Wrongful Termination Cases

MICHAEL GRIFFIN, Plaintiff-Appellant v. MICHAEL HOLDEN, Defendant-Appellee No. COA05-1608 (Filed 7 November 2006) 1. Libel and Slander— chair of county commissioners — statements about financial transfer — action by county finance manager Summary judgment was correctly granted for a county commission chairman against whom the deputy manager and finance officer of the county brought a libel action. None of the statements constituted libel per se because they were capable of more than one meaning and they were not of a nature from which disgrace, public ridicule, or shunning could be presumed as a matter of law. Plaintiff did not show libel per quod in that he was not able to produce an evidentiary forecast of actual malice or special damages. 2. Employer and Employee— intentional interference with contract — statements and action by chairman of commissioners — finance manager terminated Summary judgment was correctly granted for the defendant on a claim for intentional interference with an employment contract where the chairman of a county board of commissioners initiated an investigation into a financial transfer and made comments to the press, and the county manager eventually terminated plaintiff, the deputy manager and finance officer of the county. Appeal by plaintiff from judgment entered 6 June 2005 by Judge John R. Jolly, Jr. in Moore County Superior Court. Heard in the Court of Appeals 16 August 2006. Van Camp, Meachem & Newman, PLLC, by Thomas M. Van Camp, for plaintiff-appellant. Garris Neil Yarborough, for defendant-appellee. ELMORE, Judge. Michael Griffin (plaintiff) brought an action against Michael Holden (defendant) for libel per se, libel per quod, and intentional interference with contract. Defendant filed a motion for summary judgment, which the trial court granted. Plaintiff appeals. After careful review of the record, we affirm the trial court’s ruling. Beginning in July 1994, plaintiff was employed as Deputy County Manager/Finance Officer of Moore County. In that same year, the Moore Parks Foundation (the Foundation) was created to raise money for the construction of Hillcrest Park. The Foundation was not a department or agent of the county, but the funds donated to the Foundation were transferred to the county and held in the Hillcrest Park Capital Project Fund (the fund). Beginning in 1998, the county began to match the donations collected by the Foundation and, ber tween 1998 and 2000, contributed $190,000.00 to the fund. Hillcrest Park was substantially complete by 2001, with $63,000.00 still remaining in the fund. In July 2002, representatives of the Foundation discussed with plaintiff the return of $43,617.00 of the unspent donations. The Foundation based this amount on a pro rata calculation of the Foundation’s contribution to the fund (roughly 70%). According to Foundation representatives, the remaining balance, roughly $19,000.00, belonged to the county. Plaintiff conferred with County Manager David McNeil about the transaction, and then, in his capacity as Finance Officer of Moore County, plaintiff authorized $43,617.00 to be returned to the Foundation. County Manager McNeil resigned in November 2002. From December 2002 to May 2003, plaintiff served as Interim County Manager of Moore County. In May 2003, Steven Wyatt (Wyatt) was named permanent County Manager of Moore County, and plaintiff resumed his duties as Deputy County Manager/Finance Officer. In March 2004, defendant, the Chairman of the County Board of Commissioners, asked Wyatt to look into paving the entranceway to Hillcrest Park. Defendant warned Wyatt that “somebody told [him] that some money got moved around.” Wyatt asked plaintiff about the funds, and plaintiff sent Wyatt an email message detailing the available funds and the transfer to the Foundation. Plaintiff told Wyatt in the email that “some of the [fund] money had been given back to the parks foundation.” When Wyatt asked specifically about the process, plaintiff informed him that a budget amendment had been approved by the Board. Wyatt asked plaintiff for a copy of the budget amendment, but did not hear back from plaintiff for “a couple of weeks, maybe 10 days, 14 days.” Wyatt then asked Carol Thomas, the clerk, to get him a copy of the budget amendment. Thomas returned and said that she could not find the amendment. Wyatt asked John Frye about the budget amendment, and Frye sent an email saying that “staff had done [the transfer of money to the Foundation].” Wyatt believed that plaintiff had lied to him about the budget amendment. Wyatt contacted David Lawrence at the University of North Carolina Chapel Hill School of Government for advice. After hearing Wyatt’s account of the transfer, Wyatt stated that Lawrence said “that was an unauthorized transaction.” At this point, Wyatt directed the county attorney to retain an outside firm to conduct an “arm’s length” examination of the $43,000.00 transaction. “[T]he county attorney’s office entered into an agreement with Dixon Hughes to audit this particular transaction.” According to then County Attorney Lesley Moxley, “it was to be an independent audit.” On 5 May 2004, the auditors presented their findings to the Board of Commissioners in closed session. The auditors reported to the Board that all of the remaining $63,000.00 of the fund had belonged to Moore County, meaning that plaintiff was required to obtain Board approval before transferring funds to any third party, including the Foundation. Plaintiff had not obtained Board approval before making the transfer. The Board of Commissioners decided to release the consulting report to the public. Immediately after the closed session, defendant, as chairman, was asked several questions by the media. Some of his responses were later published in local newspapers. On 19 May 2004, Wyatt gave plaintiff the opportunity to submit his resignation. Plaintiff elected not to resign. On 20 May 2004, an article appeared in The Fayetteville Observer, publishing the results of the consulting report released by the Board and containing a series of statements made by defendant regarding the money transferred to the Foundation. On 21 May 2004, another article appeared in The Pilot, containing an additional statement made by defendant regarding the transfer. The relevant statements are as follows: Fauetteville Observer. 20 Mav 2004: (a) “Today we are making sure that procedures and policies are in place to make sure that the money that belongs to taxpayers of Moore County are properly in place.” (b) “If you do something like this, you do it for a good reason. And there doesn’t seem to be a good reason.” (c) “It was Moore County money and they took it and gave it to someone outside the control of Moore County.” (d) “The Board authorized its lawyer, Lesley Moxley, to deliver the audit report to the District Attorney’s Office.” (e) “It appears to me that this is the kind of mischief that we were trying to stop the lame-duck Board of Commissioners from carrying out.” (f) “My belief here, today, is there are some County employees that were doing things and moving money around for various and sundry motives.” The Pilot. 21 Mav 2004: (g) “We told you so, I said-at the time that they would leave scorched earth behind them going out the door.” On 28 May 2004, Wyatt issued a letter to plaintiff terminating his employment for “grossly inefficient job performance” and “unacceptable personal conduct.” On 1 July 2004, plaintiff filed a complaint against defendant for libel per se and libel per quod, alleging both special and punitive damages. Plaintiff also filed an action against defendant for intentional interference with contract, alleging that defendant orchestrated plaintiff’s termination by arranging for an unfavorable audit/consulting report to be presented to the Board of Commissioners. On 25 April 2005, defendant filed a motion for summary judgment on all claims. The trial court granted defendant’s motion for summary judgment. Plaintiff now appeals, contending that the trial court erred by' granting defendant’s motion for summary judgment, on the grounds that there existed genuine issues of material fact regarding all of his claims. Plaintiff’s arguments are without merit, and we affirm the trial court’s grant of summary judgment. Summary judgment is appropriate when all the evidentiary materials before the court “show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). “The moving party has the burden of establishing the absence of any genuine issue of material fact, and the evidence presented should be viewed in the light most favorable to the nonmoving party.” Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (1999) (citing Holley v. Burroughs Wellcome Co., 318 N.C. 352, 355-56, 348 S.E.2d 772, 774 (1986); Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)). “The movant may meet this burden by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim....” Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 429, 562 S.E.2d 602, 603 (2002) (quoting Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)). Once defendant meets this burden, plaintiff must “produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie [sic] case at trial.” Purvis v. Moses H. Cone Mem’l Hosp. Serv. Corp., 175 N.C. App. 474, 477, 624 S.E.2d 380, 383 (2006) (quoting Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). Generally, to make out a prima facie case for defamation, “plaintiff must allege and prove that the defendant made false, defamatory statements of or concerning the plaintiff, which were published to a third person, causing injury to the plaintiff’s reputation.” Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 356, 595 S.E.2d 778, 783 (2004) (quoting Tyson v. L’Eggs Prods., Inc., 84 N.C. App. 1, 10-11, 351 S.E.2d 834, 840 (1987)). Libel is generally divided into three classes: (1) publications obviously defamatory which are called libel per se; (2) publications susceptible of two interpretations one of which is defamatory and the other not; and (3) publications not obviously defamatory but when considered with innuendo, eolio-quium, and explanatory circumstances become libelous, which are termed libels per quod. Renwick v. News & Observer Pub. Co., 310 N.C. 312, 316, 312 S.E.2d 405, 408 (1984) (quoting Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979)). Plaintiff brings two actions for libel: libel per se and libel per quod. As an initial matter, we must determine “[w]hether a publication is one of the type that properly may be deemed libelous per se.” Ellis v. Northern Star Co., 326 N.C. 219, 224, 388 S.E.2d 127, 130 (1990). “In determining whether [a statement] is libelous per se the [statement] alone must be construed, stripped of all insinuations, innuendo, colloquium and explanatory circumstances. The [statement] must be defamatory on its face ‘within the four comers thereof.’ ” Renwick, 310 N.C. at 318, 312 S.E.2d at 409 (1984) (quoting Flake v. Greensboro News Co., 212 N.C. 780, 787, 195 S.E. 55, 60 (1938)). To be libelous per se, defamatory words must generally “be susceptible of but one meaning and of such nature that the court can presume as a matter of law that they tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided.” Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 26, 588 S.E.2d 20, 26 (2003) (quoting Flake, 212 N.C. at 786, 195 S.E. at 60). If the statement is subject to two interpretations, one of which is not defamatory, then it is not libelous per se. Renwick, 310 N.C. at 318, 312 S.E.2d at 409 (defendant’s editorial was susceptible to a non-defamatory interpretation as well as a defamatory interpretation, so there was no cause of action for libel per sé). The determination of whether statements are libelous per se has a significant bearing on plaintiff’s evidentiary burden. “When a publication is libelous per se, a prima facie [sic] presumption of malice and a conclusive presumption of legal injury arise entitling the victim to recover at least nominal damages without proof of special damages.” Hanton v. Gilbert, 126 N.C. App. 561, 567, 486 S.E.2d 432, 436-37 (1997) (quoting Arnold, 296 N.C. at 537-38, 251 S.E.2d at 455). On the other hand, when a publication is libelous per quod, the injurious character of the words and some special damage must be pleaded and proved. Renwick, 310 N.C. at 316, 312 S.E.2d at 408; Flake, 212 N.C. at 785, 195 S.E.2d at 59. In this case, none of defendant’s publications were libelous per se. Although some of the statements are potentially defamatory in that they imply some level of impropriety in the transfer of funds to the Foundation, none of the statements at issue are “of such nature that the court can presume as a matter of law that they tend to disgrace and degrade [plaintiff] or hold him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided.” Broughton, 161 N.C. App. at 26, 588 S.E.2d at 26 (emphasis added). Further, all of the statements are ambiguous enough to be capable of more than one meaning, some of which are not defamatory. Plaintiffs first assignment of error is therefore overruled; we confine our subsequent analysis to plaintiffs claim of libel per quod. As a result, plaintiff must include a showing of malice and special damages in his evidentiary forecast. See id. Where the plaintiff in a libel action is a public official, the court imposes a more strenuous constitutional standard of malice in addition to state common law elements. This Court has acknowledged the United States Supreme Court’s decision that: Where the plaintiff is a “public official” and the allegedly defamatory statement concerns his official conduct, he must prove that the statement was “made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Varner v. Bryan, 113 N.C. App. 697, 703, 440 S.E.2d 295, 299 (1994) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706 (1964)). Likewise, this Court has noted the United States Supreme Court’s definition of “public official”: “[T]he ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Cline v. Brown, 24 N.C. App. 209, 214, 210 S.E.2d 446, 449 (1974), cert. denied 286 N.C. 412, 211 S.E.2d 793 (1975) (quoting Rosenblatt v. Baer, 383 U.S. 75, 85, 15 L. Ed. 2d 597, 606 (1966)). At all times relevant to this suit, plaintiff had “substantial responsibility for . . . the conduct of governmental affairs.” Id. The statements at issue were made about plaintiff’s conduct as Finance Officer of Moore County and so related to plaintiff’s official conduct; plaintiff therefore brings this libel action as a public official. Accordingly, plaintiff must show that defendant published the alleged libels with actual malice, in addition to showing all state common law elements. If defendant shows through discovery that plaintiff “cannot produce evidence to support an essential element of [these] claim[s],” per Bolick, 150 N.C. App. at 429, 562 S.E.2d at 603, then the burden shifts to plaintiff to “produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie [sic] case at trial.” Collingwood, 324 N.C. at 66, 376 S.E.2d at 427. The elements of plaintiffs prima facie case for libel per quod, which he brings in his capacity as a public official, include the following: (1) defendant published false statements, (2) the statements were, defamatory, (3) the statements were of or concerning the plaintiff, (4) the statements were published to a third person, (5) the publication caused special damage to plaintiff, and (6) defendant did so with actual malice as defined in Sullivan, that is, “with knowledge that [the statements were] false or with reckless disregard of whether [they were] false or not.” See Sullivan, 376 U.S. at 279-80, 11 L. Ed. 2d at 706; Renwick, 310 N.C. at 316, 312 S.E.2d at 408; Tyson, 84 N.C. App. at 10-11, 351 S.E.2d at 840. Because plaintiff failed to satisfy the final two elements of actual malice and the existence of special damages, we affirm the trial court’s grant of summary judgment. We begin our analysis with the issue of actual malice. As stated above, the burden is on defendant to show that there are no triable issues of fact. “[Defendant] may meet this burden by . . . showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim . . . .” Roumillat, 331 N.C. at 63, 414 S.E.2d at 342. Here, defendant raised significant doubt as to the evidence supporting his actual malice in making the publications at issue. Indeed, there is no definitive evidence in the record that tends to show, independent of speculation and inference, that defendant published any of the statements with actual malice. Accordingly, the burden outlined in Roumillat has been met, and plaintiff must therefore “produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie [sic] case at trial.” Id. In order to establish that defendant published the statements at issue with actual malice, plaintiff must show that defendant published them “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” Sullivan, 376 U.S. at 279-80, 11 L. Ed. 2d at 706. Further, the United States Supreme Court has stated that: [R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 267 (1968). In addition, plaintiff must produce enough evidence to make a prima facie showing of actual malice with convincing clarity: When a defamation action brought by a “public official” is at the summary judgment stage, the appropriate question for the trial judge is whether the evidence presented is sufficient to allow a jury to find that actual malice had been shown with convincing clarity. Varner, 113 N.C. App. at 704, 440 S.E.2d at 299 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 91 L. Ed. 2d 202, 217 (1986)). We must therefore determine whether plaintiff produces an evidentiary forecast sufficient to show actual malice with convincing clarity. It should be noted that throughout the section of his brief titled “Evidence of Holden’s Bad Motive, Malice and Reckless Disregard for the Truth” plaintiff relies on conclusory statements and seems to allege malice on the part of everyone from the county attorney’s office to the accounting firm that handled the independent investigation. This is not a wrongful termination case. The actions and intentions of those other than defendant are, at best, ancillary to the question of whether defendant made the statements with malice. We will therefore address only those contentions that bear on the presence or absence of malice in defendant’s statements. Plaintiff first alleges that defendant’s statements that plaintiff

