant No. COA04-1242 (Filed 6 September 2005) Employers and Employees— wrongful discharge — failure to assert legally protected activity The trial court did not err by dismissing pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiffs claim of wrongful discharge in violation of public policy, because: (1) it is the filing of a workers’ compensation claim that triggers the statutory and common law protection against employer retaliation in violation of public policy instead of asking an employer to pay for a doctor’s visit or other medical services; and (2) plaintiff has not alleged that she filed a claim seeking workers’ compensation benefits in connection with her injury at any time either prior or subsequent to her discharge, and thus, failed to show that she was fired for engaging in a legally protected activity. Appeal by plaintiff from order entered 30 June 2004 by Judge William C. Gore, Jr. in Bladen County Superior Court. Heard in the Court of Appeals 11 May 2005. Faith Herndon for plaintiff-appellant. Ferris & McCall, PC, by Craig T McCall, and Frank & Associates, PC, by Saul D. Zabell, for defendant-appellee. ELMORE, Judge. Lee Ann Whitings (plaintiff) appeals an order of the trial court dismissing her complaint. Because this Court’s review of an order granting a Rule 12(b)(6) motion to dismiss requires that we accept the facts alleged in the pleadings as true, we recite the facts stated in plaintiff’s complaint. Plaintiff was hired by Wolfson Casing Corporation (defendant) as a shift supervisor in August of 2001. Plaintiff was responsible for supervising employees who were pullers and machine operators. In March of 2002 David McDowell (McDowell), the manager of plaintiff’s facility, told plaintiff that she needed to demonstrate her ability to operate the machines being used by her shift employees. McDowell assigned plaintiff to operate a finishing machine, rather than perform her routine duties of supervising shift employees. On or about 13 March 2002, plaintiff experienced pain and swelling in her hands while operating the machine. On 16 March 2002 plaintiff told McDowell that her hands were hurting and asked that defendant pay for her to see the company doctor. McDowell directed her to get back on the machine, but plaintiff refused to do so. Thereafter, McDowell suspended plaintiff for three working days without pay because she refused to continue operating the finishing machine. On 18 March 2002 an employee of defendant authorized plaintiff to see a doctor for her hand and arm problems. Plaintiff was evaluated by Dr. Laura Matthews-Thompson, and defendant paid for this doctor’s visit. Dr. Matthews-Thompson diagnosed plaintiff with work-related tendinitis and wrote a note stating that plaintiff could not work on the finishing machine. On 21 March 2002, when plaintiff was scheduled to return to work following her suspension, McDowell called plaintiff at home and told her to resume operating the finishing machine. When plaintiff declined to continue operating the machine, McDowell informed plaintiff that she was terminated. On 18 April 2002 plaintiff filed an employment discrimination charge with the North Carolina Department of Labor (NCDOL). The NCDOL issued plaintiff a right-to-sue letter on 6 March 2003. On 10 December 2003 plaintiff filed a complaint in Bladen County Superior Court. Plaintiff alleged two causes of action: (1) violation of N.C. Gen. Stat. § 95-240 et seq., the North Carolina Retaliatory Employment Discrimination Act (REDA); and (2) wrongful discharge in violation of North Carolina public policy protecting employees against retaliatory discharge for asserting their legal rights under Chapter 97 of the General Statutes, the Workers’ Compensation Act. Defendant attempted to remove the action to federal court, but the U.S. District Court for the Eastern District of North Carolina ultimately determined that removal was improper and remanded the action to Bladen County Superior Court. On 24 May 2004 defendant filed a motion to dismiss plaintiff’s complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Defendant asserted that plaintiff’s statutory claim under REDA was time-barred because plaintiff failed to file her complaint within 90 days of the date that the right-to-sue letter was issued. See N.C. Gen. Stat. § 95-243 (2003) (“A civil action under this section shall be commenced by an employee within 90 days of the date upon which the right-to-sue letter was issued . . . .”). Judge William C. Gore, Jr. conducted a hearing on the motion on 1 June 2004. After hearing oral arguments and reviewing the materials submitted by the parties, the trial court found that plaintiff’s claim under REDA was time-barred. The court also found that plaintiff failed to plead the elements of the common law claim of wrongful discharge in violation of North Carolina public policy. Accordingly, the court ordered that plaintiff’s