Wrongful Termination Cases

WOODMAN v MIESEL SYSCO FOOD COMPANY Docket No. 226001. Submitted September 11, 2002, at Detroit. Decided November 26, 2002, at 9:00 a.m. Leave to appeal sought. James Woodman brought an action in'the Wayne Circuit Court against Miesel Sysco Food Service Company and Kenneth Angelosanto, alleging violation of the Family and Medical Leave Act (FMLA), 29 USC 2611 et seq., and other claims as a result of the defendants’ termination of his employment on the basis of absenteeism. The plaintiff went to a hospital after experiencing chest pains at work. After he was examined, it was determined that there was no apparent heart damage and he was released. The doctor told the plaintiff not to return to work until a stress test, which was scheduled for ten days later, was performed. When the stress test revealed no heart conditions, the plaintiff was told he could return to work. The court, Robert L. Ziolkowski, J., granted summary disposition in favor of the plaintiff, awarded the plaintiff damages and attorney fees, and ordered that the defendants reinstate the plaintiff to his former job. The defendants appealed. The plaintiff cross appealed, alleging error in the denial of his request for liquidated damages and in the court’s determination that the plaintiff was not discharged in retaliation for asserting his rights under the fmla. The Court of Appeals held: 1. Where, as in this case, the need for fmla leave is unforeseeable, the fmla itself is silent regarding notice requirements. However, regulations implementing the act promulgated by the secretary of labor pursuant to a grant of authority in the fmla do address the notice requirements. 2. The regulations provide that what is sufficient, both in terms of the timing of the notice and its content, will depend on the facts and circumstances of each individual case. The information imparted to the employer must be sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition. The employer’s duties under the fmla are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of fmla leave. However, in giving notice, the employee need not expressly assert rights under the fmla or even mention the fmla, but need only state that leave is needed. Once circumstances suggest that an employee may qualify for fmla leave, the employer has the obligation to inquire further into the matter. 3. An employer may require that an employee’s leave be verified by a medical certification issued by the health care provider of the employee. When an employee first gives notice of his need for leave, employers who want such medical certification must give the employee specific, written notice of the requirement and the anticipated consequences for failing to meet the notice requirement. Employers may not take action against an employee for failure to provide medical certification where the employer fails to provide a specific written request for medical certification. 4. When the leave is not foreseeable and advance notice is not possible, the employer must allow at least fifteen days after its request for the employee to provide medical certification. 5. It is a question of fact whether the notice is adequate. 6. The court did not err in concluding that the plaintiffs notice was sufficient as a matter of law to put the defendants on notice that the plaintiff might qualify for fmla leave. 7. Although the plaintiff failed to comply with the leave provisions of his collective bargaining agreement, the fmla cannot be diminished by a collective bargaining agreement. 8. An absence from work because of a physician’s “no work” order pending an examination to determine if a serious health condition exists, even if the final diagnosis contraindicates a serious condition, may be protected by the fmla where the other requirements of a “serious health condition” are met, i.e., treatment two or more times by a health care provider and a period of incapacity of more than three calendar days. 9. Here, the plaintiff was instructed by his physician not to work until after he was examined to determine if a serious health condition existed. The defendants did not properly initiate the fmla certification process. The plaintiff satisfied the other requirements of a “serious health condition involving continuing treatment” because he was treated two times by a health care provider and had a period of incapacity of more than three consecutive calendar days. The court properly found that the defendants violated the fmla when they terminated the plaintiffs employment. 10. The court did not err in awarding the plaintiff back wages and reinstatement. 11. The court did not abuse its discretion in declining to award liquidated damages on the basis that the defendants’ violation of the fmla was in good faith and defendants had reasonable grounds for believing the fmla was not violated. Affirmed. O’Connell, P.J., dissenting, stated that the fmla and the parties’ collective bargaining agreement (cba) are not in conflict and each is clear on its face. It should be concluded that the employer has not violated the fmla and that the plaintiff’s employment was properly terminated under the cba. The fmla is silent regarding notice requirements and the CBA provides that an absence of three consecutive days requires written medical notification. The fmla leaves open the notice requirement to allow employers and employees to bargain for the usual and customary terms and conditions of employment. Where, as here, the act is clear, there is no reason to refer to the regulations implementing the act. 1. Labor Relations — Family and Medical Leave Act — Notice. The Family and Medical Leave Act provides that when the need for a leave is foreseeable, an employee must provide the employer with no less than thirty days advance notice; the act is silent with regard to the notice requirements where the need for a leave is unforeseeable; what is sufficient, both in terms of the timing of the notice and its content, depends on the facts and circumstances of each case (29 USC 2612[e][l], [e] [2] [B]). 2. Labor Relations — Family and Medical Leave Act — Implementing Regulations. The Family and Medical Leave Act grants the secretary of labor authority to promulgate regulations implementing the act; the regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the act; the regulations may be examined in interpreting the provisions of the act especially where the regulations address an issue on which the act itself is silent, such as the notice requirements where an employee’s need for a leave under the act is unforeseeable (29 USC 2654). 3. Labor Relations — Family and Medical Leave Act •— Serious Health Conditions. An employee’s absence from work when a physician has given the employee a “no work” order pending further examinations to determine if a serious health condition exists may be protected by the Family and Medical Leave Act, even if the final diagnosis contraindicates a serious condition, where the employee meets the act’s other requirements for a “serious health condition,” i.e., treatment two or more times by a health care provider and a period of incapacity of more than three calendar days (29 CFR 825.114[a], [b]; 29 USC 2612[a][l][D]). Dwight Teachworth for the plaintiff. Cummings, McClorey, Davis & Acho, P.L.C. (by Ronald G. Acho), for the defendants. Before: O’Connell, P.J., and Griffin and Hoekstra, JJ. Griffin, J. Defendants appeal as of right the order of the circuit court granting summary disposition in favor of plaintiff on his claim alleging a violation of the Family and Medical Leave Act (FMLA), 29 USC 2611 et seq., awarding plaintiff back pay damages of $59,331.94, and reinstating plaintiff to his job as a track driver. Plaintiff cross appeals, asserting that the trial court erred in denying his request for liquidated damages and in concluding he was not discharged in retaliation for asserting his rights under the FMLA. We affirm. i On October 9, 1995, plaintiff, a track driver who delivered groceries for defendant Miesel Sysco Food Service Company (Miesel), was making a delivery at work when he began to experience chest pains. Plaintiff called Miesel’s dispatcher and advised him of his symptoms, but continued to unload his track until defendant Kenneth Angelosanto, plaintiff’s supervisor, arrived with another employee to relieve plaintiff. Plaintiff refused a ride to the hospital and, after retrieving his car at Miesel’s plant, picked up his girlfriend and drove himself to the emergency room. At the hospital, plaintiff was given a physical exam and an electrocardiogram (ekg), and medication was administered. There was no apparent heart damage and plaintiff was released from the hospital later that same day. However, plaintiff was told not to return to work until after he had a stress test, which was scheduled in approximately ten days. The written “Personal Discharge Plan” given to plaintiff by the examining physician indicated: No work until stress test. Your doctor has determined that you have chest pain of a minor or stable nature, presumably from the heart. Based on your current symptoms and evaluation, there is a low probability of a heart attack. . . . Most people with new, changing, or prolonged symptoms need hospitalization until the diagnosis is certain. [Emphasis added.] Plaintiff did not immediately take this written discharge plan to Miesel following his visit to the emergency room, later offering several explanations regarding why he did not take the hospital form to Miesel. However, there appears to be no dispute that plaintiff did inform Miesel, through its employees, that he would be unable to work until he had the stress test. Plaintiff testified during his deposition that he telephoned Miesel’s dispatcher the same evening that he was released from the emergency room and informed the dispatcher that he was going to be off work on medical leave until the stress test was administered. He testified that he spoke again to a dispatcher on October 10 or 11 to remind Miesel that he would not be working until the stress test was done. Plaintiff further testified that he telephoned one of Miesel’s employees (Toni Kollios) in its human resources office on October 11 to discuss insurance issues related to the stress test and, on October 13, he called “Debbie” Williams in human resources regarding his absence from work. Contrary to plaintiffs recollection, Debbie Williams testified that she told plaintiff that she “really had to have something to show why he was not at work.” Miesel alleged that attempts were made to contact plaintiff and tell him that he needed to submit the doctor’s note, but Miesel could not reach plaintiff because he had traveled out of town to winterize his cottage. On October 19, plaintiff delivered to Miesel the emergency room medical discharge plan that specified “No work until stress test.” On October 23, plaintiff was given a stress test that revealed no heart conditions and he was released to return to work the next day. However, plaintiff, a union member, learned that his employment had already been terminated on October 16 for allegedly violating two rules of the collective bargaining agreement: (1) unauthorized, unexcused absenteeism, and (2) an absence for three successive days without written medical notification. Plaintiff brought suit against defendants alleging a violation of the FMLA along with other claims. The circuit court ultimately granted plaintiff’s motion for partial summary disposition and denied defendants’ motion pertaining to the FMLA claim, finding no genuine issue of material fact that defendants, by terminating plaintiff’s employment, violated the provisions of the fmla as a matter of law. An evidentiary hearing was held to determine the extent of plaintiffs damages stemming from the fmla violation, and the trial court subsequently awarded plaintiff $59,331.94 in damages, attorney fees, and also ordered defendants to reinstate plaintiff to his “original position.” Defendants now appeal and plaintiff cross appeals. Both appeals involve only issues related to plaintiffs claim under the fmla. n Defendants first contend that the lower court erred in denying their motion for summary disposition and granting plaintiffs motion because plaintiff failed to give defendants adequate notice of his need for an unpaid leave of absence as required by the fmla, and, farther, that his employment was terminated for just cause separate and apart from any obligation under the fmla. Although our state appellate courts have not yet had occasion to address issues concerning notice requirements under the FMLA, “review by this Court of the federal law regarding this federal statute is proper.” Smith v Goodwill Industries of West Michigan, Inc, 243 Mich App 438, 443; 622 NW2d 337 (2000). See also Young v Young, 211 Mich App 446, 448, n 1; 536 NW2d 254 (1995). With respect to our review: Where there is no conflict, state courts are bound by the holdings of federal courts on federal questions. Schueler v Weintrob, 360 Mich 621; 105 NW2d 42 (1960); Kocsis v Pierce, 192 Mich App 92, 98; 480 NW2d 598 (1991). However, [when the] issue has divided the circuits of the federal court of appeals, we are free to choose the most appropriate view. Schueler, supra at 634; Bruno v Dept’ of Treasury, 157 Mich App 122, 130; 403 NW2d 519 (1987). [Id. at 450.] This Court reviews de novo a trial court’s decision on a motion for summary disposition. Smith, supra at 442. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support of a claim. The motion should be granted if the evidence demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). In deciding a motion under MCR 2.116(C)(10), the trial court considers the pleadings, affidavits, depositions, admissions, or other documentary evidence in a light most favorable to the nonmoving party to determine whether a genuine issue of fact exists. Ritchie-Gamester v Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). Enacted in 1993, the fmla represents an attempt to reconcile “the demands of the workplace with the needs of families . . . .” 29 USC 2601(b)(1). Thus, while Congress sought to provide employees the right to “take reasonable leave for medical reasons,” it also sought to do so “in a manner that accommodates the legitimate interests of employers.” 29 USC 2601(b)(2) and (3). The FMLA applies to private-sector employers of fifty or more employees. 29 USC 2611(4). An eligible employee is entitled to twelve work weeks of unpaid leave during any twelve-month period because of, among other reasons, “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 USC 2612(a)(1)(D). At the conclusion of a qualified leave period, the employee is entitled to reinstatement to his former position, or to an equivalent one, with the same terms and benefits. 29 USC 2614(a). The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the FMLA. 29 USC 2615(a)(1). The threshold issue raised by defendants involves the adequacy of the notice allegedly given by plaintiff regarding his need for fmla leave time. When the need for fmla leave is foreseeable, an employee must provide the employer with no less than thirty days advance notice. 29 USC 2612(e)(1) and (e)(2)(B); 29 CFR 825.302(a). However, where, as in the instant case, the need for FMLA leave is unforeseeable, the FMLA itself is silent regarding notice requirements, but the regulations implementing the act address the issue. In this regard, the fmla grants the secretary of labor authority to promulgate regulations implementing the act. See 29 USC 2654. “Regulations promulgated pursuant to such an express delegation of authority ‘are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.’ ” Miller v AT&T Corp, 250 F3d 820, 833 (CA 4, 2001), quoting Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837, 844; 104 S Ct 2778; 81 L Ed 2d 694 (1984). Thus, we examine those regulations in interpreting its provisions. Summerville v Esco Co Ltd Partnership, 52 F Supp 2d 804, 810 (WD Mich, 1999). Specifically, 29 CFR 825.303 provides: (a) When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for fmla leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when fmla leave is involved. (b) The employee should provide notice to the employer either in person or by telephone, telegraph, facsimile (“fax”) machine or other electronic means. . . . The employee need not expressly assert rights under the fmla or even mention the fmla, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee . . . will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation. [Emphasis added.] What is sufficient, both in terms of the timing of the notice and its content, will depend on the facts and circumstances of each individual case. Manuel v Westlake Polymers Corp, 66 F3d 758, 764 (CA 5, 1995); Mora v Chem-Tronics, Inc, 16 F Supp 2d 1192, 1209 (SD Cal, 1998). “The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” Manuel, supra at 764. See also Thorson v Gemini, Inc, 205 F3d 370, 381 (CA 8, 2000), quoting Browning v Liberty Mut Ins Co, 178 F3d 1043, 1049 (CA 8, 1999) (“ ‘Under the fmla, the employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of fmla leave.’ ”); Brohm v JH Props, Inc, 149 F3d 517, 523 (CA 6, 1998). As expressed in 29 CFR 825.303(b), in giving notice, an employee need not expressly assert rights under the fmla or even mention the fmla, but need only state that leave is needed. As explained by the court in Stoops v One Call Communications, Inc, 141 F3d 309, 312 (CA 7, 1998): When requesting unpaid leave, the employee need not mention the fmla. 29 CFR 825.303(b). In fact, the employee can be completely ignorant of the benefits conferred by the Act: it is sufficient notice if the employee provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed. See also Price v Fort Wayne, 117 F3d 1022, 1026 (CA 7, 1997); Manuel, supra at 764; Mora, supra at 1208-1209; Stubl v T A Sys, Inc, 984 F Supp 1075, 1085 (ED Mich, 1997); Brannon v OshKosh B’Gosh, Inc, 897 F Supp 1028, 1038 (MD Tenn, 1995); Hendry v GTE North, Inc, 896 F Supp 816, 828 (ND Ind, 1995). Once circumstances suggest that an employee may qualify for fmla leave, the employer has the obligation of inquiring further into the matter. Spangler v Fed Home Loan Bank of Des Moines, 278 F3d 847, 853 (CA 8, 2002); Mora, supra at 1209; Williams v She

