Retaliation Cases

JUDY SKINNER, Plaintiff v. QUINTILES TRANSNATIONAL CORP., Defendant No. COA04-15 (Filed 21 December 2004) 1. Appeal and Error— appealability — interlocutory order— denial of motion for judgment on pleadings — res judicata— substantial right ■ Although an order denying a N.C.G.S. § 1A-1, Rule 12(c) motion is interlocutory, the denial of a motion for judgment on the pleadings based on res judicata affects a substantial right and is immediately appealable. Although another panel of the Court of Appeals has limited such interlocutory appeals to situations where the prior decision involved a jury verdict, this panel did not need to attempt to resolve this apparent conflict since it exercised its discretion to hear the appeal under N.C. R. App. R 2. 2. Collateral Estoppel and Res Judicata— motion for judgment on the pleadings — new legal theory The trial court erred by denying defendant’s motion for judgment on the pleadings based on the contention that the final judgment issued in a prior federal case based upon the Americans with Disabilities Act (ADA) barred plaintiffs state claims under the doctrine of res judicata in an action alleging that defendant violated North Carolina’s Retaliatory Employment Discrimination Act (REDA) by discharging plaintiff in retaliation for a work injury and her attempt to secure workers’ compensation benefits, because: (1) the instant action was a relevant and material matter within the scope of the proceeding which plaintiff, in the exercise of reasonable diligence, could and should have brought forward for determination in her federal action; (2) each of plaintiff’s two claims are based upon her termination by defendant, and the instant action merely presents a new legal theory as to why plaintiff was terminated by defendant; (3) although plaintiff did not receive a right-to-sue under REDA letter from the N.C. Commissioner of Labor until after she filed her federal ADA action, she had a right to request a right-to-sue letter before she filed her federal action and thus could have brought her REDA claim as part of her federal action; and (4) requiring plaintiff to request a right-to-sue letter from the North Carolina Department of Labor in order to bring all of her related claims in one action does not place an unnecessarily burdensome responsibility upon plaintiff. Judge Geer concurring in a separate opinion. Appeal by defendant from order entered 4 September 2003 by Judge Stafford G. Bullock in Durham County Superior Court. Heard in the Court of Appeals 15 September 2004. Roger W. Rizk for plaintiff-appellee. Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Rosemary G. Kenyon, J. Mitchell Armbruster and Kathryn R. Valeika, for defendant-appellant. THORNBURG, Judge. Defendant appeals from an order denying their motion for judgment on the pleadings. Defendant moved for such a judgment based on the contention that the final judgment issued in the prior case Judy Skinner v. Quintiles Transnational Corp., Case No. 1:01-CV-01123 (M.D.N.C.), entered on 19 March 2003, barred plaintiff s state claims under the doctrine of res judicata. Plaintiff was employed by defendant for about six years, from April 1994 until October 2000, in various administrative positions, which required extensive amounts of typing. In early 1995, plaintiff began to experience pain in both of her arms. After a medical evaluation, plaintiff was diagnosed with bilateral ganglion cysts. Defendant provided plaintiff with a new mouse, a new chair with arm rests and occasional help from an assistant. Plaintiffs pain diminished. In early 2000, plaintiff was promoted to the Information Technology Software Quality Control Department as the documentation processor. Plaintiff began to experience pain in her arms, hands and shoulders. After reporting this pain to defendant on 3 March 2000, plaintiff encountered problems with management in her department and eventually transferred to a different department. Despite repeated discussions with her managers, plaintiff was still given tasks that required extensive typing and computer work, which aggravated her condition. Plaintiff sought medical treatments and was diagnosed with ganglion cysts, torn ligaments in her right hand, tendinitis, bursitis and carpal tunnel syndrome. Plaintiff filed a workers’ compensation claim for her condition in March 2000. Plaintiff contacted defendant’s human resources director in an attempt to find a position that would not require typing all day. Upon the director’s recommendation, plaintiff sought training for an open Clinical Research Assistant position. On 19 October 2000, while in a training session, plaintiff was asked to attend a meeting with management. Plaintiff was informed that she was being laid off from her current position due to reduction in staff. Plaintiff was offered a new position as a Project