complaint be dismissed in its entirety. From this order entered 30 June 2004, plaintiff appeals. Plaintiff does not challenge the court’s dismissal of her claim under REDA. Plaintiff’s sole argument on appeal is that the trial court erred in dismissing her claim of wrongful discharge in violation of public policy. The trial court found that plaintiff’s complaint alleging wrongful discharge in violation of public policy failed to state a claim upon which relief can be granted for two reasons: (1) plaintiff refused to return to work when requested by defendant; and (2) plaintiff’s employment was not terminated by defendant for filing a workers’ compensation claim. We now consider whether either of these grounds will uphold the trial court’s dismissal of plaintiffs claim. In North Carolina, the employer-employee relationship is governed by the at-will employment doctrine, which states that “in the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.” Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997), reh’g denied, 347 N.C. 586, 502 S.E.2d 594 (1998). However, our Supreme Court has recognized a cause of action for wrongful discharge in violation of the public policy of North Carolina. See Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). There is no specific list of what actions constitute a violation of public policy. . .. However, wrongful discharge claims have been recognized in North Carolina where the employee was discharged (1) for refusing to violate the law at the employer’s request, . . . (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy[.] Ridenhour v. IBM Corp., 132 N.C. App. 563, 568-69, 512 S.E.2d 774, 778 (internal citations omitted), disc. review denied, 350 N.C. 595, 537 S.E.2d 481 (1999). This Court has stated that “[p]ursuing one’s rights under the Workers’ Compensation Act, G.S. §§ 97-1 et seq. (2003), is a legally protected activity. . . . Therefore, a plaintiff may state a claim for wrongful discharge in violation of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers’ Compensation Act.” Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 259-60, 580 S.E.2d 757, 762 (2003). The plaintiff has the burden of pleading that the dismissal was causally related to the protected activity. See Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 693, 575 S.E.2d 46, 51 (2003). Plaintiff argues that she has met her burden of alleging that her termination was causally related to a protected activity. In her complaint, plaintiff alleged that “Defendant refused to pay Plaintiff any disability benefits arising from her lost time from work when she could no longer operate the finishing machine, including any disability benefits that might have been due Plaintiff under the North Carolina Workers’ Compensation Act, N.C. Gen. Stat. § 97-1 et sea.” Plaintiff further alleged that “Defendant’s conduct in discharging Plaintiff constitutes a wrongful discharge in violation of North Carolina public policy protecting individuals against retaliatory discharge for asserting their legal rights under Chapter 97 of the General Statutes of North Carolina[.]” Essentially, plaintiff contends that she engaged in a protected activity when she requested that her employer pay for a medical evaluation of a work-related injury. We cannot agree. The public policy exception to the at-will employment doctrine is confined to the express statements contained within our General Statutes or our Constitution. See Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 320-21, 551 S.E.2d 179, 184, aff’d per curiam, 354 N.C. 568, 557 S.E.2d 528 (2001). Both the Workers’ Compensation Act and the Retaliatory Employment Discrimination Act (REDA) are sources of policy establishing an employee’s legally protected right of pursuing a workers’ compensation claim. An action pursuant to REDA is a supplemental remedy to the common law claim of wrongful discharge. See Salter, 155 N.C. App. at 695-96, 575 S.E.2d at 53. This Court has repeatedly stated that REDA prohibits discrimination against an employee who has filed a workers’ compensation claim. See, e.g., Wiley v. United Parcel Serv., Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004); Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 510, 593 S.E.2d 808, 812, disc. review denied, 358 N.C. 739, 603 S.E.2d 126 (2004); Salter, 155 N.C. App. at 690, at 575 S.E.2d at 50; Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 681, 535 S.E.2d 357, 361 (2000), disc. review improvidently allowed, 357 N.C. 570, 597 S.E.2d 670 (2003). In enacting REDA and its predecessor statute, N.C. Gen. Stat. § 97-6.1, the General Assembly intended to prevent employer retaliation from having a chilling effect upon an employee’s exercise of his or her statutory rights under the Workers’ Compensation Act. See Conklin v. Carolina Narrow Fabrics Co., 113 N.C. App. 542, 543-44, 439 S.E.2d 239, 240 (1994). Thus, the exercise