KELVIN J. LEEKS, Petitioner v. CUMBERLAND COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITY AND SUBSTANCE ABUSE FACILITY, Respondent No. COA02-40 (Filed 19 November 2002) 1. Public Officers and Employees— dismissal — findings Certain of the trial court’s findings had a rational basis in the evidence in an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered. 2. Public Officers and Employees— dismissal — falsification of medical records — unacceptable personal conduct In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, the trial court did not err by concluding that pre-writing notes describing medications not administered constituted unacceptable personal conduct. The North Carolina Administrative Code includes job-related conduct which violates state or federal law as improper personal conduct; falsification of medical records is a violation of state law. 3. Public Officers and Employees— dismissal — findings—not supported by evidence — no reversible error In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, some of the trial court’s findings concerning petitioner’s sleep disorder were contrary to evidence in the whole record, but there was no reversible error because petitioner failed to prove a claim of disability discrimination. 4. Public Officers and Employees— dismissal — disability discrimination — not proven In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, the trial court did not err by con-eluding that petitioner failed to prove that his termination resulted from disability discrimination where petitioner failed to fully inform respondent of his condition, failed to prove that the depression and sleep disorder qualified as physical or mental impairment, and did not show that either condition is permanent or long-term. Appeal by petitioner from order entered 6 June 2001 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 28 October 2002. Browne, Flebotte, Wilson & Horn, P.L.L.C., by Joy Rhyne Webb, for petitioner-appellant. Douglas E. Canders for respondent-appellee. TYSON, Judge Kelvin J. Leeks, (“petitioner”), appeals from an order which affirmed the final agency decision of the Cumberland County Mental Health Development Disabilities and Substance Abuse Facility, (“respondent”), terminating petitioner’s employment. We affirm. I. Facts Petitioner was rehired as a Youth Program Assistant III by respondent in December 1995 after having worked for respondent from 1981 to 1993. Petitioner worked the night shift at Borden Heights Group Home, which housed emotionally disturbed and dangerous youths. Petitioner began suffering from depression, migraines, and a sleeping disorder. His doctor advised that he stop working the night shift. Petitioner requested a lateral transfer from the night shift to a day shift several times, beginning in May 1996. Those requests were denied. On 22 September 1997, petitioner received a written warning that he had engaged in unacceptable personal conduct, listing: (1) not conducting proper bed checks, (2) not monitoring clients, and (3) not performing duties assigned to the lead-staff worker on a shift. On 25 February 1998, petitioner prepared, but failed to timely administer, medications for seven of the youths. Petitioner recorded the medications by writing the date, name of medication, the number of pills administered to each client, and whether the medication was taken orally on the Medication Administration Record, (“MAR”). Petitioner did not record the time or initial the MAR. Around 9:10 a.m., Everett Mitchell, petitioner’s supervisor, sent petitioner home. Petitioner arrived home and fell asleep. He awoke in the afternoon and questioned whether he had administered the medications. He called the group home, and related that he had “dreamed” the medication had not been administered. Petitioner was assured by another worker, Christopher Corders, that the medications had been given. Corders relied upon petitioner’s partially completed MAR. Petitioner returned to the group home concerned that he had forgotten to administer the medication. Petitioner checked the medicine cabinet and discovered the medication that should have been distributed that morning. Petitioner contacted Supervisor Mitchell, and completed an incident report and significant event note for each client. Petitioner called the pharmacist for further instructions concerning the medication. The medication was administered according to the pharmacist’s instructions, and petitioner signed the records at the time of administration. A pre-dismissal conference was held on 23 April 1998, followed by a subsequent meeting on 27 April 1998. On 30 April 1998, petitioner was terminated from his employment. On 28 July 1998, petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings. Administrative Law Judge Morrison, (“AU”) held the hearing on 15 December 1998 and 17 December 1998. The ALT filed a recommended decision on 11 February 1999 which upheld the decision of the respondent’s director to terminate petitioner and found that respondent had just cause to terminate. The AU also recommended that petitioner’s allegations of disparate treatment and respondent’s failure to accommodate a handicapping condition be dismissed. The State Personnel Commission, (“Commission”) considered the AU’s recommended decision on 17 and 18 June 1999, and issued a recommendation to respondent to find and conclude that the AU’s decision be rejected and that petitioner met his burden of proving that respondent lacked just cause to dismiss plaintiff for personal misconduct. The Commission found that petitioner’s actions gave respondent just cause to take disciplinary action on the basis of inadequate job performance. The Commission recommended that (1) petitioner be reinstated to his former position, (2) petitioner receive back pay and all other benefits of employment during the period he was not working, (3) respondent take appropriate disciplinary action against petitioner, and (4) petitioner be allowed to request attorney’s fees. On 15 September 1999, respondent issued its final decision concluding that there was “just cause” for petitioner’s termination. Respondent dismissed petitioner’s claims of disparate treatment and failure to accommodate his handicapping condition. An amended final decision was issued on 5 November 1999. Petitioner petitioned for judicial review on 12 October 1999. Judge Cashwell heard arguments and affirmed the final decision of respondent. Petitioner appeals. II. Issues The issues are (1) whether substantial evidence in the record supports the trial court’s findings of fact that petitioner intentionally pre-wrote MARs and then called respondent after dreaming that he did not dispense the medicine, (2) whether petitioner’s pre-writing MARs constitutes a falsification of medical records, a violation of state law, and unacceptable personal conduct, (3) whether substantial evidence in the record supports the trial court’s findings of fact of petitioner’s disability, and (4) whether petitioner sufficiently alleged a claim for disability discrimination. III. Standard of Review Chapter 150B of the North Carolina General Statutes, the North Carolina Administrative Procedure Act, governs trial and appellate court review of administrative agency decisions .... Although G.S. § 150B-51(b) lists the grounds upon which a court may reverse or modify an administrative agency decision, the proper standard of review to be employed by the court depends upon the nature of the alleged error. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). If a petitioner asserts that the administrative agency decision was based on an error of law, then “de novo” review is required. Id... . On the other hand, if a petitioner asserts that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious, then the court employs the “whole record” test. Id. .. . The standard of review for an appellate court upon an appeal from an order of the superior court affirming or reversing an administrative agency decision is the same standard of review as that employed by the superior court. In re Appeal of Ramseur, 120 N.C. App. 521, 463 S.E.2d 254 (1995). Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 62-63, 468 S.E.2d 557, 559-60 (1996). In ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388 (1997), our Supreme Court stated, “[t]he appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” 345 N.C. at 706, 483 S.E.2d at 392 (citations omitted.) The “whole record” test allows a reviewing court to determine whether an administrative decision has a rational basis in the evidence. Id. at 706-07, 483 S.E.2d at 392 (citations omitted). IV. Findings of Fact Seven and Eight Petitioner argues that the respondent’s findings of fact seven and eight, later adopted by the superior court, were not supported by substantial evidence. Finding seven states, “[p]etitioner called the group home on the afternoon of February 25, 1998 advising that he had had a ‘dream’ that he had not given the medications that morning.” Petitioner alleges that he did much more than inform respondent of a dream. Petitioner testified that he called the home, drove to the home, checked the medicine cabinet, discovered the truth of his mistake, reported the incident, and called and followed the instructions of the pharmacist. Petitioner’s testimony is corroborated by other witnesses, and clearly shows that petitioner did more than just “call[] the group home.” This evidence does not contradict, but supplements the finding that petitioner called the group home and told them about his dream. Testimony of other witnesses supports this statement. The trial court’s finding “has a rational basis in the evidence.” Id. Finding eight states that petitioner intentionally pre-wrote the client medication charts and failed to administer medications to seven youths who were to receive their medication before leaving for school that morning. Petitioner argues that the substantial evidence does not show that he pre-wrote all of the medication notes. Petitioner admitted partially pre-writing the medication notes. He did not record the time of administration nor initial the record. Petitioner contends that the MAR was not complete until the MAR was signed and medication administered with the time noted and that he did not violate respondent’s policy by partially pre-writing the notes. Petitioner asserts that he simply forgot to administer the medications, and this omission was not intentional. Petitioner’s testimony merely explains finding eight. This evidence does not refute the fact that petitioner intentionally partially pre-wrote false medication notes and failed to dispense the medications. There is substantial evidence in the record to support finding eight. V. Conclusions of Law Five and Six Petitioner contends that conclusions of law five and six are erroneous as a matter of law, because the actions alleged are not improper personal conduct and are not supported by substantial evidence. N.C.G.S. § 126-35 (2001) states “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reason, except for just cause.” “Just cause” can be established by unacceptable job performance or unacceptable personal conduct. 25 NCAC lJ.0604(c) (2002). Title 25 of the North Carolina Administrative Code defines unacceptable personal conduct as: (1) conduct for which no reasonable person should expect to receive prior warning; or (2) job-related conduct which constitutes a violation of state or federal law; ... (4) the willful violation of known or written work rules; ... or (6) the abuse of client(s) .... 25 NCAC U.0614(i) (2002). This Court delineated the difference between unacceptable job performance and unacceptable personal conduct and held that termination for engaging in the latter category is appropriate for “ ‘those actions for which no reasonable person could, or should, expect to receive prior warnings.’ ” Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 679, 443 S.E.2d 114, 120-21 (1994) (quoting State Personnel Manual, Sec. 9 at 3; 25 NCAC lJ.0604(b) (1984) (amended March 1994)). The State Personnel Manual lists, “careless errors, poor quality work, untimeliness, failure to follow instructions or procedures, or a pattern of regular absences or tardiness[]” as examples of unsatisfactory job performance. Id. at 679, 443 S.E.2d at 121 (citing State Personnel Manual, Sec. 9, at 8.1-8.2). Unacceptable personal conduct includes “insubordination, reporting to work under the influence of drugs or alcohol, and stealing or misusing State property.” Id. Conclusions of law five and six hold that petitioner intentionally pre-wrote medication notes describing client responses to medications not administered. The court concluded this action was a falsification of medical records done willfully and intentionally, that jeopardized the care of the clients, and constituted unacceptable personal conduct. Petitioner contends that he did not willfully falsify medical records, but instead partially pre-wrote the medication notes and neglected to administer the medications. Petitioner argues that the notes were not false until he neglected to give the medications. Petitioner cites testimony of Emile Archambault, manager of another group home, who admitted pre-writing medication notes, to support his argument that such conduct was common and did not constitute “improper personal conduct.” Petitioner asserts that if his conduct was reprehensible, it only rose to the level of unsatisfactory job performance. Termination for “just cause” due to unsatisfactory job performance requires the employer to issue prior warnings before termination. Parks v. Dept. of Human Resources, 79 N.C. App. 125, 132, 338 S.E.2d 826, 829, disc. review denied, 316 N.C. 553, 344 S.E.2d 8 (1986). The agency must give the employee at least “one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal.” 25 NCAC lJ.0605(b) (2002). Petitioner received prior warning on 22 September 1997 which cited petitioner for improper personal conduct in not performing his duties as required. This warning was insufficient to terminate petitioner’s employment for “just cause” on the grounds of job performance. If petitioner’s conduct rose to the level of improper personal conduct, his employment could be terminated without any warning. Petitioner cites Parks to support his contention that his actions did not rise to “improper personal conduct.” In Parks, a health care technician failed to report resident abuse. Id. at 127, 338 S.E.2d at 827. This Court held that the negligence was a basis for unsatisfactory job performance but not improper personal conduct. Id. at 134, 338 S.E.2d at 830. Similarly, this Court in Amanini found that a terminated employee’s actions, leaving his nurses’ station without notifying his supervisor and abandoning his patients, fell into the category of unsatisfactory job performance. Amanini, 114 N.C. App. at 680, 443 S.E.2d at 121. In both cases, this Court found the employees’ behavior insufficient to terminate on the grounds of improper personal conduct. The facts at bar are distinguishable and are sufficient to terminate plaintiff for improper personal conduct under the current statute. After Parks and Amanini were decided, the N.C. Administrative Code was amended to add “job-related conduct which constitutes a violation of state or federal law” as grounds for termination for improper personal conduct. 25 NCAC lJ.0614(i)(2) (2002). Respondent alleges that petitioner’s actions in pre-writing the medication notes violated 10 NCAC 14V.0209(c)(4) (2002), which requires that “[a] Medication Administration Record (MAR) of all drugs administered to each client must be kept current. Medications administered shall be recorded immediately after administration.” This administrative rule is authorized in Chapter 122C, under which the North Carolina Department of Health and Human Services regulates the licensing and operation of facilities including the group home where petitioner worked, and has the effect of law. Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 259; 465 S.E.2d 36, 41 (1996) (citation omitted). Petitioner failed to administer the medications and falsely reported giving them to the clients. The actions of the employees in Parks and Amanini were omissions to act, not affirmative acts. Petitioner knowingly and falsely pre-wrote the medication records. While petitioner’s failure to administer the medications is negligence, his pre-writing the MARs is a “falsification of medical records,” a job-related violation of state law. In addition to intentionally filling out medication administration records without actually administering the medication, the respondent and superior court concluded that petitioner also “pre [wrote] high risk intervention[, (“HRI”),] notes describing the client’s responses to taking medications.” This conclusion is supported by substantial evidence. The record contains the HRI reports from 25 February 1998 regarding patients under petitioner’s care. Petitioner’s reports contain substantially the same note on every HRI. In the section titled “Narrative Summary of Activity and Client Progress,” petitioner wrote “[s]taff monitored and assisted client in taking his AM. medication. Staff prepared and instructed client in taking said medication. Client evidenced progress toward overall goal. Staff praised client after he took his medication.” (Emphasis added). With respect to one HRI report, the following dialogue occurred at the hearing: Q. If you’ll go about four pages in, [petitioner], where you have the HRI note. A. Yes, sir. Q. In the middle of the page it says, “Staff monitored and assisted client in taking his medication.” A. The same generic note, yes, sir. Q. “Staff prepared and instructed client in taking medication. Client evident [sic] progress towards overall goal. Staff praised client after he took his medication.” A. Uh-huh. Q. That’s a false statement, isn’t it? A. Yes, that’s— Q. The client had got no medication, isn’t that true? A. Yes, sir. Q. And you made that statement and signed it yourself, is that correct? A. That was a prewritten statement, yes, sir. Q. Okay. And it’s false. A. Yes, that one Is. Also, respondent asked petitioner if he “intentionally fill[ed] out these HRI notes prior to the time of the event?” Petitioner answered, “[y]es.” Respondent’s witness, Dr. Martin, elaborated on the possible dramatic consequences of falsely reporting drug administration. Finding this evidence credible, the trial court did not err in concluding that petitioner’s acts established unacceptable personal conduct. VI. Findings of Fact Seventeen through Twenty Petitioner argues that findings of fact seventeen through twenty are not supported by substantial evidence and that the trial court erred by concluding that petitioner failed to prove he was terminated for reasons associated with his handicapping condition. Findings of fact seventeen through twenty state: 17.