Associate, which plaintiff felt she could not perform given the position’s requirements and her medical condition. At the conclusion of the meeting, defendant told plaintiff that she had 24 hours to make a decision concerning the Project Associate position. Plaintiff immediately went to the North Carolina Department of Labor to file an employment discrimination complaint under North Carolina’s Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen. Stat. § 95-240, et seq. (2003). An investigator for the Department of Labor contacted defendant’s Human Resources Department to inquire about the status of plaintiff’s employment. The investigator was told that plaintiff would not be required to accept or reject the new position within 24 hours and that plaintiff would, in fact, not have to respond until someone from defendant got in touch with plaintiff. Several weeks later, sometime in November 2000, plaintiff also filed a charge of discrimination with the United States Equal Employment Opportunity Commission, claiming that defendant had violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. (2000). On 22 December 2000, plaintiff received her last paycheck from defendant. On 18 January 2001, defendant informed plaintiff that she had been terminated after she failed to accept the offered job position. On 24 July 2001, plaintiff filed a complaint in the United States District Court for the Eastern District of North Carolina, alleging that defendant had violated provisions of the ADA in that defendant failed to provide reasonable accommodations for plaintiff’s disability and had discharged plaintiff without accommodating her disability. On 17 December 2001, the matter was transferred to the United States District Court for the Middle District of North Carolina, due to the fact that all matters giving rise to the action occurred in Durham County and Durham County is located in the Middle District. Defendant moved for summary judgment on all of plaintiffs claims. Summary judgment was granted and plaintiffs complaint was dismissed with prejudice on 19 March 2003. Plaintiff commenced the instant action on 17 January 2003, alleging that defendant violated REDA in that defendant discharged plaintiff in retaliation for a work injury and her attempt to secure workers’ compensation benefits. Defendant answered plaintiffs complaint and asserted as a defense that plaintiffs claim was barred by res judicata due to the final judgment of the District Court for the Middle District of North Carolina in the first case. Defendant then moved, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c), for a judgment on the pleadings based on the res judicata defense. This motion was denied on 4 September 2003. Defendant appeals. “After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” N.C. Gen. Stat. § 1A-1, Rule 12(c) (2003). The function of this section of the rule is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). In determining whether the trial court erred in its ruling on a Rule 12(c) motion, this Court applies the following standard: A motion for judgment on the pleadings, or a Rule 12(c) motion, is proper when all the material allegations of fact are admitted on the pleadings and only questions of law remain. The movant must show, even when viewing the facts and permissible inferences in the light most favorable to the nonmoving party, that he is clearly entitled to judgment as a matter of law. Because judgment on the pleadings is a summary procedure and the judgment is final, the movant is held to a strict standard and must show that no material issue of fact exists. DeTorre v. Shell Oil Co., 84 N.C. App. 501, 504, 353 S.E.2d 269, 271 (1987) (internal citations omitted). Defendant argues on appeal that the trial court erred in concluding that plaintiffs claim was not barred by res judicata and, thus, erred in denying defendant’s motion for a judgment on the pleadings. We first note that an order denying a Rule 12(c) motion is interlocutory and that there is generally no right to appeal an interlocutory order. There are two exceptions to this general rule: [F]irst, where there has been a final determination of at least one claim, and the trial court certifies there is no just reason to delay the appeal, [N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003)]; and second, if delaying the appeal would prejudice a “substantial right.” Country Club of Johnston County, Inc. v. U.S. Fidelity and Guar. Co., 135 N.C. App. 159, 162, 519 S.E.2d 540, 543 (1999) (quoting Liggett Group v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993)), disc. review denied, 351 N.C. 352, 542 S.E.2d 207-08 (2000). Defendant notes that this Court has held that the denial of a motion for judgment on the pleadings based on res judicata affects a substantial right and is immediately appealable. Clancy v. Onslow Cty., 151 N.C. App. 