of one’s rights under the Act is the legally protected activity. Asking an employer to pay for a doctor’s visit or other medical services is merely an abstract assertion and not an assertion of rights under the Act. Rather, it is the filing of a workers’ compensation claim that triggers the statutory and common law protection against employer retaliation in violation of public policy. Plaintiff has not alleged that she filed a claim seeking workers’ compensation benefits in connection with her injury. We conclude that by failing to allege the filing of a workers’ compensation claim at any time either prior or subsequent to her discharge, plaintiff has failed to plead that she engaged in a.legally protected activity. Cf. Tarrant, 163 N.C. App. at 509, 593 S.E.2d at 812 (reversing trial court’s dismissal of common law wrongful discharge claim where “[p]laintiff’s allegations of the events regarding her hiring and firing tend to show that she was fired because she filed a workers’ compensation claim”). As plaintiff has not alleged that she was fired for engaging in a legally protected activity, she has failed to plead all elements of a claim for wrongful discharge in violation of public policy. We, therefore, affirm the order of the trial court below. Affirmed. Judges McGEE and CALABRIA concur.

HECKMANN v DETROIT CHIEF OF POLICE Docket No. 260115. Submitted June 14,2005, at Detroit. Decided July 26, 2005, at 9:05 a.m. Eric C. Heckmann brought an action in the Wayne Circuit Court against the Detroit Chief of Police and others, alleging a violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and intentional infliction of emotional distress relating to his treatment as an employee of the police department after he sent a letter to the police chief and the mayor of Detroit detailing allegations of financial mismanagement in the police department. The court, John H. Gillis, Jr., J., granted summary disposition for the defendants, ruling that the WPA claim is precluded because the plaintiff failed to exhaust administrative remedies available through grievance procedures provided under a collective bargaining agreement, and that the plaintiff failed to establish the existence of a genuine issue of material fact concerning outrageous and extreme conduct to avoid summary dismissal of the claim of intentional infliction of emotional distress. The plaintiff appealed. The Court of Appeals held-. 1. The circuit court erred by ruling that the plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his rights under the WPA. The plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of remedies to the WPA claim would frustrate the purpose of the act, particularly when the act provides that relief must be sought within ninety days after the occurrence of the alleged violation of the act. That span obviates the possibility of the exhaustion of administrative remedies. 2. The circuit court erred as a matter of law by ruling that the plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim. The allegation that a supervisor told the plaintiff to start looking for a job elsewhere if he kept “making waves” and wasting the supervisor’s time, and evidence supporting that allegation, support the inference that the supervisor-defendant threatened the plaintiff with discharge in retaliation for his letter. MCL 15.362 provides that an employer shall not threaten or otherwise discriminate against an employee for protected activities. Material questions of fact exist regarding whether the comment was made by the supervisor, whether it was a threat of discharge, and whether it was causally related to the plaintiffs letter. Summary disposition was inappropriate. 3. Ostracism or social isolation is not the sort of conduct that rises to the level of an adverse employment action barred by the WPA. In this case, the plaintiff communicated regularly with his supervisor and maintained working relationships with his supervisor and coworkers. These negate the allegation related to ostracism and social isolation. 4. To the extent that the WPA requires that a whistleblower report to a public body other than the whistleblower’s employer, the plaintiff satisfied the requirement by sending a copy of his letter to the mayor. 5. The circuit court properly dismissed the claim for the intentional infliction of emotional distress. Reasonable minds could not differ and would conclude that the defendants’ alleged conduct that formed the basis of the plaintiffs claim was not outrageous. Affirmed in part, reversed in part, order of summary disposition for the defendants vacated, and case remanded for further proceedings. 1. Master and Servant — Whistleblowers’ Protection Act — Exhaustion of Administrative Remedies. The Whistleblowers’ Protection Act does not require that administrative remedies be exhausted before relief is sought under the act (MCL 15.361 et seq.). 