Ellen L. Patriarca vs. Center for Living & Working, Inc., & others., Worcester. September 4, 2002. November 14, 2002. Present: Marshall, C.J., Greaney, Spina, Cowin, Sosman, & Cordy, JJ. Attorney at Law, Attorney-client relationship, Communication with represented party. Employment, Termination. Protective Order. This court vacated a protective order that had been issued by a Superior Court judge, on the basis of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), barring counsel for a discharged employee from any ex parte contact with former or future employees of the employer on matters concerning their former employment or the pending litigation unless that contact were made with leave of court or of opposing counsel, where the former employees in question were neither actually represented by the employer’s counsel nor the type of employee covered by rule 4.2, as construed in Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002). [135-141] Civil action commenced in the Superior Court Department on February 23, 1999. A motion for a protective order was heard by Francis R. Fecteau, J. After an interlocutory appeal was authorized in the Appeals Court by Charlotte A. Perretta, J., the Supreme Judicial Court granted an application for direct review. Denise A. Chicoine (.Edward S. Englander with her) for the plaintiff. Gary H. Goldberg for the defendants. The following submitted briefs for amici curiae: Thomas F Reilly, Attorney General, & Hilary Weinert Hershman, Laura Maslow-Armand, & Louisa M. Terrell, Assistant Attorneys General, for the Attorney General. John P. McLafferty & Shannon A. McAuliffe for Associated Industries of Massachusetts. Loretta M. Smith for New England Legal Foundation. Donald K. Stern, United States Attorney, Roberta Thomas Brown, Assistant United States Attorney, & Thomas Helper, of Baltimore, for the United States Attorney for the District of Massachusetts & another. Douglas K. Sheff, John J. St. Andre, Jodi M. Petrucelli, & Kimberly E. Winter for The Massachusetts Academy of Trial Attorneys. Dahlia C. Rudavsky, Ellen J. Messing, Nadine Cohen, & Jane K. Alper for National Employment Lawyers Association, Massachusetts Chapter, & others. Robert Bailey, executive director of the Center for Living & Working, Inc. (center), and individual members of the board of directors of the center. The claims against the individual board members were dismissed, and the correctness of that ruling is not before us. We acknowledge the amicus briefs filed by the Attorney General; National Employment Lawyers Association (Massachusetts chapter), Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association, and Disability Law Center; Associated Industries of Massachusetts; New England Legal Foundation; The Massachusetts Academy of Trial Attorneys; and the United States Attorney for the District of Massachusetts and the United States Department of Justice. Spina, J. A judge in the Superior Court issued a protective order on the basis of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), barring counsel for the plaintiff, Ellen L. Patriarca, from any ex parte contact with former or future employees of the defendant, the Center for Living & Working, Inc. (center), on matters concerning their former employment or the pending litigation unless that contact were made with leave of court or of opposing counsel. A single justice of the Appeals Court granted Patriarca’s petition for interlocutory review and authorized an appeal to a panel of the Appeals Court. We granted the plaintiff’s application for direct appellate review. Because the former employees in question are neither actually represented by the center nor the type of employee covered by rule 4.2, as construed in Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002) {Messing), the protective order must be vacated. We do not reach the broader question of the applicability of rule 4.2 to former employees because, based on the record as presently developed, the former employees in question would not be covered by the rule even if they were still employed by the center. See note 8, infra. Background. Patriarca filed suit against the center, its board of directors, and Robert Bailey, executive director of the center, alleging wrongful termination from her employment as a registered nurse supervising the center’s personal care attendant program. In the course of discovery, Patriarca stated in her answer to an interrogatory that she had contacted four former employees of the center and had “discussed events which had occurred while we were both employed at [the center].” The defendants filed a motion for a protective order seeking to bar Patriarca and her counsel from having ex parte contact with the center’s former employees on matters concerning their employment and the pending litigation. A judge in the Superior Court, who did not have the benefit of our decision in the Messing case, concluded that rule 4.2 may prohibit ex parte contact with former employees. He found that, in this case, the statements of former employees could be potentially admissible against the center, or that the former employees’ acts or omissions could be imputed to the center. He issued an order barring Patriarca’s counsel from “contacting any former employees of the defendant corporation on matters concerning their former employment and this litigation unless defense counsel is present or permission is granted from this [cjourt or from opposing counsel.” The defendants argue that rule 4.2 prevents ex parte contact with any former employee without first obtaining a ruling from the court in question or permission from the former employer’s counsel. They claim that this degree of oversight is necessary because former employees may be able to divulge confidential or privileged information, and that a judge should be the gatekeeper by deciding in the first instance that the ban should be enforced to the extent to which a former employee’s statements, made during the employment relationship and within the scope of employment, might be admissible in evidence in an action against the employer. Patriarca argues that a blanket no-contact rule would provide institutional defendants with the power to control any information in the possession of anyone who ever worked at that institution. See Messing, supra at 358 (“Prohibiting contact with all employees of a represented organization restricts informal contacts far more than is necessary to [protect attorney-client privilege, or prevent clients from making ill advised statements without the counsel of their attorney]”); Niesig v. Team I, 76 N.Y.2d 363 (1990) (blanket ban rejected because it would exact high price and be unnecessary to achieve objectives of rule). She suggests that it is the rare case where a former employee would be in a position to make a statement that could bind the former employer and urges the court to place the burden of showing that a former employee might be in a position to make such admissions on the former employer. In the interest of promoting the search for the truth and furthering informal, efficient, and inexpensive information gathering at the discovery stage of a proceeding, she asks the court to allow broad access to former employees by opposing counsel, “subject to appropriate conditions.” Discussion. A threshold question is whether a particular employee is actually represented by corporate counsel. An organization may not assert a preemptive and exclusive representation by the organization’s lawyer of all current (or former) employees as a means to invoke rule 4.2 and insulate them all from ex parte communication with the lawyers of potential adversary parties. See Messing, supra at 356-357. The American Bar Association Committee on Ethics and Professional Responsibility has stated that Model Rule 4.2, on which our rule 4.2 is based, “does not contemplate that a lawyer representing the entity can invoke the rule’s prohibition to cover all employees of the entity, by asserting a blanket representation of all of them.” ABA Formal Op. 95-396, § VI (1995). See Carter-Herman v. Philadelphia, 897 F. Supp. 899, 903 (E.D. Pa. 1995) (rejecting “the notion that every city employee is automatically a represented party simply by virtue of his or her employment without any initiative on the part of the employee to obtain legal help from the City”); Brown v. St. Joseph County, 148 F.R.D. 246, 250 (N.D. Ind. 1993) (“no attorney has the right to appear as counsel for another without the latter’s consent . . . and it follows that an attorney cannot properly hold himself out as representing a person who has not agreed to the representation” [citation omitted]). Thus, the center may not invoke rule 4.2 to claim that all current and former employees are represented, and therefore the protective order is overbroad. Any analysis must be employee specific. The center has made no factual showing that the former employees in question are actually represented by the center’s (or their own personal) counsel. We turn to the rule in the Messing case to determine whether the employees in question may be considered represented for purposes of rule 4.2. The purpose of rule 4.2 is to “protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney.” Messing, supra at 358. However, we recognized that prohibiting ex parte contact with all employees of a represented organization went beyond the purpose of the rale, which was not to “protect a corporate party from the revelation of prejudicial facts.” Id., quoting Dent v. Kaufman, 185 W.Va. 171, 175 (1991). We sought a balance between the need to discover relevant facts and the competing need to protect the attorney-client relationship. Id. at 358-359. We construed rule 4.2 (and comment [4] thereto) to prohibit an attorney from having ex parte contact only with certain employees of an organization, namely, those “who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the corporation to make decisions about the course of the litigation.” Id. at 357. As construed, the mle allows “ex parte interviews without prior counsel’s permission when an employee clearly falls outside of the rule’s scope.” Id. at 359. Patriarca was employed by the center as a registered nurse whose job responsibility was to manage the personal care attendant program, a program that provides persons who have permanent or chronic disabilities with assistance to allow them to live independently in their community instead of being institutionalized. See 130 Code Mass. Regs. §§ 422.416-422.423 (1999). Two of the former employees with whom she made contact had been occupational therapists. A third was an assistant community department manager-supervisor and skills trainer. These three had worked closely with Patriarca and Bailey at the center. The fourth had been a business manager at the center and had witnessed the events which led to Patriarca’s separation from the center. These four former employees of the center do not come within any category of employee covered by rule 4.2. See Messing, supra at 357. None of them is alleged to have committed the wrongful acts at issue in the litigation. There is no evidence, under their job descriptions or otherwise, that any of them had authority on behalf of the corporation to make decisions about the course of the litigation. The question whether any of them exercised managerial responsibility in the matter, however, is less obvious. We said in Messing that employees with managerial responsibility in the matter “include[] only those employees who have supervisory authority over the events at issue in the litigation.” Id. at 361. Patriarca alleges that Bailey pressured her to evaluate individuals who were not eligible for personal care services, to falsify documents to make it appear that certain individuals were eligible for personal care services, and finally to present false information to the Department of Medical Assistance by recommending more services for clients than was required. Her surviving claims against the center allege breach of contract and wrongful termination in violation of public policy. Thus, to find that the former employees in question exercised managerial responsibility in the matter, we must determine either that they were in a position to direct Bailey to conduct himself as alleged, or to cause the center to respond as alleged. The center makes no claim that the occupational therapists and the skills trainer had any such managerial responsibility. The fourth employee, described by the center as “Director of PCA/Fiscal Intermediary Services and former Business Manager,” was allegedly “a ‘management’ witness to the [plaintiff’s separation which ultimately led to this [c]omplaint,” and “was a central part of [the center’s] management team.” Being a “witness” to the plaintiff’s separation does not establish that the fourth employee was involved in supervising, planning, or directing the events and practices that led to this litigation. Based on the record before the motion judge, there is no basis to conclude that the fourth employee “exercise[d] managerial responsibility in the matter” (emphasis added). Id. at 357. Subject to the caveat just discussed, none of the four former employees in this case came within a protected category of employee identified by the Messing case while she was employed by the center. Thus, none would have been protected from ex parte contact while an active employee of the center. A change in status from current to former employee does not change the fact that each falls “outside of the rule’s scope.” Messing, supra at 359. They are not protected by rule 4.2 from ex parte contact by Patriarca’s counsel. In making any ex parte contact with these former employees, Patriarca’s counsel must, of course, be assiduous in meeting other ethical and professional standards found outside rule 4.2. The center argues that each of these four employees was subject to a written confidentiality agreement and that the kind of information that Patriarca’s counsel would seek during ex parte interviews pertains to the practices of the center and is of the type covered by those confidentiality agreements. The text of the agreements, however, shows only that they are designed to protect the consumers’ and employees’ medical and personal information, having nothing to do with the interests that rule 4.2 was designed to protect. The confidentiality of this information is sufficiently protected if the names of any individual patients are not disclosed. See Reproductive Servs., Inc. v. Walker, 439 U.S. 1307 (1978) (by deleting names of patients from medical records sought in discovery, patients’ privacy would be adequately protected); Williams v. Buffalo Gen. Hosp., 28 A.D.2d 777, 778 (N.Y. 1967) (claimant who wished to obtain medical records of patients on specific ward allowed to do so, without necessitating revelation of patients’ names). The question of the general applicability of rule 4.2 to former employees is one we need not address because, on the facts presented, the former employees in question would not have been protected, even while employed, from ex parte contact by rule 4.2. The majority of courts that have decided this issue have concluded that former employees, for the most part, do not fall within the constraints of rule 4.2. This is a question that invites input from the organized bar through the rule making process. The protective order issued by the Superior Court is vacated. The case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered. Rule 4.2 of Massachusetts Rules of Professional Conduct, 426 Mass. 1402 (1998), entitled, “Communication with person represented by counsel,” states: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” The protective order also stated that it was “applicable only to the plaintiffs counsel and not to the plaintiff herself [because] [r]ule 4.2 is inapplicable to parties.” See Mass. R. Prof. C. 4.2. The center argues that allowing the plaintiff herself to contact former employees could violate Mass. R. Prof. C. 8.4 (a), 426 Mass. 1429 (1998), and that the purpose of rule 4.2 would be undermined. See Mass. R. Prof. C. 8.4 (a) (“It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another”). Because the center did not seek interlocutory review of that portion of the order, it is not properly before us and we need not consider the question. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 43 n.5 (1977). However, we note that there is no claim that Patriarca’s counsel did anything prohibited by rule 8.4 (a). If the person is unrepresented, then counsel should be guided by Mass. R. Prof. C. 4.3, 426 Mass. 1404 (1998), “Dealing with unrepresented person,” which states: “(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding, (b) During the course of representation of a client, a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.” See Restatement (Third) of the Law Governing Lawyers § 103 comment e (2000). As set forth in comment [4] to rule 4.2, if the person is in fact represented by his or her own counsel, then it is that counsel’s permission that must be obtained prior to ex parte contact. DaRoza v. Arter, 416 Mass. 377, 381-382 (1993) (setting out circumstances in which implied attorney-client relationship can arise). At the time Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002), was decided, comment [4] to Mass. R. Prof. C. 4.2 stated: “In the case of an organization, this [rjule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having managerial responsibility on behalf of the organization with regard to the subject of the representation, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this [rjule. Compare [rjule 3.4(f).” After the Messing decision, effective June 5, 2002, comment [4] was amended by 437 Mass. 1303 (2002): “In the case of an organization, this [rjule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation. If an agent or employee of the organization i