269, 271, 564 S.E.2d 920, 922 (2002). However, another panel of this Court has limited such interlocutory appeals to situations where the prior decision involved a jury verdict. Country Club, 135 N.C. App. at 167, 519 S.E.2d at 546. We need not attempt to resolve this apparent conflict, because we choose to exercise our discretion to hear this appeal pursuant to Rule 2 of the Rules of Appellate Procedure. The doctrine of res judicata is intended to force parties to join all matters which might or should have been pleaded in one action. Clancy, 151 N.C. App. at 271-72, 564 S.E.2d at 922-23. Res judicata is a bar to subsequent action when there is a final judgment on the merits in a prior action, both actions involve the same parties and both actions involve the same cause of action. Id. at 271, 564 S.E.2d at 922. A final judgment bars not only all matters actually determined or litigated in the prior proceeding, but also all relevant and material matters within the scope of the proceeding which the parties, in the exercise of reasonable diligence, could and should have brought forward for determination. Rogers Builders v. McQueen, 76 N.C. App. 16, 22, 331 S.E.2d 726, 730 (1985), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986). It is clear that there was a final judgment entered in plaintiffs federal claim and that plaintiff and defendant are the same parties as in the federal claim. However, the two actions do not involve exactly the same issue. Thus, the question becomes whether the instant action was a “relevant and material [matter] within the scope of the proceeding which [plaintiff], in the exercise of reasonable diligence, could and should have brought forward for determination.” Id. Plaintiff contends that the instant claim is separate and distinct from the claim brought in the federal action. Plaintiff argues: (1) that claims under the ADA and REDA require proof of different facts, thus making them different claims; and (2) that plaintiff had no REDA claim to assert in the federal action because she had not received a right-to-sue letter from the North Carolina Department of Labor at the time of filing the federal action. Our courts have not adopted the “transactional approach” to res judicata in which all issues arising out of a single transaction or series of transactions must be tried together as one claim. Bockweg v. Anderson, 333 N.C. 486, 493-94, 428 S.E.2d 157, 162-63 (1993). In Bockweg, the Court determined that res judicata was inapplicable because plaintiffs sought separate remedies for distinct acts of negligence leading to separate and distinct injuries. Id. at 496, 428 S.E.2d at 164. However, “[t]he defense of res judicata may not be avoided by shifting legal theories or asserting a new or different ground for relief . . . .” Rogers, 76 N.C. App. at 30, 331 S.E.2d at 735. In the instant action, while plaintiff has brought claims under two different statutes, her claims stem from the same relevant conduct by defendant. In the first complaint, plaintiff specifically alleged that: 28. The Defendant has violated [the ADA] by retaliating against the Plaintiff for filing her initial charge of discrimination by terminating the Plaintiff. (Emphasis added). In the instant action, plaintiff alleged: 16. The [REDA] prohibits the discharge of an employee in retaliation for a work injury and an attempt by the employee to recover workers [sic] compensation benefits. The Defendant has violated the provisions of such act by terminating the Plaintiff in retaliation for her work related injury and her attempt to secure workers [sic] compensation benefits. (Emphasis added). Further, the United States Magistrate Judge, in an opinion fully adopted by United States District Judge Frank W. Bullock, Jr., spent several pages discussing the termination aspect of plaintiffs ADA claim. It is clear that each of plaintiff’s two claims are based upon her termination by defendant and that the instant action merely presents a new legal theory as to why plaintiff was terminated by defendant. See Rogers, 76 N.C. App. at 30, 331 S.E.2d at 735. However, before res judicata can bar the instant action, this Court must also decide whether plaintiff, with reasonable diligence, could and should have brought the claims included in the instant action with the first action. Plaintiff argues that she could not have included her current claims in the first action because she had not yet received a right-to-sue letter from the North Carolina Department of Labor. “An employee may only bring an action under this section when he has been issued a right-to-sue letter by the [North Carolina Labor] Commissioner.” N.C. Gen. Stat. § 95-243(e) (2003). N.C. Gen. Stat. § 95-242(a) (2003) requires the Commissioner of Labor to make a determination on a complaint no later than 90 days after the filing of the complaint. However, this