<bold>1. Appeal and Error — appealability —</bold> <bold>interlocutory order — substantial right</bold> <block_quote> Although plaintiff's appeal from the trial court's order dismissing his claim under the North Carolina Persons with Disabilities Protection Act is an appeal from an interlocutory order<page_number>Page 816</page_number> based on the fact that two claims remain at the trial level, plaintiff is entitled to immediate appeal based on a substantial right, because: (1) plaintiff's North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances; and (2) if the appeal is refused, two trials and possibly inconsistent verdicts could result.</block_quote> <bold>2. Disabilities — North Carolina Persons with</bold> <bold>Disabilities Protection Act — Americans with Disabilities</bold> <bold>Act — Equal Employment Opportunity Commission claim</bold> <bold>commenced — concurrent jurisdiction not allowed</bold> <block_quote> The trial court did not err by dismissing plaintiff's claim under the North Carolina Persons with Disabilities Protection Act (NC Disabilities Act) pursuant to N.C.G.S. § <cross_reference>168A-11</cross_reference>(c) after plaintiff commenced an Equal Employment Opportunity Commission (EEOC) claim, because: (1) the General Assembly has disallowed concurrent jurisdiction over an NC Disabilities Act claim and an Americans with Disabilities Act claim that arises out of the same facts and circumstances; (2) plaintiff's claim was still being investigated at the EEOC at the time of his state court filing thus making it fall within the NC Disabilities Act's language of "commenced federal administrative proceedings" and thereby removing it from the subject matter jurisdiction of the state court; and (3) the fact that defendant's motion to dismiss was not heard until after the EEOC had issued plaintiff's righ

THOMAS BOBBITT, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent No. COA05-1548 (Filed 17 October 2006) 1. Appeal and Error— appellate rules violations — omissions not so egregious to invoke dismissal Respondent university’s motion to dismiss petitioner state employee’s appeal from the denial of his claim for termination from employment without just cause due to discrimination, based on a failure to comply with N.C. R. App. P. 10(c), is denied because: (1) petitioner’s brief contains appropriate record references for each of his arguments; and (2) although defendant did not technically follow the rules by failing to list specific page numbers where exceptions can be found in the record and did not set out these exceptions in the brief, these omissions are not so egregious as to invoke dismissal. 2. Public Officers and Employees— career state employee— termination from employment without just cause due to discrimination — exhausting internal grievance procedure not required — waiver A de novo review revealed that the trial court’s order affirming the State Personnel Commission’s holding that it did not have jurisdiction to hear petitioner career state employee’s claim for termination from employment by respondent university without just cause due to discrimination is reversed, and the case is remanded to the Commission to decide the merits of petitioner’s claim, because: (1) petitioner’s allegations allow him to appeal directly to the Commission under N.C.G.S. § 126-36(a) without exhausting respondent’s internal grievance procedure since he sufficiently asserted his dismissal was based upon age or race discrimination; (2) the petition properly invoked jurisdiction before the Office of Administrative Hearings and the Commission on alleged race and age discrimination despite the fact that his counsel proceeded and prevailed before the ALJ on a just cause argument at the hearing; and (3) respondent’s failure to move to dismiss on jurisdictional grounds, once petitioner announced he was proceeding only on just cause, waived any required exhaustion of internal grievance procedures. Judge Wynn concurring in the result. Appeal by petitioner from order entered 1 August 2005 by Judge J.B. Allen in Wake County Superior Court. Heard in the Court of Appeals 12 September 2006. Barry Nakell, for petitioner-appellant. Attorney General Roy Cooper, by Assistant Attorney General Q. Shanté Martin, for respondent-appellee. TYSON, Judge. Thomas Bobbitt (“petitioner”) appeals from order entered affirming the decision of the State Personnel Commission (the “Commission”) to dismiss for lack of jurisdiction his petition for termination from employment without just cause due to discrimination. We reverse and remand. I. Background Petitioner was employed by North Carolina State University (“respondent”) for more than fifteen years. Petitioner’s employment was terminated on 21 November 2001. Prior to termination, petitioner was employed as a floor maintenance assistant at Reynolds Coliseum, an indoor athletic facility located on respondent’s campus. On 5 November 2001, petitioner reported to work at 4:54 p.m. and performed routine services in preparation for a basketball game scheduled that evening. During the game, petitioner was stationed at the south end goal and was instructed to sweep the floor and keep it free from debris. Petitioner took a restroom break at approximately 8:30 p.m. during the game’s half-time intermission. Petitioner testified the restroom was crowded. Petitioner relieved himself into the urinal, washed his hands, and returned to his duty station. Petitioner did not take another restroom break until approximately 1:30 a.m. Petitioner testified he used the toilet and he was alone in the restroom at the time. On 5 November 2001, employees of LPSC Cleaning Services arrived at Reynolds Coliseum to perform its contract cleaning services after the basketball game ended. One member of the cleaning crew, Jerry Williams, reported to Larry Bell of LPSC Cleaning Services that he had observed petitioner urinating on the floor in the men’s restroom. On 6 November 2001, Larry Bell reported this allegation to William Boweles, Coliseum Supervisor and Maintenance Coordinator. William Boweles reported the matter to his supervisor, Barry Joyce, petitioner’s supervisor and Director of Indoor Athletic. Facilities. An investigation into Jerry Williams’s allegations commenced. Petitioner repeatedly denied he urinated on the bathroom floor. By letter dated 21 November 2001, Barry Joyce dismissed petitioner from employment effective 23 November 2001 for “improper personal conduct.” The letter stated: In accordance with the [University’s Grievance Procedure, you have 15 work days from receipt of this letter to appeal your dismissal to the Division of Human Resources. If alleging discrimination, you may choose not to utilize the university’s grievance procedure and appeal directly to the State Personnel Commission within 30 calendar days from receipt of this letter. Six days later on 27 November 2001, petitioner filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings (“OAH”). Petitioner’s petition asserted “discharge without just cause” and that his discharge was based on age and race discrimination. On 16 April 2002, the administrative law judge (“ALJ”) granted respondent’s motion for summary judgment on certain claims, but denied respondent’s motion regarding petitioner’s claims for an allegedly excessive workload based on alleged racial discrimination and/or related retaliation. Petitioner’s petition was heard in the OAH on 28 August 2002. Petitioner’s counsel gave an opening statement in which he summarized the two issues in this case as termination without just cause and workplace harassment. Respondent’s counsel stated during opening statements that those are “the two basic issues in this case.” Later during the hearing, petitioner’s counsel announced petitioner would be proceeding on the issue of termination without just cause. Respondent did not move to dismiss petitioner’s remaining discrimination claims for abandonment or lack of jurisdiction at any time during the hearing before the ALJ. The AU in his recommended decision found and concluded, “[t]he evidence in the case and at the hearing leads to no other conclusion but that it is more likely than not that the [petitioner] did not commit the offense.” The AU issued a recommended decision to the Commission to overturn petitioner’s