Wrongful Termination Cases

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

Efrain Falcon vs. Robert J. Leger & another. No. 03-P-463. Worcester. April 8, 2004. October 29, 2004. Present: Lenk, Cowin, & Doerfer, JJ. Public Policy. Contract, Employment, Interference with contractual relations. Employment, Termination. Regulation. Words, “Actual malice.” Evidence at the trial of a claim for wrongful interference with employment supported the conclusion that the defendant, improperly motivated by his frustration with the plaintiff’s resistance to his scheme to deceive a safety inspector from an independent testing laboratory, conducted himself with actual malice in firing the plaintiff from his at-will position in quality control at a wire and cable manufacturing company and, in so doing, violated clearly established public policy and lacked any legitimate corporate interest to support his action. [361-365] Civil action commenced in the Superior Court Department on September 9, 1996. The case was tried before Timothy S. Hillman, J., and a motion for a new trial was heard by him. John A. Mavricos for the defendants. Gregory J. Angelini for the plaintiff. James Monroe Wire & Cable Corp. Doerfer, J. A Superior Court jury determined that when the defendant, Robert Leger, general manager of James Monroe Wire & Cable Corp. (JM), fired Efrain Falcon, an at-will employee, he wrongfully interfered with Falcon’s employment. On appeal, Leger claims that the evidence does not support a conclusion that his conduct in firing Falcon from his quality control job at JM constituted “actual malice,” and that the judge erroneously denied his motions for a directed verdict and judgment notwithstanding the verdict or in the alternative for a new trial. Leger argues that the evidence was insufficient to show that he was not acting within the scope of his privilege to terminate an at-will employee when he let Falcon go, and that Falcon failed to overcome that privilege with sufficient evidence that Leger acted with a “spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Shea v. Emmanuel College, 425 Mass. 761, 764 (1997), quoting from Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992); Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 433 (1987). We conclude otherwise and affirm. Our examination of the record discloses sufficient evidence of malice on Leger’s part to support a conclusion that he fired Falcon for Falcon’s refusal to comply with his instructions to interfere with a product inspection process conducted by a private, independent testing laboratory upon which government inspectors rely to insure the safety of the public. Such conduct amounted to a violation of a clearly established public policy grounded in statutes and regulations designed to minimize potential hazards of fire and shock associated with poorly insulated electrical wire. Consequently, as Leger’s actions did not comport with any legitimate corporate interest, Falcon succeeded in establishing that Leger abused his privilege to fire Falcon. 1. Facts a. Background. JM manufactures wire and cable. In late 1994 and early 1995, Falcon and Leger worked for JM at its South Lancaster plant. Falcon began working there in 1987, mainly in the quality control department, where he was directly responsible for inspecting and testing the various types of wire and cable produced at JM to ensure that they conformed to certain safety standards prior to shipping. If during his inspections, which occurred before the wire was spooled, Falcon determined the wire to be unsafe, he would instruct the machine operator to correct the problem. He would also report the nonconforming wire to his immediate supervisor. Leger was hired by JM as general manager in February, 1994, with the expectation that he would correct some problems the company was having with quality control. Reporting directly to the president of JM, he was responsible for all departments, including quality control, and for all hiring and firing decisions. Until Falcon’s discharge, Leger considered him to be a reliable and competent worker, who was rewarded with several raises. Falcon indicated that the two were generally amicable toward one another and that he knew of no reason why Leger would want to cause him harm. Sixty percent of JM’s total output was regularly sold through distributors to the industrial market. Such industrial wiring included fire alarm cable, typically installed in residences, hotels, and high rise buildings. JM industrial wire could also end up in elevators and home appliances. Such products ordinarily must meet strict safety standards meant to prevent fire and electrical shock. JM contracted with an independent, nonprofit organization, Underwriters Laboratories, Inc. (UL), to perform periodic, unannounced testing of its products. Certification by an organization such as UL assures government inspectors and the public that the wire complies with the requisite UL standards and is safe