John A. Dziamba vs. Warner & Stackpole LLP & others. No. 00-P-1870. Middlesex. July 17, 2002. - November 8, 2002. Present: Cypher, Kass, & Cowin, JJ. Rules of the Superior Court. Practice, Civil, Summary judgment. Anti-Discrimination Law, Termination of employment, Handicap, Age, Sex. Employment, Retaliation. Contract, Interference with contractual relations. A Superior Court judge, in reviewing materials submitted under Superior Court Rule 9A(b)(5) (1998) by a plaintiff responding to a defense motion for summary judgment, properly determined that the plaintiff failed to adhere to the requirements of that rule and properly took as admitted facts to which the plaintiff had not made a response that complied with the rule. [398-401] A Superior Court judge correctly allowed a defense motion for summary judgment on a complaint claiming that the termination of the plaintiff’s employment as a lawyer by the defendant law firm was the product of handicap, age, and gender discrimination, where the plaintiff failed to demonstrate that he was capable of performing the essential functions of the position involved, that file law firm failed to make a reasonable accommodation to his disability, or that his discharge was based on age or gender [404-407]; similarly, the judge properly granted summary judgment in favor of the defendant on the plaintiff’s claims of breach of contract, breach of the covenant of good faith and fair dealing, wrongful termination, and intentional and negligent infliction of emotional distress, all of which were based on, or subsumed by, the discrimination claims [407, 409]. On a complaint claiming that the termination of the plaintiff’s employment as a lawyer by the defendant law firm was the product of handicap, age, and gender discrimination, a Superior Court judge properly determined that the record lacked evidentiary support for a claim of retaliatory conduct by the employer [407], or for a claim that the employer tortiously interfered with advantageous business relations between the plaintiff and a client [407-409]. Civil action commenced in the Superior Court Department on January 23, 1997. The case was heard by Judith Fabricant, J., on a motion for summary judgment, and motions for postjudgment relief were heard by her. James C. Sturdevant, of California, for the plaintiff. Alan D. Rose for the defendants. Earned partners of Warner & Stackpole, and a successor firm, Kirkpatrick & Lockhart LLR Kass, J. On the basis of substantial evidentiary submissions, a judge of the Superior Court allowed a defense motion for summary judgment. That resulted in dismissal of John A. Dziam-ba’s complaint that the termination of his employment as a lawyer by Warner & Stackpole LLP (W&S), a law firm, was the product of handicap, gender, and age discrimination. The amended complaint also presented claims of tortious interference with prospective business advantage and unlawful retaliation against Dziamba because he asserted his rights. The amended complaint contained other counts, e.g., libel and breach of fiduciary duty, that Dziamba does not press on appeal. We affirm. 1. Judge’s comments and ruling on plaintiff’s submission under Superior Court Rule 9A(b)(5). We have the assistance of a careful, thoughtful, and detailed memorandum of decision from the Superior Court judge who considered the materials and arguments on the motion for summary judgment. She made comments and rulings concerning the plaintiff’s (as the party opposing summary judgment) statement pursuant to Superior Court Rule 9A(b)(5) (1998) that raise a threshold issue about the consequences of failure to comply with that rule. Rule 9A(b)(5) requires that a motion for summary judgment “be accompanied by a concise statement, in consecutive numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits and a statement of the legal elements, with citations to supporting law, of each claim upon which summary judgment is sought. . . . “Each opposition to [the motion] shall include a response, using the same paragraph numbers, to the moving party’s statement of facts as to which the moving party claims there is no genuine issue to be tried, in consecutive numbered paragraphs, a concise statement of any additional material facts as to which the opposing party contends there is a genuine issue to be tried, with page or paragraph references to supporting pleadings . . . .” Rule 9A(b)(5) is an “anti-ferreting” rule designed to assist a trial judge in the all-too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge. See, e.g., AM. Capen’s Co. v. American Trading & Prod. Corp., 202 F.3d 469, 471 n.2 (1st Cir. 2000). In accordance with the rule, the defendant, the party moving for summary judgment, filed an eighteen-page statement consisting of seventy-nine short numbered paragraphs, each setting forth as undisputed a single subsidiary fact or a bundle of closely related subsidiary facts, with citation to evidence in the record supporting that assertion. For example: “1. Plaintiff John A. Dziamba (‘Dziamba’) a litigation attorney, worked at W&S from July 1986 until July 7, 1995. (Affidavit of Henry T. Goldman (‘Goldman Afif.’], f 3.” The defendant added a six-page compilation of concise statements of principles of law, with citation of authority, as to each of the thirteen counts in the amended complaint. Dziamba’s responsive statement under rule 9A(b)(5) runs seventy-nine pages, the first sixty-nine of which deal with facts that the plaintiff purports to dispute. The motion judge observed that the plaintiff’s statement ignored the requirements of rule 9A(b)(5) and defeated its anti-ferreting purpose. The judge was put to the burden of ferreting through the plaintiff’s rule 9A(b)(5) statement to identify what facts asserted by the defendant were in fact controverted. For example, to the simple fact of defendant’s first statement, that Dziamba worked as a litigation attorney for W&S from July, 1986, to July 7, 1995, the plaintiff’s response was: “Disputed.” There follow three and one-half pages that set out what a successful, capable, imaginative, and productive lawyer Dziamba was at W&S. That was not an atypical response. That Dziamba was a litigation lawyer there for nine years was never controverted; i.e., it was not disputed. The very next statement by the moving party, consisting of five lines, was met with a response of eight and one-half pages which, in the end, did not controvert the facts stated by the moving party. The third paragraph of rule 9A(b)(5) provides: “For purposes of the motion for summary judgment, facts contained in a statement described in the first paragraph hereof shall be deemed to have been admitted unless controverted in the manner set forth in the second paragraph hereof.” Such was the failure of the plaintiff’s responsive statement to adhere to the requirements of rule 9A(b)(5), the motion judge ruled, that she took as admitted all seventy-nine paragraphs of W&S’s statements of fact save one: paragraph number thirty-five. Paragraph thirty-five stated that Dziamba worked at Davis, Malm & D’Agostine from July, 1995, until March, 1996, when he was terminated by that firm. Here the plaintiff’s response was crisp and on target. It said: “Dziamba was not terminated by Davis, Malm. . . . Moreover, the terms of plaintiff’s separation from any subsequent employer are irrelevant.” While possibly relevant, the circumstances of the plaintiff’s leave taking from Davis, Malm were certainly not material to the questions before the judge on summary judgment, as she noted. On the basis of our review of the record, there were other instances in which the plaintiff’s response placed assertions of fact in dispute, but those facts were not material ones. It would unreasonably lengthen this opinion were we to proceed paragraph by paragraph through the parties’ rule 9A(b)(5) statements to illustrate the plaintiff’s compliance or noncompliance with the rule. We think the judge fairly characterized the plaintiff’s response when she observed that factual assertions were buried deeply in argument and that the way factual asser-tians were woven into argument made it unnecessarily and unreasonably difficult to identify which facts were genuinely in dispute. The plaintiff challenges the rule-making authority of the Superior Court to require submissions other than those required by Mass.R.Civ.P. 56, 365 Mass. 824 (1974), and more particularly to take as admitted facts to which the plaintiff has not made a response that complies with the rule. Decisions based on analogous local anti-ferreting rules in United States District Courts support the action taken by the motion judge. Adoption of an anti-ferreting rule is an appropriate exercise by a trial court of case management discretion. It is a pragmatic and reasonable response to the propensity of lawyers to file literally mounds of affidavits, depositions, interrogatories, and depositions in support of, or in opposition to, summary judgment. Both formulation of such rules and administering them in a fashion so that they have bite find support in the cases. See Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 931-932 (1st Cir. 1983); Rivas v. Federacion de Asociaciones Pecuarias de P.R., 929 F.2d 814, 816 n.2 (1st Cir. 1991); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996); A.M. Capen’s Co. v. American Trading & Prod. Corp., 202 F.3d at 472; Ruiz Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000). The judge acted within her discretion in taking as admitted those facts asserted by the moving party (W&S) that were not disputed by the party opposing the motion for summary judgment (Dziamba), in accordance with the rule. Although the action that the judge took under rule 9A(b)(5) was fully warranted, she added suspenders to that belt by independently “review[ing] the evidentiary materials submitted by the plaintiff, and . . . considering], in the light most favorable to the plaintiff [i.e., the nonmoving party], those additional facts that [the court] deems material, and that are supported by admissible evidence . . . .” 2. Facts. We have also combed the record and now set forth the material facts that, without weighing the evidence, are not disputed. Dziamba was first admitted to the bar in Connecticut in 1969. He joined W&S in the status of “counsel” in July, 1986. At that time, lawyers at W&S were divided into four categories: associate, counsel, nonequity partner, and partner. Dziamba’s area of professional concentration was litigation. Effective January 1, 1990, Dziamba became a nonequity partner. This meant that W&S held him out to the world as a partner, although internally he was not required to maintain a capital account, could not attend partnership meetings except by invitation, did not share in the partnership’s profits and losses (a nonequity partner’s compensation was set by the firm’s executive committee), and did not have the benefit of the partnership agreement procedures involving the involuntary withdrawal of partners. On January 10, 1991, W&S’s executive director recommended to the firm’s executive committee that, to cut costs, they should discharge certain lawyers. Dziamba was among those identified as expendable. In November, 1991, Dziamba applied for full partnership status but, after meeting with the executive committee, withdrew his application. He did not receive a compensation increase for 1992, W&S’s executive committee having decided his performance did not warrant it. During this period, the administrative partner of W&S was Henry Goldman, and the administrator of the litigation department was Joseph Leghorn. Those two met with Dziamba on March 5, 1992, in Dziamba’s office. They informed him of the decision not to increase his compensation and of the executive committee’s general concerns about his progress at W&S. There was a perception, they told Dziamba, that he had not progressed well in originating clients and that other lawyers in the litigation department were reluctant to assign matters to him because they thought he was wont to spend more time on cases than could be billed. Goldman and Leghorn told Dziamba that he needed to market himself inside and outside of the firm. In six months, they informed him, the executive committee would review the situation. At that March 5 meeting, Dziamba said that he had not been feeling well and had not been sleeping well. From what Goldman and Leghorn had said to him, Dziamba felt as if he had been fired. After the meeting, Dziamba left the office. He was suffering from what in the weeks following was diagnosed as major recurrent depression. Treatment for that illness requires medication and, from time to time, change in the medication. Dziamba told Goldman about his illness in a telephone call on March 26, 1992, and in more detail when he returned to work on a part-time basis in April, 1992. When Goldman learned about Dziamba’s clinical problem he told him to take care of himself and to take the time needed to get better. The firm would see that his cases were covered. Until Dziamba’s call of March 26, 1992, partners at W&S had not known that Dziamba was suffering from an illness that was periodically disabling. The necessary altering and experimenting with his medications, from time to time, made Dziamba, as he described it to Goldman several years later in 1994, feel he “was in molasses.” After Dziamba came back to work in April, 1992, there were periodic meetings between Goldman and Dziamba at which Goldman said, among other things, that it was not merely a matter of hours — Dziamba should not work more than was medically appropriate — but that the underlying problem was still the perception that he lacked the ability to handle cases efficiently and to inspire the confidence of clients. In the spring of 1993, Dziamba again applied for equity partnership. The executive committee did not so recommend and took like negative action with two other candidates. In view of Dziamba’s gender discrimination claim, it bears mentioning that those other two lawyers not then elevated to equity partner status were women. Three other candidates were elected as full partners, of whom one was a woman working in the environmental law field. Each of the new equity partners had developed a strong constituency for his or her services. In February, 1994, the executive committee of W&S concluded that Dziamba was the least valuable of their commercial litigators, and Goldman gave Dziamba the bad news. He was to leave May 31, 1994. Dziamba sought the advice of counsel. The firm decided to postpone the departure date, but effective July 1, 1994, it cut Dziamba’s annual compensation to $66,000. On July 12, 1994, Dziamba filed a charge with the Massachusetts Commission Against Discrimination against W&S and its equity partners that alleged W&S had discriminated against him because of his handicap, his age, and his sex, and that the firm had retaliated against his request for a reasonable accommodation to his handicap by reducing his salary. On June 28, 1995, there was a special partnership meeting, at which Dziamba was permitted to make his case for continuing at W&S. The partners voted twenty-one to one against him. Dziamba left W&S in July, 1995. We shall mention other undisputed facts, when relevant, in connection with our discussion of Dziamba’s various claims. In reviewing the claims asserted by Dziamba, we view the facts contained in the summary judgment materials in the light most favorable to the nonmoving party, here, the plaintiff. Tar-danico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). 3. The discrimination claims, (a) Based on handicap. Dziamba’s primary claim is that W&S dismissed him because of a handicap he suffered, namely, major recurrent depression. See G. L. c. 151B, § 4(16), as appearing in St. 1983, c. 533, § 6. To maintain that claim, Dziamba must demonstrate that he is a “qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation.” Ibid. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449-450 (2002). Dziamba has failed to make that fundamental showing. Dziamba was a lawyer in W&S’s commercial litigation department. An essential function of a nonequity partner at W&S included handling litigation in a manner that was cost-efficient and that won the confidence of the client. As described in letters, memoranda, and depositions, the job of a senior litigator at W&S also included generating a market for his services through the origination of new clients (being a “finder”) or generating a market for his service internally with lawyers at W&S (being a “minder” and “binder” of clients of the firm). In neither aspect of those essential functions had Dziamba enjoyed success, as shown by internal manifestations of dissatisfaction with his performance in 1991, and the discussion of the firm’s concern about that performance with Dziamba starting with the meeting on March 5, 1992. The work of a lawyer is often highly demanding of physical and psychic energy. It requires responses to often simultaneous external pressures from courts, opposing counsel, and clients. There is no evidence that W&S held other lawyers in the firm to less demanding essential functions. All the same, Dziamba contends that the firm failed to make reasonable accommodation to his disability. The evidence is that the firm allowed him, indeed encouraged him, to work less than full time in hope that his condition would stabilize. On his own motion, Dziamba suggested lower quotas of billable hours per month: 100 hours per month for May through September, 1992; 135 hours per month for October through December, 1992; and 130 hours per month for January through March, 1993. There follow in the record a series of memoranda by Dziamba in 1993 and 1994 to the executive committee that report fatiguing effects from changes in medication and request reasonable accommodation. Dziamba’s billable hours in 1994 were 687. What reasonable accommodation W&S was to make, Dziam-ba’s memoranda do not say. To fulfill their obligation of a reasonable accommodation to a handicap, employers need not make substantial changes in the standards of a job. Beal v. Selectmen of Hingham, 419 Mass. 535, 542 (1995). Wynne v. Tufts Univ. Sch. of Medicine, 932 F.2d 19, 25 (1st Cir. 1991), on remand, 976 F.2d 791, 795 (1992), cert. denied, 507 U.S. 1030 (1993). So if, hypothetically, the norm of billable and collectible hours expected of a senior litigator in a law firm were 1800 per year, then a lawyer who could do no more than 1200 billable and collectible hours would not be performing the essential function of the position involved. There is some reference in the record to a request by Dziamba that he be appointed director of training for the firm. No such position existed at W&S. An employer is not required to create a new position as a reasonable accommodation to the handicapped employee. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454. Reidy v. Travelers Ins. Co., 928 F. Supp. 98, 109 (D. Mass. 1996), aff’d, 107 F.3d 1 (1st Cir.), cert. denied, 522 U.S. 809 (1997). Nor does reasonable accommodation require an employer to wait an indefinite period for the recovery of an employee who has a medical condition that bears on job performance. Russell v. Cooley Dickinson Hosp., Inc., supra at 455. Watkins v. J&S Oil Co., 164 F.3d 55, 61-62 (1st Cir. 1998). Dziamba attributes his productivity decline to partners at W&S shunning him after they learned he was suffering from depression. As the Superior Court judge remarked, that assertion runs into the awkward, und