dismissal from and re-instate his state employment. The AU ruled Barry Joyce, petitioner’s supervisor, incorrectly shifted the burden of proof to petitioner when he stated that he had no reason not to believe Jerry Williams’s allegations. In his recommended decision, the AU also concluded, “[t]he [OAH] has jurisdiction over the parties and over [petitioner’s] ‘just cause’ claim.” The Commission took no additional evidence, declined to adopt the AU’s findings of fact and conclusions of law, and addressed only whether it had jurisdiction over petitioner’s just cause claim. The Commission ordered petitioner’s petition be dismissed for lack of jurisdiction. The Commission explained its decision as follows: [N] either OAH nor the State Personnel Commission has any claim before it other than [petitioner’s] just cause claim. Nothing in the Decision of the Temporary Administrative Law Judge shows that he considered the issue of whether the Office of Administrative Hearings has subject matter jurisdiction over a just cause claim which has not been exhausted internally through agency procedures. Because subject matter jurisdiction is non-waivable, and cannot be conferred by stipulation or consent of the parties, the Commission has had to consider this threshold issue. The Commission stated that because petitioner had not exhausted available administrative remedies through respondent’s internal grievance procedure, his petition did not invoke the jurisdiction of either the OAH or the Commission. Petitioner filed a Petition for Judicial Review in the Wake County Superior Court, which affirmed the decision and order of the Commission. Petitioner appeals. II. Respondent’s Motion to Dismiss Respondent filed a motion to dismiss petitioner’s appeal with this Court. Respondent argues petitioner’s appeal should be dismissed due to petitioner’s failure to comply with Rule 10(c) of the North Carolina Rules of Appellate Procedure. Rule 10(c) states in part, “[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.” N.C.R. App. P. 10(c)(1) (2006). Petitioner’s brief contains appropriate record references for each of his arguments. Those record references refer to the order appealed from. In Symons Corp. v. Insurance Co. of North America, we held, “[although defendant in this case did not technically follow the rules by failing to list specific page numbers where exceptions could be found in the record and did not set out these exceptions in the brief, we do not find these omissions so egregious as to invoke dismissal.” 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989). In Adams v. Kelly Springfield Tire Co., this Court also declined to dismiss an appeal for an identical rule violation. 123 N.C. App. 681, 682, 474 S.E.2d 793, 794 (1996). Respondent’s motion to dismiss petitioner’s appeal is denied. HI. Issues Petitioner argues he: (1) properly filed his petition asserting respondent terminated his employment without just cause directly to the OAH and the Commission pursuant to N.C. Gen. Stat.. § 125-36(a) and (2) is estopped from raising lack of subject matter jurisdiction. A. Standard of Review “Since we are reviewing a ‘review proceeding’ in the superior court and petitioners are appealing pursuant to N.C. Gen. Stat. § 7A-27, we will apply N.C. Gen. Stat. § 150B-52.” Lincoln v. N.C. Dep’t of Health & Human Servs., 172 N.C. App. 567, 569, 616 S.E.2d 622, 624 (2005). N.C. Gen. Stat. § 150B-52 (2005) states: A party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court as provided in G.S. 7A-27. The scope of review to be applied by the appellate court under this section is the same as it is for other civil cases. This Court has clearly stated the standard of review applicable to appeals of administrative claims from the superior court. The proper standard of review by the trial court depends upon the particular issues presented by the appeal. If appellant argues the agency’s decision was based on an error of law, then de novo review is required. If appellant questions whether the agency’s decision was supported by the evidence or whether it was arbitrary or capricious, then the reviewing court must apply the whole record test. The reviewing court must determine whether the evidence is substantial to justify the agency’s decision. A reviewing court may not substitute its judgment for the agency’s, even if a different conclusion may result under a whole record review. As to appellate review of a superior court order regarding an agency decision, the appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. As distinguished from the any competent evidence test and a de novo review, the whole record test gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence. Carillon Assisted Living, LLC v. N.C. Dep’t of Health & Human Servs., 175 N.C. App. 265, 270, 623 S.E.2d 629, 633 (internal citations and quotations omitted), disc. rev. denied, 360 N.C. 531, 633 S.E.2d 675 (2006). Here, the issues under review concern jurisdiction and the trial court’s conclusion to affirm the Commission’s ruling that it lacked jurisdiction over petitioner’s claim. “A trial court’s conclusions of law . . . are reviewable de novo.” Lincoln, 172 N.C. App. at 570, 616 S.E.2d at 624. Whether jurisdiction was properly invoked is a question of law. In re J.B., 164 N.C. App. 394, 398, 595 S.E.2d 794, 797 (2004). B. Subject Matter Jurisdiction Petitioner argues he correctly filed his petition directly with the OAH because he alleged termination from employment without just cause due to discrimination. Petitioner argues his allegations allow him to appeal directly to the Commission, pursuant to N.C. Gen. Stat. § 126-36(a) without exhausting respondent’s internal grievance procedure. We agree. The allegations are determined from the face of the petition for a contested case hearing. See, e.g., Lee v. N.C. Dep’t of Transp., 175 N.C. App. 698, 701-02, 625 S.E.2d 567, 570, (2006). The allegations of jurisdiction must be liberally construed. Winbush v. Winston-Salem State Univ., 165 N.C. App. 520, 522-23, 598 S.E.2d 619, 621-22 (2004) (petition alleging that the employee was “relieved of [his] athletic duties and privileges” was sufficient to allege demotion and invoke jurisdiction of the OAH and the Commission). C. Career State Employee A career state employee is defined as “a [s]tate employee who is in a permanent position,” and who “has been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months.” N.C. Gen. Stat. § 126-1.1 (2005). Neither party contests the ALJ’s conclusion that petitioner was a career state employee. Our de novo review “is limited to questions so presented in the several briefs.” N.C.R. App. P. 28(a) (2006). A career state employee who has a grievance arising out of or due to their employment and “who does not allege unlawful harassment or discrimination” must “first discuss the problem or grievance with the employee’s supervisor and follow the grievance procedure established by the employee’s department or agency.” N.C. Gen. Stat. § 126-34 (2005). The employee may seek review directly to the Commission “if he is not satisfied with the final decision of the head of the department, or if he is unable, within a reasonable period of time, to obtain a final decision by the head of the department.” N.C. Gen. Stat. § 126-35(a) (2005). A state employee “who has reason to believe” that his dismissal based upon age or race discrimination may appeal directly to the Commission. N.C. Gen. Stat. § 126-36(a) (2005). Our Supreme Court has stated that the petitioners who allege discrimination need not exhaust internal grievances. [E]mployees whose grievances arise out of their employment, other than those who allege discrimination, must have complied with N.C.G.S. § 126-34, which requires all permanent state employees having such a grievance arising out of or due to their employment first to discuss their problem or grievance with their supervisor, then to follow the grievance procedure established by their department or agency. Batten v. N.C. Dept. of Correction, 326 N.C. 338, 343, 389 S.E.2d 35, 38-39 (1990) (emphasis supplied), overruled in part on other grounds by, Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 574-75, 447 S.E.2d 768, 772 (1994); see North Carolina Department of Correction v. Earl Gibson, 308 N.C. 131, 301 S.E.2d 78 (1983). “A State employee is provided with the statutory right to appeal certain claims directly to the SPC ... without first... exhausting his employer’s internal grievance procedures ... an employee may appeal a claim of discrimination directly to the SPC.” Lee, 175 N.C. App. at 701, 625 S.E.2d at 570. Respondent argues that, “[t]his Court’s holding in Nailing is directly on point . . . the case law [is] indisputable.” Respondent quotes the following language from Nailing v. TJNC-CH.: In the present case, it is undisputed that petitioner did not follow Defendant’s grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. §§ 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner’s appeal from her dismissal under N.C. Gen. Stat. § 126-35 for lack of “just cause.” 