Wrongful Termination Cases

James V. Ventresco vs. Liberty Mutual Insurance Company. No. 00-P-1096. Suffolk. April 12, 2002. - June 13, 2002. Present: Armstrong, C.J., Mason, & Grasso, JJ. Anti-Discrimination Law, Age. Employment, Discrimination. Practice, Civil, Instructions to jury, Burden of proof, Interest. Pension. Damages, Future damages, Interest. Interest. In a civil action alleging age discrimination, the judge did not err in instructing the jury that the plaintiff was entitled to prevail if he proved “pretext,” where she also told them that, by pretext, she meant pretext for discrimination, and thus, when read as a whole, the instructions were adequate to inform the jury that the plaintiff was required to prove that the defendant had acted with a discriminatory motive or intent. [205-209] The evidence in a civil action alleging age discrimination was sufficient to support the jury’s award of lost pension benefits, and the award of lost pension benefits was not inconsistent with the award of front pay. [209-211] This court modified the judgment in a civil action alleging age discrimination to provide that prejudgment interest would be allowed only on those portions of the judgment representing amounts for back pay and emotional distress damages. [211] Civil action commenced in the Superior Court Department on March 19, 1998. The case was tried before Diane M. Kottmyer, J., and motions for judgment notwithstanding the verdict and for attorney’s fees were heard by her. Richard W. Renehan (Deborah H. DosSantos with him) for the defendant. Robert R. Berluti for the plaintiff. Mason, J. The plaintiff, James V. Ventresco, brought this action in March, 1998, alleging that the defendant, Liberty Mutual Insurance Company (Liberty), had laid him off from his employment with Liberty in September, 1996, because of his age, in violation of G. L. c. 151B, § 4. The jury returned a verdict for the plaintiff and awarded him $201,100 in compensatory damages, including $21,500 in back pay, $14,400 in front pay, $140,200 in lost pension benefits and $25,000 for emotional distress. The jury further determined that because Liberty had acted with knowledge or reason to know it was violating the law against age discrimination, their award of compensatory damages therefore should be doubled to $402,200. See G. L. c. 151B, § 9. Acting on Liberty’s motion for judgment notwithstanding the verdict or for a new trial, the judge ordered that a new trial would be held unless the plaintiff accepted a re-mittitur of $150,992, to which the plaintiff agreed. The plaintiff moved for attorney’s fees and costs and received an award of $95,000 and $1,903, respectively. A final judgment then entered accordingly. On appeal from the judgment, Liberty claims that (1) a new trial is necessary because the judge erred in instructing the jury that they must find for the plaintiff if he simply proved “pretext,” relieving him of his burden of proving discrimination; (2) the award of lost pension benefits was improper because there was insufficient evidence that, but for his layoff, the plaintiff would have remained employed at Liberty until he was sixty-five years old and, in any event, any such finding by the jury was inconsistent with their award of only $14,400 in front pay; and (3) the plaintiff was improperly allowed prejudgment interest on the entire award, including the portions for front pay and lost pension benefits. We agree that prejudgment interest should not have been allowed on the portions of the jury’s award for front pay and lost pension benefits, and accordingly, we order that the judgment be modified to provide prejudgment interest only on those portions of the judgment representing amounts for back pay and emotional distress damages. We otherwise affirm. Background facts. The plaintiff was initially hired by Liberty as an employee in its mailroom in the fall of 1963, which was shortly after the plaintiff had completed high school. The plaintiff left his employment in 1965, but then he returned in November, 1972, after he had completed college and service in the United States Army. The plaintiff thereafter continued as an employee of Liberty until his layoff in September, 1996. In February or March, 1973, the plaintiff was offered and accepted a position as a production assistant in Liberty’s advertising and public relations department. He was subsequently promoted to the position of production manager and, ultimately, in 1983 to the position of director of production services. As director of production services, the plaintiff was responsible for overseeing and coordinating the department’s print production projects, including the company’s annual report and also its periodic newsletters and magazines. He was also responsible for tracking progress on these projects and monitoring the expenses incurred in completing them. The plaintiff reported directly to Whitney Lancaster, who was the head of the advertising and public relations department. The plaintiff regularly received annual performance evaluations while he was employed as director of production services. For each of the years ending January, 1993, through January, 1996, the plaintiff received an over-all rating of “meets expectations” on