Court has concluded that the time limit is not mandatory because the statute fails to provide any ramifications in the event the Commissioner fails to take action. Commissioner of Labor v. House of Raeford Farms, 124 N.C. App. 349, 477 S.E.2d 230 (1996). “An employee may make a written request to the Commissioner for a right-to-sue letter after 180 days following the filing of a complaint if the Commissioner has not issued a notice of conciliation failure and has not commenced an action pursuant to G.S. 95,242.” N.C. Gen. Stat. § 95-242(c) (2003). The Commissioner did not issue plaintiff a right-to-sue letter until 23 October 2002. However, plaintiff filed her complaint on 21 October 2000, and was thus entitled to request a right-to-sue letter on or about 21 April 2001, before she filed the complaint in the original federal action. While the administrative investigation process set up under REDA is a valid and useful part of pursuing employment discrimination claims, plaintiff chose the path of litigation of her claims regarding her termination when she filed her original complaint. We do not believe, in this case, that requiring plaintiff to request a right-to-sue letter in order to bring all of her related claims in one action places an unnecessarily burdensome responsibility upon plaintiff. Thus, we conclude that, with reasonable diligence, plaintiff could and should have brought the claims that make up the instant action as part of her original federal action. Defendant has shown that plaintiffs claims are barred by res judicata. Accordingly, we reverse and remand to the trial court to enter an order granting a judgment on the pleadings to defendant. Reversed and remanded. Judge GEER concurs in a separate opinion. Judge LEVINSON concurs. GEER, Judge concurring. I concur with the foregoing opinion, but write separately to address further the fact that a right-to-sue letter had not yet been issued at the time plaintiff filed her ADA suit. Plaintiffs appeal places two policy considerations squarely in conflict. On the one hand, dismissing this action based on res judicata would undermine the administrative scheme established by the General Assembly. By requiring the parties to proceed administratively before the Department of Labor prior to filing suit, the General Assembly — like Congress, before it, in enacting Title VII— recognized the value of having an administrative body investigate claims and, if appropriate, attempt to resolve them without the need for litigation. On the other hand, the common law rule against claim-splitting is well-established in North Carolina and holds that “all damages incurred as the result of a single wrong must be recovered in one lawsuit.” Bockweg v. Anderson, 333 N.C. 486, 492, 428 S.E.2d 157, 161 (1993) (emphasis omitted). To allow a person to seek damages for a termination of employment based on one theory and then, after an adverse decision on that theory, seek the same damages under another theory raises the specter of repetitive litigation, duplicative discovery, possibly inconsistent results, and -no assurance of finality. I believe the two policies must be reconciled. The question is whether the policy underlying REDA’s administrative review process trumps traditional claim-splitting principles. In this case, as the majority opinion explains, plaintiff was permitted by state law to request a notice of right to sue in order to include the REDA claim in her federal lawsuit. If she preferred to continue the administrative process, she had the option, as defendant suggests, (a) to seek a stay of the pending action in order to allow completion of the administrative process or (b) to move to amend the complaint once the notice of right to sue was received.-Plaintiff, however, took no steps at all to try to include the REDA claim in the pending action. Significantly, the federal district court did not enter summary judgment on plaintiff’s ADA claim until 19 March 2003, five months after plaintiff received her notice of right to sue with respect to the REDA claim. I would also observe that while North Carolina courts have not previously addressed the issue before this Court, numerous other courts have considered closely analogous circumstances and overwhelmingly have reached the same conclusion as this Court. See, e.g., Wilkes v. Wyo. Dep’t of Employment Div. of Labor Standards, 314 F.3d 501, 506 (10th Cir. 2002) (holding that a Title VII lawsuit was barred by res judicata since plaintiff could have requested a right-to-sue letter or sought to stay a prior Equal Pay Act lawsuit pending completion of the EEOC administrative process), cert. denied, 540 U.S. 826, 157 L. Ed. 2d 48, 124 S. Ct. 181 (2003); Churchill v. Star Enters., 183 F.3d 184, 193-94 (3d Cir. 1999) (when a jury had rendered a verdict in a case alleging that plaintiffs termination violated the FMLA, plaintiffs second action challenging the discharge under the ADA was barred by res judicata; plaintiff should have requested a right-to-sue letter from the EEOC or sought a stay of the FMLA action pending receipt of the letter); Hapgood v. City of Warren, 127 F