117 N.C. App. 318, 326, 451 S.E.2d 351, 356 (1994), disc. rev. denied, 339 N.C. 614, 454 S.E.2d 255 (1995). Respondent’s cited quote from Nailing excludes relevant and controlling language. The full quote reads: In the present case, it is undisputed that petitioner did not follow [Respondent’s] grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. §§ 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner’s appeal from her dismissal under N.C. Gen. Stat. § 126-35 for lack of “just cause” that does not allege discrimination. Id. (emphasis supplied). In Nailing, the claim was “a series of disciplinary warnings . . . were unjust and retaliatory.” Id. The petitioner did not allege her just cause discharge claim resulted from discrimination. Here, petitioner’s petition for a contested case hearing asserts his termination was based upon “discharge without just cause.” The petition states, “[t]he following occurred due to discrimination and/or retaliation for opposition to alleged discrimination.” Petitioner checked the lines indicating he was denied “employment” and “promotion.” Petitioner checked the line indicating “termination” was forced upon him. Petitioner also checked the line next to the word “other,” and wrote “due to a lie by an outside contractor.” Petitioner also alleged race and age discrimination by checking the appropriate lines labeled “race” and “age.” Petitioner argues he has “reason to believe” his termination was based on race and age discrimination and properly filed his claim directly before the Commission. Reviewed in the light most favorable to petitioner, and taking petitioner’s allegations in his petition as true, petitioner’s allegations sufficiently assert discrimination to allow him to petition directly to the Commission without first exhausting internal grievances. Petitioner’s petition properly invoked jurisdiction before the OAH and the Commission on alleged race and age discrimination despite the fact that his counsel proceeded and prevailed before the AU on a just cause argument at the hearing. See Campbell v. N.C. Dep’t of Transp., 155 N.C. App. 652, 660, 575 S.E.2d 54, 60 (“Jurisdiction rests on the allegations of the petitioner.”), disc. rev. denied, 357 N.C. 62, 579 S.E.2d 386 (2003). N.C. Gen. Stat. § 126-36 allows direct appeal to the Commission so long as the petitioner has a “reason to believe” his termination was based on race or age discrimination. A review of N.C. Gen. Stat. § 126 and the petitioner’s petition reveals no other requirements. Petitioner’s claims in contested case no. 2196 were largely dismissed after respondent moved for and was granted summary judgment on 16 April 2002. However, petitioner’s allegations under contested case no. 2197, the petition on which termination without just cause due to discrimination was asserted, were not dismissed. Petitioner’s counsel gave an opening statement to the ALJ summarizing the two issues in this case as termination without just cause and workplace harassment. Respondent’s counsel before the ALJ acknowledged those to be the “two basic issues in this case.” In respondent’s opening statement, defense counsel advised the AU, “I do invite the Court to keep the issue narrow, and we also have a stipulation that because we’ve converted this morning to a just cause, that my witnesses can be heard first.” (Emphasis supplied). After respondent’s evidence, petitioner’s counsel announced, “[w]e will proceed only on the issue of just cause.” Respondent’s failure to move to dismiss on jurisdictional grounds, once petitioner announced he was proceeding only on just cause, waived any required

CARLIE BOWLING, Plaintiff v. MARGARET R. PARDEE MEMORIAL HOSPITAL, Defendant No. COA05-1497 (Filed 17 October 2006) 1. Appeal and Error— appealability — interlocutory order— substantial right Although plaintiff’s appeal from the trial court’s order dismissing his claim under the North Carolina Persons with Disabilities Protection Act is an appeal from an interlocutory order based on the fact that two claims remain at the trial level, plaintiff is entitled to immediate appeal based on a substantial right, because: (1) plaintiffs North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances; and (2) if the appeal is refused, two trials and possibly inconsistent verdicts could result. 2. Disabilities— North Carolina Persons with Disabilities Protection Act — Americans with Disabilities Act — Equal Employment Opportunity Commission claim commenced— concurrent jurisdiction not allowed The trial court did not err by dismissing plaintiffs claim under the North Carolina Persons with Disabilities Protection Act (NC Disabilities Act) pursuant to N.C.G.S. § 168A-ll(c) after plaintiff commenced an Equal Employment Opportunity Commission (EEOC) claim, because: (1) the General Assembly has disallowed concurrent jurisdiction over an NC Disabilities Act claim and an Americans with Disabilities Act claim that arises out of the same facts and circumstances; (2) plaintiffs claim was still being investigated at the EEOC at the time of his state court filing thus making it fall within the NC Disabilities Act’s language of “commenced federal administrative proceedings” and thereby removing it from the subject matter jurisdiction of the state court; and (3) the fact that defendant’s motion to dismiss was not heard until after the EEOC had issued plaintiff’s right-to-sue letter was immaterial since the court never had jurisdiction over the case at all based on the fact that it was initially filed after plaintiff had already commenced federal administrative proceedings such that federal jurisdiction had attached. 3. Constitutional Law— Open Courts provision — federal proceeding — surrender of state court remedy — not violation An employee allegedly terminated because of his disability who elected to commence a federal proceeding with the EEOC and thus voluntarily surrendered his right to a remedy in the state court under the N.C. Persons with Disabilities Protection Act pursuant to N.C.G.S. § 168A-ll(c) while the federal proceeding was pending was not denied access to the state courts in violation of the Open Courts provision of N.C. Const, art. I, § 18. Appeal by plaintiff from judgment entered 12 July 2005 by Judge Laura J. Bridges in Superior Court, Henderson County. Heard in the Court of Appeals 21 September 2006. Law Offices of Glen C. Shults, by Glen C. Shulls, for plaintiff-appellant. Ford & Harrison, LLP, by David H. Tyner and Wade E. Ballard, for defendant-appellee. WYNN, Judge. No state court shall have jurisdiction over an action filed under the North Carolina Persons with Disabilities Protection Act (North Carolina Disabilities Act), where the plaintiff has commenced federal administrative proceedings under the Americans with Disabilities Act (ADA). Plaintiff argues that because he only commenced discrimination proceedings under the ADA with the Equal Employment Opportunity Commission (EEOC), this provision does not bar his North Carolina Disabilities Act action. Since filing a claim with the EEOC commences “federal administrative proceedings,” we affirm the dismissal of Plaintiff’s state law claim. Plaintiff Carlie Bowling, a licensed pharmacist, began working for Defendant Margaret R. Pardee Memorial Hospital in January 2004. He suffers from migraine headaches and other physical impairments arising from service-related injuries sustained in a helicopter crash in the mid-1980s. In July 2004, Pardee Hospital placed Mr. Bowling on administrative leave because of “certain episodes relating to Plaintiff’s job performance that caused concern about patients’ safety.” Mr. Bowling was subsequently examined by the hospital’s medical director and then terminated on 12 August 2004, after he refused to resign. On 26 October 2004, Mr. Bowling filed a claim with the EEOC, alleging that Pardee Hospital had discriminated against him and terminated him because of his migraine headaches, in violation of the Americans with Disabilities Act (ADA). While the EEOC matter was pending, Mr. Bowling brought an action in state court on 25 January 2005, asserting state law claims under the North Carolina Disabilities Act, wrongful discharge in violation of public policy, and negligent infliction of emotional distress. Pardee Hospital responded by moving to dismiss on 27 April 2005. The EEOC issued a right-to-sue letter to Mr. Bowling on 11 May 2005. Following a hearing on Pardee Hospital’s motion to dismiss, the trial court dismissed Mr. Bowling’s claim under the North Carolina Disabilities Act and denied Pardee Hospital’s motion to dismiss Mr. Bowling’s claims of wrongful discharge in violation of public policy and negligent infliction of emotional distress. Before we address the merits of Mr. Bowling’s appeal from that order, we