2. Master and Servant — Whistleblowers’ Protection Act — Protected Activities — Adverse Employment Actions. A threat of discharge from employment following an employee’s report of a violation or suspected violation of law may support a claim by the employee that the employer threatened the employee in violation of the Whistleblowers’ Protection Act (MCL 15.362). 3. Master and Servant — Whistleblowers’ Protection Act — Protected Activities — Ostracism — Social Isolation. Ostracism and social isolation are not the sorts of conduct that rise to the level of an adverse employment action barred by the Whistleblowers’ Protection Act (MCL 15.362). 4. Master and Servant — Whistleblowers’ Protection Act — Public Body. The Whistleblowers’ Protection Act requires that a whistleblower report to a public body; where an employee of a city’s police department sends a report to the city’s mayor, the requirement of reporting to a public body is satisfied (MCL 15.361 et seq.). Stefani & Stefani, P.C. (by Michael L. Stefani and Frankie J. Rivers), for the plaintiff. Andrew R. Jarvis, Senior Assistant Corporation Counsel, for the defendants. Before: SAWYER, P.J., and MARKEY and MURRAY, JJ. Per Curiam. Plaintiff Eric Heckmann is a civilian employee of the fiscal operations section (FOS) of the Detroit Police Department. On September 11,2002, plaintiff wrote a five-page letter to the then newly appointed chief of police detailing allegations of gross mismanagement and fraud within the department, including the hiring of unnecessary employees who performed no meaningfiil work, misuse of overtime, falsification of time records, misuse of government properly, and premature payments of invoices. Plaintiff claims that as a result of this letter, defendants threatened or otherwise discriminated against him in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Plaintiff sued and also alleged in a second count that defendants intentionally inflicted emotional distress. The trial court granted defendants’ motion for summary disposition, and plaintiff appeals by right. Because we find that plaintiff pleaded and factually supported some of his WPA claims, we reverse in part, affirm in part, and remand for further proceedings in the trial court. I. SUMMARY OF FACTS AND PROCEEDINGS Plaintiff is a longtime city of Detroit employee who has worked for the city’s police department since 1992. In 2002, plaintiff was a principal accountant in the department’s FOS. Plaintiff claims that in August 2002, he sent a memorandum to Deputy Chief Brenda Goss Andrews, supervisor of the department’s management services bureau, requesting a meeting to discuss his observations of financial misconduct within the FOS. Upon receiving no response from Andrews, plaintiff sent his September 2002 letter to newly appointed chief of police, Jerry Oliver. Plaintiff also forwarded a copy of the letter to Detroit Mayor Kwame Kilpatrick and to the president of the Association of Professional and Technical Employees, a union in which plaintiff was a member. Plaintiff acknowledged that beginning in January 2003 the union had initiated approximately five grievance procedures on his behalf. Plaintiff asserts that he did not receive a response to his September 2002 letter until being called to a meeting in Andrews’s office on April 8, 2003. Defendants Marlene Hobbs and Hasumati Patel, the manager of the FOS also attended. After Patel’s appointment in January 2003, plaintiff initiated the first of his grievances, which alleged that Patel had been appointed to her position contrary to the union contract and the city’s own rules regarding promotional opportunities. Plaintiff also had criticized Hobbs in his September 2002 letter, but Hobbs was promoted in April 2003 to the position of head governmental analyst in charge of the accounts payable unit of the FOS. Plaintiff claims that, during the April meeting, Andrews discussed his September 2002 letter and that Andrews told plaintiff that he should “start looking for a job elsewhere” if he kept “making waves” and forcing Andrews to waste her time. Plaintiff asserts that Andrews’s comment to him at the April meeting was a “threat” within the meaning of MCL 15.362. Plaintiff further alleges that after the April meeting, defendants “otherwise discriminated” against him by reducing his duties and socially isolating him. With respect to the former claim, plaintiff testified that Patel authored a memorandum on April 10, 2003, outlining the respective work assignments of various FOS personnel. According to plaintiff, although others were assigned ten or more duties, he was assigned only four. Plaintiff acknowledged, however, that his four assigned responsibilities entailed accounting for approximately $65 million to $80 million. Regarding social isolation, plaintiff testified that his supervisors would ignore him but make a point of saying hello to every other person in the office. But