Wrongful Termination Cases

Employer and employee—Ohio does not recognize a cause of action for wrongful discharge in violation of public policy when the cause of action is based solely on a discharge in violation of the federal Family and Medical Leave Act, Section 2601 et seq., Title 29, U.S.Code.

Elise Russell vs. Cooley Dickinson Hospital, Inc., & another. Hampshire. March 7, 2002. August 8, 2002. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Handicap, Employment. Employment, Discrimination. Estoppel. Workers’ Compensation Act, Preference in hiring. Words, “Qualified handicapped person.” Pursuit and receipt of workers’ compensation benefits based on an assertion of total temporary disability did not automatically estop a plaintiff from pursuing an action for employment discrimination on the basis of handicap under G. L. c. 151B, § 4 (16), where the plaintiff was able to produce evidence sufficient to raise a question as to her ability, if provided with a reasonable accommodation, to perform the essential functions of the position in question [450-453]; however, summary judgment in favor of the defendant employer was appropriate where the plaintiff did not have any reasonable expectation of establishing that the hospital, by failing to create a new position for her, to provide her with indefinite leave, or to assign her to a position that she did not request, failed to provide her with a reasonable accommodation for her disability [453-458]. A plaintiff in an employment discrimination action failed to demonstrate that her employer denied her the hiring preference to which she was entitled under G. L. c. 152, § 75A [458], and failed to establish the elements of her claims of fraudulent and negligent misrepresentation on the part of her employer [458-459]. Civil action commenced in the Superior Court Department on May 6, 1997. The case was heard by Peter A. Veils, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Susan D. Sachs for the plaintiff. Margaret W. Has san for the defendants. Sharon L. Gasior, director of human resources and employee health from 1994 to 1996, and vice-president of human resources during and after 1996. Ireland, J. This case presents a question of first impression in the Commonwealth: whether an employee who receives workers’ compensation benefits for “temporary total disability” is precluded from claiming that she is a “qualified handicapped person,” capable of performing “the essential functions of the position involved” with or without “reasonable accommodation,” for purposes of claiming employment discrimination under G. L. c. 151B, § 4 (16). A Superior Court judge granted summary judgment for the defendants, concluding that the plaintiff was barred from claiming that she was a “qualified handicapped person” for purposes of bringing an employment discrimination claim because she was receiving disability benefits on the assertion of being “temporarily totally disabled.” The judge further concluded that the defendants did not fail to provide the plaintiff with a reasonable accommodation and, therefore, were entitled to summary judgment on those claims. The plaintiff appealed and we transferred the case to this court on our own motion. The plaintiff claims that the rulings of the Superior Court were erroneous, that she should not have been barred automatically from claiming she was a “qualified handicapped person” simply because of her prior claims for, and receipt of, disability benefits, and that the defendants failed to provide her with a rehabilitation position, leave extension, or reserve position to accommodate her disability, in violation of G. L. c. 151B, § 4 (16). Although we conclude that pursuit, and receipt, of disability benefits based on an assertion of total disability does not automatically estop a plaintiff from pursuing an action for employment discrimination, we affirm the judgments in this case because the plaintiff has no reasonable expectation of showing that Cooley Dickinson Hospital, Inc. (hospital), failed to provide a reasonable accommodation under G. L. c. 151B, § 4 (16). I. Facts. Because an understanding of the facts is critical to an understanding of the results, we set them out in some detail. The plaintiff, Elise Russell, currently works at the hospital as a part-time patient registration and admitting assistant. Russell began her employment at the hospital in the admitting department in 1987, taking a job in another department for a short time, and returning to the admitting department in 1988. Admitting assistants perform various duties associated with the admitting of patients, including entering patient data into the hospital computer system. The relevant job description requires the use of keyboarding, stating that admitting assistants must have “fine motor skills for the effective and efficient handling of writing tools, office equipment . . . and entry of patient data.” On numerous occasions between December, 1991, and September, 1994, the plaintiff reported work-related injuries that caused pain in her upper extremities, neck, or back, which she believed were related to her use of the computer. The hospital responded by adjusting the plaintiff’s work environment in consultation with a physical therapist and specialist treating the plaintiff. Among the changes the hospital made were excusing the plaintiff from working at the reception desk, lowering her desk to a specified height, adjusting the height of her computer, providing new chairs with improved ergonomics, providing a document holder, providing wrist rests, and permanently assigning the plaintiff to the fourth of the admitting clerk stations to accommodate a lighter work volume and to allow the plaintiff to pace herself. The plaintiff took an industrial accident leave of absence from August 31, 1993, to November 24, 1993, for surgery to alleviate some of her symptoms. Her pain, however, persisted when she returned to work. On the advice of her physician, the plaintiff commenced a second leave of absence in September, 1994. The plaintiff received workers’ compensation benefits based on temporary total disability during both of her leaves of absence. The hospital’s third-party administrator of its self-insured workers’ compensation fund, Compco, hired Lucinda Palmer, president of Action Care Management Services, Inc., to manage the plaintiff’s medical treatment and to facilitate her return to work. Palmer reviewed the plaintiff’s medical records, interviewed her, visited and spoke with her regularly, and accompanied her to various medical appointments. She submitted periodic reports to Compco, copies of which she forwarded to the plaintiff’s attorney at the attorney’s request. To meet departmental needs during the plaintiff’s absence, the hospital requested that part-time admitting assistants work additional hours, had the department’s assistant managers cover a shift, and used reserve employees to cover shifts when they were available. In January, 1995, it posted a temporary sixteen-hour a week admitting assistant position to cover some of the plaintiff’s hours. During the winter spanning 1994 to 1995, the plaintiff’s