note that his appeal is interlocutory, as the trial court’s judgment is not “one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). Mr. Bowling has two claims remaining at the trial level, but he argues that the dismissal of his North Carolina Disabilities Act claim affects a substantial right under North Carolina General Statutes §§ 1-277 and 7A-27(d), thereby giving this Court jurisdiction to consider the interlocutory appeal. A “substantial right” is one “affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a [person] is entitled to have preserved and protected by law: a material right.” Oestreicher v. American Nat’l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976). Moreover, as previously held by this Court, “the right to avoid the possibility of two trials on the same issues is a substantial right that may support immediate appeal.” Alexander Hamilton Life Ins. Co. of Am. v. J & H Marsh & McClennan, Inc., 142 N.C. App. 699, 701, 543 S.E.2d 898, 900 (2001), disc. review denied, 357 N.C. 658, 590 S.E.2d 267 (2003); see also Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982). However, “[i]f there are no factual issues common to the claim determined and the claims remaining, ... no substantial right is affected.” Alexander Hamilton, 142 N.C. App. at 701, 543 S.E.2d at 900. Here, Mr. Bowling’s North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances, namely, his termination by Pardee Hospital. If we refuse his appeal, two trials and possibly inconsistent verdicts could result. We therefore address the merits of Mr. Bowling’s arguments that the trial court erred in dismissing his claim under the North Carolina Disabilities Act because (I) the statute does not require dismissal of a case when an individual files a claim with the EEOC; and (II) the dismissal violated the “Open Courts” clause of the North Carolina Constitution. I. Mr. Bowling first asks us to construe N.C. Gen. Stat. § 168A-ll(c) (2005) as not requiring dismissal of a state law claim when an EEOC claim is commenced. “The cardinal principle of statutory construction is that the intent of the legislature is controlling.” State ex rel. Utils. Comm’n v. Carolina Util. Customers Ass’n, Inc., 163 N.C. App. 46, 50, 592 S.E.2d 221, 224 (internal quotations and citation omitted), disc. review denied, 358 N.C. 739, 602 S.E.2d 682 (2004). Moreover, “[t]he first consideration in determining legislative intent is the words chosen by the legislature.” O & M Indus. v. Smith Eng’g Co., 360 N.C. 263, 267, 624 S.E.2d 345, 348 (2006). If the language of a statute is “clear and unambiguous, there is no room for judicial construction and the court must give the statute its plain and definite meaning.” In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978). The statute should also be read as a whole. “The words and phrases of a statute must be interpreted contextually, and read in a manner which effectuates the legislative purpose.” In re Appeal of Bass Income Fund, 115 N.C. App. 703, 705, 446 S.E.2d 594, 595 (1994) (internal citations and quotations omitted). The statute at issue in this case is the North Carolina Disabilities Act, which reads in pertinent part: No court shall have jurisdiction over an action filed under this Chapter where the plaintiff has commenced federal judicial or administrative proceedings . . . under the Americans with Disabilities Act of 1990, . . . involving or arising out the facts and circumstances involved in the alleged discriminatory practice under this Chapter. If such proceedings are commenced after a civil action has been commenced under this Chapter, the State court’s jurisdiction over the civil action shall end and the action shall be forthwith dismissed. N.C. Gen. Stat. § 168A-ll(c) (2005). Thus, the first part of the statute prevents this State’s courts from having jurisdiction over North Carolina Disabilities Act claims that are based on the same facts and circumstances of an action already “commenced” at either the federal administrative or judicial level; the second part then strips this State’s courts of such jurisdiction if the action is commenced at the federal level after a North Carolina Disabilities Act claim has already been initiated. Taken as a whole, then, the statute prohibits a plaintiff from commencing an action at the federal level, and then filing suit at the state level; or, alternatively, from filing suit at the state level and then commencing an action at the federal level. Using clear and concise language, the General Assembly has disallowed concurrent jurisdiction over a North Carolina Disabilities Act claim and an ADA claim that arise out of the same facts and circumstances. Under the ADA, a claimant must exhaust his administrative remedies by first filing a claim with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(l) (2004); see also Sheaffer v. County of Chatham, 337 F. Supp. 2d 709, 723 (M.D.N.C. 2004). Following review by the EEOC, if a right-to-sue letter is issued, the plaintiff has an additional ninety days to file suit in federal court under the ADA. 42 U.S.C. § 2000e-5(f)(l) (2004). The North Carolina Disabilities Act has a similar 180-day statute of limitations from when the plaintiff becomes aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice. N.C. Gen. Stat. § 168A-12 (2005). Here, Mr. Bowling was terminated on 12 August 2004 and filed a claim with the EEOC on 26 October 2004, within the ADA’s statute of limitations. While the EEOC was investigating his claim, Mr. Bowling also filed suit in state court on 25 January 2005, within the North Carolina Disabilities Act’s statute of limitations. However, because Mr. Bowling’s claim was still being investigated at the EEOC at the time of his state court filing, it fell within the North Carolina Disabilities Act’s language of “commenced federal. . . administrative proceedings,” thereby removing it from the subject matter jurisdiction of the state court. The fact that Pardee Hospital’s motion to dismiss was not heard until 27 June 2005, after the EEOC has issued Mr. Bowling a right-to-sue letter, is immaterial; the court never had jurisdiction over the case at all because it was initially filed after Mr. Bowling had already “commenced federal . . . administrative proceedings,” such that federal jurisdiction was attached. In addition, Mr. Bowling had an additional ninety days after the right-to-sue letter to file suit in federal court. The clear meaning of the language of N.C. Gen. Stat. § 168A-ll(c) does not allow a plaintiff to file simultaneous federal and state claims, then see which one has a better chance of being successful. A plaintiff must either choose a. single forum at the outset and proceed accordingly, or ensure that one claim or the other is completely concluded within the statute of limitations so that he may move forward with the other. In light of the provisions of the ADA, the short statute of limitations prescribed for the North Carolina Disabilities Act by our General Assembly suggests its intent to allow a plaintiff a remedy at either the state or federal levels, but not both. Accordingly, we hold that N.C. Gen. Stat. § 168A-ll(c) requires dismissal of a state law claim when an EEOC claim is commenced. II. Along these lines, we find Mr. Bowling’s argument that the Open Courts clause of the. North Carolina Constitution requires that he have recourse to the state courts for his North Carolina Disability Act claim to be without merit. The Open Courts clause provides that, “All courts shall be open; every person for an injury done to him in his lands, goods, person, or reputation shall have remedy by due course of law . . .’’N.C. Const, art. I, § 18. Nevertheless, as our Supreme Court has noted in the past, “[t]he legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.” Lamb v. Wedgewood South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983). This Court has likewise held that a statute does not violate the Open Courts clause if it “does not deny litigants access to North Carolina courts, but merely postpones litigation here pending the resolution of the same matter in another sovereign court.” Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 358, 435 S.E.2d 571, 574 (1993) (internal quotations and citation omitted). In the instant case, Mr. Bowling was not denied access to nor barred from the North Carolina courts. Rather, he elected to commence federal administrative proceedings, thereby voluntarily surrendering his right to a remedy in state court, so long as those federal proceedings were pending. The North Carolina courts were open to Mr. Bowling; he chose not to avail himself of them for his North Carolina Disabilities Act claim. In conclusion, we affirm the trial court’s dismissal of Mr. Bowling’s claim under the North Carolina Disabilities Act. Affirmed. Judges McGEE and MCCULLOUGH concur. . N.C. Gen. Stat. § 168A-ll(c) (2005). . 42 U.S.C. §§ 12101 et seq. (2004).