his then-current performance evaluation, which was in the middle of the scale of possible ratings. The plaintiff never received any warning that his job performance was unsatisfactory even though, throughout this period, Liberty had a written progressive discipline policy in effect providing that employees should be given such a warning and then placed on probation prior to being discharged for such unsatisfactory job performance. In January, 1996, Lancaster was replaced by Steven Sullivan as the head of the advertising and public relations department which, shortly thereafter, was renamed the Liberty communication services (LCS) department. At the time he was hired, Sullivan was told by Liberty’s chief executive officer, Gary Countryman, that the department was “somewhat dysfunctional” and not well-regarded by the other operating departments within Liberty, and that Countryman was looking to him to reorganize the department and turn it into a “world-class communications department.” Sullivan promptly met with all the managers in the department, including the plaintiff, and asked them what they thought their job functions were and what they thought they were doing. Sullivan testified that, as a result of his interview with the plaintiff, he obtained the impression that the plaintiff “didn’t have a lot to do” principally because his production duties had declined, and that he was performing a lot of tasks, such as scheduling vacations for secretaries, which should have been performed by other people. Sullivan also testified that he was struck by the fact that the plaintiff seemed content to view his job as a meaningful job, even though it did not appear to Sullivan to have substance. At or about this same time, Sullivan retained an outside consultant, Walter Pile, to advise him with respect to reorganizing the LCS department. Sullivan met with Pile in late January or early February and specifically told him that the plaintiff’s position was “outside the scope of [the department’s] assignment” because “the production director title ... no longer really applied relative to [the plaintiff’s] current responsibilities.” Sullivan thereafter had periodic discussions with Bruce Anderson, who was vice-president and manager of human resource services at Liberty, regarding his plans for reorganizing the LCS department. Sullivan told Anderson during these discussions that he doubted that the plaintiff, who by this time was fifty-one years old, or another employee, Richard Kallio, who was sixty-one years old, would retain positions in the reorganized department due to their poor job performance. On July 1, 1996, Pile sent Sullivan a letter outlining their joint recommendations for reorganizing the department and the reasons for the recommendations. At Sullivan’s request, Pile included in this letter a statement that, as a result of the proposed reorganization, “long-standing under performers will be out-placed, sending an important, positive message to [strategic business unit] clients as well as the LCS staff.” Shortly thereafter, on July 17, 1996, Sullivan met with the plaintiff and told him that his position was being eliminated. Sullivan further told the plaintiff at this time that two new posi-tians were being created, including one that would serve an accounting function and one that would serve a trafficking/ production function, but that the company would be hiring from the outside to fill those positions. Sullivan also told the plaintiff that he would be allowed sixty days to find another position within Liberty but that, if he failed to do so, his employment would be terminated and he would receive Liberty’s thirty-nine week severance package. The plaintiff thereafter did attempt to obtain another position within Liberty but was unable to do so. His employment with Liberty was accordingly terminated on September 16, 1996. Kallio’s position was also eliminated at this same time and he retired. Liberty eventually filled the new accounting position with a man who was thirty-five years old and the new trafficking/ production position with a woman who was twenty-nine years old. Liberty also created a new operations manager position within the LCS department and appointed to the position a woman who was thirty-five years old and whose prior position had also been eliminated in the reorganization of the department. Following the termination of his employment with Liberty, the plaintiff was employed first as a senior production manager by CFI Design Group and then, starting in July, 1998, as a project manager by Fidelity Investments (Fidelity). While the plaintiff’s basic annual salary at Fidelity was approximately $7,200 less than his salary had been at Liberty, the plaintiff was eligible to receive annual bonuses at Fidelity of up to fifteen percent of his salary. The plaintiff could also qualify for pension benefits at Fidelity but only up to $300 per month at age sixty-five. At the time he left his employment at Liberty, the plaintiff was fully vested in Liberty’s pension plan and, whereas he was then entitled to a monthly payment of $1,122 at age sixty-five, he would have been entitled to a payment of approximately $2,330 per month if he had remained at Liberty until age sixty-five. Accordingly, the plaintiff lost substantial pension benefits as a result of the termination of his employment with Liberty, which he could not recover at Fidelity. 