Wage Theft Cases

Victoria Dalis vs. Buyer Advertising, Inc. Middlesex. March 8, 1994. July 11, 1994. Present: Liacos, C.J., Abrams, Nolan, O’Connor, & Greaney, JJ. Practice, Civil, Jury trial. Jurisdiction, Equitable. Common Law. Constitutional Law, Trial by jury, Sex discrimination. Jury and Jurors. Anti-Discrimination Law, Sex, Employee. Employment, Discrimination. Civil Rights, Termination of employment. Discussion of the right to trial by jury as provided in art. 15 of the Declaration of Rights of the Massachusetts Constitution. [221-222] A plaintiff was entitled to a jury trial on her claims alleging gender discrimination in employment (G. L. c. 151B, § 4) [222-226], wage discrimination based on gender (G. L. c. 149, §§ 105A-105C) .[226], violation of the maternity leave act (G. L. c. 149, § 105D) [227], and violation of the equal rights act (G. L. c. 93, § 102) [227-228], to the extent those claims were not solely for equitable relief, under the provisions of art. 15 of the Declaration of Rights that guarantee trial by jury in “controversies concerning property.” Civil action commenced in the Superior Court Department on July 1, 1992. A motion in limine to strike the plaintiff’s demand for a jury trial was considered by Robert H. Bohn, J. An application for leave to prosecute an interlocutory appeal was allowed by Elizabeth A. Porada, J., in the Appeals Court, and the appeal was reported to a panel of that court. The Supreme Judicial Court granted a request for direct appellate review. Duncan <S'. Payne (Arthur P. Menard with him) for the defendant. Gerald T. Anglin (Catherine Sheedy-McGonagle with him) for the plaintiff. Anne L. Josephson, Sarah Wunsch & Alice Zaft, for Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. Barbara C. Johnson, pro se, amicus curiae, submitted a brief. Abrams, J. At issue is whether the plaintiff is entitled, as a matter of State constitutional right, to a trial by jury in an action alleging discrimination based on gender. The plaintiff, Victoria Dalis, claims that she was discharged from her employment because she was pregnant. She filed a complaint against her employer, Buyer Advertising, Inc. (defendant), alleging violations of G. L. c. 93, § 102 (1992 ed.) (equal rights act); G. L. c. 149, §§ 105A-105C (1992 ed.) (wage discrimination based on gender); G. L. c. 149, § 105D (1992- ed.) (maternity leave act); and G. L. c. 151B, § 4 (1) (1992 ed.) (gender discrimination in employment). In her complaint, the plaintiff moved for a jury trial. The defendant moved to strike the jury demand, claiming that Dalis was not entitled to a trial by jury under any of the cited statutes. A judge in the Superior Court denied the defendant’s motion. The defendant appealed to a single justice of the Appeals Court. Citing inconsistent decisions in the Superior Court, the single justice reported the matter to a panel of the Appeals Court. We allowed the defendant’s application for direct appellate review. We conclude that the plaintiff is entitled to a trial by jury on most of her claims under art. 15 of the Massachusetts Declaration of Rights. Therefore, we affirm the denial of the defendant’s motion. The plaintiff’s claim under art. 15 of the Declaration of Rights. Article 15 “preserves the ‘common law trial by jury in its indispensable characteristics as established and known at the time the Constitution was adopted’ in 1780.” Department of Revenue v. Jarvenpaa, 404 Mass. 177, 185-186 (1989). Article 15 does not preserve “the minor details or unessential formalities of the trial by jury as it then existed .either in England or here.” Bothwell v. Boston Elevated Ry., 215 Mass. 467, 473 (1913). The article must be construed with “flexibility in its adaptation of details to the changing needs of society without in any degree impairing its essential character.” Id. at 477. The language of art. 15 sweeps broadly: “In all controversics concerning property, and in all suits between two or more persons, ... the parties have a right to a trial by jury . . .” (emphasis added). The exception is narrowly defined: “[Ejxcept in cases in which it has heretofore been otherways used and practised.” Thus, according to the language of art. 15, the “sacred” method for resolving all manner of cases and controversies was trial by jury unless the case was one in which a court of equity in either England or Massachusetts would have exercised jurisdiction in 1780. See Parker v. Simpson, 180 Mass. 334, 355 (1902); Stockbridge v. Mixer, 215 Mass. 415, 418 (1913); In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 1009-1010 (D. Mass. 1989). The jury system, as the “sacred” method for resolving factual disputes, is the most important means by which laypersons can participate in and understand the legal system. Commonwealth v. Canon, 373 Mass. 494, 516 (1977), cert. denied, 435 U.S. 933 (1978). It brings the “rules of law to the touchstone of contemporary common sense.” Id., quoting 1 W. Holdsworth, A History of English Law 348-349 (3d ed. 1922). “Jurors bring to a case their common sense and community values; their ‘very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye.’ ” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 355 (1979) (Rehnquist, J., dissenting), quoting H. Kalven & H. Zeisel, The American Jury 8 (1966). The plaintiffs sex discrimination claim falls squarely within the language of art. 15. It is a suit between two persons which clearly sets forth a controversy concerning property. Parker v. Simpson, supra at 345. Next, we must determine whether the exception in art. 15 is applicable. We examine whether the plaintiffs claim is analogous, in either subject matter or remedy sought, to cases within the court’s equity jurisdiction, as it existed at the time of the adoption of the Constitution. See Parker v. Simpson, supra at 355. See also Powers v. Raymond, 137 Mass. 483, 485-486 (1884); Commonwealth v. Mongardi, 26 Mass. App. Ct. 5, 8 (1988). The plaintiff does not seek primarily equitable relief. Nor is the nature of her claim analogous to any case which was traditionally heard in a court of equity. Thus, the plaintiff has a right to a jury trial. See Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 124 (1st Cir. 1992). Compare Department of Revenue v. Jarvenpaa, supra at 185-186 (plaintiffs not entitled to a jury trial because traditionally paternity and child support claims were not tried before a jury). The plaintiffs sex discrimination claim is analogous to common law actions sounding in both tort and contract. See Conway v. Electro Switch Corp., 402 Mass. 385, 388 (1988); Gallagher v. Wilton Enters., Inc., supra at 122-123 (“Courts have routinely held that discrimination suits in general, and employment discrimination suits in particular, are analogous to either of two common law causes of action [tort and contract]”). See also Beesley v. Hartford Fire Ins. Co., 717 F. Supp. 781, S.C., 723 F. Supp. 635, 652 (N.D. Ala. 1989) (Seventh Amendment guarantees a jury trial for plaintiffs in Title VII sex discrimination suits for lost wages). The United States Supreme Court has commented that “[a]n action to redress racial [or gender] discrimination may also be likened to an action for defamation or intentional infliction of mental distress.” Curtis v. Loether, 415 U.S. 189, 195-196 n.10 (1974). Under G. L. c. 15IB, § 9 (1992 ed.), the plaintiff may seek both legal and equitable remedies for violations of G. L. c. 15IB, § 4. If the plaintiff prevails, she may recover monetary damages for her economic losses as well as for mental anguish. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 169 (1987). In egregious cases, the statute also provides the legal remedy of punitive damages. See G. L. c. 15IB, § 9. The statute clearly affords the plaintiff the “legal remedy of compensatory damages.” Conway v. Electro Switch Corp., 402 Mass. 385, 387 (1988). The defendant concedes that the plaintiff’s sex discrimination claim is analogous to actions at common law, but argues that, absent clear legislative direction, the court should not imply a right to a jury trial. The issue is not whether we should imply a right to a jury trial but whether art. 15 preserves and protects the right to a jury trial on the plaintiff’s claims. Our long-standing rule is that the boundaries of equity jurisdiction “ought not to be widened by judicial decision . . . [because] the constitutional right of trial by jury would thereby become correspondingly narrowed.” Parkway, Inc. v. United States Fire Ins. Co., 314 Mass. 647, 651 (1943). The defendant relies on Nei v. Burley, 388 Mass. 307 (1983), to support its position that there is no constitutional right to a trial by jury on the plaintiff’s claims. We do not agree. In Nei, we said that the court should be “hesitant to imply a right to a jury trial for the sui generis causes of action for unfair or deceptive practices in the absence of legislative direction.” Id. at 314. General Laws c. 93A (consumer protection statute) entitles plaintiffs to relief where traditional legal remedies were considered inadequate by the Legislature. Unlike a traditional common law action for fraud, consumers suing under c. 93A need not prove actual reliance on a false representation, or that the defendant knew that the representation was false. Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703 (1975). An “ ‘unfair or deceptive act or practice’ goes far beyond the scope of the common law action for fraud and deceit.” Id. We determined that any analogies between “unfair and deceptive practices” and common law claims for fraud and deceit were inappropriate. Nei v. Burley, supra at 313. Thus, we concluded that a plaintiff alleging a violation of G. L. c. 93A is not constitutionally entitled to a trial by jury. The outcome in Nei turned on the “equitable nature of the relief’ sought under c. 93A. Nei, supra at 315. By contrast, the nature of the plaintiffs claim is more analogous to actions at common law, and the relief sought by the plaintiff is predominantly legal. Nei is distinguishable on that basis. Under the broad language of art. 15, the plaintiffs right to a jury trial is protected. The exception set forth in art. 15 does not apply because the plaintiffs rights and remedies are similar to those traditionally treated as actions at law. Under art. 15, the plaintiff is constitutionally entitled to a trial by jury for her claim of employment discrimination based on sex. The judge correctly denied the defendant’s motion to strike the plaintiffs demand for a jury trial. General Laws c. 149, §§ 105A-105C Our analysis of the plaintiffs right to a jury trial under this statute is the same as under G. L. c. 15IB. The relevant inquiry is whether a claim of wage discrimination based on gender is analogous to cases which were traditionally treated as legal actions. Wage discrimination based on gender, like employment discrimination based on gender, has historical connections to common law tort and contract claims. See ante at 223. The statute permits plaintiffs to recover unpaid wages, and an additional equal amount of liquidated damages. Compensatory and punitive damages are legal remedies. Thus, both the nature of the action and the relief sought are legal. See Santiago-Negron v. Castro-Davila, 865 F.2d 431, 437, 441 (1st Cir. 1989) (back pay considered factor of compensatory damages which involves common law right to trial by jury). For the same reasons as stated ante at 223, we conclude that the plaintiff is entitled to a jury trial on her claim of wage discrimination based on gender. General Laws c. 149, § 105D. Again, we begin the analysis by exploring whether the rights afforded by this statute have an analogue in the class of cases which are essentially legal in nature, with roots in both tort and contracts. See supra at 223. An employee seeking relief under G. L. c. 149, § 105D, is entitled to both injunctive relief and money damages. The fact that the plaintiff is entitled to both legal and equitable relief may not compromise her constitutional right to a trial by jury. Stockbridge v. Mixer, 215 Mass. 415, 418 (1913). We agree with the Supreme Court that where there are legal and equitable claims present in the same case, the trial court will “have to use its discretion in deciding whether the legal or equitable cause should be tried first. Because the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court, that discretion is very narrowly limited and must, wherever possible, be exercised to preserve jury trial” (footnote omitted). Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510 (1959). Under State law, as in the Federal system, “only [in] the most imperative circumstances . . . can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” Id. at 510-511. General Laws c. 93, § 102. The defendant contends that the only remedy available under G. L. c. 93, § 102, is “injunctive and other appropriate equitable relief.” Relying on our decision in Commonwealth v. Guilfoyle, 402 Mass. 130, 135-136 (1988), the defendant argues that the plaintiff is not entitled to a jury trial. We do not agree. In Guilfoyle, we concluded that there was no constitutional right to a jury trial for claims brought under the Massachusetts Civil Rights Act. Guilfoyle, supra at 135-136. Guilfoyle does not stand for the broad proposition that a jury trial does not attach to new causes of action. Our decision in Guilfoyle is grounded on the reasoning that art. 15 does not guarantee a right to a trial by jury in the class of cases traditionally reserved for the courts of equity. Guilfoyle, supra at 135. General Laws c. 93, § 102, guarantees equality in the making and enforcing of contracts. Article 15 preserves the right to a jury trial for traditional contract claims. Because a claim under G. L. c. 93, § 102, does not fall within the narrow class of cases reserved for courts of equity, the plaintiff is entitled to a trial by jury. See Parker v. Simpson, 180 Mass. 334, 355 (1902). As in the Federal system, to the extent that there are some equitable claims in addition to the legal claims, the judge has discretion to determine the order of trial between the legal claims and the request for some equitable relief. However the judge must recognize that judicial discretion is “narrowly limited” by the plaintiff’s State constitutional right to a trial by jury. The order of the Superior Court judge denying the defendant’s motion to strike the plaintiff’s demand for trial by jury is affirmed. This matter is remanded to the Superior Court for further proceedings. So ordered. We acknowledge the amicus briefs submitted by Barbara C. Johnson, The Civil Liberties Union of Massachusetts, and The Women’s Bar Association of Massachusetts. “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners’ wages, the legislature shall hereafter find it necessary to alter it.” The plaintiff's complaint requests compensatory damages, exemplary damages, interests and costs, attorney’s fees, and reinstatement. The Seventh Amendment to the Constitution of the United States does not apply to a State civil trial. See Galvin v. Welsh Mfg. Co., 382 Mass. 340, 345 (1981). However, the court’s analysis of Title VII claims under the Seventh Amendment is similar to our analysis under art. 15. The Federal equal rights statute, 42 U.S.C. § 1981, also has been interpreted to confer a right to a jury trial. See Laskaris v. Thornburgh, 733 F.2d 260, 263 (3d Cir.), cert, denied, 469 U.S. 886 (1984) (“A party seeking compensatory and punitive damages or other legal relief under 42 U.S.C. § 1981 has a right to a jury trial”). See also Curtis v. Loether, 415 U.S. 189 (1974) (Seventh Amendment guarantees the right to a jury trial in suits alleging fair housing violations under 42 U.S.C. § 3612). Because the result we reach is consistent with the result reached in Federal courts, the right to a jury trial is not affected by the forum selected. In analyzing claims for a trial by jury under the Seventh Amendment, the Supreme Court has said that the Seventh Amendment requires a trial by jury if the complaint invokes rights and remedies traditionally resolved in an action at law rather than equity or admiralty. See Pernell v. Southall Realty, 416 U.S. 363, 375 (1974). Although we are not bound by these decisions in considering appropriate resolution of the plaintiffs claims, we consider the reasoning of the United States Supreme Court cases to be analogous to our case law. General Laws c. 151B, § 4 (1) (1992 ed.), provides: “It shall be an unlawful practice: 1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” General Laws c. 151B, § 9 (1992 ed.), states, in relevant part: “Any person claiming to be aggrieved by a practice made unlawful under this chapter . . . may . . . bring a civil action for damages or injunctive relief or both in the superior or probate court . . . .” Though a plaintiff has no constitutional right to a trial by jury, the presiding judge may commit the resolution of a G. L. c. 93A claim to a jury as a matter of discretion. Travis v. McDonald, 397 Mass. 230, 234 (1986). General Laws c. 149, § 105A (1992 ed.), prohibits discrimination in the payment of wages based on sex. The statute provides the following remedy: “Any employer who violates any provision of this section shall be liable to the employee or employees affected in the amount of their unpaid wages, and in an additional equal amount of their unpaid wages, and in an additional equal amount of liquidated damages.” General Laws c. 149, § 105D (1992 ed.), requires that employers grant an employee up to eight weeks, with or without pay, for maternity leave. The statute provides in relevant part: “A female employee . . . shall be restored to her previous, or a similar position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave. . . . Such maternity leave shall not affect. . . any other advantages or rights of her employment incident to her employment position.” “General Laws c. 93, § 102 (a) (1992 ed.), guarantees: “All persons within the Commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property . . . and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” General Laws c. 93, § 102 (6) (1992 ed.), states in relevant part: “A person whose rights under the provisions of subsection (a) have been violated may commence a civil action for injunctive and other appropriate equitable relief, including the award of compensatory and exemplary damages. . . .” To the extent that the plaintiff seeks injunctive relief, that, of course, is a claim for equitable relief not subject to a trial by

Prime Communications, Inc. vs. Eugene Sylvester. No. 91-P-1502. Middlesex. May 6, 1993. July 6, 1993. Present: Armstrong. Fine, & Gillerman, JJ. Fair Labor Standards Act. Labor, Wages. Practice, Civil, Burden of proof. Words, “Employ.” On a claim by an employee against his employer alleging that he had performed overtime work for which he had not been compensated as required by the Fair Labor Standards Act, 29 U.S.C. § 207 (a)(1) (1982), this court concluded that, in order to prove a violation of § 207, it was the employee’s initial burden to establish his employer’s knowledge, either actual or constructive, of any overtime hours he worked and that, in this instance, he failed to meet that burden. [711-712] Civil action commenced in the Malden Division of the District Court Department on June 12, 1985. On appeal to the Superior Court Department, the case was heard by Gordon L. Doerfer, J. James C. Donnelly, Jr., for the plaintiff. Beth O’Neill Maloney for the defendant. Fine, J. Eugene Sylvester worked for Prime Times, a weekly community newspaper owned by Prime Communications, Inc. (Prime), between October, 1983, and September, 1984, as an assistant editor and then, until he resigned on February 3, 1985, as news editor. In June of 1985, Prime brought a small claims action against Sylvester for money allegedly owed. On November 25, 1985, Sylvester filed a counterclaim against Prime alleging that he had performed overtime work while employed by Prime for which he had not been compensated as required by the Fair Labor Standards Act (29 U.S.C. § 207[a] [1] [1982]) (FLSA). A District Court judge found in favor of Prime in the amount of $500 on its claim for money owed and for Sylvester in the amount of $2,031 on his counterclaim for overtime compensation. Prime appealed to the Superior Court pursuant to G. L. c. 231, § 97, but waived trial by jury. Based on evidence from Sylvester and others that Sylvester regularly worked overtime while employed as assistant editor, the judge found that he was entitled to compensation in the amount of $2,031.50 for an average of five hours a week, at time and one-half, and, in accordance with 29 U.S.C. § 216(b) (1982), counsel fees in the amount of $23,096.33. Liquidated damages, under that section and § 260, however, were denied. The parties filed cross-appeals. Because we rule in favor of Prime on its appeal, we do not reach Sylvester’s claim that the judge erred in denying him liquidated damages. Prime contends that Sylvester failed to prove that Prime had actual or constructive knowledge that he was working overtime. We agree with Prime that the evidence and findings relating to Prime’s actual or constructive knowledge at the relevant times are inadequate to support the judgment for Sylvester. Sylvester presented evidence that he generally worked at the Prime Times office between 8 a.m. and 5 p.m. weekdays and that he also covered evening and weekend meetings. He conceded that some of his daytime working hours were spent preparing a cable television program not connected with Prime. Neither Sylvester nor Prime kept any records of the hours he worked. The judge found that neither Sylvester nor Prime expected that he would work a regular eight-hour day in addition to covering meetings. Sylvester admitted that he never told his superiors how many hours he worked and never asked for overtime pay during the period of his employment. The first notice to Prime of his overtime claim came when he filed his counterclaim in the small claims action on the debt," over fourteen months after the last time he claimed to have worked overtime and nine months after he resigned. Although Stephen Welch, president and chief executive officer of Prime, stated that he had no knowledge that Sylvester was working more than forty hours a week, the only evidence suggesting that Sylvester’s supervisors at Prime may have known that he was working overtime came from Welch. He was being questioned about Sylvester’s employment as being possibly administrative and professional in nature and, therefore, exempt from the requirements of the FLSA under 29 U.S.C. § 213(a)(1) (1982). In answer to a question about the extent of Sylvester’s discretion with respect to his comings and goings and the stories he would cover, Welch testified that the schedules of Prime’s reporters were “all prearranged . . . with the editor [David Weldon] so he could have some form of knowing where his people are at all times, but they — they could come and go as they felt.” In context, Welch’s answer indicated that Weldon had knowledge of the particular assignments Sylvester was working on, not the particular hours he was working. Significantly, the judge made no express finding as to the state of Prime’s knowledge of Sylvester’s working hours. He did find that Sylvester “ke[pt] his immediate supervisor [Weldon] informed of what he was doing.” Considering the only evidence on which the finding could have been based, however, it established no more than that Weldon was informed of the articles and projects on which Sylvester was working but not on the actual hours he worked. Thus, if Sylvester had the burden of proof on the issue of Prime’s knowledge, he failed to meet it. Compare Warren v. Edgeco, Inc., 8 Mass. App. Ct. 171, 173-174 (1979). The parties disagree, however, as to who bore the burden. To recover under the FLSA one must be “employed.” 