Sheriff of Bristol County vs. Labor Relations Commission & another. No. 03-P-694. Suffolk. June 2, 2004. December 10, 2004. Present: Duffly, Dreben, & Green, JJ. Labor Relations Commission. Labor, Unfair labor practice. Sheriff. Correction Officer. There was no merit to the claim in an appeal from a decision of the labor relations commission that it lacked jurisdiction to issue an order to produce information sufficient for a union to perform its duties as representative of a public employee. [667-668] This court concluded that the labor relations commission (commission) acted within its discretion in ordering the plaintiff employer to produce information sufficient for an investigated employee’s union to determine whether the restriction of that employee’s duties (which had an impact on her overtime opportunities) was warranted, where the commission properly balanced the union’s need for information and the employer’s concerns regarding safeguarding effective law enforcement, and where the question whether the relevant documents were public records as determined under G. L. c. 4, § 7, Twenty-sixth (J), did not control whether the union was entitled to the material [668-671]; further, while the commission did not abuse its discretion in implicitly ruling that an in camera examination of the requested materials was not required [671-672], the plaintiff employer and the employee’s union were permitted to seek a clarification from the commission of its order, in light of a particular statement in that order [672], Appeal from a decision of the Labor Relations Commission. Robert M. Novack (.Ronald J. Lowenstein with him) for the plaintiff. Matthew E. Dwyer for the intervener. Massachusetts Correction Officers Federated Union, intervener. Dreben, J. After a correction officer, Jane Doe, informed her union of her belief that she was under investigation by her employer, the sheriff of Bristol County (sheriff), and that restrictions were placed on her duties and her rights to overtime under the collective bargaining agreement were being violated, the union requested information from the sheriff pertaining to any investigation of Doe. Receiving no answer to its inquiries, the union, on April 24, 1997, filed a charge of prohibited practice with the Labor Relations Commission (commission). Upon investigation, the commission issued its own complaint and, after reviewing the record, determined that the sheriff had failed to bargain in good faith by failing to provide the union with requested information that was relevant and reasonably necessary for the union to perform its duty as the employees’ exclusive representative, in violation of G. L. c. 150E, § 10(a)(5) and 10(a)(1). The commission, as set forth in relevant part in the margin, ordered the sheriff to produce information sufficient for the union to determine whether the restrictions on Doe’s duties that impacted her overtime opportunities were warranted. The sheriff appeals, claiming (1) that the commission lacked jurisdiction to issue such an order during a pending criminal investigation, and that only a court has such equity powers; and (2) that the materials ordered fell within the exemption provided by G. L. c. 4, § 7, Twenty-sixth (f), and the commission, contrary to the decision in Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. 852, 858 (1995), improperly used a balancing test in ordering disclosure. In the alternative, the sheriff urges that “the case should be remanded to the . . . [cjommission to make an in camera finding as to whether the information requested, if released, presents a reasonable likelihood that such disclosure would prejudice effective law enforcement.” We affirm the decision, but permit either the sheriff or the union to seek clarification from the commission. 1. The sheriffs claim of lack of jurisdiction is without merit. The sheriff cites no authority supporting it, and the argument does not meet the requirements of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, G. L. c. 150E, § 11, authorizes the commission to hear complaints of practices prohibited under § 10, and if the commission finds a prohibited practice, it is authorized to issue affirmative orders. Nothing in G. L. c. 150E, G. L. c. 30A (the general statute governing practice in administrative agencies), or the public records law (G. L. c. 66, § 10, and G. L. c. 4, § 7, Twenty-sixth) limits the commission’s jurisdiction to issue such orders. See Boston Police Superior Officers Fedn. v. Boston, 414 Mass. 458, 461 n.5 (1993), which substantially upheld an order of the commission requiring the production by subpoena of similar documents. 