Boston Public Health Commission vs. Massachusetts Commission Against Discrimination & another. No. 05-P-939. Suffolk. May 15, 2006. September 20, 2006. Present: Beck, Rapoza, & Cypher, JJ. Massachusetts Commission Against Discrimination. Anti-Discrimination Law, Race, Damages. Employment, Discrimination. Administrative Law, Substantial evidence. Damages, Under anti-discrimination law, Back pay, Emotional distress. Substantial evidence supported the findings of the Massachusetts Commission Against Discrimination that an employer, after terminating a black employee, filled her position with a white person with lesser qualifications [407-408], and that the black employee’s termination was motivated not by the reasons asserted by the employer [408-409], but by a discriminatory animus [409-410]. Although the Massachusetts Commission Against Discrimination (commission) acted within its discretion in awarding six years of back pay damages to a prevailing employee in a discrimination action [410], the evidence did not justify the amount awarded by the commission as emotional distress damages, and this court remanded the case to the Superior Court for a redetermination of that award [410-413], Civil action commenced in the Superior Court Department on June 21, 2004. The case was heard by Jeffrey A. Locke, J., on a motion for judgment on the pleadings. Fatema Fazendeiro for the plaintiff. Frank J. Teague for Marilyn Lewis. William F. Green for Massachusetts Commission Against Discrimination. Marilyn Lewis. Beck, J. Marilyn Lewis, a black woman with training in accounting and business administration, was terminated from her job as assistant fiscal director of the Trustees of Health and Hospitals of the City of Boston (TH&H) with one day’s notice. The alleged reasons for her discharge were corporate restructuring and an impending merger. A Superior Court judge affirmed a final administrative decision of the Massachusetts Commission Against Discrimination (MCAD), ruling that the termination was the product of unlawful racial discrimination in violation of G. L. c. 151B, § 4. The MCAD award to Lewis included $107,551 for back pay and $100,000 for emotional distress. The Boston Public Health Commission (BPHC), successor in interest to TH&H, appeals. Factual background. Before her employment at TH&H, Lewis had worked for two years as a staff accountant and a senior accountant at the large accounting firm of KPMG Peat Marwick LLP, and for more than two years as a supervisor and audit manager for the public accounting firm of DePisa & Co. She passed the certified public accountant (CPA) examination, completed her experience requirements, and was certified as a CPA by the Massachusetts Board of Public Accountancy in 1991. She also had a degree in business administration and accounting from Suffolk University. In September, 1993, TH&H hired Lewis as its grants administration manager. Her duties included overseeing the financial and accounting components of more than eighty grants, and supervising six accountants. She also maintained the general ledger and payroll accounts, and developed policies for grant accountants to meet funding deadlines. Lewis received a favorable performance evaluation from her supervisor after working at TH&H for four months. She received a merit-based annual salary increase of $2,180 after six months. On February 22, 1995, Lewis was promoted to the position of assistant fiscal director at TH&H. Her new responsibilities included generating monthly financial reports, maintaining the general ledger, and overseeing accounts payable and receivable and monthly budget reports. Lewis worked up to eighty hours each week and sometimes on holidays. In April, 1995, TH&H hired Joseph Brown as its fiscal director. Although Brown was Lewis’s immediate supervisor, he did not give her performance evaluations. Indeed, he had no real contact with her after their initial meeting. A few months after TH&H hired Brown, Lewis’s free parking space was revoked. On January 23, 1996, Brown summoned Lewis to his office and handed her a letter terminating her employment at the close of the next business day. The termination took place in front of the director of human resources at TH&H. The letter explained Lewis’s termination as a programmatic restructuring of the corporate accounting department that involved the elimination of her position. Brown subsequently admitted that the restructuring had been his idea. Lewis did not receive any written evidence of the restructuring. TH&H also suggested that the impending merger between Boston City Hospital and University Hospital necessitated the termination of Lewis’s position. Lewis was the only senior manager who lost her job because of the alleged restructuring. Michael Gaudreau, a white employee, was terminated at the same time as Lewis. Lewis supervised Gaudreau and performed all of his duties when he was absent. However, Gaudreau did not perform any of Lewis’s duties in her absence. He was not a CPA, did not have a master’s degree in business administration (MBA), and did not have prior experience at a public accounting firm. Eight days after Lewis’s termination, TH&H posted an internal job notice for the position of controller in the corporate accounting department. Lewis was not notified of the new position, even after the posting expired and Brown contacted a placement agency to solicit applicants. The duties of the controller generally were a consolidation of Lewis’s former duties and Gaudreau’s former duties. Lewis had performed all of the listed duties satisfactorily during her employment at TH&H. In May, 1996, Brown hired Lawrence Burke, a white male, for the position of controller. Brown had weekly one-hour meetings with Burke. Burke had an MBA, but was not a CPA. Although he had worked as a controller of a private corporation for ten years, he had no experience working in the public sector, no experience in grants administration, and no knowledge of the software system used by TH&H for its grants administration accounting. Burke maintained his position after the merger and became an employee of the Boston Medical Center. Following her termination, Lewis was unemployed for two months. She then worked as a contractor for one of her former employers for six months while discussing her future employment options with professionals in the field. Lewis ultimately decided to start her own accounting business, in large part because her sudden termination caused her to fear working for another organization. Lewis testified that she was shocked by her unexpected and immediate termination. She was “devastat[ed], embarrass[ed],” and distressed as a result of Brown’s actions. Racial discrimination. Lewis’s racial discrimination claim is based on alleged violations of G. L. c. 151B, § 4, as amended by St. 1989, c. 516, § 4, which, in relevant part, makes it unlawful “[f]or an employer, by himself or his agent, because of the race ... of any individual to . . . discharge from employment such individual. . . unless based upon a bona fide occupational qualification.” Specifically, Lewis asserts that BPHC discriminated against her by discharging her from her position as assistant fiscal director because of her race. Claims of racial discrimination based on a disparate treatment theory under G. L. c. 151B are evaluated under a familiar three-stage order of proof when a plaintiff uses indirect evidence to prove unlawful discrimination. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-446 (1995). In the first stage, a plaintiff must prove the four elements of a prima facie case of race discrimination: (1) membership in a protected group; (2) performance of her job at a satisfactory level; (3) termination from employment; and (4) either the employer’s continued efforts to fill the position or the employer’s hiring of a member of an unprotected group with the same or lesser qualifications than the plaintiff. Id. at 441. BPHC challenges the MCAD’s finding regarding the fourth element, namely, that TH&H filled Lewis’s position by hiring Burke. “We will 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.” Salem v. Massachusetts Commit. Against Discrimination, 44 Mass. App. Ct. 627, 640-641 (1998) (footnote omitted). We conclude that the MCAD’s determination that Lewis satisfied her prima facie case met the required standard. The record indicates that Lewis was qualified to perform all of the duties listed in the job posting for the position of controller. Several of the responsibilities for controller were identical to those Lewis performed as assistant fiscal director. Other responsibilities were those of Gaudreau. Lewis, however, was Gaudreau’s supervisor, and performed these tasks in his absence. Lewis therefore was qualified to perform the controller’s duties. Thus, the record supports the MCAD’s finding that the controller position was essentially the same position as Lewis’s position. The record also shows that Lewis was replaced by a white person with lesser qualifications. Although Burke had ten years of employment experience as a controller in a private company, he had no experience in the public sector, was not a CPA, and was unfamiliar with the software used by TH&H. Burke’s experience as a controller in other organizations was not significant because there were no responsibilities for controller beyond those that Lewis had proved capable of performing. Nor did Burke have experience with grant administration, which was one of the listed duties for the controller position. BPHC also argues that there was insufficient evidence to support a finding of pretext at the third stage of the order of proof. BPHC asserted two reasons for terminating Lewis’s employment: a restructuring of the corporate accounting department and the impending