29 U.S.C. §§ 201 et seq. As defined in 29 U.S.C. § 203(g) (1982), “ ‘[e]mploy’ includes to suffer or permit to work.” “[T]he words ‘suffer’ and ‘permit’ as used in the statute mean ‘with the knowledge of the employer.’ ” Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981). Thus, “where an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours is not a violation of § 207.” Ibid. See also Wirtz v. Bledsoe, 365 F.2d 277, 278 (10th Cir. 1966); Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975); Lindow v. United States, 738 F.2d 1057, 1060 (9th Cir. 1984); Donovan v. Kentwood Dev. Co., 549 F. Supp. 480, 488 (D. Mass. 1982). When employer knowledge is at issue, it has consistently been held that the employee has the initial burden of proving that the employer knew or should have known of the overtime work. Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir. 1986). “The case law uniformly supports this proposition.” Ibid. See also Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d at 414; Neal v. Braughton, 111 F. Supp. 775, 782 (W.D. Ark. 1953); Summerfield v. Photo-Electronics, Inc., 26 Wage & Hour Cas. 608, 612 (E.D.Pa. 1983); Swan son v. Westfield News Advertiser, 26 Wage & Hour Cas. 918, 920 (D. Mass. 1983). Sylvester contends that when an employer has failed to keep time records, as Prime failed to do, “an employee has carried out his burden if he proves that he has in fact performed work for which he. was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). That ruling, however, “was squarely directed at the issue of what evidence an employee must introduce to establish the extent of his overtime work when his employer has kept inadequate records. Employer knowledge was not an issue in that case. . . .” Davis v. Food Lion, 792 F.2d at 1277. See Pforr v. Food Lion, Inc., 851 F.2d 106 (4th Cir. 1988). It was Sylvester’s initial burden to establish Prime’s knowledge, either actual or constructive, of any overtime hours he worked, and we conclude that he failed to meet that burden. As matter of law, therefore, the judgment may not stand. Accordingly, the revised judgment of February 12, 1991, is reversed and a new judgment is to enter for Prime dismissing Sylvester’s counterclaim. So ordered. Under the FLSA no employer may employ a covered employee for a work week longer than forty hours unless the employee receives as compensation for his employment at least one and one-half times the regular rate for all overtime hours. 29 U.S.C. § 207(a)(1) (1982). An employer who violates this provision may be held liable to an employee in a Federal or State court for the overtime wage and a reasonable attorney’s fee, and, unless he acted in good faith and with reasonable grounds for believing he was acting lawfully, for an additional amount as liquidated damages. 29 U.S.C. §§ 216(b) & 260 (1982). Several issues in the case were resolved by the trial judge against Prime (for example, whether Prime or some other entity was Sylvester’s employer; and whether Sylvester’s employment was covered by the statute) which are not raised by Prime on appeal. Prime claims that insufficient evidence was presented as to how many, if any, overtime hours Sylvester worked. The evidence on the point was vague and somewhat inconclusive. Prime, however, failed to keep time records for its employees as required by 29 C.F.R. §§ 516 et seq. (1989). In light of the holding in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-688 (1946), an adequate showing was made to support the judge’s finding as to the amount of overtime work performed. Weldon was not called as a witness. As there was no showing of his availability at the time of trial, no inference may be drawn against either party for failure to call him as a witness.

Jill Ramsdell vs. Western Massachusetts Bus Lines, Inc., & others. Hampshire. May 6, 1993. June 30, 1993. Present: Liacos. CJ.. Wilkins. Abrams. Nolan. & Lynch. JJ Anti-Discrimination Law, Sex, Prima facie case, Burden of proof. Massachusetts Commission Against Discrimination. Employment, Discrimination, Sexual harassment. In a proceeding before the Massachusetts Commission Against Discrimination in which a hearing commissioner found that an employee, who had alleged sexual harassment by her employer, failed to show that the employer’s conduct was intentionally or in effect hostile, intimidating, or humiliating to the employee in a way which affected her performance or the conditions of her employment, there was substantial evidence to support the hearing commissioner’s conclusion that the employee had not established a prima facie case of sexual discrimination. [676-679] In a proceeding before the Massachusetts Commission Against Discrimination in which an employer offered nondiscriminatory reasons for failing to promote or to pay equal wages to a female employee, there was substantial evidence to support a hearing commissioner’s conclusion that, absent the employee’s showing that the employer’s reasons were a pretext, the disparate treatment with regard to payment of wages or promotion was not the result of gender-biased discrimination. [679] Civil action commenced in the Superior Court Department on November 21, 1991. The case was heard by John F. Murphy, Jr., J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard M. Howland (Jean M. Fielding with him) for the plaintiff. Philip J. Shine for Western Massachusetts Bus Lines, Inc., & others. Jerrold S. Levinsky for Massachusetts Commission Against Discrimination. John Herlihy, Longueil Bus Company, and the Massachusetts Commission Against Discrimination. Nolan, J. The plaintiff, Jill Ramsdell, appeals from a judgment of the Superior Court upholding a decision and order of the Massachusetts Commission Against Discrimination (MCAD) to dismiss her complaint against her employer for alleged sexual discrimination. We transferred the case here on our own motion. We affirm. In her complaint filed in July of 1986, the plaintiff alleges three distinct counts of sexual discrimination: sexual harassment, unequal pay, and denial of a promotion. A hearing commissioner heard the evidence in July of 1988. Two and one-half years later, the commissioner finally issued her decision. The commissioner found no substantial evidence to support the plaintiff’s claims and ordered the charges be dismissed. The plaintiff appealed to the full commission. which affirmed the decision. We begin our discussion by summarizing the facts as found by the hearing commissioner. Jill Ramsdell was hired by Western Massachusetts Bus Lines, Inc., a Massachusetts corporation, in March of 1982. She began working as a charter clerk, processing charter orders and scheduling buses. Ramsdell reported directly to John Herlihy, the president and chief operating officer. The hearing commissioner found the environment “rife with sexually explicit language and sexual innuendos.” Witnesses testified that the language in the office was “rough” and abounding with raw sexual banter. A nude male calendar hung on the wall, and Herlihy’s wife, together with at least one female employee, brought sexually explicit jokes to the office and distributed them freely. Lewd conduct persisted at social gatherings as well. At Herlihy’s fortieth birthday party, the entire staff presented him with a box of “gag” gifts including sexually explicit paraphernalia. The employees contributed to hire a professional belly dancer for a male employee’s birthday. At still another birthday, cakes in the form of a naked male and female were presented respectively to a female employee and to Herlihy. Ramsdell participated each time. At another event, employees, including Ramsdell, constructed for Herlihy a costume dubbed “U.S. Sex Express.” Focusing on Herlihy, the commissioner found that he had repeatedly asked Ramsdell to perform sexual favors and addressed her using sexually explicit language and profanity. Ramsdell responded in kind. These vulgar conversations often occurred in the presence of others. Ramsdell testified that at one point Herlihy chased her and pinned her up against a garage wall. However, because this testimony was contradicted by another eyewitness, the commissioner did not credit Ramsdell’s account. Herlihy also made derogatory references to women in general. Focusing on Ramsdell, the commissioner found that she “invited” or provoked these bawdy exchanges. At least one witness testified that the profanity and vulgarity began with Ramsdell’s arrival. Ramsdell herself admitted to using extremely vulgar and profane language in the workplace and to participating in sexual jokes. For Herlihy’s fortieth birthday, she inscribed the words, “to tickle your fancy,” on a facsimile of male genitals as part of his gag gift. Once, after work, she and two other female employees followed Herlihy into a men’s room and stared at him. More than once she pinched his buttocks and shouted, “Got ‘ya, cutie!” She even grabbed his genitals in the presence of his wife and another employee. On one occasion she yanked down his jogging pants. Ramsdell was promoted to sales manager in 1983. Her promotion broadened her responsibilities. She expressed interest in the general sales manager position. Herlihy, however, hired a male from outside the company to fill that particular position. At this point, Ramsdell filed a complaint alleging sexual discrimination. Prior to that hiring decision, Herlihy himself had filled the position of general sales manager and had removed Ramsdell from some of her supervisory functions due to her poor performance. Her employee evaluations for that period reflected her shortcomings. The commissioner concluded that Herlihy did not offer Ramsdell the promotion because he believed in good faith that she was not qualified. At some point, Ramsdell discovered that her weekly salary was less than that of her male counterpart at the Longueil Bus Company. The commissioner found that the discrepancy was justified by the man’s experience, customer base, and greater responsibilities. She concluded that there was no sexual discrimination involved. The commissioner found that Ramsdell’s distress was not a result of her workplace environment. Although Ramsdell testified that the alleged harassment began right after she started work in 1982, she chose not to file a complaint until four years later. The commissioner found that Ramsdell was “a willing and active participant and often the prov[o]cateur” in creating the atmosphere described above. We shall affirm a decision and order of the MCAD unless the findings' and conclusions are unsupported by substantial •evidence or based on an error of law. G. L. c. 15IB, § 6 (1990 ed.). G. t. c. 30A, § 14 (7) (1990 ed.). College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 170 (1987), and cases cited. Because of our limited role, we “must defer to an administrative agency’s fact-finding role, including its right to draw reasonable inferences from the facts found.” Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 224 (1978). Credibility is an issue for the commissioner and not for this court. Trustees of Deerfield Academy v. Director of the Div. of Employment Sec., 382 Mass. 26, 31-32 (1980). In this case, we conclude that the MCAD’s decision and order finds substantial support in the evidence and that there was no error of law. 1. Sexual harassment. We held in College-Town, supra at 162, that sexual harassment may constitute a violation of G. L. c. 151B, § 4 (1), which prohibits employment discrimina-tian on the basis of gender. We recognized that “[a] work environment pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, poses a formidable barrier to the full participation of an individual in the workplace.” Id. General Laws c. 15IB, § 1 (18) (1990 ed.), defines “sexual harassment” as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment.” There are no allegations that submission to sexual requests or,the like was ever a condition or quid pro quo of Ramsdell’s employment, either explicitly or implicitly; therefore, we shall focus on the definition under § 1 (18) (b). The commissioner found that “there is no credible evidence that the work environment in this situation was hostile, intimidating or humiliating to Ms. Ramsdell, or that it posed any barrier on her part to full participation in the work place.” As a result, the commissioner concluded that Ramsdell had not established a prima facie case of sexual discrimination and dismissed the complaint. After review, we hold that the commissioner’s conclusion was based on substantial evidence and was without error in law. Ramsdell asserted that her work place environment interfered with her job performance and that she found the atmosphere to be offensive, intimidating, or humiliating. The flaw in Ramsdell’s argument is that the commissioner did not credit Ramsdell’s testimony on that issue. Other witnesses testified that the atmosphere was “light hearted” and that the remarks were delivered in a “joking manner.” The commissioner found that Ramsdell did not take offense nor did she decline to participate in the contact described above. Perhaps the most telling evidence is that the commissioner found that Herlihy and Ramsdell frequently traveled together on one-day business trips without incident. We hold, therefore, that the commissioner’s conclusions were based on substantial evidence. The plaintiff claims that the MCAD’s decision and order is contrary to our decision in College-Town, supra at 162. We disagree. In College-Town, the hearing commissioner concluded that the conduct at issue was unwelcomed by the plaintiff. Id. at 162. Specifically, the commissioner found that the victim in College-Town cried and “felt cheap and degraded” when confronted with her supervisor’s offensive conduct. Id. at 158. Furthermore, the plaintiff in College-Town conveyed her negative reaction to a coworker and reported the activity within months of its onset. Id. at 158-159. By contrast, the commissioner in this case concluded that “there is no credible evidence that Herlihy’s behavior offended or injured-. . . the Complainant.” We do not review the commissioner’s judgment concerning the credibility of witnesses. Trustees of Deerfield Academy, supra at 31-32. Let there be no doubt that we condemn the behavior exhibited here. Indeed, we agree with the commissioner that “under ordinary circumstances, such conduct would most assuredly constitute a violation of G. L. c. 15IB.” Still, an em: ployee who alleges sexual harassment must show that the employer’s conduct was intentionally or in effect hostile, intimidating, or humiliating to the plaintiff in a way which affected her performance or the conditions of her employment. See G. L. c. 15IB, § 1 (18). See also College-Town, supra at 162. Simply put, Ramsdell did not prove her case to the commissioner. 2. Unfair treatment. We have stated that discriminatory motives behind the failure to promote or to pay equal wages can be inferred from disparate treatment of the sexes. See Smith College, supra at 227. However, once the employer offers nondiscriminatory reasons for the disparate treatment, the burden shifts back to the plaintiff to show that the employer’s reasons are merely pretext. Id. at 229. In this case, we agree with the commissioner that the plaintiff made no such showing. Ramsdell points to a pay discrepancy between herself and a man employed in the same position with the Longueil Bus Company, as evidence of gender discrimination. On the other hand, the defendants presented evidence which the commissioner found credible that the minor discrepancy ($10 per week) was justified by his greater experience, broader range of duties, and larger customer base. Therefore, substantial evidence supports the commissioner’s conclusion that the disparate treatment with regard to pay was'not the result of sexual discrimination. The plaintiff’s claim with regard to the promotion fails in similar fashion. Although Herlihy did hire a man to fill a position which Ramsdell wanted, there is no evidence that he did so for discriminatory reasons. The defendants presented evidence before the commissioner that Ramsdell was not qualified for the position, and Ramsdell offered no evidence indicating that these reasons were mere pretext. In summary, we hold that the commissioner’s conclusions were supported by substantial evidence and without error of law. Judgment affirmed. A person aggrieved by an order of the MCAD may obtain judicial review in the Superior Court pursuant to G. L. c. 151B, § 6 (1990 ed.). Although the commissioner found that some of Herlihy’s conduct was uninvited, substantial evidence supports her conclusion that these incidents were not hostile, intimidating, or humiliating to Ramsdell. Our opinion in Gnerre v. Massachusetts Comm’n Against Discrimination, 402 Mass. 502, 507 (1988), is not to the contrary. In Gnerre, we stated that, in determining whether her landlord’s conduct made the plaintiff’s tenancy “significantly less desirable” for the purposes of G. L. c. 151B, § 4 (6), “we view the evidence of harassment from the view of a reasonable person in the plaintiff’s position.” Id. If participation were an implicit condition of employment, then it would constitute discrimination under c. 15IB, §§ 1 (18) (a) and 4 (1). However, Ramsdell made no such allegation here.

SHARON AMOS, KATHY HALL and EARLINE MARSHALL v. OAKDALE KNITTING COMPANY AND WALTER MOONEY, III No. 278A91 (Filed 8 May 1992) 1. Master and Servant § 8.1 (NCI3d) — minimum wage — employees required to work for less — violation of public policy Defendants violated the public policy of North Carolina by firing plaintiffs for refusing to work for less than the statutory minimum wage. Although the definition of “public policy” approved by the Supreme Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Am Jur 2d, Labor and Labor Relations §§ 2559, 2567, 2571. 2. Master and Servant § 10.2 (NCI3d)— wrongful discharge — refusal to accept less than minimum wage — alternative remedies The availability of alternative remedies does not prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception to the employment at will doctrine, absent federal preemption or the intent of our state legislature to supplant the common law with exclusive statutory remedies. The availability of alternative common law and statutory remedies supplements rather than hinders the ultimate goal of protecting employees who have been fired .in violation of public policy. Am Jur 2d, Master and Servant §§ 48.7, 60. 3. Master and Servant § 10.2 (NCI3d)— wrongful discharge — public policy exception —federal preemption —state statutory preclusion The issue of whether the federal Fair Labor Standards Act preempted a state action for wrongful discharge for refusal to work for less than minimum wage was a constitutional question which was not passed upon by the trial court or the Court of Appeals and was not properly before the Supreme Court. Moreover, the North Carolina legislature, by enacting the Wage and Hour Act, did not intend to preclude wrongful discharge actions based on violation of the state’s public policy requiring employers to pay their employees at least the statutory minimum wage. Am Jur 2d, Labor and Labor Relations §§ 2545, 2546, 2559; Master and Servant §§ 48.7, 66. 4. Master and Servant § 10.2 (NCI3d)— wrongful discharge— separate claim for bad faith discharge — not recognized The discussion of bad faith discharge by the North Carolina Supreme Court in Coman v. Thomas Manufacturing Co., 325 N.C. 172, was dicta. The issue in Coman was whether to adopt a public policy exception to the employment at will doctrine and the Court did not recognize a separate claim for wrongful discharge in bad faith. Am Jur 2d, Master and Servant § 48.7. On appeal by plaintiffs pursuant to N.C.G.S. § 7A-30(2) from a decision of a divided panel of the Court of Appeals, 102 N.C. App. 782, 403 S.E.2d 565 (1991), affirming an order of Morgan, J., at the 3 April 1989 Session of Superior Court, SURRY County, dismissing plaintiffs’ complaint pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6). Plaintiffs’ petition for discretionary review as to additional issues was allowed by the Supreme Court on 14 August 1991. Heard in the Supreme Court 13 February 1992. Kennedy, Kennedy, Kennedy and Kennedy, by Harvey L. Kennedy and Harold L. Kennedy, 111, for plaintiff-appellants. Allman Spry Humphreys Leggett & Howington, P.A., by W. Thomas White, David C. Smith and W. Rickert Hinnant, for defendant-appellees. J. Wilson Parker, Deborah Leonard Parker, J. Michael McGuinness, Lisa A. Parlagreco, Gayle C. Wintjen and McGuiness S. Parlagreco for North Carolina Academy of Trial Lawyers; and Elliot, Pishko, Gelbin & Morgan, by Robert M. Elliot, for North Carolina Civil Liberties Union Legal Foundation, amici curiae. Pamela R. DiStefano and Maureen A. Sweeney for Farmworkers Legal Services of North Carolina, amicus curiae. FRYE, Justice. For the first time since our decision in Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989), we examine the contours of the public policy exception to the employment-at-will doctrine. Three issues are presented: (1) does firing an employee for refusing to work for less than the statutory minimum wage violate the public policy of North Carolina? (2) does the availability of alternative remedies prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception to the employment-at-will doctrine? and (3) did Coman recognize a separate and distinct exception to the employment-at-will doctrine based on “bad faith” termination? For the reasons outlined below, we hold that firing an employee for refusing to work for less than the statutory minimum wage violates the public policy of North Carolina. Furthermore, we hold that absent (a) federal preemption or (b) the intent of our state legislature to supplant the common law with exclusive statutory remedies, the availability of alternative federal or state remedies does not prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception. Based on these two holdings, we conclude that plaintiffs in this case have stated a valid claim for wrongful discharge in violation of public policy. Finally, we hold that Coman did not recognize a separate and distinct “bad faith” exception to the employment-at-will doctrine. On 27 January 1989, plaintiffs Amos, Hall, and Marshall filed a complaint