Wrongful Termination Cases

SUSAN F. JOHNSON, Plaintiff v. BOARD OF TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant No. COA02-356 (Filed 1 April 2003) 1. Disabilities— North Carolina Persons with Disabilities Protection Act — termination from employment — misconduct discovered after discharge The trial court erred by failing to apply McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), stating that evidence of employee misconduct discovered after a discharge which would have provided a lawful basis for such discharge if discovered earlier does not bar a discrimination claim, to plaintiff teacher’s employment discrimination case under the North Carolina Persons with Disabilities Protection Act (NCPDPA) based on defendant community college’s failure to rehire plaintiff or offer her another contract, because: (1) the trial court specifically found that defendant’s disability was the determining factor in the 16 June 1995 decision to not offer her another contract to teach at a jail, and the decision not to renew was made solely for motives unlawful under the NCPDPA; and (2) once it was determined that discriminatory conduct took place on 16 June 1995, it was improper for the trial court to have considered the after-acquired allegations of wrongdoing by plaintiff as a basis for defendant’s motive in discharging plaintiff. 2. Disabilities— North Carolina Persons with Disabilities Protection Act — termination from employment — amount of damages, costs, and attorney fees Although plaintiff teacher contends the trial court erred by denying plaintiff relief despite having found that defendant community college terminated her employment solely based upon her disability, this issue is remanded for an evidentiary hearing to determine the amount of damages, costs, and attorney fees that should be awarded to plaintiff in accordance with N.C.G.S. § 168A-11 and McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), because: (1) although after-acquired evidence of pre-discharge employee misconduct will not bar a discrimination claim under the North Carolina Persons with Disabilities Protection Act, such evidence may be used to bar the specific remedy of reinstatement if the employer establishes that it would have made the same employment decision had it known of the misconduct at the time of the discharge; and (2) if an employer can show that its discovery of the employee’s predischarge misconduct was inevitable and independent of its employment decision, back pay shall be limited to the time between the discharge and the time of discovery. Appeal by plaintiff from judgment entered 12 September 2001 by Judge Howard E. Manning, Jr. in Durham County Superior Court. Heard in the Court of Appeals 22 January 2003. Glenn, Mills & Fisher, P.A., by Stewart W. Fisher, for plaintiff-appellant. Haywood, Denny & Miller, L.L.P., by George W. Miller, III and George W. Miller, Jr., for defendant-appellee. The North Carolina Academy of Trial Lawyers, by Lynn Fontana, and the American Civil Liberties Union of North Carolina, by Seth H. Jaffe, amicus curae. STEELMAN, Judge. This appeal arises out of a disability discrimination claim filed by Susan F. Johnson (“plaintiff’ or “Johnson”) against the Trustees of Durham Technical Community College (“defendant” or “Durham Tech”) under the North Carolina Persons with Disabilities Protection Act (“NCPDPA”), N.C. Gen. Stat. § 168A-1, et seq. (2001). Plaintiff appeals the trial court’s judgment dismissing her claim with prejudice and awarding her no costs, attorney’s fees or other relief. For reasons stated herein, the judgment is reversed, and this case is remanded to the trial court. Since contracting polio as a young child, plaintiff has been unable to walk without crutches, and her physical activity has been substantially limited. In 1986, after teaching full-time for several years, plaintiff’s disability forced her to quit working on a full-time basis, although she remained able to teach on a part-time basis. In 1993, plaintiff began working with Durham Tech’s Adult and Basic Skills Department as a part-time instructor for the in-house education program for inmates of the Durham County Jail Annex (“the jail”). Russ Conley (“Conley”), program director for Durham Tech’s Adult and Basic Skills Department, contracted with plaintiff and supervised her work. Plaintiff taught classes which prepared inmates to take their high school equivalency exam under her first contract with Durham Tech from November 1993 to February 1994. She entered seven additional part-time teaching contracts with Durham Tech between February 1994 and June 1995. Each of these contracts was for a specific term determined by the duration of the class taught by plaintiff. Plaintiff initially was able to drive herself to and from work and to enter the jail using only her crutches. On 8 June 1994, plaintiff fell from her crutches as she attempted to open the security door to enter the jail and broke her back. Plaintiff applied for and received workers’ compensation benefits for her injuries resulting from this fall. While recovering, plaintiff did not return to work, and defendant found a replacement teacher to fulfill the remainder of plaintiff’s contract ending in August 1994. When plaintiff returned to work for defendant under a new contract in January 1995, she was confined to a wheelchair at all times. She used wheelchair-accessible public transportation to travel to and from work at the jail and taught classes from her wheelchair. Although jail guards occasionally escorted plaintiff and helped her open doors, she generally was able to enter the jail and her classroom without assistance. On 11 February 1995, plaintiff fell in the bathtub at her home and broke her leg. She returned to work at the jail approximately two weeks later and resumed her teaching duties from her wheelchair. In the spring of 1995, Art Clark (“Clark”), Dean of Adult and Continuing Education at Durham Tech, and Ruth Lewis (“Lewis”), Conley’s direct supervisor, discussed with Conley their concerns about plaintiffs safety and Durham Tech’s liability if she were to suffer another accident at the jail. Conley also had some concerns at this time about plaintiff’s prior absenteeism due to her injuries. Clark encouraged Conley to speak with plaintiff and to consider whether it would be appropriate for her to continue working at the jail in light of her previous fall. On 16 June 1995, Conley met with plaintiff and discussed with her other teaching opportunities with Durham Tech that were not at the jail. Plaintiff was “not receptive” to these other teaching positions. Conley then informed plaintiff that “the situation had proved to be a liability for Durham Tech” and that she would not be returning to work for defendant at the jail. Conley testified that Clark had made the decision not to re-hire plaintiff and that Lewis had concurred with this decision. Between 21 June and 24 June 1995, Clark received anonymous phone calls alleging that plaintiff was a frequent drug user, had engaged in sexual relationships with prisoners, had provided prisoners with drugs and bullets and frequently carried a loaded weapon. On 26 June 1995, Conley spoke to plaintiff at the jail and informed her that her teaching position with Durham Tech would end when her contract expired on 28 June 1995. Defendant did not offer her another teaching position. Plaintiff filed discrimination charges against defendant with the North Carolina Department of Labor under the North Carolina Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen. Stat. § 95-240, et seq. (2001), and with the Equal Employment Opportunity Commission under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (2002). After exhausting her administrative remedies, plaintiff filed a complaint alleging defendant refused to re-hire her in violation of REDA and the ADA. On 23 December 1997, Durham County Superior Court Judge Henry V. Barnette partially granted defendant’s motion for summary judgment and dismissed plaintiff’s REDA claim. On 18 December 1998, Durham County Superior Court Judge Narley L. Cashwell granted defendant’s motion for directed verdict as to plaintiff’s ADA claim. Plaintiff appealed both the summary judgment and directed verdict rulings. A unanimous panel of this Court affirmed Judge Barnette’s order granting defendant’s summary judgment motion based on plaintiff’s retaliatory discharge claim under REDA, reversed Judge Cashwell’s decision directing a verdict based on plaintiff’s ADA claim and remanded the case for further proceedings consistent with its opinion. Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 535 S.E.2d 357 (“Johnson I”), disc. review denied and appeal dismissed, 353 N.C. 265, 546 S.E.2d 102 (2000). Plaintiff amended her complaint to add a claim under the NCPDPA alleging defendant failed to re-hire her on the basis of her disability in violation of N.C. Gen. Stat. § 168A-5(a)(l). On 29 May 2001, plaintiff and defendant filed a stipulation in which plaintiff voluntarily dismissed her claims under the ADA and defendant waived the statute of limitations defense to plaintiff’s claim under the NCPDPA. This matter was tried without a jury in accordance with N.C. Gen. Stat. § 168A-ll(a). On 12 September 2001, Durham County Superior Court Judge Howard E. Manning, Jr., filed a judgment dismissing plaintiff’s action with prejudice. The judgment contained lengthy findings of fact and conclusions of law, including the following: During the [s]pring of 1995, Conley became concerned about Johnson’s safety in the jail, and also became concerned about whether he was putting Ms. Johnson in a situation which might prove to be a liability for [Durham Tech]. Conley’s concern was “prompted” as a result of discussions with either Ruth Lewis or Dean Art Clark during the spring of 1995. Neither Lewis nor Clark went to the jail or conducted an investigation first hand with respect to Johnson’s ability to function safely in a wheelchair while carrying out her teaching responsibilities. In the spring[] [of] 1995[,] Conley, after talking with Dean Clark and/or Lewis, broached the subject with Johnson about teaching elsewhere than at the jail. Johnson did not want to teach elsewhere [,] and Conley did not push the issue. Dean Clark and Lewis wanted Johnson out of the jail environment and wanted her to teach elsewhere for Durham Tech. Their view was “paternalistic” and not based on an investigation into the conditions at the jail or Johnson’s ability to teach there despite her disability. While Dean Clark did not order Conley to move Johnson from the jail and put her somewhere else, he strongly “suggested” it to Conley. They [Dean Clark and Lewis] left the unpleasant task of carrying out the “suggestion” . . . and the placement of Johnson in a teaching position outside of jail to Conley. The decision of Clark to be carried out by Conley was made solely on the basis of Johnson’s disability and was not based on poor job performance or absences occasioned by her disability or health. On June 16, 1995, Conley met with Johnson at his office to discuss Johnson’s teaching at the jail. . . . Conley was not going to offer Johnson a contract that would permit her to remain and teach at the jail. The basis for Conley’s decision was that his superiors at Durham Tech were concerned about “liability” should Johnson continue to teach there. This concern was based solely upon her disability and was without basis in fact. The jail was no more “unsafe” for Johnson than any other place because she was able to function at the facility safely and to do her job there as she had done since January 1995, without incident. The decision to not offer Johnson another contract to teach a[t] the jail had been made as of June 16, 1995, but not implemented or carried out, as the contract period had not expired and there was still time for Johnson to attempt to get Durham Tech to reverse its decision. Conley, her immediate supervisor and department head, was not going to offer her a contract to teach at the jail after the present contract expired. (emphasis added). I. In her first assignment of error, plaintiff contends that the trial court erred in failing to apply the United States Supreme Court decision in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 130 L. Ed. 2d 852 (1995), to her employment discrimination claim under the NCPDPA. In McKennon, the employee claimed she was discharged by her employer in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621, et seq. (1988 and Supp. V). McKennon, 513 U.S. at 354-55, 130 L. Ed. 2d at 859. During the course of discovery in the discriminatory discharge action, McKennon’s employer learned that she had copied confidential company documents prior to her discharge. Id. at 355, 130 L. Ed. 2d at 859. McKennon’s employer stated that if it had known of her misconduct, it would have discharged her for that reason. Id. The Sixth Circuit Court of Appeals held that McKennon’s prior misconduct was a lawful basis for her termination and affirmed the trial court’s granting of summary judgment in favor of the employer. Id. A unanimous United States Supreme Court reversed, deciding McKennon’s ADEA claim in the context of its prior discrimination decision in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977). The Mt. Healthy Court found that the employer had two motives for firing the employee, one lawful and the other unlawful. Id. at 285, 50 L. Ed. 2d at 482. The Court held that if the lawful reason alone would have sufficed to justify the firing, then the employee could not prevail on a claim against the employer based upon the unlawful motive. Id. at 285-86, 50 L. Ed. 2d at 482-83. The McKennon Court held that unlike Mt. Healthy, there was no “mixed motive” on the part of McKennon’s employer at the time she was discharged. McKennon, 513 U.S. at 359, 130 L. Ed. 2d at 862. McKennon’s misconduct was not discovered until after she had been fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason. Mixed-motive cases are inapposite here, except to the important extent they underscore the necessity of determining the employer’s motives in ordering the discharge, an essential element in determining whether the employer violated the federal anti-discrimination law. Id. at 359-60, 130 L. Ed. 2d at 862 (emphasis added). Thus, evidence of McKennon’s misconduct discovered after her discharge, which would have provided a lawful basis for such discharge if discovered earlier, did not bar her discrimination claim under the ADEA. The McKennon Court noted that the ADEA was part of a “wider statutory scheme to protect employees” which included Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (2002), and the ADA. Id. at 357, 130 L. Ed. 2d at 860. Since the decision, the McKennon rule has been widely adopted in the context of employment discrimination cases under various statutes. See, e.g., O’Neal v. City of New Albany, 293 F.3d 998 (7th Cir. 2002) (finding that employer’s belated discovery that applicant exceeded the position’s statutory age maximum would not bar an ADA claim); Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001) (applying McKennon’s after-acquired evidence rule to unapproved absences in a Family and Medical Leave Act case); Crapp v. City of Miami Beach Police Dept., 242 F.3d 1017 (11th Cir. 2001) (applying McKennon to employee’s Title VII race discrimination claim); Russell v. Microdyne Corp., 65 F.3d 1229 (4th Cir. 1995) (applying McKennon to Title VII gender discrimination claim); Ricky v. Mapco, Inc., 50 F.3d 874 (10th Cir. 1995) (holding after-acquired evidence of sexual misconduct no bar to age discrimination claim); Garrett v. Langley Federal Credit Union, 121 F. Supp. 2d 887 (E.D. Va. 2000) (applying McKennon to federal whistleblowers’ statute). Several states also have adopted the McKennon rule, applying it to their own discrimination statutes. See, e.g., Toyota Motor Mfg., U.S.A., Inc. v. Epperson, 945 S.W.2d 413 (Ky. 1997) (disability discrimination under the Kentucky Civil Rights Act); Wright v. Restaurant Concept Management, 532 N.W.2d 889 (Mich. Ct. App. 1995) (discrimination under Michigan civil rights statute); Baber v. Greenville County, 488 S.E.2d 314 (S.C. 1997) (discrimination under state whistleblower’s statute); Norwood v. Litwin Eng’rs & Constructors, 962 S.W.2d 220 (Tex. App. 1998) (disability discrimination under Texas Commission on Human Rights Act); Barlow v. Hester Industries, Inc., 479 S.E.2d 628 (W. Va. 1996) (retaliatory discharge under West Virginia Human Rights Act). In Johnson I, this court expressly adopted the McKennon rule in the context of plaintiff’s original claim under the ADA. Johnson I, 139 N.C. App. at 685, 535 S.E.2d at 364 (“[a]n employer may not rely on evidence of employee misconduct which is acquired after the employment decision in question to defend the employment decision.”) To determine whether the McKennon rationale should apply to the NCPDPA, we look to the provisions of the statute to ensure that McKennon is consistent with its purpose and content. The NCPDPA is the North Carolina equivalent of the ADA, sharing the common purpose of providing protection against disability discrimination. 42 U.S.C. § 12101(b); N.C. Gen. Stat. § 168A-2. Both statutes contain rules regarding discriminatory employment practices against disabled persons. The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). Similarly, the NCPDPA states that “[i]t is a discriminatory practice for: (1) An employer to fail to hire or consider for employment or promotion, to discharge, or otherwise to discriminate against a qualified person with a disability on the basis of a disabling condition with respect to compensation or the terms, conditions, or privileges of employment.” N.C. Gen. Stat. § 168A-5(a)(l). The ADA and the NCPDPA also contain similar remedial provisions, including those for injunctive relief and back pay awards. 42 U.S.C. § 2000e-5(g) (2002) (providing the remedial guidelines for ADA claims); N.C. Gen. Stat. § 168A-11. N.C. Gen. Stat. § 168A-12 provides that “[a] civil action regarding employment discrimination brought pursuant to [Chapter 168A] shall be commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct.” Thus, a cause of action under the NCPDPA accrues when the employee becomes aware of or should have become aware of the employer’s wrongful conduct. This is consistent with McKennon, which focuses on the intent of the employer at the time of the alleged discriminatory act. McKennon, 513 U.S. at 360, 130 L. Ed. 2d at 862. We find nothing in the purpose or content of the NCPDPA that is inconsistent with or contrary to the McKennon rule. Therefore, as this Court in Johnson I adopted McKennon under the analogous ADA provisions, we also find that the McKennon rule should be adopted in the context of claims under the NCPDPA. In applying McKennon to plaintiffs appeal in the instant case, this Court is bound by the trial court’s findings which are supported by competent evidence, even if evidence exists to sustain contrary findings. Fulcher v. Golden, 147 N.C. App. 161, 554 S.E.2d 410 (2001). Our review of the trial court’s conclusions of law is de novo. Browning v. Helff, 136 N.C. App. 420, 524 S.E.2d 95 (2000). As n