condition improved and she expressed a desire to return to work. Palmer contacted the plaintiff’s supervisor, Janet Mc-Enaney, who indicated that she was willing to allow the plaintiff to return to work on a modified duty basis and to “accommodate [the plaintiff] on a very, gradual and incremental return to work.” As a preliminary step, commonly used to acclimate returning employees still experiencing pain, Palmer scheduled a “work simulation” with an occupational therapist in March, 1995. During the simulation, the plaintiff performed functions that would be required of her at work, including keyboarding. The simulation occurred over a period of weeks, starting with ten minutes of keyboarding and gradually increasing to fifteen minutes. The plaintiff suffered significant pain during the simulations and discontinued them. Palmer reported that, after completing occupational therapy and visiting with physicians, “it was determined that [the plaintiff] is apparently not going to be able to fulfill the functional demands of her job.” Palmer copied the report to the plaintiff’s attorney. The plaintiff did not tell Palmer or anyone at the hospital that she disagreed with the report or that she thought she could perform her job. Palmer then focused her efforts on “vocational rehabilitation” for the plaintiff so that she could learn the skills necessary to perform a different job, not requiring heavy keyboarding or writing. Palmer’s report indicated that the plaintiff agreed with this approach. Palmer then requested, with the plaintiff’s cooperation and the plaintiff’s attorney’s approval, that the Department of Industrial Accidents office of education and vocational rehabilitation categorize the plaintiff as suitable for vocational rehabilitation because of her inability to return to her job. The plaintiff and her attorney participated in the preparation of an individualized work rehabilitation plan. On May 11, 1995, Palmer wrote to the defendant Sharon L. Gasior, inquiring whether the plaintiff could pursue another job at the hospital. The surgeon who operated on the plaintiff’s hand recommended pursuing other positions with the following limitations: “[Fjull time [work] with no continuous use of arms or hands in repetitive tasks, such as keyboarding or writing, for greater than [twenty] minutes. Repetitive tasks need to be followed by a brief rest, and then she must change to a different task. She must perform no repetitive lifting or carrying, and intermittent lifting or carrying is allowed to [fifteen] pounds only.” On May 26, 1995, Palmer, Gasior, and Joyce Boucher, the hospital’s occupational health nurse, met and discussed the possibility of finding the plaintiff a position suiting the limitations set out by her doctor. They concluded that there were no such positions at that time, with the exception of possible reserve positions in the linen or laundry departments. Palmer and Boucher examined the positions in the linen and laundry departments, and concluded that there was no single position that would meet the plaintiff’s restrictions, but that there were functions in the various jobs that the plaintiff could perform. Gasior agreed to consider creating a rehabilitation position of a composite of duties from different positions. Gasior told Palmer that if a rehabilitation position were identified and could be provided, she would inform Palmer or the plaintiff in writing. Gasior consulted with the supervisors in the laundry and linen departments and the director overseeing both departments. The creation of a position comprising the various duties that the plaintiff likely could perform would require oversight by supervisors of both departments. Gasior was unable to resolve the question of a rehabilitation position for the plaintiff until September, 1995. Hospital policy provides that industrial accident leaves of absence are not to exceed one year, the longest leave the hospital provides. The plaintiff was aware of the policy prior to May, 1995, and believed that she would be terminated at the end of her leave if the hospital did not create a rehabilitation position for her. In late July, 1995, Gasior wrote to Palmer stating that she still did not know whether the hospital would be able to provide a rehabilitation position because the issue was still being evaluated. Palmer shared the letter with the plaintiff. On July 28, 1995, the plaintiff told Palmer about the hospital policy regarding leaves of absence, positing that the hospital was “stalling” its response. Palmer conveyed the plaintiff’s concerns to Gasior on August 17, 1995, who responded that if a rehabilitation position were possible it could be provided even after the plaintiff was terminated. Palmer met with the plaintiff and her attorney on August 30, 1995, and the plaintiff expressed her concern that she would be terminated when her leave expired. As a result, Palmer wrote to Gasior requesting that the hospital put the plaintiff back to work in some capacity before her leave expired, or to extend her leave pending determination whether a rehabilitation position would be made available. She also indicated that the plaintiff continued to be evaluated medically to determine what combination of treatment and accommodation would be required to return the plaintiff to work. The letter was silent regarding the plaintiff’s present or future ability to work as an admitting assistant. The plaintiff’s attorney also wrote to Gasior on September 6, 1995, requesting that the hospital not apply its one-year leave policy to the plaintiff, but did not make any claim as to the plaintiff’s ability to perform the duties of an admitting assistant. After returning from vacation, Gasior responded to both letters, notifying Palmer that the rehabilitation position was still under consideration, but that the leave policy would be applied. In fact, however, Gasior extended the plaintiff’s leave for one additional week, during which time she was able to complete her consultations regarding the rehabilitation position, learning that it would not be possible. The plaintiff’s employment was terminated effective September 15, 1995, one week after it would have otherwise expired. The hospital divided the plaintiff’s forty-hour position into two positions, one twenty-four hour position and one sixteen-hour position. Shortly thereafter, one part-time admitting assistant increased her regular hours to twenty-four. The plaintiff began new treatments with a different hand specialist and she noted improvement during the fall of 1995. In early December, 1995, she applied for vacant admitting assistant positions at the hospital in accordance with her doctor’s work clearance. The hospital offered the plaintiff the open sixteen-hour position, pending a work capacity evaluation, which was deferred for additional medical treatment. Once the evaluation was completed in the spring of 1996, the plaintiff’s doctor clarified his work clearance. In August, 1996, the plaintiff began working with restrictions in the sixteen-hour admitting assistant position. Her restrictions limited her to, among other things, no more than thirty minutes at a time of continuous use of arms or hands in repetitive tasks, such as keyboarding or writing, and required that she follow repetitive tasks with a rest and a different task. Since her return to work, the plaintiff has experienced pain and has filed incident reports stating that the pain is work related. The plaintiff also twice applied for additional hours in the admitting department, but these hours were given to another internal applicant with more seniority. She eventually increased her work schedule to twenty-six hours a week. II. Discussion. A. Employment discrimination. To establish a prima facie case for employment discrimination on the basis of handicap, the plaintiff must show that she was terminated, that she is “handicapped,” that she is a “qualified handicapped person,” and that she was terminated because of her handicap. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 7 (1998). The issue in this case is whether the plaintiff is a “qualified handicapped person” under the provisions of G. L. c. 151B, § 1 (16), and G. L. c. 152, § 75B. A “qualified handicapped person” is defined under G. L. c. 151B, § 1 (16), as “a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” 1. Estoppel. The defendants argue and the judge concluded that the plaintiff cannot establish that she is a qualified handicapped person because at all relevant times she was collecting disability benefits on the basis of being “temporarily totally disabled.” See G. L. c. 152, § 34. See also Shirley’s Case, 355 Mass. 308, 311 (1969) (total disability shown if disability prevents employee from “performing remunerative work of a substantial and not merely trifling character”); Fennell’s Case, 289 Mass. 89, 94 (1935) (when employee “is disabled from doing some types of work and is unable to obtain work of the type he is able to do,” total incapacity finding warranted). The judge concluded that the plaintiff “filed for and received benefits ... on the basis of temporary total disability during her one-year leave of absence, and thus she is barred from claiming that she was able to perform the essential functions of her job with or without reasonable accommodation. ’’ We reject this conclusion but affirm the grant of summary judgment based on the judge’s alternative reasoning that the plaintiff could not establish that the hospital failed to provide her with a reasonable accommodation. In Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), we faced a similar question. In that case, the defendant maintained that the plaintiff was estopped from bringing a claim for discrimination because he sought disability benefits, through a law firm insurance policy, after his termination from the law firm, suggesting that a plaintiff claiming disability benefits admits that he is totally disabled and, therefore, cannot be a “qualified handicapped person.” Id. at 816. We noted that a majority of courts reject the proposition that seeking benefits automatically disqualifies a plaintiff from bringing a discrimination claim. We stated that “[cjourts are wary of allowing plaintiffs to play ‘fast and loose with the courts’ by claiming to be too disabled to perform the functions of a job and also claiming that they were terminated from their positions despite being able to perform those same functions. . . . However, if the evidence creates a disputed issue of fact whether the handicapped person can perform the essential functions of the job, then estoppel is not appropriate.” (Citations omitted.) Id. Although a claim for benefits is an important factor to be considered in determining whether a fact question exists, the claim for benefits is not automatically dispositive. See id. at 817. The Supreme Court of the United States faced a similar question in Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795 (1999), in which the plaintiff, after seeking and receiving Social Security disability insurance (SSDI) benefits, brought suit against her former employer under the Americans with Disabilities Act of 1990 (ADA). A Federal District Court granted summary judgment to the defendant because, in its view, the plaintiff had conceded that she was “totally disabled” and was estopped from proving an essential element of her ADA claim. Id. at 799. The United States Court of Appeals for the Fifth Circuit affirmed the District Court’s judgment, but stated that a rebuttable presumption of estoppel arises from the application for and receipt of SSDI benefits against a plaintiff suing under the ADA. Id. at 800. The Supreme Court vacated the judgment of the Court of Appeals and remanded for further proceedings, noting that claims under SSDI and the ADA, “in context, . . . are often consistent.” Id. at 797. The pursuit and receipt “of SSDI benefits does not automatically estop the recipient from pursing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA.” Id. at 797-798. The Court reasoned that “[a]n SSA [Social Security Administration] representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely T am disabled for purposes of the Social Security Act.’ ” Id. at 802. For example, the SSA does not take account of the possibility of “reasonable accommodation” when determining whether an individual is disabled for SSDI purposes. Id. at 803. “[A]n ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without i

LINDA GUTHRIE, Plaintiff v. RAYMOND CONROY and CLEGG’S TERMITE AND PEST CONTROL, INC., Defendants No. COA01-740 (Filed 6 August 2002) 1. Appeal and Error— partial summary judgment — certification — phrase “final judgment” — not necessary Plaintiff’s claims were subject to dismissal (but were heard in the discretion of the Court of Appeals) where plaintiff appealed more than 30 days from entry of a partial summary judgment for defendants. Although plaintiff’s notice of appeal was within 30 days of an amendment that added “final judgment” to the order, whether an order is final is determined by the resolution of the claim rather than the phrase “final judgment.” 2. Emotional Distress— intentional inflection — sexual harassment — behavior juvenile but not extreme The trial court did not err by granting summary judgment for defendants on a claim for intentional infliction of emotional distress (IIED) involving alleged workplace sexual harassment where the alleged behavior was annoyingly juvenile, obnoxious, and offensive, but not outrageous and extreme. 3. Emotional Distress— negligent inflection — sexual harassment by co-worker — no breach of duty The trial court did not err by granting summary judgment for defendants on plaintiff’s claim for negligent infliction of emotional distress (NIED) arising from alleged workplace sexual harassment where plaintiff did not allege a duty owed to her by the co-employee who was allegedly harassing her. While NIED does not require extreme and outrageous conduct, negligence involves the breach of a duty. 4. Employer and Employee— negligent retention and supervision — underlying tort The trial court did not err by granting summary judgment for defendant employer on a claim for negligent retention and supervision of an employee accused of sexually harassing plaintiff where there was no viable tort claim against the employee. 