in Surry County Superior Court alleging the following facts. In February 1988, plaintiffs, employees at defendant Oakdale Knitting Company, learned that their pay had been reduced to $2.18 per hour, below the statutory minimum wage. When they inquired of their supervisor, Herbert Bowman, as to why their pay had been reduced below the minimum wage, they were instructed to talk with defendant Walter Mooney, III, one of the owners of Oakdale Knitting. When Mooney arrived at the plant, he told the plaintiffs that they either had to work for the reduced pay or they were fired. Plaintiffs refused to work for $2.18 per hour and were terminated. Plaintiffs’ complaint alleges that their firing violates the public policy of North Carolina as set forth in N.C.G.S. § 95-25.3 — the minimum wage section of the state’s Wage and Hour Act. Plaintiffs sought actual damages, including lost wages, and special damages for “great worry, embarrassment, humiliation, anxiety and mental and emotional distress.” Plaintiffs also sought punitive damages. Defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to N.C. R. Civ. P. 12(b)(6). On 6 April 1989, Judge Morgan granted defendants’ motion and dismissed the action. Plaintiffs appealed to the Court of Appeals, which affirmed the trial court, holding that plaintiffs had not stated a valid claim for wrongful discharge. Amos v. Oakdale Knitting Co., 102 N.C. App. 782, 403 S.E.2d 565 (1991). Judge Johnson dissented on the narrow ground that plaintiffs’ complaint had stated a claim pursuant to N.C.G.S. § 95-25.22 (recovery of unpaid wages under the Wage and Hour Act). Plaintiffs appealed to this Court based on the dissenting opinion; on 14 August 1991 we allowed plaintiffs’ petition for discretionary review as to additional issues. We now reverse the Court of Appeals. I. This case comes to us, via the Court of Appeals, on a motion to dismiss for failure to state a claim upon which relief can be granted. For purposes of this appeal, therefore, all allegations of fact are taken as true. Jackson v. Bumgardner, 318 N.C. 172,174-75, 347 S.E.2d 743, 745 (1986). In Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445, plaintiff Coman alleged that he was discharged from his job as a long-distance truck driver after refusing to violate federal transportation regulations. Coman brought suit for wrongful discharge. This Court reversed the Court of Appeals, which had agreed with the trial court’s dismissal of the action, and allowed Coman’s suit to proceed. In so doing, we explicitly recognized a public policy exception to the well-entrenched employment-at-will doctrine, quoting with approval the following language from the Court of Appeals’ opinion in Sides v. Duke Hospital, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985): “[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.” Coman, 325 N.C. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). We then said that public policy “has been defined as the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Id. at 175 n.2, 381 S.E.2d at 447 n.2 (citing Petermann v. International Brotherhood of Teamsters, 174 Cal. App. 2d 184, 344 P.2d 25 (1959)). The first issue in this case, then, is whether defendants’ alleged decision to fire plaintiffs for refusing to work for less than the statutory minimum wage is injurious to the public or against the public good. Stated differently, has defendants’ conduct as alleged by plaintiffs violated the public policy of North Carolina? We note at the outset that both courts below indicated that defendants had, indeed, violated this state’s stated public policy that employees such as plaintiffs be paid at least the statutory minimum wage. Judge Morgan, in his order granting defendants’ 12(b)(6) motion, said defendants’ conduct “offends this Court, and also appears to violate the public policy of this State as set out in N.C.G.S. 95-25.3.” Judge Morgan, however, felt constrained by the Court of Appeals' decision in Coman, which had yet to be reversed by this Court. See Coman v. Thomas Manufacturing Co., 91 N.C. App. 327, 371 S.E.2d 731 (1988), rev’d, 325 N.C. 172, 381 S.E.2d 445 (1989). Under Coman, as decided by the Court of Appeals and interpreted by Judge Morgan, the public policy exception was limited to instances in which an employer attempted to interfere with an employee’s testimony in a legal proceeding. The Court of Appeals in this case also expressed its strong disapproval of defendants’ alleged conduct: “By this opinion we do not in any way condone an employer’s violation of the minimum wage law with the resultant hardship and inconvenience to its employees, and we expressly denounce such unlawful coercive attempts to deprive employees of the wages to which they are lawfully entitled.” Amos, 102 N.C. App. at 786, 403 S.E.2d at 567. The Court of Appeals, however, affirmed the trial court’s dismissal of plaintiffs’ complaint, holding that in order to state a valid claim for wrongful discharge, there must be no other remedy available. Id. at 787, 403 S.E.2d at 568. We address this issue later in the opinion. Defendants argue in their brief that they did not violate public policy, as that term is defined in Coman, because the “alleged acts are peculiar to the plaintiff, are not injurious to the public, and do not in any way affect the public good.” Defendants then suggest that in order to state a valid claim for wrongful discharge in violation of public policy an employee must either be required to engage in unlawful conduct or the employer’s conduct must threaten public safety. Defendants read Coman too narrowly. Although the definition of “public policy” approved by this Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Article 2A of Chapter 95 of the North Carolina General Statutes, the Wage and Hour Act, provides: (b) The public policy of this State is declared as follows: The wage levels of employees, hours of labor, payment of earned wages, and the well-being of minors are subjects of concern requiring legislation to promote the general welfare of the people of the State without jeopardizing the competitive position of North Carolina business and industry. The General Assembly declares that the general welfare of the State requires the enactment of this law under the police power of the State. N.C.G.S. § 95-25.1(b) (1989). Accordingly, the legislature' set a minimum wage of $3.35 per hour effective 1 January 1983, with subsequent increases through 1 June 1989 to coincide with those of the federal Fair Labor Standards Act (FLSA) up to a maximum hourly wage of $4.00. N.C.G.S. § 95-25.3. Businesses covered by the FLSA are exempt from the state Wage and Hour Act. N.C.G.S. § 95-25.14(a)(l). Remedies under the FLSA are similar to those provided in the state statute. Thus, as recognized by the Court of Appeals, “[without question, payment of the minimum wage is the public policy of North Carolina.” Amos, 102 N.C. App. at 785, 403 S.E.2d at 567. We hold therefore that, taking plaintiffs’ allegations as true, defendants violated the public policy of North Carolina by firing plaintiffs for refusing to work for less than the statutory minimum wage. II. Defendants argue that, even if their conduct violates public policy, plaintiffs have alternative remedies available and therefore should not be permitted to proceed under the common law theory of wrongful discharge. Defendants ask this Court to uphold the decision of the Court of Appeals, which established a two-part test for employees wishing to proceed under a theory of wrongful discharge in violation of public policy. Quoting a federal district court from Pennsylvania, the Court of Appeals held that the “ ‘application of the public policy exception requires two factors: (1) that the discharge violate some well-established public policy; and (2) that there be no remedy to protect the interest of the aggrieved employee or society.’ ” Amos, 102 N.C. App. at 787, 403 S.E.2d at 568 (quoting Wehr v. Burroughs Corp., 438 F. Supp. 1052, 1055 (E.D. Pa. 1977), aff’d as modified, 619 F.2d 276 (3d Cir. 1980)). On the facts of this case, the Court of Appeals held that the state legislature had provided plaintiffs an adequate statutory remedy: Plaintiffs thus had two options: (i) to continue working and pursue their remedy [for backpay] under N.C.G.S. § 95-25.22, which would have made them whole, or (ii) to refuse to work and be fired. Plaintiffs chose the latter. They were not terminated in retaliation for filing a complaint. N.C.G.S. § 95-25.20(a), therefore, has no applicability. Amos, 102 N.C. App. at 786, 403 S.E.2d at 567. The Court of Appeals then held that because plaintiffs had an adequate remedy at their disposal, they could not proceed under a theory of wrongful discharge in violation of public policy. Id. at 787, 403 S.E.2d at 568. Although the Court of Appeals decided this case on the basis of a state statutory remedy, both parties now assert that the applicable statutory scheme may be the FLSA, 29 U.S.C. §§ 201-219 (1978), not the North Carolina Wage and Hour Act. If, as the parties now believe, defendant Oakdale Knitting is covered by the FLSA, it would be exempt from the state statute. N.C.G.S. § 95-25.14(a)(l). Because the record on appeal in this case does not contain sufficient information to determine whether Oakdale Knitting is covered by the FLSA or the state Wage and Hour Act, we will address both statutory schemes. In Coman, we held that an employee who has been fired in violation of public policy has a claim for wrongful discharge notwithstanding this state’s allegiance to the employment-at-will doctrine. The issue now before this Court is whether Coman is limited to situations in which the fired employee has no other available remedy. The Court of Appeals added this limitation. Amos, 102 N.C. App. at 786-87, 403 S.E.2d at 567-68. Several courts in other jurisdictions have also limited the public policy exception, arguing that the rationale behind the exception is to provide a remedy for discharges in violation of public policy “which otherwise would not be vindicated by a civil remedy.” Makovi v. Sherwin-Williams Co., 316 Md. 603, 605, 561 A.2d 179, 180 (1989) (and cases cited therein); see also Crews v. Memorex Corp., 588 F. Supp. 27, 29 (D. Mass. 1984) (wrongful discharge action recognized “in order to fill [a] legislative gap. When a statutory remedy is available, there is no gap, and the justification for judicial creativity is absent.”) (citation omitted). Other courts have chosen not to add this limitation. See Broomfield v. Lundell, 159 Ariz. App. 349, 767 P.2d 697 (1988); Holien v. Sears, Roebuck & Co., 298 Or. 76, 689 P.2d 1292 (1984); see also Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 533 (4th Cir. 1991), rev’g 724 F. Supp. 1185 (M.D.N.C. 1989) (Fourth Circuit, interpreting post-Coman North Carolina law, reversed district court’s limitation of wrongful discharge claims to instances in which there was no alternative remedy, stating that it found “no North Carolina authority” for the addition of this limitation). If the sole rationale for the adoption of the public policy exception in Coman was to provide a remedy where no other remedy existed, then the reasoning of the Court of Appeals would be persuasive. Coman, however, was not predicated on the “no alternative remedy” theory. Indeed, we noted in Coman that the fired employee arguably had an “additional remedy in the federal courts.” Coman, 325 N.C. at 174, 381 S.E.2d at 446 (footnote omitted). Whether the plaintiff in Coman was without an additional state remedy was not the key factor behind this Court’s adoption of the public policy exception. The underlying rationale was the recognition that the judicially created employment-at-will doctrine had its limits and it was the role of this Court to define those limits. See id. at 177 n.3, 381 S.E.2d at 448 n.3 (“[t]his Court, not the legislature, adopted the employee-at-will doctrine in the first instance, [and thus] it is entirely appropriate for this Court to further interpret the rule.”). Accordingly, we held that although “ ‘there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy.’ ” Id. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). The public policy exception adopted by this Court in Coman is not just a remedial gap-filler. It is a judicially recognized outer limit to a judicially created doctrine, designed to vindicate the rights of employees fired for reasons offensive to the public policy of this State. The existence of other remedies, therefore, does not render the public policy exception moot. Although we now hold that the existence of an alternative remedy does not automatically preclude a claim for wrongful discharge based on the public policy exception, we also hold that under certain circumstances a legislative remedy may be deemed exclusive. If federal legislation preempts state law under the Supremacy Clause, U.S. Const. art. VI, cl. 2, then state claims, such as one for wrongful discharge, will be precluded. See English v. General Electric Co., 496 U.S. 72, 110 L. Ed. 2d 65 (1990). Additionally, if our state legislature has expressed its intent to supplant the common law with exclusive statutory remedies, then common law actions, such as wrongful discharge, will be precluded. See Biddix v. Henredon Furniture Industries, 76 N.C. App. 30, 331 S.E.2d 717 (1985) (vitality of common law actions for nuisance and continuing trespass dependent upon federal preemption and whether state Clean Water Act precludes

Francisco A. Feliz vs. 128 Imports, Inc. No. 91-P-435. January 8, 1992. Labor, Wages. Practice, Civil, Summary judgment. From 1987 to February, 1990, the plaintiff worked as a “service writer” for the defendant automobile dealership. The plaintiff worked from 7:30 a.m. to 5:30 p.m. Monday through Friday, one evening a week until 7:00 p.m., and every sixth Saturday from 8 a.m. until noon. In early February, 1990, the defendant’s service manager asked the plaintiff to work a “service clinic” on Saturday, February 10. When the plaintiff asked how he would be paid for the “unscheduled” Saturday, the service manager told him not to worry about it. It was not until after the plaintiff worked the six-hour service clinic that the service director told him he would not be paid because he was “on salary.” When the plaintiff refused to continue working more than forty hours a week without being paid, the service director fired him. , On April 24, 1990, the plaintiff filed this verified complaint “to recover . . . unpaid overtime compensation, . . . liquidated damages, costs, and reasonable attorney’s fees” under the Federal Fair Labor Standards Act, see 29 U.S.C. §§ 201 et seq. (1988). On January 17, 1991, the defendant moved for summary judgment. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). In support of its motion, the defendant filed a copy of an October, 1987, update to a Federal field operations handbook: “Employees variously described as service writers, service advisors, service managers, or service salesmen whose primary duty is to record the condition of a vehicle and write up a report indicating the parts and mechanical work needed have been construed as within the exemption in [§ 213 (b) (10) (A)] by two appellate courts (Fifth and Sixth Circuits) and two district courts (in the Eighth and Tenth Circuits). Consequently, [the U.S. Department of Labor, Wage & Hour Division] will no longer deny the OT [overtime] exemption for such employees. This policy (that these employees are within the exemption) represents a change from the position in [29 C.F.R.] 779.372 (c) (4), which will be revised as soon as is practicable.” The defendant also submitted the affidavits of its service director and controller describing the plaintiff’s duties and attesting to the plaintiffs receipt of sales commissions during his employment. The plaintiff opposed summary judgment with his verified complaint, Pupecki v. James Madison Corp., 376 Mass. 212, 217 (1978), and with portions of his deposition describing his responsibilities and asserting that he received no sales commissions after December, 1988. On March 11, 1991, a Superior Court judge allowed the defendant’s motion; judgment entered dismissing the plaintiffs complaint the following day. The plaintiff appeals. Section 207 (a) (1) of 29 U.S.C. requires employers to pay time and a half for weekly work exceeding forty hours. Section 213 (b) (10) (A), however, exempts from overtime wages: “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles . . . if . . . employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles ... to ultimate purchasers.” In 1973, the Fifth Circuit Court of Appeals ruled that commissioned “service writers” who “work directly with customers co-ordinating the sale of numerous goods, services, and mechanical skills provided by [an automobile dealer,] . . . diagnose each customer’s problem with his automobile and then refer the car to an appropriate department within [the dealer’s] business operation for needed repairs or additional equipment [,] . . . monitor the work while in progress, keeping track of the parts or additions used, and then determine whether a satisfactory job has • been done,” were exempt from Federal overtime wage provisions. Brennan v. Deel Motors, Inc., 475 F.2d 1095, 1096 (5th Cir. 1973). Noting that the issue was close, the court reasoned: “[T]hese service salesmen are functionally similar to the mechanics and partsmen who service the automobiles. All three work as an integrated unit, performing the services necessary for the maintenance of the customer’s automobile. The mechanic and partsman provide a specialized service with the service salesman co-ordinating these specialities. Each of these service employees receive a substantial part of their remuneration from commissions and therefore are more concerned with their total work product than with the hours performed. “[Former § 213 (b) (10), see now § .213 (b) (10) (A)] exempts from the overtime pay requirements those employees of automobile dealerships who are ‘primarily engaged in selling or servicing’ the vehicles. In the absence of clear intent to the contrary, we can not assume that Congress intended to treat employees with functionally similar positions differently, especially when the exemption by its own terms refers to ‘any salesman . . . engaged in selling or servicing automobiles . . .’ This is exactly what a service salesman does. They promote and attempt to sell the goods and services provided by [the dealer]. Their remuneration is substantially based on their success in these endeavors. They openly solicit business by telephone and through written circulars to prospective and past customers. Their hours may be irregular, depending on the special needs of their customers. “The intended scope of [then § 213 (b) (10)] is not entirely clear. Indeed, the Secretary’s own interpretation of the coverage of that section is not altogether consistent. This court has previously recognized that this section ‘was not intended to be interpreted in the broad sense.’ See Schultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61, 66 (5th Cir. 1970). However, exemptions are ‘drawn to meet particular needs.’ The enactment of [§ 213 (b) (10)] was an implicit recognition by Congress of the incentive method of remuneration for salesmen, partsmen, and mechanics employed by an automobile dealership.” Brennan, supra at 1097-1098 & n.3. As the party moving for summary judgment, the defendant bore the burden of showing “that there [was] no genuine issue as to any material fact and that [it was] entitled to a judgment as a matter of law,” Madsen v. Erwin, 395 Mass. 715, 719 (1985), quoting from Mass.R.Civ.P. 56(c); that is, that the plaintiff was exempt from overtime under Brennan v. Deel Motors, Inc., supra. Dayton v. Coral Oldsmobile, Inc., 684 F. Supp. 290, 291 (S. D. Fla. 1988). This the dealer did. Affidavits of the service director and controller described the plaintiff as a commissioned service writer with duties similar to those of Deel Motors’ service writers. The plaintiff, however, responded, “set [ting] forth specific facts showing that there [was] a genuine issue for trial.” Madsen, supra, quoting from Mass.R.Civ.P. 56(e). In particular, while the plaintiff admitted that he received “a [monthly] salary . . . and l‘A percent of the net profit paid in monthly commission [s]” from November, 1987, through December, 1988, he denied receiving commissions after a substantial December, 1988, salary increase. In addition, the plaintiff's description of his duties varied significantly and critically from that given by the defendant. In particular, the plaintiff denied “coordinat[ing] the sale of services and providing mechanical skills by the technicians of [the defendant,] . . . diagnosing [automotive] problems . . . scheduling repairs] and refer [ring] the repair to the appropriate subdepartments of the Service Department, . . . monitor [ing] the work in progress, . . . coordinating] the availability of parts and, as necessary, . . . order [ing] additional parts for work to be performed.” As summary judgment “does not provide for ‘trial by affidavit,’ [to the contrary,] motions under the rule are to be denied whenever there is ‘the slightest doubt’ as to the facts,” Community Natl. Bank v. Dawes. 369 Mass. 550, 555 (1976), and considering the Federal act’s remedial purpose (exemptions must therefore be strictly construed — an employer claiming benefit of an exemption must bring its case within both the letter and spirit of the exemption, see Schmidtke v. Conesa, 141 F.2d 634, 635 [1st Cir. 1944]), the judge should have denied summary judgment to permit “further exploration of the significant facts and a decision ... by a trier of fact who has heard and evaluated all relevant evidence.” Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86-88 (1984). See also Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). Frederick T. Golder for the plaintiff. John Connolly, Jr., for the defendant. The judgment of the Superior Court is reversed and the case is remanded for further proceedings. So ordered. It is undisputed that the defendant is a “nonmanufacturing establishment primarily engaged in the business of selling [automobiles] to ultimate purchasers.” Donovan v. Bereuter's, Inc., 704 F.2d 1034, 1036-1037 (8th Cir. 1983). Citing Puckett v. Commissioner of Correction, 28 Mass. App. Ct. 448 (1990), the defendant objects to this court’s consideration of those portions of the plaintiffs deposition filed in opposition to summary judgment, asserting that “information . . . put before the judge . . . must be in the form of an affidavit for it to be considered.” Notwithstanding that rule 56(e) permits opposition to summary judgment “by affidavits, or as otherwise provided in this rule” (including by filed deposition), there is no indication that the defendant moved to strike the deposition filed by the plaintiff in opposition to the defendant’s motion for summary judgment. In these circumstances, the plaintiff’s deposition may properly be considered. See Madsen v. Erwin, 395 Mass. 715, 721 (1985), and cases cited.