LEE WOODBURN, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent No. COA02-262 (Filed 18 March 2003) 1. Appeal and Error— briefs — motion to strike appendix A motion to strike an appendix to a brief was granted by the Court of Appeals where the appendix contained various State Personnel Commission and administrative law judge opinions that had not been agreed upon by the parties as part of the record, had not been submitted pursuant to a motion to amend the record, and were not necessary to the resolution of the issues in the case. 2. Administrative Law— dismissal of claim — standard of review — de novo De novo review was the proper standard for the trial court to use when reviewing an administrative law judge’s dismissal of a claim as untimely. 3. Administrative Law— exempt position — employment discrimination claim — no OAH jurisdiction A university employee in an exempt position bringing a discrimination claim did not have a right to a hearing before the Office of Administrative Hearings. N.C.G.S. § 126-16 (employment discrimination) applies to all state employees without regard to position or status, but that statute neither addresses procedural avenues nor entitles a petitioner to choose a review scheme from which she is otherwise excluded by N.C.G.S. § 126-5. Exempt university employees have available review procedures which begin with university grievance committees and lead to review by a superior court judge and an appellate court. Appeal by petitioner from order entered 3 December 2001 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 16 October 2002. McSurely & Osment, by Ashley Osment, for petitioner-appellant. Attorney General Roy Cooper, by Assistant Attorney General Joyce Rutledge, for respondent-appellees. LEVINSON, Judge. Petitioner (Lee Woodburn) appeals from an order dismissing her petition for a contested case hearing before the Office of Administrative Hearings (OAH). We affirm. Petitioner was hired by respondent North Carolina State University (the university) in August, 2000, as assistant director of the university’s Office of Disability Services for Students. Shortly after accepting the position, petitioner learned that she was pregnant. Due to medical complications from her pregnancy, petitioner missed work for most of October and November, 2000. On 19 December 2000, the university sent petitioner a certified letter informing her that she was being fired, and giving her 30 days notice. Petitioner received the letter on 2 January 2001, and on 16 February 2001, she filed a petition with OAH for a contested case hearing against the university. She alleged that she was terminated by the university without just cause, and that her termination was due to illegal discrimination based on gender and on a handicapping condition (pregnancy). The university moved to dismiss the petition for lack of subject matter jurisdiction, alleging that (1) OAH lacked jurisdiction over petitioner’s “just cause” claim, because petitioner was not a career state employee and therefore the “just cause” provisions of N.C.G.S. § 126-35(a) were inapplicable to her, and; (2) OAH lacked jurisdiction over petitioner’s discrimination grievance, because it was brought under Article 8 of Chapter 126, from which EPA non-faculty professional positions at the university were expressly exempted. The Administrative Law Judge (ALJ) dismissed petitioner’s “just cause” claim, which is not before this Court. However, the ALJ denied respondent’s motion to dismiss the discrimination claim, concluding that Chapter 126 afforded petitioner the right to bring her discrimination claim before the OAH. Respondent then filed a new motion to dismiss petitioner’s claim as untimely filed. The ALJ granted this motion, from which petitioner sought review in superior court. Respondent cross-excepted to the ALJ’s denial of its motion to dismiss the discrimination claim. On 3 December 2001, the trial court affirmed the dismissal of petitioner’s contested case for lack of subject matter jurisdiction, on the grounds that her OAH petition was untimely. The court also concluded that petitioner’s assertion of a right under Article 8 of Chapter 126 to bring a contested case before the OAH was “unavailing,” although it did not enter an order expressly ruling on this issue. Plaintiff appealed from the trial court’s order, while respondent cross-assigned as error the trial court’s failure to rule on the issue of OAH jurisdiction over discrimination claims brought by EPA employees. On 13 March 2002, petitioner filed a petition for discretionary review by the North Carolina Supreme Court, seeking to bypass this Court. Her petition was denied on 4 April 2002. We first address respondent’s motion to strike petitioner’s appendix. The Record on Appeal was settled 11 February 2002. In April, 2002, petitioner served her brief on respondent, consisting of 35 pages of text, and a 71 page “appendix” containing various SPC and AU opinions. On 10 May 2002, respondent filed a motion to strike the appendix. Respondent argues that the petitioner violated N.C.R. App. P. 9 and 28, by filing documents that were neither agreed on by the parties to be part of the record, nor submitted by petitioner to this Court pursuant to a motion to amend the record. We agree. Further, we do not find the materials in the proposed appendix necessary to our resolution of the issues presented herein. Respondent’s motion to strike appendix is therefore granted. Standard of Review Petitioner appealed to the trial court from the ALJ’s pre-hearing dismissal of her claim as untimely. “An order of the ALJ issued pursuant to a written pre-hearing motion granting a party’s requested relief for failure of the other party to comply with procedural requirements is a final decision . . . entitling petitioner] to immediate judicial review[.]” Lincoln Cty. DSS v. Hovis, 150 N.C. App. 697, 700, 564 S.E.2d 619, 621 (2002). Judicial review of administrative agency decisions is governed by the North Carolina Administrative Procedure Act (APA), Chapter 150B of the N.C. General Statutes. N.C.G.S. § 150B-43 (2001) (“[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision . . .”). N.C.G.S. § 150B-51(b) (2001) authorizes the trial court to reverse or modify an agency’s final decision if “substantial rights” of the petitioner may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions were: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3)Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or (6) Arbitrary [or] capricious. . . . N.C.G.S. § 150B-51(b). “The standard of review employed by the reviewing court is determined by the type of error asserted; errors of law are reviewed de novo, while the ‘whole record’ test is applied to allegations that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious.” Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 129, 560 S.E.2d 374, 379-80 (2002) (citing Amanini v. N. C. Dept. of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994)). “De novo review requires a court to consider the question anew, as if the agency has not addressed it.” Blalock v. N.C. Dep’t of Health and Human Servs., 143 N.C. App. 470, 475-76, 546 S.E.2d 177, 182 (2001). Under the whole record test, “ ‘the reviewing court [must] examine all competent evidence (the ‘whole record’) in order to determine whether the agency decision is supported by “substantial evidence.’ ” ACT-UP Triangle v. Commission for Health Senices, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118). In the instant case, the trial court stated that it was applying de novo review, which we conclude was the proper standard of review. We next determine whether the trial court correctly applied de novo review. Petitioner argues that the trial court erred by holding that Article 8 of Chapter 126 of the North Carolina General Statutes is inapplicable to petitioner. We disagree. Chapter 126 of the General Statutes governs the State Personnel System. The scope of the chapter’s authority is set out in N.C.G.S. § 126-5 (2001), which states that “[t]he provisions of this Chapter shall apply to [a]ll State employees not herein exempt[.]” G.S. § 126-5(a)(l) (emphasis added). The statute further states that: (c) Except as to . . . Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to: (1) A State employee who is not a career State employee as defined by this Chapter. . . . (cl) Except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:. . . . (8) Instructional and research staff, physicians, and dentists of The University of North Carolina. N.C.G.S. § 126-5(c)(l) and (d)(8) (2001). Petitioner is not a “career state employee,” as the term is defined by N.C.G.S. § 126-1.1 (an employee of the State who is “in a permanent position appointment” and who has held “a position subject to the State Personnel Act for the immediate 24 preceding months”). Further, her position is classified as “instructional and research staff ... of the University of North Carolina.” Petitioner is therefore exempt from the ambit of Chapter 126 by either of the statutory criteria. Moreover, the university expressly categorizes her position as “EPA” or “exempt from SPA.” Indeed, petitioner concedes her status as an EPA employee, and characterizes the dispositive issue in this case as “whether EPA employees can ever bring contested cases.” We conclude that petitioner’s position, as a university EPA employee, is explicitly exempted from Chapter 126, with the sole exception of Articles 6 and 7. Article 6 of Chapter 126 sets out the State policy regarding discrimination in employment. Petitioner’s claim alleges a violation of a provision of Article 6, N.C.G.S. § 126-16 (2001), which provides in relevant part that “[a]ll State departments and agencies . . . shall give equal opportunity for employment and compensation, without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition. . . [.]” Article 6 applies to petitioner and, like any other state employee without regard to position or status, she is entitled to enforce the rights implicated by G.S. § 126-16. However, G.S. § 126-16 neither addresses which procedural avenues are available to particular categories of state employees, nor entitles petitioner to choose a review scheme from which she is otherwise excluded. “ ‘[W]here one statute deals with certain subject matter in particular terms and another deals with the same subject matter in more general terms, the particular statute will be viewed as controlling in the particular circumstances absent clear legislative intent to the contrary.’ ” Bryant v. Adams, 116 N.C. App. 448, 457, 448 S.E.2d 832, 836-37 (1994) (quoting State Ex Rel. Utilities Comm. v. Thornburg, 84 N.C. App. 482, 353 S.E.2d 413, disc. review denied, 320 N.C. 517, 358 S.E.2d 533 (1987)), disc. review denied, 339 N.C. 736, 454 S.E.2d 647 (1995). Our Court in Conran v. New Bern Police Dept., 122 N.C. App. 116, 468 S.E.2d 258 (1996) previously held: N.C.G.S. § 126-5 states in particular terms which employees are covered by Chapter 126. On the other hand, N.C.G.S. § 126-16 . . . address[es] the same subject matter in general terms. Moreover,.. . N.C.G.S. § 126-16 ... [does not] affirmatively grant[] a remedy to a[n] . . . employee . . . who is not otherwise covered by Chapter 126. In short, N.C.G.S. § 126-5 controls which employees are subject to Chapter 126. The petitioner is not within that class of employees. Id. at 119, 468 S.E.2d at 260 (emphasis added). We find Conran applicable to the present case, and reiterate that the exemptions in N.C.G.S. § 126-5 foreclose petitioner’s reliance on any of the provisions in Chapter 126, except for Articles 6 and 7. Notwithstanding N.C.G.S. § 126-5, petitioner asserts a right to a hearing before the OAH on a provision of Article 8 of Chapter 126, N.C.G.S. § 126-34.1, which states in pertinent part that: A State employee or former State employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B ... as to the following personnel actions or issues . . . [a]n alleged unlawful State employment practice constituting discrimination, as proscribed by G.S. 126-36, including . . . termination of an employee . . . on account of the employee’s . . . sex, ... or handicapping condition^] N.C.G.S. § 126-34.1(a)(2)(b) (2001). Petitioner essentially argues that, because the statute refers to state employees without adding “except those already exempted,” that all state employees are included. She urges this Court “construe” Article 6, § 126-16, with § 126-34.1(a)(2), and to hold that § 126-34.1 applies to all state employees, including those expressly excluded from the purview of Chapter 126. Petitioner’s proposed construction of the statute would require us to ignore the plain and definite exclusion of petitioner’s job from Chapter 126. This we decline to do. Further, we disagree with petitioner that there is any “inconsistency” between G.S. § 126-34 and G.S. § 126-5; the legislature, having specifically excluded various classes of state employees from all of Chapter 126 except Articles 6 and 7, in N.C.G.S. § 126-5, had no need to repeat the same list of excluded employees in other parts of Chapter 126. This Court has previously ruled on this issue, and rejected the position taken by petitioner. In Hillis v. Winston-Salem State Univ., 144 N.C. App. 441, 549 S.E.2d 556 (2001), a non-faculty EPA university employee sought redress for alleged grievances through the OAH. The plaintiff filed a contested case with the OAH, based on G.S. § 126-34.1. The Court noted that N.C.G.S. § 126-5(cl)(8) specifically exempts the “ [instructional and research staff ... of the University of North Carolina” from all “provisions of [Chapter 126 except] Articles 6 and 7” and that, like the present petitioner, the plaintiffs position was exempt from the SPA. This Court held: while N.C.G.S. § 126-16 is in Article 6 and therefore is applicable to otherwise exempt University of North Carolina employees, N.C.G.S. § 126-34.1 is in Article 8 and therefore is explicitly not applicable. It follows that OAH lacks jurisdiction to hear a contested case brought under Article 8 by exempt employees of the University of North Carolina[.] ... As our Court has stated, ‘[i]f the Legislature desired to establish a public policy entitling [UNC faculty] to the protection [of the grievance procedures] of G.S., Chap. 126, it could have done so.’ Hillis at 443-44, 549 S.E.2d at 557 (quoting Walter v. Vance County, 90 N.C. App. 636, 641, 369 S.E.2d 631, 634 (1988)). Hillis is on point, and controls the resolution of the present case. Petitioner asks this Court to reverse our decision in Hillis. This we may not do. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). Nor do we agree with petitioner that Hillis should be reversed. Petitioner argues that in Hillis, this Court “with one fatal stroke” effectively “stripped” employees of their right to a hearing on “discrimination in the workplace,” and “transformed the substantial rights guarded by Article 6 for a quarter of a century to a mirage [.]” Petitioner’s assertions ignore the review procedures available to her as an EPA employee of the university. These include: (1) a hearing before a University grievance committee; (2) opportunity to respond in writing to the Chancellor’s preliminary decision; (3) appeal from the Chancellor’s decision to the Board of Trustees of NCSU; (4) appeal to Board of Governors from the Board of Trustees; (5) judicial review by a superior court judge; and (6) appeal to this Court. Thus, it is apparent that a university EPA employee is not without recourse in the event of discrimination. We conclude that, because N.C.G.S. § 126-5(cl)(8) expressly exempts petitioner from all of Chapter 126 except Articles 6 and 7, that the trial court did not err by holding that Article 8 of Chapter 126 does not apply to her. This assignment of error is overruled. Petitioner also argues that the trial court erred by concluding that she had not timely filed her contested case claim. However, as we conclude that petitioner had no right to a contested case hearing before the OAH, the issue of the timeliness of her petition need not be addressed. We hold that the OAH does not have jurisdiction over employees whose positions or departments are statutorily excluded from its reach. Because petitioner’s position as an EPA employee of the University of North Carolina is exempt from the SPA, Article 8 of Chapter 126 is inapplicable to her, and OAH has no subject matter jurisdiction to consider her contested case. ■ For the reasons discussed above, the order entered by the trial court affirming the ALJ’s dismissal of her contested case claim is Affirmed. Judges McGEE and HUDSON concur.