for its intended purposes, and also signifies that JM had agreed to manufacture its wire and cable in accordance with those specifications. As a prerequisite to obtaining a UL “listing,” which refers to the right to mark an approved product with the UL label, a manufacturer must sign a written agreement provided by UL. Under its agreement with UL, JM paid a fee for the right to purchase and affix UL labels upon approved wire and cable. JM could purchase an unlimited quantity of labels, the prices of which varied depending upon the type of wire for which they were intended. JM stored the labels on its premises to await the step in the manufacturing process when they were placed on the product. The UL label for use on JM’s control tray cable (tray cable), the wire at issue in this case, and entered into evidence at trial indicates, among other things, that the tray cable is “UL LISTED” for use in accordance with certain enumerated articles of the National Electrical Code. On UL’s part, the organization agreed to provide regular, unannounced inspections of Usted products at JM’s South Lancaster factory. The purpose of the inspections was to determine comphance with each of the requisite safety standards prior to labeling and shipping of JM’s products bearing the UL label. In certain circumstances, a batch of wire, while technically nonconforming, could still be deemed acceptable for labeUng and shipping upon further consideration by the UL inspector as long as safety was not at issue and the variance was de minimis. In any event, it was the UL inspector, not JM, who controlled the ultimate resolution by requiring JM to avail itself of various options until the problem was corrected to UL’s satisfaction. EHzabeth Goldsmith served as the UL inspector for JM during the relevant period. She testified that the set of safety standards with which wire and cable products must conform prior to UL Hsting was created by UL in consultation with wire and cable manufacturers. These standards pertain to the safe conditions under which the wire may be used, such as temperature, locations (dry or wet), and the amount of maximum voltage for proper operation. UL standards also specify such criteria as the proper type and size of conductor wire and insulation, and the type and quality of compound to be used in making the insulation for the wire. According to Leger, a twenty-two-year veteran of the cable and wire industry, assessing the safety of wire and cable essentially involves a determination that it is “capable of carrying the electricity and not producing a shock or hazard.” He further asserted that a UL inspector, whom he likened to a “government inspector,” tests specifically for the electrical safety and flammability of the listed wire, criteria that could affect public safety. As an example, Leger spoke of a disastrous fire at a Las Vegas hotel involving UL approved wire that forced a reassessment and, ultimately, the creation by UL of stricter mandates for wiring in such buildings. Part of Falcon’s job in quality control was to assist Goldsmith during her unannounced visits to JM’s South Lancaster facility. Goldsmith would view sample wire cuttings under JM’s microscope to determine the thickness of both the copper wire and the wire’s insulation at various points. On other occasions, she would send samples of compound, the raw material from which insulation is made, to UL’s laboratory for compliance testing. b. Events leading to Falcon’s discharge. On December 7, 1994, Goldsmith visited JM and inspected samples from a lot of 50,000 feet of eighteen gouge, sixteen string, two conductor, 600 volt, “Type TC” power and tray cable. The tray cable had been wound onto twenty reels while awaiting UL labeling for shipping to Anixter, a JM customer based in Ohio. Goldsmith rejected the batch as unsafe due to nonconforming insulation and placed the whole lot on hold. On the variation notice she issued to JM, Goldsmith indicated that the problem was a “very low wall” of insulation where the two conductors intersected. Goldsmith’s actual measurements ranged from a low of five to a high of twelve mils. The minimum insulation width established by UL for tray cable was thirteen mils. A wire’s over-all capacity to prevent shorting increases with the thickness of the wall surrounding each conductor. Although Goldsmith did not recall the substance of her conversations with either Leger or Falcon concerning her findings that day, she remembered being “horrified” at how thin the insulation was. According to Falcon, Goldsmith indicated that the order could be shipped without the UL label, but that it could not be sold for use as tray cable. On the variation notice, Goldsmith wrote, “Lot on hold pending disposition from [followup services]. Hold for release by U.L. rep.” Following Goldsmith’s December 7, 1994, visit, Leger appeared concerned about Anixter’s urgent need for its order, which had a specified delivery date of December 15, 1994. He admitted