Robert L. Scott vs. Boston Housing Authority & another. No. 00-P-354. Suffolk. February 15, 2002. - October 24, 2002. Present: Jacobs, Kass, & Berry, JJ. Boston Housing Authority. Anti-Discrimination Law, Age. Employment, Discrimination. Practice, Civil, Instructions to jury, Special verdict, Judgment notwithstanding verdict. At the trial of a complaint alleging age discrimination in employment, the judge erred in instructing the jury that they were required to find for the plaintiff if they found that the plaintiff had proved that the defendant’s reason for terminating the plaintiff’s employment was not believable or was not the real reason for the nonrenewal of the plaintiff’s contract; however, the error was not of reversible dimension, because the jury, in their answers to special verdict questions put to them by the judge, in substance made findings that the defendant wilfully had acted with a discriminatory animus. [290-294] Berry, J., concurring. At a civil trial, the judge did not err in denying the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict, where the jury’s finding, on the evidence, was not irrational. [294-295] Civil action commenced in the Superior Court Department on September 26, 1988. Following review by this court, 42 Mass. App. Ct. 1106 (1997), the case was tried before Peter M. Lauriat, J. Wilbur E. Commodore for the defendants. Frederick T. Golder for the plaintiff. Robert A. Firth. Kass, J. On the basis of a jury verdict, the trial judge ordered entry of a judgment that the Boston Housing Authority (BHA) and its general construction superintendent, Robert A. Firth, had acted in violation of G. L. c. 15IB, § 4, by failing to renew the plaintiff Robert L. Scott’s contract with that agency. The unlaw-fui discrimination, as found by the jury, was based on age. Aggregate damages assessed against the defendants under the judgment came to $751,436. The appeal, lodged on behalf of both defendants, falls into two parts: first, that the defendants were entitled to allowance of their timely motion for judgment notwithstanding the verdict or a new trial on the ground that there was no evidentiary support for the jury’s answer to a decisive special verdict question; and second, that the defendants were entitled to their motion for judgment notwithstanding the verdict because the evidence, taken in the light most favorable to the plaintiff, did not support a rational inference by the jury that the defendants had discriminated against Scott on account of age. We affirm. 1. Procedural history. There had been two previous trials. At the first trial, the jury found for the defendants on the age discrimination claims; were deadlocked on a race discrimination claim; and found for the plaintiff against Firth for tortious interference with Scott’s contractual relationship with the BHA. The judge in that first trial allowed a motion for judgment notwithstanding the verdict on the count for tortious interference. The case then proceeded to a second trial confined to the issue that the first jury could not resolve, the race discrimination claim. This time, the jury returned a verdict for the defendants on that account. On appeal, we vacated the verdicts and judgment in the first trial because the trial judge, in response to a communication from the jury that they were deadlocked on the claim of race discrimination, had engaged in a discussion with the jurors, had responded to their questions, and had supplemented his instructions with neither the parties nor their counsel present. We expressed our concern that the irregularity of the colloquy between the judge and the jury might have infected the integrity of the jury verdicts and, as noted, we ordered that the judgment in the first trial be vacated. We affirmed the judgmerit in the second trial. That took race discrimination out of the case, leaving age discrimination and tortious interference for the third trial. Our memorandum of decision in the appeal was unpublished; the orders are reported at 42 Mass. App. Ct. 1106 (1997). 2. Facts. The BHA first hired Scott in 1976 as a contract laborer, i.e., he was not placed on the BHA payroll but entered into a six-month contract with the BHA to work as a glazier (his trade) in the rehabilitation of apartments operated by the BHA. At the end of the six months, the crew of which Scott was a part was let go because the BHA had ran out of money for rehabilitation work. Two or three weeks later Scott was given a new contract to do window glazing work. By October, 1981, Scott’s contract with the BHA provided that he work in the capacity of “foreman/glazier.” That contract was, again, for six months. The next contract, dated April 1, 1982, provided that the BHA “desires to engage the contractor in the capacity of crew supervisor” for a period of one year. Until 1987, the BHA continued to renew Scott’s annual contracts. During 1986, he was assigned to supervise work at the Bromley-Heath project. By letter dated January 27, 1987, the executive director of the Bromley-Heath Tenant Management Corporation wrote to Scott that “due to the unavailability of sufficient funds,” Scott’s services as a crew supervisor would be terminated effective January 30, 1987. Through the intercession of David Gillis, the acting director of the BHA’s “force account,” Scott was rehired in February, 1987, for a six-month term. Thereafter, there was no renewal. When Scott’s employment by the BHA ended, he was 48 years old. At the time the BHA did not re-up with Scott, the general construction superintendent of the BHA was Robert A. Firth. He had arrived on the scene in 1986. Firth’s avowed reason for casting Scott adrift was that the BHA’s rehabilitation fund was in one of its periodic states of depletion; cuts needed to be made. Notwithstanding the money shortage, Firth was able to keep as construction supervisors his brother-in-law, James Mordant, age 38, and his cousin, Paul Gallant, and he found jobs at the BHA for two other brothers-in-law, one as assistant general construction superintendent, and another as a laborer. In 1987, the year in which Scott’s engagement by the BHA ended, the BHA retained or initiated contracts with construction supervisors aged 46 (two such persons), 47, 57, and 61. 3. The jury charge and the jury verdict. The jury returned their verdict on the basis of seventeen written special verdict questions. Subsequent case law has recommended against putting employment discrimination cases to a jury on the basis of special questions that stratify jury deliberations into a structure of analysis originally expounded in connection with criteria for deciding such cases on a motion for summary judgment. See Lipchitz v. Raytheon Co., 434 Mass. 493, 508 (2001); Ventresco v. Liberty Mut. Ins. Co., 55 Mass. App. Ct. 201, 209 (2002). In the light of subsequent decisional history, the special questions were wrong in a significant respect. In a trilogy of cases, the Supreme Judicial Court has illuminated that the central issue in employment discrimination cases is whether the employment decision, e.g., discharge, failure to promote, failure to hire, was the result of discriminatory animus. To put it another way, the real reason for the employment decision must be based on unlawful considerations of age, sex, race, color, religion, or sexual orientation. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117-119 (2000). Lipchitz v. Raytheon Co., supra at 504-506. Weber v. Community Teamwork, Inc., 434 Mass. 761, 775 (2001). The judge, concerning what by way of shorthand we may call the “pretext” point, instructed the jury as follows: “If you find the plaintiff has proven that the defendant’s reason is not believable, or not the real reason for the non-renewal of the plaintiff’s contract, then you must find in favor of the plaintiff on his age discrimination claim” (emphasis added). In light of the trilogy of cases cited above, this was error. Unless a court expresses that a decision shall have prospective effect only, common law decisions of our courts apply to past as well as future proceedings or transactions. Payton v. Abbott Labs, 386 Mass. 540, 565-570 (1982). That error, even had it been objected to, was not of reversible dimension, however, because it was washed away by the jury’s answer to two of the subsequent written special verdict questions put to them by the judge. By the first written question, the jury were asked whether Scott had presented a prima facie case of discrimination on the basis of age. They answered, “Yes.” Second, the jury were asked: “Did the [BHA] articulate, and present evidence in support of a legitimate, non-discriminatory reason for not renewing Mr. Scott’s contract in August of 1987?” They answered, “No.” In support of its motion for judgment notwithstanding the verdict, the BHA focused particularly on the inconsistency of that response with the evidence. It urged that it had articulated, and submitted evidence in support of, a legitimate, nondiscriminatory reason for not giving Scott a new contract in 1987, namely, that the BHA was out of money for the rehabilitation projects on which Scott had been working. The record supports the BHA. Contracts between Scott and the BHA that contained express provisions that they were subject to funding had been admitted in evidence. This was evidence that the rehabilitation work rested on uncertain financial footings. Firth testified that the reason the contracts with Scott came to an end was that funds for the particular work that Scott had been doing had dried up. That testimony was corroborated by a letter placed in evidence from the executive director of the Bromley-Heath Tenant Management Corporation, informing Scott of the “phasing out of the Vacancy Rehab Program at Bromley-Heath” because of funding shortfall. Scott had administered work under that program. If we give meaning to the words of the second question, which faithfully reflected the inquiry to be made in stage two of the framework of analysis for employment discrimination cases, the BHA had articulated and had presented evidence of a legitimate, nondiscriminatory reason for not renewing Scott’s contract. Whether the jury believed that evidence and thought this was the real reason for not renewing Scott’s contract was a question for a later phase of the inquiry. The point was emphasized in Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766 (1986): “We reiterate that the employer’s burden following a prima facie showing of discrimination is ‘only a responsibility to produce evidence. Once the employer has proposed a reason and presented supporting facts, the presumption of discrimination is dispelled. . . . The employer need not persuade the trier that it was correct in its belief’ (citations omitted, emphasis in original). Trustees of Forbes Library v. Labor Relations Comm’n, [384 Mass. 559,] 566 [1981]. The reasons given for a decision may be unsound or even absurd, but if they are not discriminatory and if the plaintiff does not prove they are pretexts, the plaintiff cannot prevail.” See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-255 (1981), and Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000), similarly stating that at the second phase of the framework of analysis, the employer’s burden is the introduction of admissible evidence of the nondiscriminatory reason that the employer had for its action regarding the plaintiff. That phase does not involve a credibility assessment of that evidence. Reeves v. Sanderson Plumbing Prod., Inc., supra. As the special verdict questions were constructed, once the jury answered the second question “no,” they were to skip the third question and proceed to assessing damages. The third question asked: “Has Mr. Scott proven that the reason given by the defendant [BHA] for not renewing his contract in August of 1987 was a false reason or not a real reason?” At this juncture we must consider the consequences of the failure to instruct that the plaintiff must prove not only that the BHA’s proffered reason for not renewing his contract was not a real reason for failing to renew his employment, but also that the BHA had acted with a forbidden discriminatory purpose. We must also consider the consequences of the jury having answered question two in a manner that (as they were instructed) involved a credibility assessment of the BHA’s evidence of a legitimate, nondiscriminatory reason for its employment action. We are persuaded by the jury’s answer to the fourth and fifth special verdict questions that the jurors combined the questions and that they found that the BHA had discriminated against Scott on the basis of age, i.e., with discriminatory animus. The fourth question asked the jurors to find the compensation due Scott “for each of the following losses or harms, if any, caused by the [BHA’s] discrimination against Mr. Scott because of his age.” The fifth question was: “Did the defendant [BHA] know or have reason to know that its conduct with respect to Mr. Scott in August of 1987 was in violation of the law against age discrimination?” The jurors answered, “Yes.” In their responses to the fourth and fifth questions, the jury in substance made findings that the BHA wilfully had acted with a discriminatory animus. In light of those answers, the error in the jury instructions and the jury’s mistaken answer to question two were without consequence. The answers to questions four and five tell us (a) what the jury would have had to say about whether it thought the BHA’s proffered reason a real reason; and (b) that it had tied Scott’s nonrenewal to unlawful age discrimination. 4. The motion for judgment notwithstanding the verdict based on insufficiency of the evidence. At the close of the plaintiff’s evidence, the BHA moved for a directed verdict. Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). The judge denied the motion with the remark, “There is slim evidence to support the Plaintiff’s claim at this point. But on the theory that it has been tried twice before, and I do not wish to see it tried a fourth time, if at all possible, I’ll let the case go forward. And we’ll try and see where it goes from here.” When the jury returned their verdict, the BHA moved for judgment notwithstanding the verdict. The question before a court in the case of a motion for a directed verdict and in the case of a motion for judgment notwithstanding the verdict is the same: whether anywhere in the evidence, applying it in the light most favorable to the plaintiff and without weighing the Credibility of the witnesses or otherwise considering the weight of the evidence, any combination of circumstances could be found from which a “jury could reasonably return a verdict in favor of the plaintiff, i.e., whether from the evidence it was possible to draw enough reasonable inferences to make out the elements of the plaintiff’s case.” Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 89-90 (1987). See Forlano v. Hughes, 393 Mass. 502, 504 (1984); Waite v. Goal Sys. Intl., Inc., 55 Mass. App. Ct. 700, 701 (2002). In his direct case, the plaintiff Scott testified, in summary, that he had been let go at age 48 and that others, younger than he, had been retained doing construction supervision work. In addition, the general construction superintendent, Firth, had found work for his younger brothers-in-law and cousin. Evidence no better than the plaintiff’s say-so is an extraordinarily weak basis for taking the case to the fact finder, but it is evidence and, if credited, might carry the day. The plaintiff’s evidence at this stage tends to be viewed with considerable tolerance. See Abraham v. Woburn, 383 Mass. 724, 727-730 (1981). The BHA’s case enhanced the inferences that could be drawn in favor of the plaintiff. Although the BHA introduced evidence in support of its insufficient funds defense, the agency’s evidence also permitted the inference — with a good deal less stretching — that there was money enough to hire Firth’s relatives. As the evidence stood at the close of the case, the jury were entitled to disbelieve the BHA’s reason for not renewing the plaintiff’s contract. The BHA introduced evidence that it had retained, as construction supervisors, men aged 61, 57, 47, and 46 — older or close to Scott’s age of 48. Nevertheless, Scott was let go and some younger men in his line of work were retained until 1992, when the BHA ended the force account program. It is likely that had we been fact finders, we would have found that not rehiring Scott had everything to do with nepotism and nothing to do with age discrimination, but the jury’s finding of age discrimination, on the evidence, was not irrational. Abraham v. Woburn, supra. Judgment affirmed. The components of the judgment were as follows: (1) For lost wages and benefits, $248,000. Those damages were doubled because the jury found that the defendants knew or had reason to know that their conduct with respect to Scott violated the law against age discrimination. See G. L. c. 151B, § 9. Total compensatory damages, therefore, came to $496,000. (2) For emotional distress, $65,000, doubled under G. L. c. 151B, § 9, to $130,000. (3) On account of counsel fees, $121,875, and legal costs of $3,561. At the third trial, the jury found for Firth on Scott’s claim of tortious interference. There was evidence that the BHA used the contract labor device to avoid putting construction trade workers, for whom there was fluctuating need, on a permanent payroll, which included benefits. We infer from the record that the Bromley-Heath Tenant Management Corporation acted as an agent for the BHA in the administration of work at the BHA’s Bromley-Heath project. A decidedly condensed version of the classic framework for analyzing employment discrimination cases, first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), and then applied in Massachusetts in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138-139 (1976), would be as follows. Step one: the prima facie case (the plaintiff is a member of a protected class, performed at an acceptable level, was fired, and replaced with someone of similar qualifications). Step two: the employer gives a lawful reason for why it fired the plaintiff. Step three: the plaintiff may show that the reason the employer gave for firing the plaintiff was a pretext. Step four (as clarified by the recent trilogy of cases): the plaintiff must show that the real ground for discharge was discriminatory animus. Cases that applied and fine tuned the analytical framework are collected in Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 297-301 (1991). Many of the cases describe the defendant’s obligation in phase two as having to produce “credible” evidence to support its articulated reason for the employment action taken against the plaintiff. See, e.g., Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 442 (1995); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). The addition of the adjective “credible” is likely to be confusing to jurors who, untutored in exquisite legal distinctions, will reasonably understand that deciding whether credible evidence has been received means deciding whether they believe, i.e., credit, that evidence. Special verdict question number two asked simply: did the BHA present evidence of a legitimate reason for its action? The trial judge delivered his charge to the jury in speech, as is customary, and also reduced his instructions to writing, providing the jury with copies to take into their deliberations. In both the oral and written forms, the judge charged the jury that there is a three-stage order of proof. If the plaintiff proves his prima facie case, the judge told the jurors, “then the burden shifts to

VENABLE v GENERAL MOTORS CORPORATION (ON REMAND) Docket No. 219037. Submitted August 1, 2002, at Detroit. Decided October 22, 2002, at 9:05 a.m. Phillip I. Venable, a sixty-one-year-old male Caucasian, brought an action in the Genesee Circuit Court against General Motors Corporation, alleging that the defendant’s termination of his employment as a supervisor constituted unlawful employment discrimination based on race, gender, and age under the Civil Rights Act, MCL 37.2101 et seq. The court, Judith A. Fullerton, J., granted summary disposition for the defendant, ruling that there were no genuine issues of material fact and the defendant was entitled to judgment as a matter of law because the plaintiff was dismissed for regularly joining his subordinate employees in leaving work early and going to a nearby bar after the plaintiff and fellow supervisors had been warned by the defendant that they would be immediately discharged if they knowingly allowed an employee to leave work while on company time. The Court of Appeals, O’Connell, P.J., and Fitzgerald and Wilder, JJ., in an unpublished opinion issued April 20, 2001, and citing Allen v Comprehensive Health Services, 222 Mich App 426 (1997), affirmed the trial court’s decision. The Supreme Court considered the plaintiff’s application for leave to appeal and entered an unpublished order on July 31, 2002, remanding the case to the Court of Appeals for an explanation whether it was necessary to rely on Allen in affirming summary disposition for the defendant and, if it was necessary, whether the “background circumstances” test imposed by Allen in evaluating “reverse discrimination’’ claims is consistent with the Civil Rights Act and, if so, whether it is consistent with state or federal equal protection principles. On remand, the Court of Appeals held: 1. The framework established by McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is used in deciding employment discrimination claims under the Civil Rights Act. That framework requires a showing that the plaintiff was a member of a protected class, was subject to an adverse employment action, and was qualified for the position and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse action. Allen was wrongly decided in that it added an element to the McDonnell Douglas framework in reverse employment discrimination cases by holding that a reverse discrimination plaintiff can rely on the McDonnell Douglas framework to establish a prima facie case of intentionally disparate treatment only when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority. 2. Reliance on Allen was not necessary to affirm the trial court’s grant of summary disposition for the defendant. Under the McDonnell Douglas framework untainted by Allen, the plaintiff cannot survive summary disposition because he cannot make out a prima facie case and, even if he could, the reason stated by the defendant for the defendant’s discharge was legitimate and was not a pretext for discrimination. Affirmed. Wilder, J., concurring, stated that reliance on Allen was not required to affirm the trial court’s decision in this panel's prior opinion. The plaintiff failed to show that he was situated similarly to other supervisors of different gender or race who were not discharged. Law Office of Gregory T. Gibbs (by Jeanmarie Miller) for the plaintiff. Hardy, Lewis & Page, PC. (by Terence V. Page and Kay Rivest Butler) (Keller Thoma, P.C., by Kimberly A. Sordyl and Lincoln G. Herweyer, of counsel), for the defendant. ON REMAND Before: O’Connell, P.J., and Fitzgerald and Wilder, JJ. O’Connell, P.J. This reverse employment discrimination case is before us on remand from our Supreme Court. In an unusual remand order, the Court stated in part: The panel is directed to explain . . . whether, in affirming summary disposition in favor of defendant, it was necessary to rely on Allen v Comprehensive Health Services, 222 Mich App 426; 564 NW2d 914 (1997). If it was not, the Court should explain why not. If it was, the Court should explain why it was and address whether the [“]background circumstances!”] test imposed by Allen in evaluating [“]reverse discrimination!”] claims is consistent with the Civil Rights Act, MCL 37.2101 et seq. If so, it should also address whether the test is consistent with state or federal equal protection principles.[] [Venable v General Motors Corp, 650 NW2d 339 (2002) (Docket No. 119202).] From this language we discern that our Supreme Court has ordered us to (1) determine if this Court’s previous opinion in Allen was wrongly decided and (2) determine if the Allen decision is outcome determinative of the present case. We conclude that Allen was wrongly decided and that the Allen decision is not outcome determinative of the present case. Thus, we again, affirm the trial court’s order granting summary disposition for defendant. I. THE MCDONNELL DOUGLAS FRAMEWORK In McDonnell Douglas Corp v Green, 411 US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668 (1973), the United States Supreme Court established the elements of a prima facie case for claims alleging race discrimination in employment under title vn of the Civil Rights Act of 1964, 42 USC 2000e et seq. The complainant in a Title vh trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. [McDonnell Douglas, supra at 802.] In Town v Michigan Bell Telephone Co, 455 Mich 688; 568 NW2d 64 (1997), our Supreme Court adapted the McDonnell Douglas framework to the Michigan Civil Rights Act. This was done to accommodate additional types of discrimination claims — including employment discrimination based on sex and age — and to accommodate other “adverse employment action[s].” Id. at 695 (Brickley, J., with Boyle and Weaver, JJ., concurring). The framework, long used by courts of this state, requires a showing that plaintiff was “(1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct.” Id. at 695 (Brickley, J., with Boyle and Weaver, JJ., concurring), 707 (Riley, J., concurring in the judgment); see also Lytle v Malady (On Rehearing), 458 Mich 153, 171-173, n 19 (Weaver, J., with Boyle and Taylor, JJ., concurring), 185 (Brickley, J., concurring in the judgment); 579 NW2d 906 (1998). n. APPLICATION TO REVERSE DISCRIMINATION CASES We believe Allen was wrongly decided because Allen improperly modified the McDonnell Douglas framework by adding an element for reverse employment discrimination cases. Citing questionable federal precedent, the Allen Court concluded that reverse discrimination plaintiffs can rely on the McDonnell Douglas framework to establish “a prima facie case of intentionally disparate treatment only ‘when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” Allen, 222 Mich App 432 (emphasis added), quoting Parker v Baltimore & O R Co, 209 US App DC 215, 220; 652 F2d 1012 (1981). This additional element has become known as the “background circumstances” test. The Allen Court reasoned as follows: Recognizing that “[t]he facts necessarily will vary in Title VII cases,” the McDonnell Douglas Court noted that its specification of the prima facie burden of proof “is not necessarily applicable in every respect to differing factual situations.” Id. at 802, n 13. The District of Columbia Circuit Court of Appeals accepted this invitation to modify the McDonnell Douglas test for purposes of a “reverse discrimination” claim in Parker],] [supra] .... * * * . . . The Parker court held that majority plaintiffs [i.e., Caucasian or male plaintiffs] can rely on the McDonnell Douglas criteria to prove a prima facie case of intentionally disparate treatment only “when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Id. The Parker analysis has been followed by appellate courts in at least three other federal circuits. With these courts, we conclude that Parker appropriately modified the McDonnell Douglas test for application to a reverse discrimination claim brought under title VO. Further, recognizing that these precedents are not binding upon us in interpreting Michigan’s Civil Rights Act, we nonetheless are convinced by the Parker analysis and adopt its approach for purposes of this statute as well. Accordingly, we hold that a reverse discrimination plaintiff who has no direct evidence of discriminatory intent may establish a prima facie claim of gender [sex] discrimination under the Civil Rights Act with respect to a promotion decision by showing (i) background circumstances supporting the suspicion that the defendant is that unusual employer who discriminates against men; (ii) that the plaintiff applied and was qualified for an available promotion; (iii) that, despite plaintiff’s qualifications, he was not promoted; and (iv) that a female employee of similar qualifications was promoted.[] Upon this showing, a “presumption” of discriminatory intent is established for possible rebuttal by the employer. Absent this showing, a reverse discrimination plaintiff who has no direct evidence of discriminatory intent cannot proceed. [Allen, supra, 222 Mich App 430-433 (citations omitted; emphasis added).] HI. ALLEN’S MODIFICATION OF THE McDONNELL DOUGLAS FRAMEWORK By adding the “background circumstances” test to the McDonnell Douglas framework, Allen made it more difficult procedurally for a Caucasian or male plaintiff-employee than for an African-American or female plaintiff-employee to allege employment discrimination. See Pierce v Commonwealth Life Ins Co, 40 F3d 796, 801, n 7 (CA 6, 1994). While the McDonnell Douglas decision allowed its framework to be adapted to different types of discrimination or different types of “adverse employment action[s]” (Town, supra at 695), Allen clearly departed from McDonnell Douglas and added an entire element to the framework. In our opinion, the “background circumstances” test imposed by Allen in evaluating reverse employment discrimination claims is inconsistent with the Michigan Civil Rights Act. The Civil Rights Act does not make a distinction concerning whether an employee alleging race discrimination is Caucasian or African-American. It only provides that “[a]n employer shall not. . . discriminate against an individual with respect to employment . . . because of religion, race, color, national origin, age, [or] sex . . . .” MCL 37.2202(1)(a). That is, any individual, Caucasian or African-American, male or female, is protected from race or sex discrimination under the Civil Rights Act. Consequently, ordinary and reverse discrimination claims are equally sustainable under the Civil Rights Act. See Pierce, supra. Therefore, we hold that the Allen Court erred in adding the “background circumstances” test to a prima facie case for plaintiffs alleging reverse discrimination in employment. IV THE FACTS OF OUR PREVIOUS DECISION IN VENABLE The facts of this case were set forth in our previous opinion: Plaintiff, a sixty-one-year-old Caucasian male, was discharged from his employment with defendant in 1996 after approximately thirty-one years of service. At the time of his discharge, plaintiff held the position of a sixth-level supervisor in defendant’s Service Parts Organization (spo) plant in Swartz Creek. In August 1996, defendant received a phone call from an anonymous individual on its “Awareline,” a confidential toll-free number defendant’s employees used to report suspected misconduct. The caller alleged that plaintiff had been observed leaving the SPO facility on company time with hourly employees and drinking at a nearby bar. Subsequent surveillance by defendant confirmed the caller’s allegations, and plaintiff was discharged. Plaintiff’s termination in October 1996 followed a meeting for all sixth-level supervisors held in the spring of 1996, where management personnel warned employees that they would be immediately discharged if they knowingly allowed an employee to leave the plant while on company time. After his employment with defendant was terminated, plaintiff commenced the instant action alleging race, gender, and age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., wrongful discharge, and fraudulent misrepresentation. After defendant moved for summary disposition under MCR 2.116(C)(10), the trial court summarily disposed of all of plaintiff’s claims.[] [Venable v General Motors Corp, unpublished opinion per curiam of the Court of Appeals, issued April 20, 2001 (Docket No. 219037).] V. ANALYSIS Our previous opinion in this case cited Allen's modification and application of the McDonnell Douglas framework. See Allen, supra, 222 Mich App 431-432, citing McDonnell Douglas, supra. Having determined that Alim was wrongly decided, our next task is to ascertain whether the result of our previous opinion in this case would have been the same without employing the Allen “background circumstances” test. In direct answer to our Supreme Court’s first question on remand, we hold that it was not necessary to rely on Allen in our previous opinion because direct application of the adapted McDonnell Douglas framework produces the same result. Thus, because our application of Allen in our previous opinion was not outcome determinative, we need not declare a conflict, in the present case. See MCR 7.215(I)(2)-(3); Booker v Detroit, 251 Mich App 167, 181, 185; 650 NW2d 680 (2002). In our opinion, under McDonnell Douglas, the present plaintiff cannot survive summary disposition. See Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Therefore, the trial court in this case properly granted summary disposition to defendant pursuant to MCR 2.116(C)(10) for lack of a genuine issue of material fact. With regard to the first element in the McDonnell Douglas framework, according to Michigan’s Civil Rights Act the instant plaintiff is a member of a protected class on the basis of his race and sex. See Town, supra at 695, 707; MCL 37.2202(1)(a) (“[a]n employer shall not. . . discriminate against an individual . . . because of. . . race, color, national origin, age, sex . . .”). Second, plaintiff was subjected to an adverse employment action, i.e., discharge. See Town, supra. Third, according to the evidence in this case, plaintiff was otherwise qualified for his position. Id. Fourth, and finally, plaintiff claims that similarly situated African-American and female employees were not discharged for the same conduct. Id.; Lytle, supra at 172-173, 185. Even if plaintiff could make out a prima facie case under the above framework, we hold that he cannot survive the next steps in the analysis involving shifting the burden of production. After a plaintiff-employee sets out a McDonnell Douglas prima facie case, the burden of production shifts to the defendant-employer to produce a nondiscriminatory reason for the adverse employment decision. Town, supra at 695, citing McDonnell, supra. In the present case, defendant established (and plaintiff conceded) that plaintiff was discharged because he regularly joined his subordinate employees in leaving work early and proceeding to a nearby bar. Because this explanation satisfied defendant’s burden at this stage of the analysis, the burden of production shifted back to plaintiff to prove by a preponderance of the evidence