CAROLYN G. SALTER, Plaintiff v. E & J HEALTHCARE, INC., d/b/a GREYSTONE MANOR, Defendants No. COA02-88 (Filed 21 January 2003) 1. Employer and Employee— wrongful discharge — voluntariness — failure to sign letter Plaintiff employee was terminated from her employment and did not voluntarily resign from her employment even though she failed to sign a letter given to her by defendant employer on 23 August 1999 giving plaintiff the options of signing the letter requiring her to take a leave of absence while her foot was injured with the hope that her job would be open when she returned or the option of not signing the letter and be fired. 2. Employer and Employee— wrongful discharge — retaliation for filing workers’ compensation claim The trial court did not err in a wrongful discharge action by granting summary judgment in favor of defendant employer even though plaintiff employee contends there was a genuine issue of material fact as to whether defendant took retaliatory action against her in violation of N.C.G.S. § 95-240 based on plaintiff filing a workers’ compensation claim, because: (1) there is no close temporal connection between plaintiffs instituting a workers’ compensation claim and her termination; (2) plaintiff offers little more than mere speculation that defendant gave her a letter requiring her to sign the letter and take a leave of absence or be terminated based on her filing a workers’ compensation claim; (3) plaintiff was allowed to return to work after filing her workers’ compensation claim, and defendant filed all necessary paperwork for plaintiff to receive benefits and plaintiff received them; and (4) it was not until the second injury occurred and plaintiff was out of work for a full week following a sustained period of light duty was she offered the letter, and plaintiff’s assertions that one of defendant’s employees was less than cordial does not raise a triable material issue of fact. 3. Employer and Employee— wrongful discharge — public policy violation — advocacy of Adult Care Home Residents’ Bill of Rights The trial court did not err by granting summary judgment in favor of defendant employer on plaintiff’s claim for wrongful discharge in violation of public policy under N.C.G.S. § 131D-21 based on plaintiff’s contention that she was fired due to her activities in advocating the rights of patients at defendant’s nursing homes under the Adult Care Home Residents’ Bill of Rights, because: (1) there is no causal connection between plaintiff’s alleged advocation and her termination; and (2) there must be something more than mere speculation that an employee was fired for an improper purpose. 4. Employer and Employee— wrongful discharge — public policy violation — filing of workers’ compensation claim The trial court did not err by granting summary judgment in favor of defendant employer on plaintiff employee’s claim for wrongful discharge in violation of public policy under N.C.G.S. § 97-1 based on plaintiff’s filing of a workers’ compensation claim, because there must be something more than mere speculation that an employee was fired for an improper purpose. Appeal by plaintiff from judgment entered 2 November 2001 by Judge Jack A. Thompson at the 15 October 2001 Civil Term of Robeson County Superior Court. Heard in the Court of Appeals 18 September 2002. Distefano & Erca, by Alison A. Erca, for plaintiff appellant. Stopper & Sticks, LLP, by William L. Hopper, for defendant appellee. McCullough, Judge. Plaintiff Carolyn G. Salter appeals from an order granting summary judgment to defendant E & J Healthcare, Inc., d/b/a/ Greystone Manor entered 2 November 2001. Plaintiff filed suit on 12 July 2000 setting forth three claims: (1) wrongful discharge in violation of public policy based on N.C. Gen. Stat. § 97-1; (2) wrongful discharge in violation of public policy based on N.C. Gen. Stat. § 131D-19; and (3) retaliatory discharge in violation of the Retaliatory Employment Discrimination Act (REDA). The facts surrounding the parties and the complaint follow. Defendant operates four rest home facilities in eastern North Carolina. One of these facilities is Greystone Manor, located in Red Springs, Robeson County. Plaintiff holds a B.S. Degree in Psychology with a minor in gerontology. Plaintiff had been employed by defendant at the Greystone Manor as the activities coordinator since late 1996 or early 1997. She was also a member of the management team and did public relations for the facility. While at work on 2 June 1999, plaintiff was exiting some offices when she slipped and fell on a wet floor. As a result of the fall, plaintiff broke her foot. While at the hospital following the accident, plaintiff attempted to give her insurance information to the hospital. She was informed by the hospital staff that she would be covered by workers’ compensation, and that the hospital had no use for her own insurance information. Thus, it was at this time that plaintiff apparently learned that she was entitled to workers’ compensation from defendant. The facts surrounding plaintiff’s workers’ compensation claim differ between the parties. Plaintiff contends that on 3 June 1999, she returned to work and began filling out workers’ compensation forms. In her deposition, plaintiff testified that her supervisor at Greystone Manor, Frances Ivey, believed that the slip and fall was plaintiff’s fault. Plaintiff further testified that Ms. Ivey informed her “that it was very hard to get workman’s comp, that it was hard to prove and that it was just a hassle; and that it was just going to be a very difficult situation.” In addition, plaintiff alleged in her complaint that Ms. Ivey informed a coworker not to report to the company president that warning signs were not visible at the place where plaintiff fell. Plaintiff accuses Ms. Ivey of having a general aversion to her after the workers’ compensation incident. Frances Ivey denied making any such statements or having any such aversion toward plaintiff. Ms. Ivey testified in her deposition to the fact that she was in charge of filing workers’ compensation claims at Greystone Manor, and that she did in fact fill out the paperwork for plaintiff. Throughout it has never been contested that plaintiff has failed to get all the workers’ compensation to which she was entitled. After plaintiff’s injury, she continued to work at Greystone Manor, although she only performed light duty. Plaintiff has alleged that Ms. Ivey continued to be skeptical of the extent of her injury, while Ms. Ivey denied such. After two and one-half months of light duty, on 16 August 1999, plaintiff reinjured her foot while away from work when she tripped at her home. Her physician prescribed one week of inactivity, spanning from 16 August to 23 August 1999. Plaintiff had a scheduled appointment with her physician on 24 August 1999, and planned to return to work after this appointment. Prior to August 24th, however, plaintiff was summoned to work to pick up her check and discuss some things with Frances Ivey. On 23 August 1999, Ms. Ivey gave plaintiff her check along with a letter that had been faxed to her from defendant’s head office. The letter stated: We acknowledge that you have been out of work for a period of time due to a foot injury. Our company will consider your leave of absence appropriate regarding the nature of the injury. Any leave of absence granted shall be without pay. You will be given first consideration for the position which was left, but cannot guarantee a job when the leave of absence is over. If such is available, you will be reinstated with no loss of seniority or pay status. If such a position is not available, re-instatement at a lessor position with a corresponding decrease in pay may be necessary. Eligibility for re-instatement is solely dependent upon availability of appropriate job openings, and the employer has no obligation beyond this. This release shall be binding upon and inure to the benefit of the parties, their successors, assigns, personal representatives, and heirs, and without limiting the generality of the foregoing officers, directors, employees and agents of the Company. Refusal to follow this procedure shall be considered insubordination and immediate dismissal. Plaintiff claimed that Ms. Ivey demanded that she sign the letter, and that refusal to sign it immediately would result in termination. Ms. Ivey, after the fact, claims that the letter was intended for plaintiff to sign and take an unpaid leave of absence until she was able to work full-time. However, plaintiff submits that the letter is clear that she was to take a leave of absence with no assurances of a job when she returned if she signed, or she was to be immediately terminated if she refused to sign. Plaintiff refused to sign the letter. Instead, plaintiff asked to be allowed to remove her belongings from the premises. She was allowed to do so, as long as she told no one what had transpired. Ms. Ivey testified that plaintiff informed her that she had talked to a lawyer about a potential suit and had decided against it, but now had changed her mind after receiving the letter. In addition to her workers’ compensation dispute with defendant’s management, plaintiff also alleged in her complaint that throughout her employment with defendant, she was an advocate for the residents at the facility. According to plaintiff, this caused a great deal of resentment between her and Ms. Ivey, independent from the workers’ compensation incident. Plaintiff alleged in her complaint that “Ms. Ivey, by her words and conduct, implied to plaintiff that plaintiff’s advocacy of residents’ rights was a threat to plaintiff’s continued employment with defendant.” Indeed, plaintiff testified that Ms. Ivey informed her that the nursing home business “was all about money and not residents, and if [plaintiff] cared more for the residents, [she] wouldn’t have a future in this business.” It is on all these facts that plaintiff filed her complaint. Defendant filed its answer on 14 September 2000, and its motion for summary judgment on 26 June 2001, on the ground that there was no genuine issue as to any material fact. Judge Jack Thompson heard the motion and granted defendant summary judgment on 2 November 2001. Plaintiff appeals on the ground that there are genuine issues of material fact. Summary judgment is proper where there is no genuine issue as to any material fact. An issue is genuine where it is supported by substantial evidence. A genuine issue of material fact is of such a nature as to affect the outcome of the action. The moving party bears the burden of establishing the lack of a triable issue of fact. The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues. As a general principle, summary judgment is a drastic remedy which must be used cautiously so that no party is deprived of trial on a disputed factual issue. Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 680-81, 535 S.E.2d 357, 361 (citations omitted), appeal dismissed, disc. review denied, 353 N.C. 265, 546 S.E.2d 102 (2000). I. Prior to addressing plaintiff’s causes of action, there is an initial point of contention between the parties as to whether plaintiff voluntarily resigned or was in fact terminated as a result of the events on 23 August 1999. Plaintiff claims that she was terminated because she did not sign the letter, while defendant maintains that plaintiff voluntarily ceased her employment by failing to comply with defendant’s policies. It appears to this Court that the letter given to plaintiff on 23 August 1999 left her with two options: (1) sign the letter, and be put on leave of absence and get better, then hope she can get her job back since it was clearly not promised that it would be held open; or (2) not sign the letter and be fired. While defendant appears to claim that it was prepared to immediately take plaintiff back as a full-time employee as soon as she was ready to return to work, nothing in that letter sustains this assertion. By the letter’s terms and Ms. Ivey’s explanation of the terms, failure to sign meant immediate dismissal. Plaintiff failed to sign. While the decision not to sign was voluntary on her part, defendant was the party who dictated the result here by the language in the letter. Coming into court and now contending that by voluntarily failing to sign the letter plaintiff has somehow foregone any potential rights is disingenuous. .Plaintiff was terminated from her employment with defendant when she did not sign the letter, as dictated by its terms. Thus, we address the balance of plaintiff’s appeal. II. Plaintiff contends that the trial court erred in granting summary judgment to defendant because genuine issues of material fact existed as to whether defendant took retaliatory action against her because she filed a workers’ compensation claim, in violation of REDA, N.C. Gen. Stat. § 95-240, et. seq. (2001). The North Carolina Retaliatory Employment Discrimination Act (“REDA”), enacted in 1992, prohibits discrimination against an employee who has filed a workers’ compensation claim. In pertinent part, the Act provides: (a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following: (1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following: a. Chapter 97 of the General Statutes. REDA replaced North Carolina General Statutes section 97-6.1, the purpose of which was to promote an open environment in which employees could pursue remedies under the Workers’ Compensation Act without fear of retaliation from their employers. The former law merely protected employees against discharge and demotion. By enacting REDA, however, the General Assembly expanded the definition of retaliation to include “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” In a claim brought pursuant to the former provision, section 97-6.1(a), this Court stated that an employee bears the burden of proof in retaliatory discharge actions. “The statute does not prohibit all discharges of employees who are involved in a workers’ compensation claim, it only prohibits those discharges made because the employee exercises his compensation rights.” Furthermore, our appellate courts indicated in applying the former provision that a plaintiff fails to make out a case of retaliatory action where there is no close temporal connection between the filing of the claim and the alleged retaliatory act. Johnson, 139 N.C. App. at 681-82, 535 S.E.2d at 361 (citations omitted). Plaintiff submits that she had filed a workers’ compensation claim which her employer tried to discourage, and was working light duty and receiving benefits when she was presented with a release of claims to sign, or, alternatively, with dismissal. It is noted that plaintiff has complied with procedural requirements with the N.C. Commission of Labor, as required by REDA. It is undisputed that plaintiff filed a workers’ compensation claim and received benefits. Plaintiff then returned to work on light duty for two and one-half months. After that period of time, she reinjured her foot away from work, and was out for a week before being given the option of being placed on administrative leave. Several things are wrong with plaintiff’s claim. First, there is no close temporal connection between plaintiff’s instituting a workers’ compensation claim and her termination. Johnson, 139 N.C. App. at 683, 535 S.E.2d at 362 (no close temporal connection between claim and adverse action after one year); Shaffner v. Westinghouse Electric Corp., 101 N.C. App. 213, 216, 398 S.E.2d 657, 659 (1990), disc. review denied, 328 N.C. 333, 402 S.E.2d 839 (1991) (no close temporal connection between claim, 18 April 1987, and termination, 29 June 1987, approximately two and one-half months). Second, plaintiff offers little more than mere speculation that defendant gave her the letter because she filed a workers’ compensation claim. Nothing in the letter refers to workers’ compensation. Plaintiff was allowed to return to work after filing her workers’ compensation claim. Defendant filed all necessary papers for plaintiff to receive benefits, and plaintiff indeed received them. It was not until the second injury occurred and plaintiff was out of work for a full week following a sustained period of light duty was she offered the letter. To recover, plaintiff “must show that her discharge was caused by her good faith institution of the workers’ compensation proceedings . . . .” Abels v. Renfro Corp., 108 N.C. App. 135, 143, 423 S.E.2d 479, 483 (1992), aff'd in part, rev’d in part, 335 N.C. 209, 436 S.E.2d 822 (1993). This she fails to do. Despite plaintiff’s assertions that one of defendant’s employees was less than cordial, her allegations do not raise a triable, material issue of fact. See Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 237, 382 S.E.2d 874, 882, disc. review denied, 325 N.C. 704, 388 S.E.2d 449 (1989) (“This Court is not unmindful that circumstantial evidence is often the only evidence available to show retaliation against protected activity. Nevertheless, the causal connection must be something more than speculation . . . .”). Thus, summary judgment on plaintiff’s REDA claim is affirmed. III. Plaintiff’s final assignments of error contend that the trial court erred by granting summary judgment on its other two causes of action: Wrongful discharge in violation of public policy based on N.C. Gen. Stat. § 131D-21 (2001); and wrongful discharge in violation of public policy based on N.C. Gen. Stat. § 97-1 (2001). North Carolina is an employment-at-will state. Our Supreme Court “has repeatedly held that in the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.” Limited exceptions have been adopted to this bright-line rule. First, as stated above, parties can remove the at-will presumption by specifying a definite period of employment contractually. Second, federal and state statutes have created exceptions prohibiting employers from discharging employees based on impermissible considerations such as the employee’s age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer. Finally, this Court has recognized a public-policy exception to the employment-at-will rule. Public policy is defined as “the principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” There is no specific list of what actions constitute a violation of public policy. However, wrongful discharge claims have been recognized in North Carolina where the employee was discharged (1) for refusing to violate the law at the employer[’]s request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy[.] Ridenhour v. IBM Corp., 132 N.C. App. 563, 568-69, 512 S.E.2d 774, 778 (citations omitted), disc. review denied, 350 N.C. 595, 537 S.E.2d 481 (1999). Under this public policy exception, the employee has the burden of pleading and proving that the employee’s dismissal occurred for a reason that violates public policy. To establish a prima facie case of retaliation, it must be shown that (1) the plaintiff engaged in a protected activity, (2) the employer took adverse action, and (3) there exist