that any delay in its shipment would have been costly to JM. Presuming that the defects in this order could be weeded out, Leger requested that Falcon and other employees go through the wire, eliminate the defective sections from the lot, and prepare it for reinspection. Falcon complied, only to report to Leger days later that the wire in the order appeared to be bad throughout. According to both Leger and Falcon, it was not unusual for low points to occur in the insulation at the start-up of spooling, when tensions in the spooling machine are difficult to adjust. Ordinarily, since JM tacked on and billed for five to ten percent more wire than an order called for, problems with insulation thickness could be rectified by removing a few turns of wire from the reel and adjusting the price accordingly. Falcon believed, based upon his experience and training in quality control and his own personal knowledge of the compound used to make the insulation on the lot of tray cable in question, that no amount of weeding of defective sections would have sufficed to correct the problem with the insulation thickness. According to him, the lot was most likely rejected because of JM’s practice of mixing a nonconforming, “cheap” type of “regrinded” compound during the manufacturing process. From Falcon’s perspective, such conduct by JM in violating UL standards was motivated by making profits at the expense of the safety of the general public. Falcon claimed that “sometimes we do things that is [sz'c] not legal” at JM, such as “ship it out the way it is” when in fact the wire does not meet UL specifications. Falcon apparently had participated in shipping out nonconforming wire in the past, even though he knew it was wrong. He further testified that unless someone informed Goldsmith, she would have no way of knowing the exact type of compound that had been used on the tray cable. When insulation compound is tested, which did not occur in this instance, it is done off site and prior to the extrusion process during which the insulation is placed on the wire. Despite his doubts about the safety of the wire’s insulation, Falcon complied with Leger’s order to resubmit the rejected shipment to Goldsmith for reinspection when she returned on December 16, 1994. It was no surprise to Falcon when Goldsmith found the insulation to be faulty and once again ordered the shipment held. Following Goldsmith’s reinspection on December 16, 1994, Leger told Falcon to hide the whole batch of tray cable in the back of the factory and to conceal it with cardboard. To Falcon’s knowledge, the bad batch of tray cable remained there until some time in early February, 1995, when Leger further ordered him to load all twenty reels on to a rental truck, where it stayed for some time, unchanged, and forever hidden from Goldsmith. On the afternoon of February 9, 1995, Goldsmith unexpectedly returned for a final, third inspection of the Anixter order. She did not inspect the wire hidden in the rental truck on this visit. Falcon was convinced that JM deceived Goldsmith by substituting and presenting for inspection a new, conforming batch of wire in its place, and that the rejected wire was mislabeled and shipped as if it had been approved. Falcon had arrived at work around 6:00 a.m. on February 9, 1995. Within an hour or so of his arrival, he approached Leger to request a raise in his hourly pay, from $9.75 to $11 an hour. According to Falcon, Leger responded that he had no problem with the raise, but said “you have to change the way you deal with Elizabeth [Goldsmith].” When Falcon asked for clarification, Leger said, “You know we most of the time use [the] wrong compound or [the] wrong wire, but you cannot tell her that, you have to cover my back and you’ve got to say that we’re using the right compound, the right wire.” At this point, Falcon said that he could not do that, to which Leger replied, “Who pays you?” Falcon answered, “But that’s not legal, [] to lie for you.” When Goldsmith arrived at the plant later that day and inquired of Falcon about the whereabouts of the twice-rejected wire, Falcon ignored Leger’s instructions to he. Rather, he told her “no comment,” and directed her to “see Mr. Leger.” Falcon contends that this action cost him his job. Leger met with Goldsmith after her February 9, 1995, inspection. Neither testified as to the substance of their conversation. Shortly after she left, Falcon claims that he labeled the old wire with UL labels, and shipped it to Anixter, per Leger’s instructions. At the end of Falcon’s shift, Leger called him to his office where Leger told him he had no recourse but to fire him. Leger’s stated reason was the abrasive and threatening manner in which Falcon had asked for the raise in front of other employees. 