merger. Lewis provided sufficient evidence to support a finding that these reasons were not the real reasons for terminating her employment. TH&H posted a job listing for controller, a job that was essentially the same position as Lewis’s, eight days after Lewis’s termination. The alleged reorganization did not result in the termination of any other senior manager. Moreover, the controller position survived the merger of the hospitals. Other indirect evidence also supports the finding of discriminatory animus. While Brown met weekly with Burke, he never met with, reviewed, supervised, or evaluated Lewis. Brown never provided documentation of any reorganization that required the elimination of Lewis’s position. Burke was a white male who was less qualified than Lewis for the controller position, but TH&H never contacted Lewis about applying for the position. Even though Burke’s position was essentially the same as the one Lewis previously had held, the position was not eliminated by the reorganization. BPHC relies heavily on Weber v. Community Teamwork, Inc., 434 Mass. 761, 778 (2001), for the proposition that Lewis did not meet her burden of proving discriminatory animus. Weber, however, is distinguishable. The Supreme Judicial Court remanded in Weber because the trial judge did not make specific findings regarding whether the plaintiff had proved discriminatory animus and causation (two of the required elements for any claim of unlawful discrimination). Id. at 775-776. Here, in contrast, the MCAD made findings that Lewis had proved discriminatory animus through indirect evidence and found that the animus caused her termination. While there were no findings in Weber distinguishing the plaintiff’s termination from the contemporaneous termination of a male employee, here the MCAD made detailed findings explaining why Gaud-reau’s termination was distinguishable from Lewis’s. See id. at 778. Furthermore, the record in Weber contained testimony citing specific examples of the plaintiff’s inadequate work performance, which provided an evidentiary basis for the employer’s articulated reason for firing her. Id. at 773-774. In contrast, there is nothing in the record before us supporting either of BPHC’s reasons for Lewis’s termination. Because the record reveals sufficient evidence that Lewis’s termination reflected TH&H’s discriminatory animus, the MCAD did not err in deciding that Lewis was entitled to recover for illegal discrimination under G. L. c. 151B. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 444-445; Lipchitz v. Raytheon Co., 434 Mass. 493, 504 (2001). Back pay award. BPHC further argues that the award of $107,551 in back pay damages to Lewis was unsupported by substantial evidence and not in accordance with law because an award of back pay for six years was excessive. Back pay is calculated from the date of termination until the date of the MCAD hearing, see Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 496-497 & n.25 (2000), subject to the plaintiffs duty to mitigate, see Conway v. Electro Switch Corp., 402 Mass. 385, 388-389 (1988). It was well within the MCAD’s discretion to award back pay damages to Lewis, calculated from the date of her termination to the date of the MCAD hearing. See id. at 387-388. It was not error to conclude that Lewis’s self-employment satisfied her duty to mitigate damages. The record revealed that Lewis was hesitant to work for any employer after being fired in a sudden and discriminatory manner and that she began her own business in good faith. See Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir. 1988); Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 696 (2d Cir. 1998). See also National Labor Relations Bd. v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). Emotional distress damages. BPHC also challenges the MCAD award of $100,000 in damages for emotional distress. “Emotional distress damage awards, when made, should be fair and reasonable, and proportionate to the distress suffered.” Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 576 (2004). A finding of discrimination, by itself, is insufficient as a matter of law to infer emotional distress. See ibid.; DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1, 7 (2006). To be compensable, emotional distress must be proved by substantial evidence of a causal connection between the plaintiff’s emotional distress and the employer’s unlawful act. Stonehill College, supra. Evidence of a physical manifestation of the emotional distress, or expert testimony, is useful but not essential to support an award of emotional distress damages. Ibid. In determining an award, “[s]ome factors that should be considered include (1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the [plaintiff] has suffered and reasonably expects to suffer; and (4) whether the [plaintiff] has attempted to mitigate the harm.” Ibid. Applying these factors, we hold that there was. evidence in the record to support the MCAD determination that damages for emotional distress were warranted. However, we conclude that the facts in this case do not justify the $100,000 awarded. We therefore remand to the Superior Court for further findings and rulings consistent with this opinion. See ibid. Three recent Massachusetts appellate decisions since Stone-hill College guide our determination of the reasonableness of the emotional distress award in this case. In the first case, Smith v. Bell Atl., 63 Mass. App. Ct. 702, 710 (2005), we affirmed the portion of the jury award, in the amount of $207,000, for emotional distress suffered during the plaintiff’s employment. Ibid. The record reflected that the plaintiff considered her work as her “whole life”; that she felt “frustrated and inadequate” for the last six years of her employment because of “her repeated, unsuccessful efforts to obtain what she needed [as a handicapped person] to perform her job at home”; and that “she suffered from anxiety and diminished self-esteem.” Id. at 724. Moreover, although she did not present expert testimony, she supported her testimony with correspondence and records from the employer’s medical department. Ibid. The second case is School Comm, of Norton v. Massachusetts Commn. Against Discrimination, 63 Mass. App. Ct. 839 (2005). In that case, we affirmed an MCAD emotional distress award in the amount of $50,000 where the plaintiff presented evidence that she “loved her job,” that the firing was “devastating and humiliating,” and that her firing caused her to “suffer from panic attacks and lose her appetite, her hair, and twenty percent of her body weight” (i.e., she lost twenty pounds). Id. at 849. The plaintiff also saw a psychologist until her medical insurance benefits ran out. Ibid. The final case is the recent Supreme Judicial Court decision in DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1. In that case, the plaintiff retired at age sixty-five because he believed that his employer’s mandatory retirement age was sixty-five years old. Id. at 4. Approximately two years later, he was notified that the actual age of mandatory retirement earlier had been increased to seventy. Ibid. After filing a complaint for unlawful age discrimination, he regained employment with the employer, but was reassigned after one day to a position that was more dangerous and physically demanding than his prior position. Id. at 4-5. He then amended his complaint to include a claim for retaliation, and the MCAD found that his reassignment constituted unlawful retaliation. Id. at 5. When testifying about his emotional distress, DeRoche described his work as “his whole life.” Id. at 7-8. His wife testified that he “ ‘dreaded’ the approach of his sixty-fifth birthday and was ‘shattered’ that he had to give up his job”; his daughter described him as “despondent,” “devastated,” and “very depressed” in the days leading to retirement, and “broken-hearted” when he found that he never was told that the mandatory retirement age was seventy and not sixty-five. Id. at 8. When asked about the employer’s retaliatory behavior, DeRoche testified that he “couldn’t understand the line of reasoning” for being reassigned to a more dangerous and physically demanding position. Ibid. Although the court affirmed the finding of unlawful retaliation, it struck the $50,000 award for emotional distress because the evidence did not support the MCAD determination that the plaintiff’s emotional injuries were causally connected to the finding of retaliation against the employer. Id. at 8-9. The court reasoned that the evidence presented related to the plaintiff’s distressed emotional state in the months preceding his retirement and in reaction to being informed of the mistaken timing of his retirement, but was not connected to his reassignment to a more dangerous position, i.e., the retaliatory action. Id. at 9. His testimony that he “couldn’t understand” his reassignment was insufficient to justify an award for emotional distress. Ibid. Moreover, the court noted that the plaintiff testified that he never sought medical treatment for symptoms related to emotional distress and he did not experience any physical manifestations of distress. Id. at 8-9. Here, the record reveals that Lewis was entitled to an award of damages for emotional distress. There was substantial evidence that she suffered emotional injuries, causally connected to the finding of unlawful discrimination. Brown called her into his office and gave her one day’s notice of her termination. Lewis testified that she was devastated, as well as embarrassed because she had to pack up her belongings in front of her coworkers. After learning that her position had been re-posted only eight days after her termination, she was shocked, and her termination caused instability at home with her hu