Mary Shea Knight vs. Avon Products, Inc. Berkshire. November 4, 2002. January 10, 2003. Present: Marshall, C.J., Greaney, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Age, Termination of employment, Prima facie case, Burden of proof. Employment, Discrimination, Termination. This court concluded that, for purposes of establishing a triable claim of age discrimination under G. L. c. 151B based on unlawful termination of employment, a plaintiff must demonstrate that he or she was replaced by someone who is substantially younger or otherwise present some evidence that supports a reasonable inference that age was a determinative factor in the employer’s decision. [414] Statement that a disparity of less than five years between the age of a terminated employee and the age of the employee’s replacement, by itself, is too insignificant to support a prima facie case of age discrimination, but that a plaintiff may still present a triable claim if there is other evidence that the termination occurred in circumstances that would raise a reasonable inference of unlawful discrimination and that would permit a jury to find that age was a determinative cause in the termination. [422-426] At the trial of an age discrimination in employment case in which the evidence warranted a finding that the plaintiff, who was over forty years of age, had been replaced by a person who was also over forty years of age but twenty-eight months younger than the plaintiff, the employer was entitled to judgment as matter of law, where there was no additional evidence presented that would permit an inference that a discriminatory animus as to age existed on the part of the employer and motivated the plaintiff’s termination. [426-427] Civil action commenced in the Superior Court Department on August 4, 1997. The case was tried before Daniel A. Ford, J. The Supreme Judicial Court granted an application for direct appellate review. Cornelius J. Moriarty, II (Charles K. Stephenson with him) for the plaintiff. James F. Kavanaugh, Jr. {Stephen S. Churchill with him) for the defendant. Christine Hughes, for New England Legal Foundation & another, amici curiae, submitted a brief. Steven S. Locke, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. The plaintiff’s husband, Daniel Knight, whose claim for loss of consortium was decided in favor of the defendant, Avon Products, Inc. (Avon), on a motion for summary judgment has not been appealed, and he is not a party to this appeal. Greaney, J. We granted an application for direct appellate review filed by the defendant, Avon Products, Inc. (Avon), to decide whether a plaintiff in an indirect evidence case of age discrimination may satisfy the elements of her prima facie case in the absence of a showing that she was replaced by a substantially younger person. A jury in the Superior Court determined that the plaintiff’s termination from her position as a district sales manager for Avon violated G. L. c. 151B, § 4 (IB), and awarded her a total of $795,000 in damages. The trial judge thereafter denied Avon’s motions for judgment notwithstanding the verdict and for a new trial, but reduced various amounts of the damages award. The plaintiff accepted the order of remittitur, and an amended judgment ultimately was entered awarding damages in the amount of $633,000. The judge also denied the plaintiff’s request for multiple damages pursuant to G. L. c. 15IB, § 9. Both parties have appealed. We conclude that, for purposes of establishing a triable claim of age discrimination under G. L. c. 15 IB based on unlawful termination, a plaintiff must demonstrate that he or she was replaced by someone who is substantially younger or otherwise present some evidence that supports a reasonable inference that age was a determinative factor in the employer’s decision. For reasons we shall describe, the plaintiff’s evidence was insufficient for the issue of age discrimination to be decided by the jury, and Avon’s motion for judgment notwithstanding the verdict should have been allowed. Accordingly, we reverse the judgment, set aside the jury verdict, and direct the entry of a judgment for Avon. The evidence most favorable to the plaintiff, see Fontaine v. Ebtec Corp., 415 Mass. 309, 312 (1993), warranted the jury in finding the following facts. The plaintiff is married with four children. At the time she applied for a position with Avon, the plaintiff’s husband had been seriously injured in an accident; her eldest child, who lived at home, was losing her eyesight due to a degenerative eye condition; and her two youngest children, twins, were under six years of age. The plaintiff owned and operated two stores, one in Pittsfield and the other in Lenox, at which she sold cosmetics, skin care and bath products, fragrances, and fashion accessories and also provided customer services such as on-site fashion and cosmetic consultations. In October, 1993, the plaintiff began working for Avon as a district sales manager in District 2267 (the Northampton district). Because the plaintiff lived in Pittsfield, her employment in the Northampton district required her to commute a great distance each day. The plaintiff was forty-four years of age when hired by Avon. Before being hired, the plaintiff disclosed the existence of her two stores to her direct supervisor, Helen O’Connell, the division sales manager for Avon’s Patriot division (encompassing all of Massachusetts except for Boston and Cape Cod), as well as to Barbara Foster, Avon’s regional human services manager. It was agreed that, if hired by Avon, the plaintiff would close her Lenox store and turn the operation of her Pittsfield store over to her daughter. Neither O’Connell nor Foster expressed any objection to this plan. In December, 1993, O’Connell was replaced by Carole Valvo, who also was aware from the outset of the plaintiff’s continued ownership of the Pittsfield store. On one occasion, the plaintiff gave Valvo a perfume atomizer, which she identified as an item sold in the store at retail. Valvo promised to visit the store sometime in the future and expressed no reservations about the plaintiff’s continued ownership of the store. Avon had twenty district sales managers, including the plaintiff, operating within the Patriot Division. As a district sales manager, the plaintiff was responsible for recruiting, training, and motivating independent Avon sales representatives throughout her district. The plaintiff’s performance evaluations were all positive. In 1994, after only one year as a district sales manager, she was admitted to Avon’s “Circle of Excellence” in recognition of her role in placing her district among the top ten per cent in the region for sales increases. Valvo told the plaintiff, “If you keep doing what you’re doing . . . you have a great future.” In October, 1994, while driving home from work, the plaintiff experienced a bout of acute chest pain. Later that evening, she sought medical treatment and was told that her pain was most likely due to muscle strain. A follow-up physical examination, however, revealed a previously undiagnosed thyroid condition. Although the plaintiff was placed on drug therapy, her condition improved only somewhat. On April 25, 1995, at a meeting for the purpose of evaluating the plaintiff’s job performance, the plaintiff informed Valvo that her treating physician had arranged for a thyroid scan to rule out the possibility of thyroid cancer. The plaintiff later reported to Valvo that the scan indicated noncancerous nodes on her thyroid that would require monitoring, but that she intended to seek a second physician’s opinion and a biopsy. Shortly after the April meeting, Valvo informed the plaintiff that “there was going to be an opening” in the district sales manager position for District 2271 (the Pittsfield district). Valvo asked the plaintiff if she would be interested in the Pittsfield position. Valvo stated, however, that “she would like” the plaintiff to run the Pittsfield and the Northampton districts, temporarily, for extra pay. Valvo told the plaintiff that this situation was to remain “top secret” for a few weeks. In response to the plaintiff’s questions, Valvo informed the plaintiff that the district sales manager currently running the Pittsfield district had not “been doing her job,” and that one of the top sales representatives in the Pittsfield district, Sandra Houghtlin, “was not qualified and no one in that district was qualified to take over.” The plaintiff specifically had asked Valvo about Houghtlin because the plaintiff felt that Houghtlin would be in line for the job. The plaintiff agreed to run both districts and, on May 10, 1995, the plaintiff was designated interim assisting district sales manager for the Pittsfield district. On May 22, 1995, at a President’s Club meeting and dinner held in honor of top Avon representatives, Valvo introduced the plaintiff to Mar-E Bean, a twenty-four year old recent college graduate. Valvo informed the plaintiff that Bean had been hired to be a district sales manager and, furthermore, that the plaintiff was to train her. When the plaintiff asked to which geographical district Bean was assigned, Valvo told the plaintiff that Bean was to be a “floater.” The plaintiff had never heard of the term “floater” before. To the best of her knowledge, all Avon district sales managers were assigned to particular geographical districts. Thereafter, the plaintiff diligently trained Bean and simultaneously managed the Northampton and the Pittsfield districts. According to the plaintiff, “I . . . met [Bean] on a daily basis and took [Bean] on rounds with me, showed [Bean] all the ropes, I taught [Bean] everything to do.” On June 16, 1995, Avon sent a letter notifying its sales representatives in the Northampton district that the plaintiff had been reassigned as sales manager of the Pittsfield district and that Bean was to be the new district sales manager in the Northampton district. The plaintiff testified that she did not recall a similar letter being sent to Avon sales representatives in the