1. Jury instructions. Citing Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000), Liberty claims the judge erred in instructing the jury that the plaintiff was entitled to prevail if he proved “pretext,” rather than discrimination. In Abramian, the Supreme Judicial Court held that, in an indirect evidence case such as the present one, proof that the reason the employer has articulated for its action is false or a pretext may permit, but does not require, the fact finder to infer discrimination. Id. at 117-118. Hence, it is error for the judge to instruct the jury that, if they find that the employer’s articulated reason for its action is a pretext, then they are required (as distinct from permitted) to find that the employer engaged in discrimination. Id. at 118. It is well settled, however, that “reversible error will not be found merely by ‘consideration of [a] fragment [of an instruction] which may be open to criticism.’” Lipchitz v. Raytheon Co., 434 Mass. 493, 507 (2001), quoting from Haven v. Brim-field, 345 Mass. 529, 533 (1963). Rather, “[t]he trial judge maintains discretion in charging the jury, and a charge is to be read as a whole in determining whether the jury were properly instructed.” Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86, 100 (1999), citing O’Connor v. Raymark Indus., Inc., 401 Mass. 586, 592 (1988). In the present case, the judge submitted four special questions to the jury, only the first of which dealt with liability. That question was, “Did the defendant, Liberty Mutual Insurance Company. . . discriminate against the plaintiff, James V. Ventresco ... by terminating his employment because of age?” The judge drew her instructions with respect to this question primarily from the order of proof originally described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by the Supreme Judicial Court in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130 (1976). Thus, the judge instructed the jury that, to prevail on his claim of age discrimination, the plaintiff was required to prove by a preponderance of the evidence that (1) he is a member of the protected class, i.e., over forty years of age (see G. L. c. 151B, §§ 1, 4); (2) he was performing his job at an acceptable level of performance; (3) his employment was nevertheless terminated; and (4) Liberty either did not treat age neutrally in deciding to eliminate his position or, alternatively, he was qualified for another position which was given to a younger person with similar or inferior qualifications and he did not apply for the position because Liberty, by acts or deeds, indicated to him that he would not be considered for the position. The judge then further instructed the jury that, since Liberty had produced a nondiscriminatory reason for its action, the plaintiff must also prove “one further element of his claim, namely, that the reason given by the defendant, or reasons given by the defendant, was not the real reason for the termination of his employment. That is that the defendant’s asserted reasons are false or a pretext.” The judge then did state, as Liberty complains, that “[i]f you find that the plaintiff has proven that the reasons given by the defendant are not believable or not the real reasons for the decision, then you must return a verdict for the plaintiff.” She also stated that the plaintiff “bears the burden of proof on the ultimate issue of discrimination, and therefore must produce evidence that more likely than not, the articulated reason was a pretext.” Immediately after making these statements, however, the judge further stated that “[t]he burden is on the plaintiff to prove that, but for his age, his employment would not have been terminated.” The judge then instructed the jury that a critical issue in the case was the defendant’s intent and that such intent could be proven by direct or circumstantial evidence and, further, that if the jury found that the defendant was motivated in part by unlawful bias and in part by a legitimate reason, then the defendant must prove that it would have made the same decision regardless of the plaintiff’s age. The judge then stated the following: “When assessing a plaintiff’s claim that the reason given by the defendant is a pretext, you should focus on the motivation of the employer, not its business judgment. While an employer’s judgment or course of action may seem poor or erroneous or mistaken, the relevant question is simply whether the given reason was a pretext for illegal discrimination, not whether it was the correct decision or a smart or intelligent decision, but whether it was a pretext for illegal discrimination” (emphases added). The judge further explained: “The employer’s stated legitimate reason must be reasonably articulated and non-discriminatory, but it does not have to be a reason that you, the jury, would act on or approve. An employer is entitled to make its own policy and business judgments and may, for example, fire an adequate employee to hire one who will be even better, as long as that is not a pretext for discrimination” (emphasis added). Thus, while the judge told the jury that they were required to find for the plaintiff if they found pretext, she also told the jury that, by pretext, she meant pretext for discrimination. Read as a whole, these instructions were adequate to inform the jury that the plaintiff was required to prove that Liberty had acted with a discriminatory motive or intent. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 12 &n.18 (1998). Liberty’s reliance on Abramian v. President & Fellows of Harvard College, supra, and Lipchitz v. Raytheon Co., supra, is misplaced. In Abramian, 432 Mass. at 115, during its deliberations, the jury sent a question to the judge stating that they were “confused after reviewing [his] instructions” and specifically asking whether they were “bound” to find discrimination if they found pretext. The judge responded, “The answer to your question is ‘Yes,’ ” and thereby explicitly and improperly directed the jury to find discrimination if they found pretext. In Lipchitz, 434 Mass. at 499 n. 11, the judge began his instructions by stating that the burden with respect to pretext was on the plaintiff “to prove by a fair preponderance of the evidence that the reasons given by the defendant were not the real reasons for failing to promote her . . . but were a pretext for gender discrimination,” but then went on to state that the plaintiff could satisfy this burden by proving “that the employer’s articulated reason or reasons was not the real reason or reasons for the hiring decision.” The court found that the “entire import” of the judge’s instruction on the plaintiff’s burden to establish liability “was whether she had proved ‘pretext,’ not whether she had proved that [the defendant] had refused to promote her ‘because of. . . [her] sex,’ ” and that the error was “compounded by the additional instruction that if [the plaintiff] established that the reasons given by [the defendant] were not its ‘real reason,’ she had established [the defendant’s] liability and the jury were to move on to the question of assessing damages.” Id. at 502-503. Here, by contrast, the judge started by telling the jury that the plaintiff was required to prove pretext but then went on to explain that the precise question the jury were called upon to decide was “not whether [the defendant’s course of action] was the correct decision or a smart or intelligent decision, but whether it was a pretext for illegal discrimination.” Viewing the instructions as a whole, the judge did not direct the jury to find discrimination if they found pretext alone. We therefore reject Liberty’s claim that, in instructing the jury, the judge committed error requiring reversal. We note, however, that the Supreme Judicial Court has expressly cautioned trial judges against continuing to draw jury instructions from the McDonnell Douglas “analytical framework,” which was “established in the context of summary judgment ‘to give judges a method of organizing evidence and assigning the burdens of production and persuasion in a discrimination case,’ ” Lipchitz v. Raytheon Co., supra at 508, quoting from Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979), but has been “problematic” when used as a basis of jury instructions. Lipchitz v. Raytheon Co., supra at 507. 2. Lost pension benefits. Lost pension benefits are recoverable in an action under G. L. c. 151B. See Talbert Trading Co. v. Massachusetts Commn. Against Discrimination, 37 Mass. App. Ct. 56, 65 (1994). See also Lindemann & Grossman, Employment Discrimination Law 1817 (3d ed. 1996) (“lost pension and other fringe benefits may be recoverable as part of front pay”). Nevertheless, Liberty claims that the evidence was insufficient to support the jury’s award of such lost pension benefits in this case because there was no evidence that, but for his layoff, the plaintiff would have remained employed at Liberty until he was sixty-five years old, and Liberty presented substantial evidence to the contrary. Liberty also claims that the jury relied on impermissible speculation in awarding such benefits, see Conway v. Electro Switch Corp.,

Eric Piderit vs. Siegal & Sons Investments, Ltd. No. 98-P-1898. Middlesex. October 17, 2000. - May 30, 2002. Present: Armstrong, C.J., Beck, & Rapoza, JJ. Workers' Compensation Act, Claim. Employment, Termination, Retaliation. In an action by an employee alleging unlawful discharge in violation of G. L. c. 152, § 75B(2), prohibiting retaliation for exercising rights under the Workers’ Compensation Act, in which the employee’s discharge occurred shortly after he told his employer that he had been injured, but several months before he filed a claim for workers’ compensation benefits, the judge properly ordered summary judgment for the employer, where the employee failed to show that his discharge was related to workers’ compensation. [3-6] Civil action commenced in the Superior Court Department on April 12, 1996. The case was heard by Martha B. Sosman, J., on a motion for summary judgment. Howard I. Rosen for the plaintiff. Stanley W. Wheatley for the defendant. Armstrong, C.J. This appeal comes to us following the allowance of a motion for summary judgment brought by the defendant, doing