2. In determining whether the order was within the commission’s discretion, or whether the commission used the wrong criteria in its order, we turn to the findings of the commission; they are not disputed by the sheriff. Doe, after hearing rumors from certain female inmates, including a rumor that she had sexually molested a female inmate, was placed on restricted duty on August 30, 1996, a restriction that barred her from having contact with female inmates. The restrictions subsequently increased, and by December, 1996, Doe was placed in positions having no inmate contact. Not only were her duties restricted, but as a consequence, her opportunities for overtime were limited by the sheriff and eventually eliminated. Despite requests by the union in September, 1996, and January, 1997, for information on an investigation of Doe, no information was forthcoming. In September, 1997, union representatives met with the sheriff and asked about the investigation; they were told to wait a few weeks and that the matter would be concluded shortly, at which time they would receive information. By November, 1999, the date of the last evidentiary hearing held by the commission, the union still had not been informed of the description of Doe’s misconduct, if any. Applying its relevancy standard, the commission found “that the requested information is relevant and reasonably necessary for the Union to police and enforce the overtime selection procedure ... of the parties’ contract and to assess whether to file and pursue a grievance on [Doe’s] behalf.” Given that finding, the commission ruled, in accord with its decisions, that the burden shifted to the employer to establish that it has “legitimate and substantial” concerns about disclosure and that it “has made reasonable efforts to provide the union with as much of the requested information as possible, consistent with [the employer’s] expressed concerns.” Board of Trustees, Univ. of Mass. (Amherst), 8 M.L.C. 1139, 1144 (1981). See Boston Sch. Comm., 13 M.L.C. 1290, 1294 (1986). Citing the concerns stated in Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976), and Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. at 858, as well as its concerns with the particular case, the sheriff argued that its internal affairs investigators are law enforcement officials and that disclosure would jeopardize effective law enforcement. Weighing both the interests of the union and the sheriff, the commission determined: “Even assuming that: 1) investigators within the Sheriff’s office of internal affairs are law enforcement personnel or investigatory officials within the meaning of G.L.c. 4, Section 7, cl. 26(f); 2) the investigation of [Doe] is criminal in nature and is ongoing[]; and, [3] the [Doe] investigatory materials are necessarily compiled out of the public view, we determine that, if certain information is provided to the Union in a manner consistent with the protections in Boston Police Superior Officers Federation v. City of Boston, 414 Mass. 458, 461, fn. 5 (1993), the Union’s need for information about the [Doe] investigation outweighs the Sheriff’s expressed concerns. The release of certain information to the Union consistent with the judicially-approved protections harmonizes all applicable statutory schemes by enforcing the employer’s obligation to bargain in good faith under the Law, and by protecting the public interest in effective law enforcement under the investigatory materials exemption of the public records law. See, City of Boston, 22 MLC 1698 (1996) (Employee’s internal affairs division file given to Union counsel to defend employee in a disciplinary proceeding.)” Although in its appellate brief the sheriff challenges the commission’s finding as to the union’s need for the sought-after information, the record amply supports the commission’s finding that without information as to the investigation, the union cannot determine whether Doe’s restrictions, which affected her overtime, were violations of the collective bargaining agreement. Moreover, the sheriff did not challenge before the commission the relevancy of the material. Citing to Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. at 858, the sheriff claims that the commission improperly used a balancing test in determining whether the union was entitled to the material. The court in Globe Newspaper Co., supra, specifically held that, unlike the privacy exemption in the statute (G. L. c. 4, § 7, Twenty-sixth [b]), which requires a balancing between any claimed invasion of privacy and the interest of the public in disclosure, “[application of the investigatory exemption [Twenty-sixth (/)]... does not contemplate [such a] test” in determining whether a record is public and hence subject to disclosure. However, whether the material is a