plaintiff acknowledged that he had a working relationship with Patel, with whom he communicated regularly by e-mail. Plaintiff also admitted that no acrimony existed between him and his coworkers, with whom he also maintained a working relationship. In moving for summary disposition, defendants argued that plaintiff’s September 2002 letter was not a “report” within the meaning of the WPA because it was not made to an outside agency; rather, it was merely an intra-agency complaint sent up the normal chain of command. Defendants also argued that plaintiff had not suffered an adverse employment, action because he had not been fired, demoted, or transferred to a different job; plaintiff retained the same job classification he had held, albeit with some altered job assignments. Defendants further noted that although plaintiff was a union member, he had not initiated a grievance regarding his WPA claims. In opposing defendants’ motion for summary disposition, plaintiff alleged that he was passed over for promotion in January 2003 when the position of supervisor was filled without being posted or through other normal procedures. Plaintiff also pointed to his claim that in April 2003 Andrews told him to start looking for another job if he continued to “make waves.” Plaintiff also argued that his duties had been significantly reduced and that being ignored had created hostility. In granting defendants summary disposition, the trial court stated: Okay, in this case the Plaintiff is a member of a union and subject to a collective bargaining agreement and has not exhausted his administrative remedies. Secondly, he was not fired. He was not demoted. He was not transferred. Because he didn’t get a promotion is not the basis for [a] cause of action. The motion is granted on all counts. On appeal, plaintiff challenges the trial court’s ruling that dismissal of the WPA claim was proper because plaintiff had not suffered an adverse employment action for the purposes of the act and had failed to exhaust union remedies, and that, in fact, he should have received summary disposition on that claim because he established without rebuttal a prima facie case. Plaintiff further asserts that he established the existence of a genuine issue of material fact concerning whether he had suffered outrageous and extreme conduct for the purposes of his emotional distress claim. Plaintiff additionally argues that defendants were not entitled to summary disposition because they failed to comply with the rules of discovery. II. STANDARD OF REVIEW We review de novo a trial court’s decision on a motion for summary disposition. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual sufficiency of a complaint and must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The trial court and this Court must view the substantively admissible evidence submitted at the time of the motion in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, supra at 183. We also review de novo questions of law, including statutory construction. Anzaldua v Band, 457 Mich 530; 578 NW2d 306 (1998). III. WPA ANALYSIS A. EXHAUSTION OF ADMINISTRATIVE REMEDIES We first hold that the trial court erred as a matter of law by applying the doctrine of exhaustion of administrative remedies to plaintiffs statutory WPA claim. Plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of administrative remedies would frustrate the purpose of the statute, particularly when the statute provides that relief must be sought “within 90 days after the occurrence of the alleged violation of [the] act” or be lost. MCL 15.363(1). We are guided by the following principles of statutory construction set forth by our Supreme Court in Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997): The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. The first step in discerning intent is to examine the language of the statute in question. We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. We also consider that remedial statutes, such as the Whistleblowers’ Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. [Citations omitted.] Nowhere in the statute has the Legislature either expressly or impliedly limited its protection to whistle-blowers who have exhausted other possible remedies, whether those possible remedies are statutory, contractual, or administrative. Indeed, when the WPA duplicates possible common-law remedies, the statute provides the exclusive remedy. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78-79; 503 NW2d 645 (1993). The purpose of the statute is “to alleviate . . . the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses,” id. at 75, by removing the barrier of fear of retribution that prevents employees in the best position to report corruption from reporting it, Shallal, supra at 612. We thus further the purpose of the WPA of protecting whistleblowers by not reading into the statute limitations the Legislature did not express. Our reading of the statute is also consistent with prior case law applying the WPA and comparable employment discrimination statutes. See, e.g., Shallal, supra at 617, quoting Rouse v Farmers State Bank of Jewell, Iowa, 866 F Supp 1191, 1204 (ND Iowa, 1994) (“ ‘ [W]histleblower statute[s] [are] analogous to antiretaliation provisions of other employment discrimination statutes and . . . the policies underlying these similar statutes warrant parallel treatment. . . .’ ”)• See also Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 280; 608 NW2d 525 (2000) (the WPA bears substantial similarities to Michigan’s civil rights statutes). This Court first addressed the WPA in Hopkins v Midland, 158 Mich App 361; 404 NW2d 744 (1987). At issue in Hopkins was whether a union grievance resulting in an arbitration decision in favor of the employer barred the plaintiffs subsequent WPA action. The Court held “that [the] plaintiffs failure to submit [his WPA] claims to arbitration does not act as res judicata or collateral estoppel....” Id. at 366. The Hopkins Court reasoned that the rights and remedies accorded by the WPA are different from those of a collective bargaining agreement, noting that “the act creates rights belonging to individual employees, not collectively represented groups.” Id. at 374-375. Consequently, “the arbitration proceeding [in Hopkins] was brought by [the] plaintiffs union, as is the usual case, to assert rights created under a collective bargaining agreement.” Id. at 375. But, “a civil action may be required to achieve the act’s goals.” Id. This Court reviewed Hopkins when faced with the question whether a whistleblower who reports a violation of the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq., must bring the retaliation claim under MIOSHA. Tyrna v Adamo, Inc, 159 Mich App 592, 600; 407 NW2d 47 (1987). The Tyrna Court determined that the whistleblower did not have to do so and held “that an employee who reports a public health or safety violation to appropriate local authorities may maintain an action under the whistle-blowers’ act notwithstanding the fact that the employer’s wrongful conduct also violates MIOSHA.” Id. at 594. Although MIOSHA provides its own antiretaliation provision, the Tyrna panel reasoned that the WPA had broader application and provided a wider panoply of legal and injunctive remedies. Tyrna, supra at 598-600. Because the Court found no conflict between MIOSHA and the WPA, the Court held that, without further legislative direction, the plaintiff could pursue his claim under either statute. Tyrna, supra at 600-601. This Court applied similar reasoning in concluding that a settlement of a union grievance filed on behalf of a discharged employee did not bar an action alleging wrongful termination under the Persons With Disabilities Civil Rights Act (formerly the Handicappers’ Civil Rights Act), MCL 37.1101 et seq., and the Civil Rights Act (CRA), MCL 37.2101 et seq. Florence v Dep’t of Social Services, 215 Mich App 211, 216-217; 544 NW2d 723 (1996). The Court observed that a union has a duty to speak for its members with respect to the terms of a collective bargaining agreement, but a union does not have a similar duty to uphold rights its members possess independently of the collective bargaining agreement. Id. at 214. The Court held that because the employee’s contractual rights and statutory rights were distinctly separate, the employee had a right to proceed on her statutory claims regardless of the agreement that her union reached with respect to the contractual grievance. Id. at 214-216. In sum, we hold that the trial court erred by ruling that plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his statutory WPA rights. Our conclusion is consistent with the WPA’s requirement that claims be brought promptly or not at all, with the statute’s lack of any express or implied requirement for exhaustion of administrative remedies, and with a construction of the WPA “favoring the persons the Legislature intended to benefit.” Shallal, supra at 611. B. ADVERSE EMPLOYMENT ACTION We also hold that the trial court erred as a matter of law by implicitly ruling that plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim and that other bases, such as not getting a promotion or being threatened with employment action including discharge, were not sufficient. Plaintiff alleged, and supported by his deposition testimony, that Andrews referenced his September 2002 letter to the chief of police and told him to start looking for a job elsewhere if he kept “making waves” and wasting Andrews’s time. Viewed in the light most favorable to plaintiff, this allegation and evidence support inferences that defendant Andrews threatened plaintiff with discharge in retaliation for his September letter. MCL 15.362 provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employ