5. Employer and Employee— civil assault — sexual harassment — ratification The trial court erred in a sexual harassment action by granting summary judgment for the employer on a claim for civil assault where the evidence was sufficient to create a genuine issue of material fact regarding ratification. Appeal by plaintiff from order entered 14 March 2001 by Judge Steve A. Balog in Orange County Superior Court. Heard in the Court 6f Appeals 17 April 2002. Patterson, Harkavy, & Lawrence, L.L.P., by Martha A. Geer, and Davis, Murrelle & Lyles, by Edward L. Murrelle, for plaintiff - appellant. Kathryn P. Fagan, for defendant-appellants. BIGGS, Judge. Plaintiff (Linda Guthrie) appeals from a summary judgment order entered 14 March 2001 in favor of defendants (Raymond Conroy and Clegg’s Termite and Pest Control, Inc.). For the reasons that follow, we affirm in part and reverse in part. Plaintiff was employed in 1998 by defendant Clegg’s Termite and Pest, Inc. (Clegg’s), as a secretary. Defendant Conroy was plaintiff’s co-employee, and worked for Clegg’s as a salesman and pesticide technician. On 17 March 1999, plaintiff submitted her resignation from Clegg’s, in a letter stating that her departure was due to her medical problems, the side effects of various medications, and her feeling that it was unfair for her co-workers to have to “put up with [her] condition.” Plaintiff suffered from severe rheumatoid arthritis for which she took numerous medications, some with adverse side effects. However, plaintiff was persuaded not to leave and remained at Clegg’s for two more months. On 20 May 1999, plaintiff submitted a second resignation letter, this one stating that she was quitting in order to escape sexual harassment by defendant Conroy. She then ceased working for defendant Clegg’s. On 5 October 1999, plaintiff filed suit against defendants, alleging (1) intentional infliction of emotional distress (IIED) by both defendants; (2) negligent infliction of emotional distress (NIED) by both defendants; (3) negligent retention and supervision of Conroy by defendant Clegg’s; and (4) civil assault by both defendants. Plaintiff sought compensatory and punitive damages, and attorneys’ fees. Defendants filed a summary judgment motion on 26 September 2000, which was heard in November, 2000. On 13 November 2000, the trial court issued an order granting partial summary judgment; the court dismissed all of plaintiff’s claims, except for her civil assault action against defendant Conroy. Plaintiff appeals from the grant of summary judgment in favor of defendants. Motion to Dismiss Appeal On 7 March 2001, plaintiff filed a motion “pursuant to rule 54(b) and rule 60,” asking the trial court to amend its 13 November 2000 summary judgment order by adding the phrase “final judgment.” Plaintiff asserted that without that phrase, the order was interlocutory and not subject to immediate appeal. On 9 March 2001, the trial court entered an amended summary judgment order making the same rulings as its 13 November order, and adding the phrase “final judgment.” Plaintiff appealed from the amended order on 20 March 2001. On 15 June 2001, defendants filed a motion in this Court seeking dismissal of plaintiff’s appeal. Defendants argue that the 13 November 2000 summary judgment order was immediately appeal-able, and that plaintiff was required by N.C.R. App. P. 3(c) to give notice of appeal within 30 days of its entry. We agree. We note initially that plaintiff has argued that, by failing to appeal from the amended order of 9 March 2001, or to file a cross-assignment of error, defendants waived the right to move for dismissal of plaintiff’s appeal. However, defendant’s motion for dismissal presents a question of jurisdiction, which may be addressed by this Court at any time, sua sponte, regardless of whether defendants properly preserved it for appellate review. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (“if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question . . . has not been raised by the parties themselves”). The summary judgment order from which plaintiff appeals is interlocutory, because it leaves unresolved plaintiff’s claim against Conroy for civil assault. Creech v. Ranmar Props., 146 N.C. App. 97, 551 S.E.2d 224 (2001) (order that leaves claims unresolved is interlocutory). An interlocutory order is subject to immediate appeal only under two circumstances: where the order is final as to some claims or parties, and the trial court certifies pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure that there is no just reason to delay the appeal, see Alford v. Catalytica Pharmaceuticals, Inc., 150 N.C. App. 489, 564 S.E.2d 267 (2002), or where the order deprives the appellant of a substantial right that would be lost unless immediately reviewed, see Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000). Thus, if the trial court enters a judgment “which fully terminates” a claim or claims as to “fewer than all the parties,” Rule 54(b) allows the trial court to “release it for immediate appeal before the litigation is complete as to all claims or all parties” by certifying that there is “no just reason for delay’’Industries, Inc. v. Insurance Co., 296 N.C. 486, 490, 251 S.E.2d 443, 446-47 (1979). This is the mechanism by which the trial court expresses its determination that a final judgment should be subject to immediate appeal. Oestreicher v. Stores, 290 N.C. 118, 127, 225 S.E.2d 797, 803 (1976) (citation omitted) (trial court functions as a “dispatcher” and determines “the appropriate time when each ‘final decision’ upon ‘one or more but less than all’ of the claims in a multiple claims action is ready for appeal”). The trial court’s 13 November 2000 summary judgment order states that “pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, the undersigned Judge hereby finds that there is no just reason for delay in the plaintiff’s taking an appeal from this Order.” Plaintiff cites no cases holding that the trial court is also required to use the phrase “final judgment,” and we find none. It is the resolution of a claim, rather than the phrase “final judgment” that determines whether an order is ‘final.’ Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979) (“That the trial court declared it to be a final, declaratory judgment does not make it so.”). Nor does N.C.G.S. § 1A-1, Rule 54 require the phrase “final judgment” to be included in a trial court’s certification that an order resolving one or more claims is appropriate for immediate appeal: (a) Definition. A judgment is either interlocutory or the final determination of the rights of the parties. (b) . . . When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal[.] N.C.G.S. § 1A-1, Rule 54(a) and (b). The 13 November 2000 summary judgment order was a final judgment as to all of plaintiffs claims against Clegg’s, and on all of her claims against Conroy, except for civil assault. Further, the trial court certified, pursuant to N.C.G.S. § 1A-1, 54(b) that there was “no just reason for delay,” of an appeal from the order. We conclude, therefore, that the order was properly certified for immediate appeal. Because the 13 November 2000 order was subject to appeal, plaintiff was required by N.C.R. App. P. 3(c)(1) to file notice of appeal within 30 days of entry of judgment, or no later than 13 December 2000. Plaintiffs notice of appeal, filed 20 March 2001, or 127 days after entry of the 13 November 2000 summary judgment order, was untimely, and subjects her appeal to dismissal. Herring v. Branch Banking & Trust Co., 108 N.C. App. 780, 424 S.E.2d 925 (1993). However, this Court will exercise its discretion and grant certiorari to review plaintiffs claims on their merits, pursuant to N.C.R. App. P. 21 (2001). See Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) (“Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner”). Standard of Review Preliminarily, we note that plaintiff characterizes her suit as “a conventional sexual harassment case;” compares the conduct at issue to that “in other sexual harassment cases;” and asserts that defendant Conroy’s alleged conduct “constitutes classic sexual harassment that should not be tolerated in any workplace.” We therefore find it necessary to clarify the nature of the matters before us on review. We recognize that the right to be free of sexual harassment in the workplace is addressed in certain federal statutes, e.g., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (2001) (prohibiting discrimination in the “terms, conditions, or privileges of employment” on the basis of an employee’s sex), and is implicated in our State declaration of public policy, N.C.G.S. § 143-422.2 (“It is the public policy of this State to protect. . . the right... of all persons to seek, obtain and hold employment without discrimination or abridgement on account of . . . sex”). A civil suit may be brought to redress, e.g., an alleged violation of Title VII, see Brown v. Henderson, 155 F.Supp.2d 502 (M.D.N.C. 2000) (setting out elements of Title VII claim of hostile work environment caused by sexual harassment); Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728, disc. review denied, 348 N.C. 501, 510 S.E.2d 655 (1998) (employee suit alleging violation of Title VII and N.C. public policy). Such claims focus on the impact of alleged behavior on the workplace, and require proof that the sexual harassment was “so severe or pervasive as to alter the conditions of [the victim’s] employment and create an abusive working environment.” Clark County School Dist. v. Breeden, 532 U.S. 268, 270, 149 L. Ed. 2d 509, 513 (2001) (citation omitted). However, the plaintiff in the present case does not allege violation of these or other similar statutes. Rather, she has brought common law tort claims for personal injury caused by IIED and NIED. The elements and legal prerequisites of her claims are quite different from those of a Title VII claim. For example, as this is not a statutory “sexual harassment case,” plaintiff need not exhaust administrative remedies before bringing her action. Brooks v. Southern Nat’l Corp., 131 N.C. App. 80, 86, 505 S.E.2d 306, 310 (1998), disc. review denied, 350 N.C. 592, 536 S.E.2d 626 (1999) (plaintiff not required to exhaust administrative remedies where alleged common law torts are not subject to administrative review). Further, plaintiff’s claims of IIED and NIED present issues as to whether the named defendants committed certain acts against this plaintiff; however, plaintiff’s claims do not involve a generalized assessment of acceptable workplace behavior, nor an analysis of the “workplace environment.” In short, plaintiff has brought a common law tort action alleging personal injury, which we will treat as such. Plaintiff appeals from the trial court’s grant of summary judgment. Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, 56(c) (2001). “[T]he party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citation omitted). However, “the real purpose of summary judgment is to go beyond or to pierce the pleadings and determine whether there is a genuine issue of material fact.” Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972). In response to a motion for summary judgment, the non-movant must “produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000). On appeal, this Court’s standard of review involves a two-step determination of whether (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001) (citations omitted). Moreover, “the evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Intentional Infliction of Emotional Distress Plaintiff argues first that the trial court erred in its grant of summary judgment for defendants on plaintiffs claim of intentional infliction of emotional distress (IIED). We disagree. The essential elements of IIED are “(1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (citation omitted). “The determination of whether the conduct alleged was intentional and was extreme and outrageous enough to support such an action is a question of law for the trial judge,” Lenins v. K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990), and, thus, our review is conducted de novo, see Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999) (upon challenge to summary judgment order, trial court’s “alleged errors of law are subject to de novo review”). “A claim for intentional infliction of emotional distress exists ‘when a defendant’s conduct exceeds all bounds usually tolerated by decent society[.]’ ” Watson v. Dixon, 130 N.C. App. 47, 52-53, 502 S.E.2d 15, 19-20 (1998), on reh’g, 132 N.C. App. 329, 511 S.E.2d 37 (1999), aff'd, 352 N.C. 343, 532 S.E.2d 175 (2000) (quoting Stanback v. Stanback, 297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979)) (defendant engaged in extreme and outrageous conduct when he “frightened and humiliated [plaintiff] with cruel practical jokes, which escalated to obscene comments and behavior of a sexual nature,... finally culminating in veiled threats to her personal safety”). Conduct is extreme and outrageous when it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). Plaintiff cites Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986), for her assertion that “North Carolina courts have consistently held that sexual harassment constitutes extreme and outrageous conduct intended to cause emotional distress.” However, Hogan held that a claim for intentional infliction of emotional distress might in appropriate factual circumstances be based upon behavior of a sexual nature. The Court concluded that one of the Hogan plaintiffs was entitled to submit her IIED claim to the jury based upon her allegations that [defendant] made sexually suggestive remarks to her while she was working, coaxing her to have sex with him and telling her that he wanted to “take” her. He would brush up against her, rub his penis against her buttocks and touch her buttocks with his hands. When she refused his advances, he screamed profane names at her, threatened her with bodily injury, and on one occasion, advanced toward her with a knife and slammed it down on a table in front of her. Id. at 490, 340 S.E.2d at 121. The Court upheld summary judgment against the two other plaintiffs, on the basis