public record or not does not answer the question of the union’s right of access to information in the hands of the sheriff’s internal affairs division (IAD). This was made clear in Boston Police Superior Officers Fedn. v. Boston, 414 Mass. at 459, 466-467, a case charging the city with a prohibited practice for denying promotion to the police officer who was president of the union in retaliation for his union activities. The city, as does the sheriff here, claimed that the LAD logs and cards should not be produced because the information was exempted from disclosure under G. L. c. 4, § 7, Twenty-sixth (f). Id. at 465. The Supreme Judicial Court, id. at 465-466, rejected that argument and quoted from Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 691 (1972) (“All police records . . . whether or not they are public records, are subject to being summoned before a proper tribunal in accordance with established rules of law”). The court, id. at 466, also cited to Town of Weymouth, 16 M.L.C. 1168, 1171 (1989). See Commonwealth v. Wanis, 426 Mass. 639, 643 (1998). While Boston Police Superior Officers Fedn. v. Boston, supra, dealt with the power of the commission to issue subpoenas, we see no reason why a different rule should apply to the disclosure of similar material under a remedial order issued after a litigated prohibited practice case. Thus, whether documents are public records as determined under G. L. c. 4, § 7, Twenty-sixth (f), does not control whether the union is entitled to the material, although the section provides guidance as to public policy considerations. The commission weighed those policies in balancing the union’s need with the considerations put forth by the sheriff, and was not in error in using its traditional balancing test which adopted the approach of Detroit Edison Co. v. National Labor Relations Bd., 440 U.S. 301, 317-320 (1979). See Board of Trustees, Univ. of Mass. (Amherst), 8 M.L.C. at 1144. The sheriff urges, in the alternative, a remand to the commission for an in camera examination of the materials. However, the order, see note 3, supra, does not require disclosure of witnesses or their statements and requires only disclosure of the nature of the alleged misconduct and dates that will show when the investigation began and whether it is still continuing. See Rafuse v. Stryker, 61 Mass. App. Ct. 595, 600-601 (2004), indicating that the length of an investigation is relevant to disclosure, and a lengthy investigation may lessen problems of disclosure under G. L. c. 4, § 7, Twenty-sixth (f). The commission’s implicit ruling that its order limiting disclosure does not call for an inspection in camera was not an abuse of discretion. Contrast Boston v. Labor Relations Commn., 61 Mass. App. Ct. 397, 402-403 (2004) (in camera review required of an evaluation [of a supervisor] which could harm the city in its efforts to counsel and improve job performance). We make one additional comment. In the commission’s memorandum in support of its motion for summary disposition, filed in lieu of a brief on appeal, counsel states that its order “which was modeled on the order in the Boston Police Superior Officers Case, [414 Mass. 461 n.5 & 467 n.10,] should be construed in the same manner as not requiring disclosure to [Doe]. Under those circumstances, the purported risk that the integrity of [the] internal affairs investigation will be compromised is greatly reduced, if not eliminated, and the Court should reject the Sheriff’s contention to the contrary.” In view of that statement, the sheriff and the union are permitted, if either or both are so inclined, to seek within thirty days of the issuance of the rescript, a clarification from the commission of its order. The union, which was expressly permitted under the commission’s decision to “assert that the information is inadequate ... in a separate compliance proceeding,” may choose to argue against such a restriction. We do not limit the commission’s discretion if there is a request for clarification. Decision of Labor Relations Commission affirmed. A pseudonym. The commission’s complaint contained a second count alleging that the sheriff failed to bargain in good faith by unilaterally changing the criteria for assigning overtime. The commission concluded that the allegations of count two were supported and ordered that the employee be made whole for loss of overtime. The sheriff does not appeal from the order on this count. “(a) Upon request of the Union, provide the Union’s counsel with information, subject to the following conditions, about the [Doe] investigation sufficient for the Union to determine if the imposition and scope of [Doe’s] restricted duty, that impacts directly [Doe’s] overtime opportunities under the parties’ agreement, was warranted and continues to be warranted. The information provided must include the