that this reason for discharge was a pretext for race or sex discrimination. Town, supra at 696-697, 707. Plaintiff cannot meet this burden of production on the evidence presented on summary disposition. Indeed, the evidence shows that after defendant announced a policy prohibiting the alleged misconduct and warning of adverse employment consequences for those who defied the policy, plaintiff chose to leave work early with his subordinates. As we stated in our previous opinion, the similarly situated individuals plaintiff points to did not engage in such conduct after the policy was announced, as plaintiff did. Nor was their conduct as egregious as plaintiffs. Thus, plaintiff was not fired because of his race or sex, but for misconduct that similarly situated African-American and female employees did not commit. See Town, supra; Lytle, supra. VI. CONCLUSION Therefore, on remand, as in our previous opinion, we again affirm the trial court’s grant of summary disposition, albeit on different grounds. See Town, supra; Lytle, supra. Having decided that it was not necessary to rely on Allen in this case, but that the outcome is the same, we need not address the additional questions posed by our Supreme Court. Affirmed. Fitzgerald, J. I concur in the result only. We note that leave to appeal to our Supreme Court was granted in Allen, 459 Mich 861 (1998), and the Court subsequently “directfed] the parties to file . . . supplemental briefs on the question of the propriety of applying the analysis of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), in determining the existence of a prima facie case in cases arising under the Elliott-Larsen Civil Rights Act.” Allen v Comprehensive Health Services, 590 NW2d 573 (1999). The case was dismissed soon after by stipulation of the parties without resolution by our Supreme Court. In essence, our Supreme Court has ordered us to act as an appellate corut over the previous opinion of our colleagues in Allen. We undertake this task with due respect for the Allen panel’s decision. While we conclude that Allen was wrongly decided, we note that one panel of this Court may not overrule a decision of another panel. MCR 7.215(I)(1). In addition, we cannot declare a conflict and convene a conflict panel because, in our opinion, Allen is not outcome determinative of the present case. See MCR 7.215(I)(2)-(3); Booker v Detroit, 251 Mich App 167, 181, 185; 650 NW2d 680 (2002). Because our Supreme Court retained jurisdiction of the present case on remand, we urge the Court to grant leave in the present case and resolve the conflict created by this case and the Allen decision. See Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 708; 614 NW2d 607 (2000) (wrongly decided cases produce more injury when followed than if overruled). Our previous opinion in this case was Venable v General Motors Corp, unpublished opinion per curiam of the Court of Appeals, issued April 20, 2001 (Docket No. 219037). One of the first cases in which our Supreme Court adopted the McDonnell Douglas framework for “ordinary” employment discrimination cases was Victorson v Dep’t of Treasury, 439 Mich 131, 142-143; 482 NW2d 685 (1992) (affirmative action plan claim brought by male employee); see also Rasheed v Chrysler Corp, 445 Mich 109, 132-133, n 41; 517 NW2d 19 (1994) (race and religious discrimination case); Town, supra at 694-696 (sex and age discrimination); Lytle v Malady (On Rehearing), 458 Mich 153, 171-173, n 19 (Weaver, J., with Boyle and Taylor, JJ., concurring), 185 (Brickley, J., concurring in the judgment); 579 NW2d 906 (1998) (sex and age discrimination); Hazle v Ford Motor Co, 464 Mich 456, 467-472; 628 NW2d 515 (2001) (race discrimination). This Court has applied the McDonnell Douglas framework in several published “ordinary

JOEL T. LEWIS, Petitioner v. N.C. DEPARTMENT OF CORRECTION, Respondent No. COA01-1386 (Filed 15 October 2002) Public Officers and Employees— sexual remarks — personal misconduct or sexual harassment — appellate review The trial court did not err by reversing the decision of the State Personnel Commission to demote and transfer a correctional sergeant who had made sexual remarks to two female correctional officers. Although grounds may exist for establishing unacceptable personal conduct, the issue specified by the Administrative Law Judge (and neither rejected nor amended by the SPC) was whether there was just cause to demote petitioner because of sexual harassment, which does not appear to have occurred. Judge McCullough dissenting. Appeal by respondent from order entered 10 August 2001 by Judge A. Moses Massey in Stokes County Superior Court. Heard in the Court of Appeals 21 August 2002. Anderson D. Cromer, PC, by Anderson D. Cromer, for petitioner. Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for respondent. BRYANT, Judge. On 7 September 1999, petitioner Joel T. Lewis initiated a petition for a contested case hearing pursuant to N.C.G.S. § 150B-23(a), appealing the 25 May 1999 decision of respondent N.C. Department of Correction (DOC) to demote and transfer Lewis from the position of correctional sergeant at Forsyth Correctional Center to the position of correctional officer with a ten percent reduction in pay. Lewis’s demotion was for just cause, premised on several “unprofessional comments of a sexual nature” that he made to two female correctional officers with whom he was employed. The unprofessional comments included offering money to correctional officer Pleasants to go with him to the beach, telling officer Pleasants that she was being stingy with her “coochie,” and asking officer Pleasants and fellow correctional officer Lattimore what color panties they were wearing. The contested case came for hearing before Administrative Law Judge (ALJ) Robert Roosevelt Reilly, Jr:, on 25 April 2000. On 31 May 2000, Judge Reilly issued a recommended decision in favor of Lewis. The State Personnel Commission (SPC) declined to adopt the recommended decision as written and instead adopted an amended decision and order dated 31 August 2000 in favor of DOC. From the decision and order of the SPC, Lewis petitioned for judicial review. This matter came for judicial review at the 3 January 2001 term of Stokes County Superior Court with the Honorable A. Moses Massey presiding. By order filed 10 August 2001, the superior court reversed the decision and order of the SPC to demote and transfer Lewis. DOC appeals. Standard of review At the trial court level, the court must first determine de novo whether the SPC heard new evidence after receiving the AU’s recommended decision; and if the SPC did not adopt the ALJ’s recommended decision, whether the SPC stated specific reasons explaining its new findings. See N.C.G.S. § 150B-51(a) (2001). After the initial determination is made, the court must then determine de novo whether an error of law occurred. See Associated Mechanical Contractors, Inc. v. Payne, 342 N.C. 825, 831, 467 S.E.2d 398, 401 (1996). If the allegation is that the findings of fact and conclusions of law are unsupported by competent evidence or are arbitrary and capricious, then the court must utilize the whole record test. See Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). When this Court reviews appeals from superior court either affirming or reversing the decision of an administrative agency, our scope of review is twofold, and is limited to determine: (1) whether the superior court applied the appropriate standard of review and, if so, (2) whether the superior court properly applied this standard. In re Appeal by McCrary, 112 N.C. App. 161, 166, 435 S.E.2d 359, 363 (1993). However, this Court’s obligation to review a superior court order for errors of law can be accomplished by addressing the dis-positive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court and remanding the case if the standard of review utilized by the superior court cannot be ascertained. Capital Outdoor, Inc. v. Guilford County Board of Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002). Upon review of the superior court’s order, it appears that the superior court utilized the appropriate standard of review as to each issue presented. This Court must now determine whether it properly applied the standard of review. Dispositive issue DOC presents several issues on appeal, however, we find the dis-positive issue to be whether the superior court erred in determining that Lewis’s conduct had to rise to the level of sexual harassment to justify his demotion and transfer. For the following reasons, we affirm the superior court’s conclusion on this issue. N.C.G.S. § 126-35 (2001), states that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” N.C. Admin. Code tit. 25, r.lJ0604(b) (June 2002), defines just cause as discipline or dismissal based on either unsatisfactory job performance or unacceptable personal conduct. N.C. Admin. Code tit. 25, r.lJ0614(i) (June 2002), enumerates several examples of unacceptable personal conduct including: 1) “conduct for which no reasonable person should expect to receive a prior warning; or” 2) “job-related conduct which constitutes a violation of state or federal law; or” 3) “the willful violation of known or written work rules; or” 4) “conduct unbecoming a state employee that is detrimental to state service; or” 5) “the abuse of client(s), patient(s), student(s), or person(s) over whom the employee has charge or to whom the employee has a responsibility. . . .” Effective 1 September 1992, DOC implemented a sexual harassment policy. The SPC concluded, Sexual harassment usually involves an employee being personally subjected to one or more of the following behaviors: (a) Unwelcome sexual advances; (b) Acts of gender-based animosity (hostile conduct based on the victim’s gender); or (c) Sexually charged workplace behavior (conduct that is offensive on the basis of gender to persons whether or not they are the targets of the conduct). [] Sexual harassment is unlawful sex discrimination under one or two legal theories: “quid pro quo” or “hostile environment.” All three forms of behavior referenced may constitute a hostile environment, but a claim of quid pro quo harassment necessarily involves unwelcome sexual advances. Sexual harassment claims are usually analyzed as disparate treatment claims. [] The essence of a quid pro quo claim is that an individual has been forced to choose between suffering an employment detriment and submitting to sexual demands. . . . [] The essence of a hostile environment claim is that an individual has been required to endure a work environment that, while not necessarily causing any direct economic harm, or even significant psychological or emotional harm, substantially affects a term or condition of employment. . . . Lewis was a career State employee prior to his demotion/transfer and was subject to the provisions of N.C.G.S. § 126, et seq. (State Personnel Act). By letter dated 25 May 1999, Lewis was notified that an investigation of the incidents at issue, revealed that he made unprofessional comments of a sexual nature to both officers Pleasants and Lattimore. In addition, the letter stated that a recommendation for his demotion for unacceptable personal conduct had been approved effective 1 June 1999. After an unsuccessful internal appeal, Lewis appealed to the Office of Administrative Hearings for a contested case hearing. By decision dated 31 August 2000, the presiding ALJ specified the issue as, “Did the respondent have just cause to demote petitioner because of sexual harassment?” The SPC did not reject nor amend this articulation of the issue. Rather the SPC stated in its decision and order, “Sexual harassment is unlawful sex discrimination under one of two legal theories: ‘quid pro quo’ or ‘hostile environment’. . . . [Petitioner's behavior must be analyzed to determine whether his behavior created a hostile working environment that substantially affected a term or condition of Ms. Pleasant’s (sic) employment.” The SPC went further to conclude, “Regardless of whether Petitioner’s conduct rose to the level of sexual harassment as defined above, Petitioner’s conduct did constitute personal misconduct ‘for which no reasonable person should expect to receive a prior warning,’ thereby subjecting Petitioner to disciplinary action as provided for in 25 NCAC 1J.0162 and .0613 and in DOC’s Disciplinary Policy and Procedures, Section 6, p.38, resulting in his demotion and transfer.” Based upon our reading of the case, the issue before the ALJ was whether just cause existed to demote Lewis because of sexual harassment. The SPC did not articulate a different issue for consideration. The SPC concluded there were no allegations of quid pro quo sexual harassment in this case. In addition, the SPC found that “Neither Ms. Pleasants nor Ms. Lattimore stated that the Petitioner’s statements had or may have had [] direct employment consequences resulting from either the acceptance or rejection of the statements or that the statements created an intimidating, hostile or offensive environment or that the statements interfered with their performance.” Notwithstanding, the SPC ordered that the recommended decision of the AU be rejected and respondent’s disciplinary action for unacceptable personal conduct be upheld. In light of the above noted findings and conclusions, it appears that unacceptable personal conduct based on sexual harassment did not occur as sexual harassment has been previously defined. Although several grounds may exist for establishing unacceptable personal conduct, the ground specified as the basis for Lewis’s demotion and transfer was sexual harassment. The superior court did not err in reversing the decision and order of the SPC. Therefore, this assignment of error is overruled and we affirm the order of the superior court. AFFIRMED. Judge McGEE concurs. Judge McCULLOUGH dissents with' a separate opinion. McCULLOUGH, Judge, dissenting. The majority affirms a ruling of the superior court reversing an order of the State Personnel Commission (SPC) which demoted, transferred and decreased the respondent’s salary due to comments of a crude sexual nature made by respondent to female correctional officers with whom he worked. From this ruling, I respectfully dissent. The record shows that respondent offered a female correctional officer money to go to the beach with him, stated that she was being stingy with her “coochie,” that she would have to sell a lot of “coochie” to make her car payment, and asked this officer and another officer what color underpants they were wearing. Both the Administrative Law Judge (ALJ) who originally heard this matter, and the superior court judge who heard the Petition For Judicial Review, concluded that, to be actionable, (1) sexual comments had to rise to the level of sexual harassment as defined by the Department of Correction (DOC); and (2) such comments that do not rise to that level cannot qualify as “unacceptable personal behavior,” as that term is defined in the Office of State Personnel Policy Manual, codified at N.C. Admin. Code tit. 25, r.1J.0614(i)(1) (June 2002). In affirming, the majority concurs with the shared viewpoint expressed by the ALJ and the superior court. The majority opinion sets forth the DOC sexual harassment policy in detail. Upon reading the DOC policy statement, it is apparent that not all crude sexual remarks meet the test set forth therein. I would reverse the order of the superior court which reversed respondent’s discipline, as I believe that the SPC gave an adequate explanation of why it did not adopt the reasoning and conclusions of the ALJ. A point-by-point refutation of the ALJ’s findings and conclusions is not required. Webb v. N.C. Dept. of Envir., Health and Nat. Resources, 102 N.C. App. 767, 404 S.E.2d 29 (1991). I believe the SPC addressed the case adequately and complied with N.C. Gen. Stat. § 150B-51 (2001) when it included Conclusion of Law No. 8 in its order. That conclusion stated: 8. Regardless of whether Petitioner’s conduct rose to the level of sexual harassment as defined above, Petitioner’s conduct did constitute personal misconduct, “for which no reasonable person should expect to receive a prior warning,” thereby subjecting Petitioner to disciplinary action as provided for in 25 NCAC 1J.0612 and .0613 and in DOC’s Disciplinary Policy and Procedures, Section 6, p. 38, resulting in his demotion and transfer. Respondent was well aware that comments of a sexual nature could lead to some form of discipline, whether or not they rose to the level of sexual harassment. The record indicates that, on 19 November 1996, respondent signed a Human Relations in the Workplace memorandum to that effect. His conduct was therefore a willful violation of a work rule, which is also unacceptable personal conduct for which he could be disciplined. See N.C. Admin. Code tit. 25, r.1J.0614(i)(4); and North Carolina Department of Correction v. McNeely, 135 N.C. App. 587, 521 S.E.2d 730 (1999). The majority seems to hold that, although the SPC inserted Conclusion of Law No. 8 into its Order as an alternative basis for discipline, such was of no import. The majority then accepts the superior court’s determination that the sole issue before that court (and, by implication, this Court as well) was whether the complained-of comments constituted sexual harassment as defined by the DOC policy statement. With this assessment, I disagree. In so doing, I believe the superior court made an error of law, which we review de novo. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). While crude sexual comments may not always rise to the level of sexual harassment as defined in the DOC policy statement, they are nevertheless capable of subjecting an employee to discipline. The SPC never attempted to rely solely on sexual harassment as the only ground for discipline, and this Court should not overlook the SPC’s attempt to base the discipline imposed on its Conclusion of Law No. 8 set forth above. In summary, I would reverse the order of the superior court and uphold the SPC and the discipline it imposed.