that the defendant’s alleged behavior towards those plaintiffs was not “outrageous and extreme.” Id. at 493-94, 340 S.E.2d at 123. Thus, while a claim of IIED may be based upon allegations of sexually harassing behavior, “extreme and outrageous behavior” must be more than “mere insults, indignities, and threats.” Further, “plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate or unkind.” Hogan, id. See e.g., Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232, disc. review allowed, 325 N.C. 270, 384 S.E.2d 513, (1989), review dismissed as improvidently granted, 326 N.C. 356, 388 S.E.2d 769 (1990) (prima facie case of IIED shown where defendant asked plaintiff “how tight [her vagina] was”; indicated that he wanted plaintiffs “long legs wrapped around his body”; grabbed his penis; implied that if plaintiff would have sex with him, [he] would place [her] in another position), and McLain v. Taco Bell Corp., 137 N.C. App. 179, 181, 527 S.E.2d 712, 715, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000) (defendant “physically assaulted plaintiff, . . . [demanding] sexual relations . . . [and] began masturbating, ultimately ejaculating upon plaintiffs clothing”); compare with Wilson v. Bellamy, 105 N.C. App. 446, 468, 414 S.E.2d 347, 359, disc. review denied, 331 N.C. 558, 418 S.E.2d 668 (1992) (rejecting IIED claim where “defendants engaged in kissing and heavy petting with the plaintiff in the presence of others” while plaintiff was intoxicated to the point of unconsciousness). “Because the forecast of evidence as to the factual basis of each [claim of IIED] is unique, each claim must be decided on its own merits.” Denning-Boyles v. WCES, I

Pauline D. Cormier, executrix, vs. Pezrow New England, Inc. Hampden. November 5, 2001. July 15, 2002. Present: Marshall, C.J., Greaney, Ireland, Cowin, Sosman, & Cordy, JJ. Practice, Civil, Motion to dismiss, Venue, Judgment notwithstanding verdict, Directed verdict. Anti-Discrimination Law, Age, Damages. Employment, Termination. Damages, Punitive. This court concluded that a claim of age discrimination in employment could be brought in more than one venue and that, even if venue was improper in one county, transfer rather than dismissal would be the proper remedy; where the trial had occurred, and the defendant had made no showing of unfairness or prejudice by litigating in one county rather than another, any error in failing to transfer the case did not warrant reversal. [304-308] In an age discrimination in employment case in which the jury returned a verdict in favor of the employee, motions for a directed verdict and for judgment notwithstanding the verdict were properly denied, where there was ample, albeit contested, evidence at trial to warrant the jury’s finding that the employee was terminated due to his age, which reflected a conclusion that the proffered reasons for termination were false. [308-309] An award of double damages in an age discrimination in employment case was error, where the judge’s finding that the defendant had “reason to know” that the termination of the plaintiff was in violation of the provisions of G. L. c. 151B, § 4, was not properly based on evidence of knowledge or reckless indifference to the rights of others, but rather was inadequately based on the educational background and general experience of the manager who terminated the plaintiff. [309-310] Civil action commenced in the Superior Court Department on December 6, 1994. A motion to dismiss was heard by Francis X. Spina, J., and the case was tried before Judd J. Carhart, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joseph F. Ryan for the defendant. Robert C. Sacco for the plaintiff. Of the estate of Kenneth J. Cormier. A suggestion of death was filed in the Appeals Court on January 19, 2001. We shall refer to Cormier as the plaintiff. Cordy, J. Kenneth J. Cormier filed a complaint in the Superior Court for Hampden County, against his former employer, Pezrow New England, Inc. (Pezrow), alleging that his employment as a sales representative had been unlawfully terminated after twenty-five years because of his age, in violation of G. L. c. 151B, § 4 (IB). A jury returned a verdict in favor of Cormier, and assessed damages in the amount of $209,500. The trial judge ruled that Pezrow’s violation of G. L. c. 151B was “willful” and doubled the award of damages pursuant to G. L. c. 151B, § 9. Before trial, Pezrow filed a motion to dismiss based on improper venue; during trial, it filed motions for a directed verdict after the close of Cormier’s evidence and again at the close of all the evidence; and after trial, it filed a motion for judgment notwithstanding the verdict. All of these motions were denied. Judgment entered in favor of Cormier. Pezrow appealed from the denial of its motions and the doubling of the damage award. The Appeals Court vacated the judgment for Cormier, ruling that Pezrow’s motion to dismiss and motions for a directed verdict based on improper venue should have been allowed. Cormier v. Pezrow New England, Inc., 51 Mass. App. Ct. 69 (2001). The court reasoned that although Cormier was employed by a Massachusetts company and was assigned to manage the accounts of customers located almost exclusively in Hampden County, he actually “worked [at the Pezrow office] in Enfield, Connecticut” (Connecticut), and therefore his discharge “did not occur in Hampden County.” Consequently, the special venue requirement of G. L. c. 15 IB that an action for age discrimination be brought in the county in which the “unlawful practice occurred” had not been satisfied. We granted Cormier’s application for further appellate review. We conclude that a claim of age discrimination may be brought in more than one venue, and even if venue was improper in Hampden County, transfer, not dismissal, would have been the proper remedy. In the absence of a showing of unfairness or prejudice from having to litigate the case in Hampden County, the judgment should not be vacated. We also decide the issues raised in Pezrow’s appeal that the Appeals Court did not reach because of its ruling on the question of venue. We affirm the trial judge’s denial of the motions for directed verdict and verdict notwithstanding the verdict, but vacate the award of double damages. 1. Factual Background. Pezrow is a Massachusetts corporation headquartered in West-wood, which is located in Norfolk County. It is engaged in the food brokerage business. Cormier was a resident of Chicopee, which is located in Hampden County. He had been employed since 1969 by Pezrow and its predecessor corporations, as a sales representative managing the accounts of supermarkets located almost exclusively in Hampden County. Until October, 1993, when Chase-Kolbrin merged with Pezrow, Cormier worked out of his home in Chicopee. After the merger, Cormier’s files were transferred from his home to Pezrow’s office in Connecticut. Cormier was also assigned a desk in Connecticut where he spent, on average, one day per week performing routine business activities. He continued to work with accounts in Hampden County, where he spent the majority of his time. Corporate officials who worked at Pezrow’s headquarters in Westwood made the decision to terminate Cormier in the spring of 1994. Cormier received his termination notice on April 15, 1994, while he was working at his desk in Pezrow’s Connecticut office. 