business as Marty’s Liquors, and the ensuing dismissal of the plaintiff’s claim that he was discharged unlawfully. The discharge, he claimed, violated G. L. c. 152, § 75B(2), which prohibits retaliation for exercising rights under the Workers’ Compensation Act. Viewing the facts alleged in the summary judgment materials in the plaintiff’s favor, as we must at this stage, we take the facts to be as next stated. The plaintiff was one of two “store managers” at Marty’s Liquors in Allston. On Tuesday evening, August 1, 1995, the plaintiff felt shooting pains in his left knee while lifting kegs of beer. He mentioned the episode to coemployees. Despite a swollen knee, he continued working the remaining days of the week. At a company picnic on Sunday, August 6, he stopped playing softball due to pain in the knee. The next day, with the grudging approval of Lewis Siegal, his supervisor (and part owner), he left work before his shift ended to see a doctor at the company’s health coverage provider, Harvard Community Health. The doctor advised the plaintiff to stay out of work for several days and referred him to an orthopedic specialist who, on Wednesday, August 9, said he should remain out of work for ten days. Lewis Siegal, when so advised, was irritated and told the plaintiff to call “Marty” Siegal (Lewis’s father and company president). Marty said ten days was a long time, that he would have to replace the plaintiff, and asked the plaintiff to get his Allston store keys back to the store. The plaintiff understood the import of the conversation to be that he was discharged, and the judge, for purposes of ruling on the motion for summary judgment, necessarily took that to be the fact. The plaintiff filed a claim on August 29, just over three weeks later, for benefits under the company’s short term disability benefits insurance policy. The store processed the application, but the claim was rejected by the insurer. On the application form the plaintiff indicated for the first time that he intended to file a claim for workers’ compensation benefits. The plaintiff filled out a claim form for such benefits on October 21, claim-ing total disability. The form was not filed with the Department of Industrial Accidents until December 21, after his claim for short term disability benefits had been rejected by the disability insurer. The department ultimately awarded partial disability benefits from August 12 to December 4, the final day the plaintiff claimed to have been disabled. The basis on which the judge ordered summary judgment for the defendant was this: At the time of the plaintiff’s discharge, the judge ruled, the plaintiff as matter of law had not “exercised a right afforded by [chapter 152],” as required by § 75B(2). The discharge was on August 9, but no claim for workers’ compensation benefits was filed with the Department of Industrial Accidents until several months later; and while it is true that § 10(1) of the chapter does not permit such a claim to be filed earlier than the thirtieth day after the onset of the dis-ability, this discharge occurred on the second day of the dis-ability, well before the defendant was required even to file a notice of injury with the insurer or the department. See c. 152, § 6. The judge ruled that merely telling an employer that one has been injured is not an exercise of a right under the statute; and the judge with some plausibility ruled that, “[a]s a matter of statutory interpretation, § 75B(2) does not prevent actions against workers on account of their injuries, but only protects them from retaliation for having ‘exercised a right afforded by this chapter.’ ” The judge reached the right result in dismissing the action, although we rest our affirmance on a narrower ground than she. The argument raised by the plaintiff against the judge’s reasoning turns on the incentive it provides for preemptive discharges of injured employees, before they have had a chance to make claims for workers’ compensation. Such a discharge might not avoid the particular claim, as the injury would normally remain compensable regardless of the discharge (this case is an illustration); but the injury may be thought by the employer to leave the employee vulnerable to future injuries, if it leaves a chronic weakness (as in a back or a knee, for example) and hence heightened exposure to future workers’ compensation claims. The practical effect of § 75B(2) as construed by the judge would thus be (so the plaintiff argues) to make injured workers more vulnerable to discharge of the preemptive variety, contrary to the manifest intent of the Legislature. Many States have statutes comparable to § 75B(2), and their judicial decisions have often adopted variations of the plaintiff’s argument. Some have done so by ruling that an injured employee has exercised a right afforded by the statute if he has filled out the notice-of-injury form and been paid benefits as a result, even though he has not filed a claim with the workers’ compensation board. See, e.g., Overnight Transp. Co. v. Gad-dis, 793 S.W.2d 129, 130-132 (Ky. App. 1990); Texas Steel Co. v. Douglas, 533 S.W.2d 111, 114-117 (Tex. App. 1976). Other decisions have treated the act of filling out the notice-of-injury form