Richard Fowler vs. Labor Relations Commission; Boston Water and Sewer Commission, intervener. No. 00-P-451. Suffolk. February 19, 2002. - September 26, 2002. Present: Mason, Cohen, & Mills, JJ. Administrative Law, Judicial review, Substantial evidence. Labor Relations Commission. Labor, Judicial review, Unfair labor practice, Discharge for union activity. On appeal from a decision of the Labor Relations Commission (LRC) dismissing a complaint by a principal organizer of a campaign to unionize mid-level managers at a city’s water and sewer commission (BWSC) contending that the BWSC’s actions in demoting and subsequently firing him were taken in retaliation for his involvement in protected activity in violation of G. L. c. 150E, § 10(a)(1), (2) and (3), this court concluded that the LRC’s decision was based on an erroneous view of the law and remanded the case for consideration under the proper legal framework, where there was direct proof that BWSC’s management had been told by an informant that employees were engaged in union activity, and where the LRC could consider circumstantial proof on the issue of the BWSC’s knowledge of the fired employee’s activities, including evidence that the BWSC’s asserted reasons for its adverse actions were a pretext. [97-103] Appeal from a decision of the Labor Relations Commission. Harold L. Lichten for the plaintiff. John B. Cochran for the defendant. Robert E. Holland, John Foskett, & Catherine S. Reidy, for the intervener, submitted a brief. The Boston Water & Sewer Commission was the responding party before the Labor Relations Commission. It appears in these appellate proceedings as intervener and has filed a brief in support of the decision of the Labor Relations Commission. Cohen, J. Soon after becoming one of the principal organizers of a campaign to unionize mid-level managers at the Boston Water and Sewer Commission (BWSC), Richard Fowler, a BWSC employee for nearly twenty years, was demoted and subsequently fired. He filed a charge with the Labor Relations Commission (commission) contending that the BWSC’s actions were taken in retaliation for his involvement in protected activity, in violation of G. L. c. 150E, § 10(a)(1), (2) and (3). The commission investigated, issued a complaint of prohibited practice, and referred the matter to a hearing officer. After a five-day hearing, the hearing officer issued recommended findings of fact that were favorable to Fowler; however, even though the commission largely adopted the hearing officer’s findings, it ultimately determined that Fowler had failed to prove an essential element of his case: that BWSC senior staff knew that Fowler was engaged in union activity. The commission therefore dismissed the complaint. Fowler appeals from the commission’s decision, contending that the commission misapplied the law by requiring him to prove employer knowledge by “direct evidence” and by failing to consider circumstantial proof on this issue, including evidence that the BWSC’s asserted reasons for its adverse actions were a pretext. He also argues that the hearing officer’s recommended findings of fact included a finding of employer knowledge and that the commission failed to explain its rejection of that finding as required by the State administrative procedure act. See G. L. c. 30A, § 11(8). We agree that the commission’s decision was based on an erroneous view of the law and remand the case for consideration under the proper legal framework. Although appellate review of the commission’s findings is limited to an examination of the record to ascertain if the findings are supported by substantial evidence, we review the legal standards employed by the commission for error of law without deference to its decision. See, e.g., Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991); School Comm. of Boston v. Labor Relations Commn., 40 Mass. App. Ct. 327, 328-329 (1996). We begin by reiterating the elements of a prima facie case of discrimination based on protected activities before addressing the specific issues presented here. In a protected activities case, the charging party must produce evidence to support the conclusion that (1) the employee engaged in concerted activity as defined by G. L. c. 150E, § 2; (2) the employer knew of this activity; (3) the employer took adverse action against the employee; and (4) the adverse action was motivated by the employer’s desire to penalize or discourage the protected activity. School Comm. of Boston v. Labor Relations Commn., supra at 329 & n.5. In this case, it was not disputed that Fowler’s union organizing activities, which began in January, 1996, constituted protected concerted activity; nor was it disputed that thereafter the BWSC took adverse action against Fowler by demoting him from deputy superintendent of sewer operations to safety manager in July, 1996, and terminating his employment in October, 1996. The only issues in contention were employer knowledge and motivation. With respect to employer knowledge, Fowler took the position that his organizing activities were conducted publicly and must have been known to the BWSC’s executive director, Vincent Mannering, if not from Mannering’s own observations or his discussions with other members of the senior staff, then through information received from Mannering’s longtime personal friend, Joseph Crossen. Crossen was a BWSC safety engineer who, in mid-1996, became a deputy superintendent of water and sewer with direct oversight over Fowler after his demotion to safety manager. As elaborated in the margin, the commission made findings to the effect that Crossen served as a conduit of information to Mannering, that Crossen and others close to Mannering, such as chief of staff Jay Porter, knew that union activities were afoot, that Crossen closely supervised Fowler, and that Fowler’s union activities were open and well-known in the workplace. The commission also concluded, as had the hearing officer, that Mannering and Crossen were not credible when they denied knowing of Fowler’s role in the campaign. Nevertheless, the commission declined to infer that Manner-ing and Crossen knew of Fowler’s union organizing, observing that there was no direct evidence that Crossen knew of Fowler’s involvement in the organizing drive, and that no inference of employer knowledge could arise merely from disbelief of Man-nering’s and Crossen’s testimony. The commission explained that “[i]f Crossen’s knowledge of Fowler’s activity was proven by direct evidence, we could infer that he shared his knowledge of Fowler’s role in the organizing drive by the fact that he told Porter that the employees were organizing a union.” However, absent such direct evidence, the commission assumed that it could not infer that Crossen possessed knowledge of Fowler’s role. This assumption led the commission to conclude that it would be “mere suspicion or speculation” to find employer knowledge on the record before it. It therefore dismissed the complaint on that basis, without considering the remaining element of Fowler’s prima facie case — employer motivation. Fowler does not disagree that, without more, disbelief of Mannering and Crossen did not establish the opposite of their testimony. See, e.g., Prescott v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 42 Mass. App. Ct. 36, 38 & n.4 (1997); Hopping v. Whirlaway, Inc., 37 Mass. App. Ct. 121, 126 (1994); Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 224 (1992). His quarrel is with the commission’s assumption that he needed to introduce direct evidence that Crossen knew of his union activity as a legal predicate to a finding of employer knowledge. We agree with Fowler that the commission was mistaken on this point. In cases arising under G. L. c. 150E, we may look for guidance, as did the commission, to Federal decisions applying the parallel provisions of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq. (1994). See Service Employees Intl. Union, Local 509 v. Labor Relations Commn., 431 Mass. 710, 713-714 (2000); Burlington v. Labor Relations Commn., 17 Mass. App. Ct. 402, 405 (1984). Cases decided under the NLRA establish, as a general principle, that employer knowledge of employee union activities may be found from circumstantial evidence from which a reasonable inference of knowledge may be drawn. See, e.g., FPC Holdings, Inc. v. NLRB., 64 F.3d 935, 943 (4th Cir. 1995); Montgomery Ward & Co., 316 N.L.R.B. 1248, 1253 (1995), enforced, 97 F.3d 1448 (4th Cir. 1996); Regional Home Care, Inc., 329 N.L.R.B. 85, 85-86 (1999). An inference of knowledge may be “based on such circumstantial evidence as the timing of the alleged discriminatory actions; the [employer’s] general knowledge of its employees’ union activities; the [employer’s] animus against the Union; and the pretextual reasons given for the adverse personnel actions.” Regional Home Care, Inc., supra at 85-86. Each case is fact specific. Thus, for example, the National Labor Relations Board (NLRB) has inferred that an employer knew of a discharged employee’s union activities from a totality of circumstances that included evidence of the employer’s general knowledge of union organizing and the employee’s overt participation in union- activities. Montgomery Ward & Co., supra at 1253. Notwithstanding this authority, the commission declined to infer employer knowledge in reliance upon The American League, 189 N.L.R.B. 541 (1971) — a case that the commission understood as requiring direct proof to establish an informant’s knowledge that the complaining employee had engaged in union activity. The American League case arose from the termination, toward the end of the 1968 baseball season, of two American League umpires who were attempting to organize their cohorts to join an association previously established by National League umpires. Before their termination, the fired umpires had discussed this idea with other American League umpires and had met with a lawyer and with the National League association. Although these discussions were not entirely clandestine, the two organizers had attempted to keep knowledge of their efforts from League officials, and there was no evidence that any of those contacted had told management that organizing activity was taking place, much less that the fired umpires were behind it. Indeed, none of the numerous American League umpires who appeared as witnesses in the case testified that they had mentioned the organizing activities to League officials. On these facts, the hearing officer and the NLRB declined to infer employer knowledge. Viewed in its factual context, The American League at most illustrates that employer knowledge need not be inferred when there is no direct evidence that anyone has reported union activity to the employer. Id. at 549. However, it does not stand for the extended proposition that direct proof must always be introduced to establish an informant’s knowledge that the complaining employee was engaged in union activity. In the case at hand, the facts as found by the commission were considerably stronger on the issue of employer knowledge than the facts in The American League. The commission adopted the hearing officer’s finding, based on Crossen’s own testimony, that Crossen received union organizing information in June, 1996, and immediately shared it with Porter, who, in turn, relayed it to Mannering. Thus, there was direct proof that management had been told by an informant that employees were engaging in union activity. As to whether Crossen knew of Fowler’s involvement with the organizing campaign and shared that information with senior staff, direct evidence was not required, and the commission was free to draw that inference from other findings, adopted from those of the hearing officer, establishing Crossen’s close supervision of Fowler, Fowler’s openness in conducting the organizing drive, and Crossen’s role as a conduit of information to Porter and Mannering. Drawing an inference from these facts would rest upon affirmative evidence and would not be predicated solely on disbelief of Mannering and Crossen. See NLRB v. Joseph Antell, Inc., 358 F.2d 880, 883 (1966). The commission also was entitled to consider whether the reasons advanced by the BWSC for demoting and terminating Fowler were a pretext and, if so, to take that into account as an additional factor in deciding whether to infer employer knowledge. Although, by itself, “the unconvincing character of the employer’s professed reasons for acting against an employee [does not] supply the otherwise missing proof of knowledge,” Tomateck, Inc., 333 N.L.R.B. No. 156, slip op. at 76-77 (May 8, 2001), it is well-established that pretext may be considered as part of the totality of circumstances from which employer knowledge may be inferred. See NLRB v. Joseph Antell, Inc., supra at 883; Montgomery Ward, supra at 1253; Regional Home Care, Inc., supra at 85-86. In view of our decision, we need not dwell on Fowler’s claim that the commission ran afoul of G. L. c. 30A, § 11(8), by failing to give an adequate explanation for rejecting the hearing officer’s statement that “Crossen knew of Fowler’s involvement” with the union. See Vinal v. Contributory Retirement Appeal Bd., 13 Mass. App. Ct. 85, 92 (1982); Noone v. Contributory Retirement Appeal Bd., 34 Mass. App. Ct. 756, 764 & n.13 (1993). Although the statement was made in passing, we agree with Fowler that this was an implicit, if not explicit, finding that went beyond simply discrediting Mannering and Crossen, and that the commission rejected the finding. Nevertheless, we detect no c. 30A violation, because the commission adequately explained itself by opining that, on its view of the law, the evidence supporting such a finding was insufficient. The problem was not that the commission failed to give an explanation; it was that the explanation was based on an incorrect view of the law. On remand, it will be open to the commission to reassess its rejection of the hearing officer’s finding in light of the correct legal standard. The commission’s decision is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. There was direct evidence, and the commission found, that Fowler’s role in the organizing campaign came to the attention of BWSC general counsel Henry Luthin; but because there was no proof (and no finding by the hearing officer) that Luthin met with Mannering between the time that Luthin obtained this information and the time that Fowler was terminated, the commission declined to infer employer knowledge from this evidence. Mannering had asked his friend Crossen to relay his observations about the operations department so that Mannering would not be relying upon “sanitized information.” Crossen was among those who were sent a letter from the International Brotherhood of Teamsters, Local 25 (teamsters), in June, 1996, soliciting their involvement in the union. He immediately shared the letter with Porter, who relayed it to Mannering. Others close to senior staff, including Mannering’s own administrative assistant, also received this letter. Fowler reported directly to Crossen. Crossen kept close track of Fowler’s performance and regularly met with Fowler to go over his work. Between January and April, 1996, Fowler and the other principal organizer in the campaign, Deacon Perrotta, met with numerous mid-level managers to inform them of the organizing drive and ascertain their level of interest in becoming unionized. In April or May, 1996, when the teamsters indicated an interest in representing the potential bargaining unit, Fowler and Perrotta began campaigning specifically for the teamsters by first meeting with managers individually and later by holding small group meetings. Fowler met with over fifty managers individually and had fifteen to twenty small group meetings. These overtures took place on BWSC property, including the building where Mannering had his office. Fowler and Perrotta also held a large meeting at the South Bay Hotel in Boston, which was attended by seventeen managers and six or seven teamsters officials. At that meeting, Fowler sat in the front of the room and fielded questions from the managers and the teamsters officials. Later, Fowler and Perrotta distributed union authorization cards to employees at work. They also compiled the list used by the teamsters to send a letter and authorization cards to sixty-seven managers in the potential bargaining unit, including Crossen and Mannering’s administrative assistants, although Fowler’s name did not appear in this correspondence. An inference of employer knowledge may also be drawn pursuant to the so-called “small plant doctrine,” where the size of the plant, as well as other considerations, make it likely that the employer observed the employee’s union activity. See United L-N Glass, 297 N.L.R.B. 329 (1989). Here, the commission determined that the facts did not support the application of the small plant doctrine. As Fowler does not challenge that determination on appeal, we do not consider whether it was supported by substantial evidence. The same is true of Synergy Gas Corp., 290 N.L.R.B. 1098, 1101 (1988), also relied upon by the commission. In that case, the discharged employee claimed that employer knowledge could be inferred because two members of management had sons who worked with the employee, and the sons may have reported his activities to their parents. The claim was rejected because there was no evidence, direct or circumstantial, to establish the likelihood that either of the sons would have made such a communication. Furthermore, the employee’s union activities were not “intensive” and were not likely to have been observed. The BWSC claimed that Fowler was demoted and discharged because of over-all poor performance and his responsibility for the failure of a pumping station during a severe rainstorm in September, 1996. However, the commission found that Fowler received positive evaluations for many years up until he began his union activities; that Fowler was not given any negative performance evaluations, warnings or other counseling about alleged deficiencies in his performance in 1996; and that the BWSC did not consider Fowler responsible for the pumping station mishap.