SHARON AMOS, KATHY HALL and EARLINE MARSHALL v. OAKDALE KNITTING COMPANY, and WALTER MOONEY, III No. 8917SC770 (Filed 7 May 1991) Master and Servant § 10.2 (NCI3d)— employment at will — public policy exception — statutory remedy The trial court properly granted defendant’s motion for dismissal under N.C.G.S. § 1A-1, Rule 12(b)(6) where plaintiffs alleged that they had been hourly employees of defendant; plaintiffs learned after completing their workweek that their pay had been reduced substantially below the minimum wage rate; defendant Mooney told plaintiffs they had to work at the reduced pay rate or be fired; plaintiffs refused to work under those conditions and were terminated; and plaintiffs filed an action seeking damages for wrongful discharge. Coman v. Thomas Manufacturing Co., 325 N.C. 172, adopted the public policy exception to the employee at will doctrine, but that exception does not apply here because there is a statutory remedy in the North Carolina courts. Plaintiffs could have continued working and pursued their remedy under N.C.G.S. § 95-25.22. Am Jur 2d, Master and Servant §§ 54, 60, 82, 89. Validity of minimum wage statutes relating to private employment. 39 ALR2d 740. Judge JOHNSON dissenting. APPEAL by plaintiffs from judgment entered 6 April 1989 by Judge Melzer Morgan, Jr., in SURRY County Superior Court. Heard in the Court of Appeals 18 January 1990. Kennedy, Kennedy, Kennedy and Kennedy, by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiff-appellants. Allman Spry Humphreys Leggett & Howington, P.A., by W. Thomas White and W. Rickert Hinnant, for defendant-appellees. PARKER, Judge. Plaintiffs Sharon Amos, Kathy Hall and Earline Marshall appeal from a judgment dismissing their action pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) for failure to state a claim on which relief can be granted. Plaintiffs instituted this action seeking damages for wrongful discharge arising out of their employer’s alleged violation of the North Carolina Wage and Hour Act, N.C.G.S. §§ 95-25.1 et seq. In their complaint plaintiffs alleged that prior to their termination, they were employed by defendant Oakdale Knitting Company in Surry County, North Carolina. On 25 February 1988, after completing their workweek, plaintiffs learned that their pay had been reduced to $2.18 per hour, substantially below the North Carolina minimum wage rate of $3.35 per hour. When plaintiffs returned to work on 29 February 1988, they asked their supervisor why their pay had been reduced below minimum wage. The supervisor referred them to Walter Mooney, III, one of the owners of defendant company. Defendant Mooney told plaintiffs they either had to work at the reduced pay rate or they were fired. Plaintiffs refused to work under these conditions and were terminated. Before filing answer, defendants moved to dismiss plaintiffs’ compláint pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6). In the order granting defendants’ motion, the trial judge stated that discharging an at will employee for refusing to work for substantially less than the minimum wage offended the court and appeared to violate the public policy of the State as set out in N.C.G.S. § 95-25.3, but that under the decision in Coman v. Thomas Manufacturing Co., 91 N.C. App. 327, 371 S.E.2d 731 (1988), the public policy exception to the doctrine of employment at will was “limited specifically to instances where an employee [sic] attempts to interfere with testimony in a legal proceeding” and, therefore, plaintiffs’ action had to be dismissed. In reviewing a dismissal pursuant to Rule 12(b)(6) we accept as true all allegations of fact. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Dismissal under Rule 12(b)(6) is proper when any one of the following conditions is satisfied: “(1) when the complaint on its face reveals that no law supports plaintiff’s claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff’s claim.” Jackson v. Bumgardner, 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986) (citing Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985)). At the outset we note that defendants contend that plaintiffs’ action is preempted by the federal Fair Labor Standards Act, 29 U.S.C. app. §§ 201 et seq. The issue of preemption is a constitutional question arising under the supremacy clause. U.S. Const, art. VI, cl. 2. Nothing in the record suggests that defendants raised the issue of preemption before the trial court and the trial court did not rule on this issue in granting the motion to dismiss. For this reason, we will not review defendants’ contentions with regard to this issue. Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 428, 269 S.E.2d 547, 577 (1980). On appeal plaintiffs contend that our Supreme Court in reversing the Court of Appeals’ decision in Coman v. Thomas Manufacturing Co., 91 N.C. App. 327, 371 S.E.2d 731 (1988), rev’d, 325 N.C. 172, 381 S.E.2d 445 (1989), adopted the public policy exception to the employment at will doctrine and that their complaint now states a claim for relief for wrongful termination. No question exists as to whether plaintiffs were employees at will. We agree with plaintiffs that Coman adopted the public policy exception to the employee at will doctrine. Id. at 175, 381 S.E.2d at 447. The question, therefore, is whether this judicially adopted exception applies in the case at bar thereby entitling plaintiffs to maintain their action for wrongful discharge. For the reasons stated herein, we hold that it does not. Without question, payment of the minimum wage is the public policy of North Carolina. N.C.G.S. § 95-25.1(b) states: The public policy of this State is declared as follows: The wage levels of employees, hours of labor, payment of earned wages, and the well-being of minors are subjects of concern requiring legislation to promote the general welfare of the people of the State without jeopardizing the competitive position of North Carolina business and industry. N.C.G.S. § 95-25.1(b) (1985). To this end the legislature has mandated that effective 1 January 1983 every employer who is not exempt from the legislation will pay a minimum wage of at least three dollars and thirty-five cents ($3.35) per hour. N.C.G.S. § 95-25.3(a) (1985). Moreover, in furtherance of this policy the legislature provided a remedy for the employee in the event the employer failed to comply with mandates of the Wage and Hour Act. N.C.G.S. § 95-25.22 provides that an employee may maintain an action in the General Court of Justice to recover unpaid minimum wages with interest thereon; that the court may in its discretion award exemplary damages in the' amount of the recovery; and that the court may award costs and reasonable attorneys’ fees to the employee. N.C.G.S. §§ 95-25.22(a), (b) and (d) (1985). The legislature also provided a remedy in the event the employer retaliates against the employee for exercising this right. N.C.G.S. § 95-25.20(a). Thus unlike the plaintiff in Coman, plaintiffs in this case have available to them a statutory remedy in the North Carolina court. In Coman plaintiff had been directed to violate United States Department of Transportation regulations by driving more hours than allowed by the regulations and to falsify his logs. Our Supreme Court recognized that plaintiff might have an additional remedy in federal court but ruled that North Carolina could not fail to provide a forum under the open courts clause of the North Carolina Constitution. N.C. Const, art. I, § 18 (1986). Coman, 325 N.C. at 174, 381 S.E.2d at 446. Plaintiffs argue that they were terminated before they had an opportunity to file a complaint. The complaint in this action alleges, however, that they were told “they either had to work under the conditions of the reduced pay or they were fired. The Plaintiff[s] refused to work for $2.18 an hour and [were] thereby terminated from [their] employment by the Defendants.” Plaintiffs thus had two options: (i) to continue working and pursue their remedy under N.C.G.S. § 95-25.22, which would have made them whole, or (ii) to refuse to work and be fired. Plaintiffs chose the latter. They were not terminated in retaliation for filing a complaint. N.C.G.S. § 95-25.20(a), therefore, has no applicability. The General Assembly in enacting the Wage and Hour Act expressly recognized that the general welfare of the people necessitated a balancing of the employee’s right to earn acceptable wages and the competitive position of North Carolina business and industry. N.C.G.S. § 95-25.1(b). The statutory remedy making the employer potentially liable for up to twice the amount due plus the costs and expenses incurred by the employee in pursuing the claim reflects this balancing. By this opinion we do not in any way condone an employer’s violation of the minimum wage law with the resultant hardship and inconvenience to its employees, and we expressly denounce such unlawful coercive attempts to deprive employees of the wages to which they are lawfully entitled. The legislature having expressed its intent, however, we decline to extend the public policy exception to the employment at will doctrine to afford a cause of action in addition to that provided by statute. Relegating an employee to his statutory remedy is, in our view, a sound policy where, as here, the employee has not been required to engage in unlawful conduct and the employer’s statutory violation does not threaten the public safety. See Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989); Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985). Moreover, limitation of the public policy exception to situations where there is no statutory redress finds support in other jurisdictions. See, e.g., Wehr v. Burroughs Corp., 438 F. Supp. 1052 (E.D. Pa. 1977), aff’d as modified, 619 F.2d 276 (3d Cir. 1980), and cases cited therein, in which the district court declined to recognize a separate breach of contract action for age discrimination in violation of the Pennsylvania Human Relations Act, now 43 Pa. Cons. Stat. Ann. §§ 951 et seq. (Purdon 1991). Noting that the public policy exception had been applied only where the employee had no other remedy and a valuable social policy would go unvindicated, the court concluded: It is clear then that the whole rationale undergirding the public policy exception is the vindication or the protection of certain strong policies of the community. If these policies or goals are preserved by other remedies, then the public policy is sufficiently served. Therefore, application of the public policy exception requires two factors: (1) that the discharge violate some well-established public policy; and (2) that there be no remedy to protect the interest of the aggrieved employee or society. 438 F. Supp. at 1055. For the foregoing reasons, we hold that plaintiffs’ complaint as a matter of law does not state a cause of action for wrongful termination. Affirmed. Judge Greene concurs. Judge Johnson dissents. Judge JOHNSON dissenting. I respectfully dissent. I agree with the majority that plaintiffs’ complaint as a matter of law does not state a cause of action for wrongful termination. I believe, however, that under notice pleading the complaint sufficiently states a cause of action pursuant to N.C.G.S. § 95-25.22.1 would reverse the dismissal to allow plaintiffs to pursue their remedy under that statute.