Pittsfield district, notifying them that she was taking over as the sales manager for that district. However, the evidence indicated that on the same date (June 16, 1995), representatives in the Pittsfield district were advised that the plaintiff was the new sales manager for the district. Further, the plaintiff admitted that she wanted to be the manager of the Pittsfield district (which was closer to her home than the Northampton district), that Valvo told her that Bean was “flexible to go either way, to Northampton or to Pittsfield,” and that sometime prior to June, the plaintiff chose to accept the Pittsfield district. On August 3, 1995, Valvo met the plaintiff in Pittsfield and informed her that she was terminated. Valvo explained that an unidentified person had written a letter to Avon’s chief executive officer, complaining that the plaintiff “had a store and sold Mary Kay[] cosmetics in it.” The plaintiff expressed shock, stating to Valvo that “everyone in Avon knows that I have a store. . . . You know that and everyone at Avon has always known that.” Valvo flatly denied to the plaintiff any prior knowledge on her part of the store’s existence. Over the next few days, the plaintiff, Valvo, and Foster participated in three-way telephone calls directed toward saving the plaintiff’s job. During these conversations, a number of conditions were suggested, including that the plaintiff remove her name from the store’s sign and business forms and terminate any connection, financial or advisory, with the store. The plaintiff left Foster a voice mail message in which she offered to use the store location as a training center for Avon and a meeting place for Avon sales representatives. Foster never responded to that offer. Finally, negotiations stalled. Foster reconfirmed the plaintiff’s termination, refused to discuss the matter further, and called the plaintiff “naive.” Houghtlin, the sales representative whom Valvo previously had dismissed as “unqualified,” and whom Valvo had indicated to the plaintiff would not get the Pittsfield position, was then designated interim district sales manager of the Pittsfield district. In January, 1996, that appointment was made permanent. The plaintiff was forty-six years of age when she was terminated by Avon. Houghtlin was forty-three years old at the time, twenty-eight months younger than the plaintiff. After the plaintiff’s termination, Bean remained as sales manager of the Northampton district. Avon contended at trial that the plaintiff’s termination was a legitimate, nondiscriminatory decision, predicated on Avon’s discovery that the plaintiff was operating a business in violation of a company policy prohibiting its employees from having a financial interest in a competing business. In support of its assertion, Avon introduced evidence that the store: bore the plaintiff’s name; carried a line of retail cosmetic and skin care products and fashion accessories that directly competed with the Avon fine of products; contained a rack posting flyers advertising Nu-Skin, a competing fine of direct-marketed merchandise; and carried a limited inventory of Nu-Skin hair products. Avon’s evidence indicated that the plaintiff was actively involved in the store’s operation even though she was aware, or should have been aware, that Avon’s corporate policies forbade such involvement. Valvo testified that she was unaware of the store’s existence until the anonymous letter was brought to her attention. Foster testified that she was unaware of the extent of the plaintiff’s involvement with the store after she was hired, and, when confronted with evidence of her apparent conflict of interest, the plaintiff appeared insensitive to the matter and sought compensation for any loss associated with closing the store. Foster specifically denied any age-based animus against the plaintiff and denied that her age played any role in the determination to fire her. Foster testified that enforcing compliance with Avon’s nondiscrimination policy was among her specific duties as human resources manager for Avon. In response, the plaintiff introduced evidence suggesting that Avon’s assertion that the plaintiff’s ownership in her store was the basis for her termination was untrue and that the reason for her termination was Avon’s concern for her poor health (about which there was extensive testimony). The plaintiff’s evidence indicated that, when she was hired by Avon, its representatives were aware of, and acquiesced in, her operation of the store. The plaintiff’s evidence also relied on the requests by Avon that she run two districts and that she promptly train Bean, as well as the statement by Valvo that Houghtlin would not be selected to manage the Pittsfield district. In view of this evidence, counsel for the plaintiff argued that discriminatory animus and causation should be inferred, because the plaintiff had offered to close her store to save her job, and: “[Tjhey fired her anyway. Age is a factor here. It’s not unusual, you use your common sense, that people who have health problems when they get older sometimes don’t recover as quickly. And we had this problem here. And isn’t it a coincidence that when she started to have these health problems, that she was asked to train a [twenty-four] year old who then took over the very district that she was running and earning awards in. I tell you . . . [age] certainly played a part here. Is it a coincidence that when she begged and pleaded for her job, they told her, ‘you’re naive?’ So, that brings us, I would suggest to you . . . that this was a pretext for age discrimination.” Avon moved for a directed verdict at the end of the plaintiff’s case, and again after the close of evidence, based on the twofold argument that (1) the plaintiff had failed to show that she was replaced by someone who was substantially younger, and (2) the plaintiff’s own evidence demonstrated that Avon’s reason for terminating her was concern over her health, there was no logical nexus between health and age, and, as a result, the plaintiff had failed to establish a basis for the jury to conclude that age discrimination had occurred. Avon’s motions were denied. The judge charged the jury that the ultimate factual issue was whether the plaintiff was terminated because of her age. He then explained the familiar three-stage order of proof set forth by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by this court as an aid to the resolution of claims of employment discrimination under G. L. c. 15IB. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 134-137 (1976). He instructed the jury of the elements of a prima facie case of age discrimination, as set forth by the Appeals Court, see Mitchell v. TAC Tech. Servs., Inc., 50 Mass. App. Ct. 90, 92 (2000); Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 n.4 (1996), requiring the plaintiff to demonstrate that she (1) was a member of the class protected by G. L. c. 15IB (that is, over forty years of age); (2) had performed her job at an acceptable level; (3) was terminated; and (4) was replaced by a similarly or less qualified younger person. He denied Avon’s request that the jury be instructed that the plaintiff was required to demonstrate that her replacement was “substantially younger” than she. The judge instructed the jury that “the person who takes the plaintiff’s place need not be substantially younger, simply younger is sufficient.” Avon properly preserved an objection to the instruction given by the judge and the judge’s failure to instruct in accordance with its request. In response to special questions, the jury determined that the plaintiff had established a prima facie case of age discrimination; that Avon’s justification for the plaintiff’s termination was untrue and constituted a pretext for age discrimination; and that the plaintiff had suffered both economic loss and emotional distress as a consequence of her termination. On appeal, Avon claims that it is entitled to judgment as matter of law for two reasons: (1) the plaintiff was required to show as part of her prima facie case that her replacement was “substantially younger” and the plaintiff’s evidence was insufficient to support a jury’s finding that her replacement was Bean (who was substantially younger); and (2) regardless of the proper standard for a prima facie case, the judge should have granted Avon’s motion for judgment notwithstanding the verdict because, while the plaintiff’s evidence may have persuaded the jury that Avon’s stated reason for termination (the plaintiff’s alleged competitive business) was a pretext, the evidence pointed only to another reason for her termination (the plaintiff’s poor health), which, in the context of an age discrimination claim, is still nondiscriminatory. 1. The evidence most favorable to the plaintiff established that, by the plaintiff’s own choice, Bean was appointed manager of the Northampton district, and the plaintiff was given what she wanted, the manager’s position in the Pittsfield district closer to home. Thus, the evidence would not warrant a finding that Bean was the plaintiff’s “replacement.” Rather, the only finding warranted by the evidence was that Houghtlin replaced the plaintiff, and, as has been indicated, the plaintiff and Houghtlin were both over forty years old and only twenty-eight months apart in age. We now discuss the significance of these facts. Because direct evidence of discriminatory animus and causation rarely exists, we allow plaintiffs to establish one or both of those elements by indirect circumstantial evidence, following the so-called three-stage order of proof method. See Wheelock College v. Massachusetts Comm’n Against Discrimination, supra