2. UL listing and the statutory framework. Tray cable wire, the type of wire at issue in this case, is intended to be installed in settings and in products that are subject to the National Electrical Code (NEC), and several NEC articles govern its use. The UL label affixed to the tray cable in this case states that the tray cable is “UL listed [] for use in accordance with Articles 318, 340, 500 and 501 of the National Electrical Code.” Consequently, the label indicates the tray cable complies with the law of those states, such as Massachusetts, that have adopted the NEC in relevant part. See 527 Code Mass. Regs. §§ 12:00 et seq. (1993). The 1993 Massachusetts electrical code, 527 Code Mass. Regs. §§ 12.00 et seq., is the 1993 NEC as adopted and modified in part by the Commonwealth’s board of fire prevention regulations. It was in effect in December, 1994, through February 9, 1995. General Laws c. 148, § 10B, as amended by St. 1978, c. 295, provides: “Any person who knowingly violates any rule or regulation made by the board of fire prevention regulations shall, except as otherwise provided, be punished by a fine of not less than one hundred dollars nor more than one thousand dollars.” The intent of the Massachusetts electrical code is “the practical safeguarding of persons and property from hazards arising from the use of electricity,” 527 Code Mass. Regs. § 12:00, art. 90-1. The State building code, 780 Code Mass. Regs. §§ 100 et seq. (1992), the intent of which is “to insure public safety, health and welfare . . . and, in general, to secure safety to life and property,” controls “the standards or requirements for materials to be used in connection [with buildings] including but not limited to provisions for safety.” 780 Code Mass. Regs. §§ 100.2, 100.4. The building code incorporates the electrical code into its provisions. G. L. c. 143, §§ 94(a), 96; 780 Code Mass. Regs. § 100.5 & Appendix G. See Commonwealth v. Porrazzo, 25 Mass. App. Ct. 169, 171 (1987). According to the Massachusetts electrical code, only “Usted” equipment and materials (i.e., those of which a representative sample have been approved and tested by a certified, independent laboratory) are acceptable in certain installations. See, e.g., 527 Code Mass. Regs. § 12:00, arts. 240-4, 310-6, 310-8 (a-b), and 318-3(b)(l). Further, the Commonwealth’s State and municipal inspectors may rely upon a wire’s label, issued by an independent testing laboratory, as “proof that such equipment and materials have been tested and conform to suitable recognized industry standards.” 527 Code Mass. Regs. § 12:00, Rule 6. See id.., arts. 90-4 (“The authority having jurisdiction of enforcement of the Code shall accept listed and labeled equipment or materials where used or installed in accordance with instructions included with the listing or labeling”), and 110-3 (“Suitability of equipment may be evidenced by listing or labeling”). A manufacturer is not required to choose UL as the particular listing organization with which it contracts for its listing and certification process. See note 14, supra. 3. Discussion. Viewing the evidence in the tight most favorable to Falcon, Cort v. Bristol-Myers Co., 385 Mass. 300, 301 (1982), we conclude that it permitted a rational jury to find that Leger’s actions leading up to and including Falcon’s termination were improperly motivated by Leger’s frustration with Falcon’s resistance to his scheme to deceive a UL safety inspector. This evidence sufficed to prove the requisite malevolent intent because, as matter of law, such conduct on the part of Leger violated a well-defined public policy. In cases alleging tortious interference by the employee’s supervisor or other company official who instigated the firing, malice means “actual malice” and “[a]ny reasonable inference of malice must ... be ‘based on probabilities rather than possibilities.’ ” Gram v. Mutual Liberty, Ins. Co., 384 Mass. 659, 663-664 (1981), S.C., 391 Mass. 333 (1984), quoting from Alholm v. Wareham, 371 Mass. 621, 627 (1976). See Weber v. Community Teamwork, Inc., 434 Mass. 761, 781-783 (2001). “Actual malice,” in this context, requires the demonstration by a preponderance of the evidence of “a spiteful, malignant purpose, unrelated to the legitimate corporate interest” on the part of the individual alleged to have been responsible for effecting the discharge. Wright v. Shriners Hosp. for Crippled Children, 412 Mass. at 476, quoting from Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. at 433. See King v. Driscoll, 418 Mass. 576, 587 (1994); Harrison v. NetCentric Corp., 433 Mass. 465, 479 n.16 (2001) (“There is no practical difference . . . between ‘actual malice’ and improper motives and means for purposes of [the tort of intentional interference by a corporate officer or supervisory employee]”). In some circumstances, malice may be demonstrated by evidence of the defendant’s unjustified personal vendetta or ill will exceeding personal dislike of the employee. See O’Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 690 (1996) (supervisor’s harassing behavior toward employee malicious where it was “prompted by his resentment of [the employee’s] successful chal