2. Discussion. a. Venue. One of the principal purposes of G. L. c. 151B is to “protect the citizens of the Commonwealth against employment discrimination,” Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994), and its provisions are to be “construed liberally for the accomplishment” of that purpose. G. L. c. 151B, § 9. See Dahill v. Police Dep’t of Boston, 434 Mass. 233, 240 (2001). The statute contains a special venue provision directing that actians for discrimination are to be brought “in the superior or probate court for the county in which the alleged unlawful practice occurred.” G. L. c. 151B, § 9. We have not had occasion to interpret the words “in which the alleged unlawful practice occurred,” in the context of determining where an action for age discrimination may properly be brought. We begin by noting that there is no question of jurisdiction raised in this case. Nor is there any doubt that Massachusetts courts have the power to decide an employment discrimination controversy between a Massachusetts citizen and a Massachusetts employer whose headquarters is located in Massachusetts. The question is one of venue, a matter that has “procedural implications totally distinct from jurisdiction,” commonly having to do with geographical subdivisions, and in no way affecting the inherent authority of the court. Markelson v. Director of the Div. of Employment Sec., 383 Mass. 516, 518 (1981). Paige v. Sinclair, 237 Mass. 482, 483-484 (1921). When jurisdiction exists, venue requirements should be read liberally to ensure access to the Commonwealth’s courts, for “[i]t cannot be presumed that the Legislature, when undertaking to confer jurisdiction upon our courts . . . could have intended in many conceivable instances to deprive the holder of [such] claims of all opportunity to bring an action.” Potter v. LaPointe Mach. Tool Co., 201 Mass. 557, 563 (1909). The motion judge denied Pezrow’s motion to dismiss based on his conclusion that the “core of the employment relationship” existed in Hampden County, and therefore “the unlawful act of discrimination, the actual severance of the employment relationship between [Cormier] and Pezrow, occurred in Hampden County, where the relationship was based.” Pezrow contended at trial and on appeal that any unlawful act occurred only when Cormier received notice of his termination in the company’s Connecticut office; accordingly, Connecticut was where the unlawful act occurred, and venue was not proper in Hampden County. The Appeals Court first rejected Pezrow’s argument by explaining, “the place where the employee is notified of his discharge does not necessarily establish the place where the alleged unlawful discharge occurred. To hold otherwise would allow employers to circumvent G. L. c. 151B by simply notifying employees of their discharge when they are not in the Commonwealth.” Cormier v. Pezrow New England, Inc., 51 Mass. App. Ct. 69, 73 (2001). However, it went on to conclude that because Cormier’s desk and files were located in Connecticut, he “worked” there, and therefore the discharge did not occur in Hampden County. The clear implication of the court’s conclusion is that Connecticut was indeed the place “in which the alleged unlawftd practice occurred.” We do not read G. L. c. 15 IB so narrowly as to mean that conduct constituting an unlawful termination can occur in only one place, and, consequently, that there is only one venue in which an employment discrimination claim may be brought. Such a confining interpretation would be inconsistent with the realities of today’s employment world. An unlawful employment practice may consist of many actions and decisions made far from where the employee is physically located, between company officials who themselves are separated by great distances, and may be implemented in one of many jurisdictions. Limiting an employee to a single venue in which to bring a discrimination action when an unlawful decision and its implementation may have occurred in many places would be inconsistent with our mandate to construe liberally the statute to protect Massachusetts employees from workplace discrimination. At the very least, the unlawful practice here occurred in Connecticut, where Cormier was assigned an office and received notice of his termination, and in Westwood (Norfolk County), where the decision was made. We also agree with the motion judge that an unlawful employment practice may occur where “the core of the employment relationship” lies. Whether that was in Hampden County, however, is a closer question. Although Cormier spent most of his time working with customers in Hampden County, and had for many years worked from his home in Chicopee (Hampden County), after the merger he was relocated to the company’s Connecticut office. In addition, Pezrow had no physical presence in Hampden County, and the decision to terminate was not made, communicated, or arguably implemented there. In the circumstances of this case, however, we do not need to decide whether the motion judge was correct in concluding that the “core of the employment relationship” was in Hampden County. The remedy for improper venue is not necessarily dismissal of the action when venue may be properly found in another court of the Commonwealth. Markelson v. Director of the Div. of Employment Sec., supra at 519 (“dismissal [for improper venue] is not required as a matter of law”). Venue was clearly proper in Norfolk County, where it is undisputed that the unlawful decision to terminate Cormier was made. Cormier filed a motion to transfer the case to Norfolk County in addition to opposing Pezrow’s motion to dismiss on venue grounds. If the motion judge had found that venue was not proper in Hampden County, there would have been no basis on which to dismiss the case as a matter of discretion, and he would have been constrained to allow Cormier’s motion to transfer it to Norfolk County. Id. Consequently, even if Pezrow had prevailed in its argument, it would have been entitled only to such a transfer. Where the trial has occurred, and Pezrow has made no showing of unfairness or prejudice by litigating the case in Hampden County, rather than Norfolk County, any error in failing to transfer it does not warrant reversal. b. Motions for a directed verdict and for judgment notwithstanding the verdict. In reviewing the denials of the motions for directed verdict and for judgment notwithstanding the verdict, “the standard is ‘whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff”. ... In applying this standard, we examine the evidence in the light most favorable to the plaintiff’ ” Martignetti v. Haigh-Farr, Inc., 425 Mass. 294, 304 (1997), quoting Forlano v. Hughes, 393 Mass. 502, 504 (1984). Pezrow argues that (1) Cormier failed to present sufficient evidence to support a finding that he was performing his job at an acceptable level, which is required to establish a prima facie