<p>Appeal from the circuit court of Hinds county.</p> <p>HoN. E. L. BeieN, Presiding Judge.</p> <p>Suit by Ruby Taylor, by her next friend, Dick Taylor,, ag’ainst the Jackson Light & Traction Company. Prom a judgment for plaintiff, defendant appeals.</p> <p>This action was instituted in the circuit court of Hinds county by Ruby Taylor, a minor of the age of ten years, suing by her next friend, to recover damages for the alleged negligence of the Jackson Light & Traction Company in carrying plaintiff beyond her destination. Ap-pellee was allowed to recover punitive damages, and from a judgment awarding the sum of five hundred dollars appellant appeals.</p> <p>The record shows that the plaintiff and another little girl by the name of Tutt were in company with plaintiff’s mother, Mrs. Ada Taylor; that the three boarded one of the regular street cars of appellant at the Old Capitol station in the city of Jackson and paid three fares for their transportation north to Euclid street. According to the testimony of Mrs. Taylor, when the car was about half way from Pairview to Euclid, and half a block before they reached their destination, “the little girls gave the signal;” that this signal was given by raising the hand, and was the usual signal then employed by the company; that although they gave the signal, the car did not stop at Euclid street, hut ran for half a block beyond the point where they desired to alight from the car; that when she saw they had passed the stopping place, she “got up and began walking towards the back end, and he (the conductor) spoke in this manner: ‘Do you want to get off at this stop?’ and I says, H do; will you please back up?’ and he says, ‘No, you will get off right here.’ ” She further testified that the conductor “spoke rough;” that he refused to hack the car to Euclid crossing, saying that “he didn’t have time;” that the street in the middle of the block where the car actually stopped was muddy and wet, and that in getting off the ear s

<p>Appeal, No. 143, Oct. T., 1906, by R. H. Murray, executor et al., from decree of O. O. Clarion Co., distributing royalties from sale of coal under a coal lease in Estate of W. P. Murray.</p> <p>Exceptions on adjudication upon issue awarded by tbe orphans’ court to the common pleas.</p> <p>In the common pleas Wilson, P. J., found the facts to be as follows:</p> <p>A dispute has arisen between the widow and collateral heirs of W. P. Murray, late of Callensburg, Pennsylvania, deceased, as to the distribution of the royalty from a certain coal lease, dated February 1, 1899, from W. P. Murray to E. N. Miller and alleged to have been in full force at the time of the death of W. P. Murray, on July 7, 1901. An issue was framed and certified from the orphans’ court into the court of common pleas to determine the validity of said lease; a jury was waived and the ease submitted to the court for trial under the Act of April 22, 1874, P..L. 109. The widow, Elizabeth A. Murray, claims against the will and alleges that she is entitled to one-half of the royalty from the aforesaid lease which was a sale of the coal in place and converted it into personalty.</p> <p>There are various questions of fact and law raised by the respective requests for findings, but independent of everything else in the case, the fact that the lease had not been forfeited in the lifetime of W. P. Murray, and that upon his death one-half of the royalty thereof descended to his widow, Elizabeth A. Murray, and that as against her, R. H. Murray, executor, had no right to declare a forfeiture and substitute a new lease therefor, is decisive of the present controversy.</p> <p>The following indorsement appears on the lease in controversy :</p> <p>“ June 2nd, 1900, for value received I hereby extend the provisions of this lease until August 1st, 1900.</p> <p>“ Signed: W. P. Murray,</p> <p>“ H. F. Miller.”</p> <p>This sentence as it stands alone is plain and free from ambiguity, but as applied to the lease upon

<p>CASE 13. — ACTION BY Z. T. PROCTOR AGAINST THE I. C. R. R. CO. AND OTHERS FOR DAMAGES FOR PERSONAL INJURIES. — November 8, 1905.</p> <p>Appeal from Grayson Circuit Court.</p> <p>Weed S. Chele, Circuit Judge:</p> <p>Judgment for plaintiff. Defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Admission of incompetent testimony of statements of someone in overalls not shown to be an employe of appellant.</p> <p>2. Misconduct of counsel in his closing argument. (McHenry, &-c., Co. v. Sneddon, 98 Ky., 684; L., H. & St. L. Ry. Co. v. Morgan, 23 Ky. Law Rep., 121; L. & N. R. R. Co. v. Hull, 24 Ky. Law' Rep., 379; 113 Ky., 572; I. C. R. R. Co. v. Jolly, 27 Ky. Law Rep., 118.)</p> <p>3. The jury should have been instructed peremptorily to find for Ihe defendant. (Prance’s Admr. v. L. & N. R. R. Co., 15 Ky. Law</p> <p>Rep., 244; 22 S. W., 851; Ward’s Admr. v. I. C. R. R. Co., 22 Ky. Law Rep., 191; 56 S. W., 807; Yates v. I. C. R. R. Co. (not yet reported), September 21, 1905; Manning v. I. C. R. R. Co., 27 Ky. Law Rep., 142.)</p> <p>4. This action has been removed to the United States Circuit Court ior the Western District of Kentucky, and the Circuit Court erred in assuming jurisdiction of this action after the petition and bond for removal were filed. (C. & O. Ry. Co. v. Dixon, 179 U. S.; I. C. R. R. Co. v. Jones, 26 Ky. Law Reg., 31; 80 S. W., 484; Daughtry v. R. R. Co., 138 U. S., 299 (34 L. Ed., 963); B. C. R. & N., &c., Co. v. Dunn, 122 U. S., 513 (30 L. Ed., 1160); Durkee v. I. C. R. R. Co., 81 Fed., 1; Kelly v. Co., 122 Fed., 286; Gustafson, &e., v. Co., 128 Fed., 85; Crawford v. I. C. R. R. Co., 130 Fed., 395; Dishon’s Admr. v. C., N. O. &T. P., 133 Fed., 471; Wharton on “Agency and Agents,” section 536, p. 350; Blackstone, Vol. 1, p. 431; Wharton’s Agency, section 535; Shear. & Red. on Neg., 5th Ed., p. 52; Colvin v. Holbrook, 2 N. Y./129; Murray v. Usher, 117 N. Y., 549; Kelly v. Chicago, &c., Ry. Co., 122'Fed., 290; Davenport v. Southern Ry. Co., 124 Fed

<p>ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS.</p> <p>This action was commenced in a justice’s court in Saline Township, Saline County, Arkansas, by Charles Paul against the St. Louis, Iron Mountain and Southern Railway Company, a corporation organized under the laws of the State of Arkansas, and owning and operating a railroad within that State, to recover $21.80 due him as a laborer, and a penalty of $1.25 per day for failure to pay him what was due him when he was discharged. The case, was carried by appeal to the Circuit Court of. Saline County and there tried de novo. Defendant demurred to so much of the complaint as sought. to recover the penalty on the ground that the act of the general assembly of Arkansas entitled “ An act to provide for the protection of servants and employés of railroads,” approved March 25,. ,1889, Acts Ark. 1889, 76, which provided therefor, was in violation of articles five and fourteen of the Amendments to the Constitution of the United States, and also in violation of the constitution of the State of Arkansas. The demurrer was overruled, and defendant answered, setting up certain matters not material here, and reiterating in its third paragraph the objection that the act was unconstitutional and void. To this paragraph plaintiff demurred, and the demurrer was sustainéd. The case was then heard by the court, the parties, having. waived a trial by jury, and the court found that the plaintiff was entitled to recover the sum claimed and the penalty at the rate of daily wages from the daté of the discharge until the date of the commencement of the suit, and entered judgment accordingly. Defendant appealed to the Supreme Court of the State of Arkansas, which affirmed the judgment, 64 Arkansas, 83, and this writ of error was then brought. .</p> <p>The act-in question is as follows:</p> <p>“ SectioN 1. Whenever any railroad company or any company, corporation or person engaged in the business of operating or constructing any railroa

<p>Appeal, No. 115, April Term, 1897, by defendant, from judgment of C. P. Butler Co., Sept. T., 1895, No. 13, on verdict for plaintiff.</p> <p>Trespass. Before Barker, P. J., of the 47th judicial district, specially presiding.</p> <p>Trespass by the Standard Plate Glass Company, a corporation engaged in the business of manufacturing plate glass against the Butler Water Company, an upper riparian owner, to recover damages alleged to have been suffered by the plaintiff company as a riparian owner by reason of the diversion of the waters of a creek by the defendant company.</p> <p>Other facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $900 with interest and costs of suit. Defendant appealed.</p> <p>Errors assigned were (1) In instructing the jury in the general charge as follows: “Now, it has been argued by defendant’s counsel (and as to this we shall more formally instruct you -in answering the points submitted by counsel), that the plaintiff company had no right to use this water for artificial purposes created by it, after the defendant company had entered on the stream and commenced taking the water, and then complain because the supply is diminished. If the water company was rightfully taking water from the stream by virtue of its rights of eminent domain it had the right to take all the water, if necessary. If the water company was unlawfully using the water, or occupied the position of an upper riparian owner, as to it, the lower owner would have the right to use all the water for any purpose, and it would not lie in the mouth of the defendant to say to the plaintiff, ‘ you can use this water for watering cattle or irrigating the ground, but you cannot create an artificial use or demand for the water.’ ” (2) In the answer to the first point of plaintiff, said point and answer being as follows : “ In this action, being an action against a water company to recover injury to land caused by diversion of water from