date the investigation opened, a detailed description of the alleged misconduct under investigation, and the date(s) investigators interviewed witnesses and/or took other action on the investigation. If there exists a summary sheet created contemporaneously with the Sheriffs action in the investigation that contains this information, provide this summary sheet after deleting all information identifying any person other than [Doe], The summary sheet must also be redacted to comply with the requirements of the criminal offender record information act and the rape shield law. If no summary sheet exists, or if the summary sheet does not contain the date the investigation opened, a detailed description of the alleged misconduct under investigation, and the date(s) investigators interviewed witnesses and/or took other action on this investigation, provide the Union with all investigatory file documents that contain this information, with all other information, like the substance of the witness statement, deleted. Further, these documents must be redacted to comply with the requirements of the criminal offender information act and the rape shield law. “(i.) The Union’s counsel (including all persons to whom the attorney-client privilege would be applicable) shall not disclose the information provided by the Sheriff to anyone but his/her client; “(ii.) The Union’s counsel, the Union, and all of its representatives, are not to use the information for any purpose other than to assess whether to file and process a grievance on [Doe’s] behalf or directly related proceedings.” Clause Twenty-sixth (/) exempts from the definition of public records that are subject to inspection pursuant to G. L. c. 66, § 10: “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” G. L. c. 4, § 7, Twenty-sixth (/), inserted by St. 1973, c. 1050, § 1. Contrary to the sheriff’s claim, that case ordered summary sheets of open investigations of the internal affairs division (IAD) of the Boston police department. The commission described this standard as liberal, similar to the standard for determining relevance in civil litigation discovery proceedings. Before making its finding, the commission noted that the union asserted that, at the time of its first request in September, 1996, the information was relevant and reasonably necessary for the union to determine whether Doe’s reassignment and subsequent workplace isolation violated the collective bargaining agreement. At the time of its second request, in January, 1997, the information was relevant and reasonably necessary to determine why she had been bypassed for overtime assignments. Cf. Worcester County Sheriff’s Of fice, 30 M.L.C. 58, 59 (2003) (in determining unfair labor practice, relevance of requested information must be determined by circumstances existing at the time of the request). The exemption aims at “the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Globe Newspaper Co. v. Boston, 419 Mass. at 859, quoting from Bougas v. Chief of Police of Lexington, 371 Mass. at 62. In support of an interlocutory appeal to the commission from the deferral of its motion to dismiss, the sheriff attached an affidavit of a captain in the sheriff’s IAD dated January 15, 1999, stating, inter alla, that in October, 1996, the sheriff received information that Doe had been engaged in sexual misconduct and other offenses, some of them criminal in nature. In the captain’s opinion, disclosing the material “would seriously compromise the investigation of [Doe] and others .... The subject. . . could take action to destroy evidence, intimidate, harm or bribe witnesses or otherwise tamper with evidence .... Disclosure . . . could also potentially jeopardize the safety of witnesses . . . especially . . . in a correctional setting where inmates who cooperated . . . could be . . . harmed by other inmates who view them as informants or by [Doe’s] fellow employees in an attempt to protect her.” Assumption numbers one and two are contested by the union, but in the view we take of the case we need not determine their validity. In Town of Weymouth, supra, the commission held that the public records question was irrelevant to the power of the commission to subpoena documents. The “[c]ommission’s subpoena power does not request the release of information pursuant to G.L. c.66, § 10, and therefore the Town’s reliance upon the definitions contained in G.L. c.4, § 7 is inapposite.” Id. at n.6. We hesitate to construe the order as precluding disclosure to Doe as suggested by counsel for the commission on appeal. Not only was the order not so restricted, but in the Boston Police Superior Officers Fedn. case, the permitted disclosure to “client” included the president of the federation who was the officer who was the subject of the prohibited practice —• retaliation for union activity. See 414 Mass. at 467 n.10.