case of discrimination in the first of the three stages of proof set forth in Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995); (2) Cormier failed to present sufficient evidence to support a finding that Pezrow’s proffered reason for his discharge was a pretext under the third stage of proof; and (3) that uncontroverted evidence establishes that Pezrow’s reason for discharging Cormier was not a pretext. Pezrow’s arguments fail because they are premised on a view of the evidence favorable to it rather than to Cormier. In many respects, the trial boiled clown to a credibility contest between Cormier and his direct supervisor (Harvey Goldberg) on one side, and Pezrow’s management personnel (Gerald Capaldi and Eugene Mahoney) on the other. The verdict reflects that the jury believed Cormier’s version of events over Pezrow’s version. Viewing the evidence in the light most favorable to Cormier, the jury could have found that he was a twenty-five year employee of Pezrow and Chase-Kolbin with no prior negative performance evaluations; he was terminated at the age of sixty; and at the time of termination, he was the oldest sales representative in his department. The jury also could have found that Pezrow’s claim that it laid off a total of fifty people between the time of the merger and December, 1994 (compared to the twenty-five contended by Cormier), was not true; that Pezrow’s claim that Cormier’s layoff (among others) was necessitated by the loss of $500,000 in annual revenue from one account was not credible in light of evidence that that account was replaced with a new $1 million account; and that Pezrow’s claim at trial that Cormier was also terminated for performance issues was inconsistent with its earlier position that the termination was due to staff reductions and the elimination of his position. In sum, the jury’s answer of “yes” to the question whether they found Cormier was terminated due to his age, reflected a conclusion that the proffered reasons for termination were false and that the termination was due to age discrimination. There was ample, albeit contested, evidence at trial on which such a conclusion could be based. c. The award of double damages. Pursuant to G. L. c. 151B, § 9, a judge may award double damages if he finds “that the discriminatory act or practice complained of was committed with knowledge, or reason to know, that the act or practice at issue violated the provisions of G. L. c. 151B, § 4, which prohibits . . . age discrimination.” Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 420 (1998). Here, the judge found that Pezrow, through its vice-president, Gerald Capaldi (who took part in making the decision to discharge Cormier and in notifying him of it), had reason to know that Cormier’s discharge violated G. L. c. 151B: “Capaldi made the decision to terminate the plaintiff. Capaldi has a Master’s degree in business administration and is an executive in the defendant food company. I find that his decision to terminate the plaintiff was in complete disregard of the provisions of G. L. [c.] 151B. I find that the defendant had reason to know that the termination of the plaintiff was in violation of the provisions of” G. L. c. 151B, § 4. Cormier concedes that there was no evidence at trial that Pezrow had actual knowledge that its action violated Massachusetts law, but argues that the judge’s finding that Pezrow “had reason to know” is supported by the record, including evidence that Capaldi was well educated and had been with Pezrow for fifteen years; that Pezrow maintained a human resources staff to which managers could turn for advice; that it was policy to report any termination to human resources before it was carried out; and that “[a]ny manager in today’s business environment with that level of responsibility, experience and education and with access to those resources, knows or should know that it is illegal to terminate an employee based on their age.” Cormier further argues that Capaldi was evasive at trial; that he knew that Cormier was sixty years old and the oldest sales representative; and that the person who replaced Cormier was younger (although still in the protected age group). Thus, “Capaldi knew that his termination of Cormier was age discrimination.” We conclude, however, that the award of double damages was erroneous. “[M]ultiple damages are ‘essentially punitive in nature.’ ” Fontaine v. Ebtec Corp., 415 Mass. 309, 322 (1993), quoting McEvoy Travel Bur., Inc. v. Norton Co., 408 Mass. 704, 717 (1990) (age discrimination). In determining whether there is sufficient evidence that Capaldi “had reason to know” that his conduct was illegal, the court is guided by the punitive nature of multiple damages, which are “awarded for conduct that is ‘outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’ ” Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178 (2000), quoting Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 17a (1998) (failure to pay overtime compensation in violation of G. L. c. 151, § 1A). The evidence to support the multiple damages claim was that Capaldi had a master’s degree and fifteen years of management experience in a large company with a human resources department. There was no evidence that discrimination law had been discussed in connection with Cormier’s discharge, see Brownlie v. Kanzaki Specialty Papers, Inc., supra, or that the company had a policy against age discrimination of which managers were notified, see Koster v. Trans World Airlines, Inc., 181 F.3d 24, 37 (1st Cir.), cert. denied, 528 U.S. 1021 (1999). Holding that “reason to know” existed in this case would award punitive damages on the basis of Capaldi’s status and not on evidence of knowledge or reckless indifference to the rights of others. Goodrow v. Lane Bryant, Inc., supra. In light of the severity of punitive damages, and their goal of deterring intentional conduct, a manager’s education and general experience alone is not an adequate basis for such an award. d. Propriety of the jury instructions. Pezrow for the first time argues that the judge’s instructions to the jury concerning pretext were erroneous because he failed to instruct the jury that Cormier was required to prove discriminatory animus and causation. Lipchitz v. Raytheon Co., 434 Mass. 493, 501-504 (2001). Pezrow has waived this issue because it failed to object to the instructions at trial. See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). See also Rotkiewicz v. Sadowsky, 431 Mass. 748, 751 (2000); Flood v. Southland Corp., 416 Mass. 62, 66-68 (1993). 3. Conclusion. The denials of the motions for a directed verdict and judgment notwithstanding the verdict are affirmed. The judgment of the Superior Court is affirmed in part and vacated in part. The case is remanded to the Superior Court where an amended judgment will enter reducing the double damages consistent with this opinion. So otdered. Pezrow New England, Inc., is the successor corporation to Chase-Kolbin Associates, with wh

Employer and employee—Public employment—Department of Rehabilitation and Correction—Community-based correctional facility—Termination of employment.