as constituting the requisite exercise of a right, and still others, going further, have treated the employee’s act of merely telling the employer that he has been injured as “exercis[ing] a right afforded by [the State’s § 75B(2) counterpart].” See, e.g., Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83-85 (Tex. App. 1992). Still other decisions recognize a cause of action for retaliatory discharge although the discharge preceded any action that could be characterized as an exercise of a right under the statute; but in such cases there is generally independent evidence that the employer’s motive for the discharge was to prevent claims from being filed under the statute. See, e.g., Wolcowicz v. Inter-craft Indus. Corp., 133 Ill. App. 3d 157, 160 (1985) (two days after suffering second injury in six months, the plaintiff was discharged and given one year’s severance pay for signing waiver of all claims against the defendant); Wright v. Fiber Indus., Inc., 60 N.C. App. 486, 487, 488-491 (1983) (while in the hospital, the plaintiff was visited by employees who told him falsely that the company had filed a workers’ compensation claim for him that had been denied and then, after his discharge, told him that he had no rights except under the employer’s private insurance policy, and, finaHy, tried unsuccessfuUy to get the plaintiff to sign a document acknowledging that he had fully recovered from his injury before he had resumed work); Abels v. Renfro Corp., 335 N.C. 209, 216 (1993) (evidence permitted inference that the employer, having earlier escaped a workers’ compensation claim by continuing the plaintiff at full pay for performing light duties, concluded upon the plaintiff’s second injury and upon learning that her doctor was recommending that she take a one-month leave of absence, that the best course was to discharge the plaintiff to forestaU an anticipated filing of a claim). Indeed, the only Massachusetts case that has been called to our attention appears to be of this variety: Ourfalian v. Aro Mfg. Co., 31 Mass. App. Ct. 294, 296-297 (1991) (although plaintiff had filed no compensation claim by time of discharge, the complaint aUeged that the employer had fired several other employees for filing such claims). In the present case, however, we need not decide whether the plaintiff had or had not exercised a right under G. L. c. 152 when he was discharged or whether a showing that he had exercised such a right was a precondition for making out a case under § 75B(2). Here, the plaintiff fails for want of any showing in the summary judgment materials that his discharge was related to workers’ compensation. On the evidence presented, a conclusion that the defendant discharged the plaintiff to avoid a workers’ compensation claim would be based solely on the fact that the plaintiff was discharged shortly after sustaining an injury. In this respect the case before us is like Horton v. Miller Chemical Co., 776 F.2d 1351, 1356 (7th Cir. 1985), cert. denied, 475 U.S. 1122 (1986), a case decided under Illinois law, in which the plaintiff, the court decided, had shown no more than that he was injured and that the employer had discharged him ostensibly for the resultant inability to meet the employer’s expectations for the job. The evidence offered by this plaintiff at summary judgment was, if anything, even more attenuated than that shown in the Horton case. We agree with the trial judge that, in these circumstances, recognizing the plaintiff’s showing as sufficient would in practical effect convert § 75B(2) into a prohibition on discharging injured employees. The wording of § 75B(2) does not support such a reading. Judgment affirmed. This point is sharply disputed by Marty Siegal, who maintains that, for such a long absence, and particularly because the ten days would lead up to the plaintiff’s long-scheduled vacation trip to Venezuela, Marty himself would have to fill in temporarily for the plaintiff and would need the plaintiff’s store keys. No discharge was intended. Marty Siegal pointed out that the company went on paying the plaintiff’s health and dental coverages and disability insuranee premiums well into November, when it finally concluded that the plaintiff had no intention of returning. Thereafter, the plaintiff received thirty weeks of unemployment benefits. In relevant part, § 75B(2) reads: “No employer . . . shall discharge, refuse to hire or in any other manner discriminate against an employee because the employee has exercised a right afforded by this chapter . . . .” In relevant part, § 75B(1) protects, as a qualified handicapped person under G. L. c. 151B, “an employee who has sustained a work-related injury and is capable of performing the essential functions of a particular job, or who would be capable . . . with reasonable accommodations . . . .” The judge observed that if the plaintiff had a viable cause of action under subsection (1), he waived it by failing to pursue the administrative remedy (before the Massachusetts Commission against Discrimination) afforded for such violations. Cf. Hallgren v. Integrated Financial Corp., 42 Mass. App. Ct. 686 (1997).

Employer and employee—Requirements employee must satisfy in order to prevail against employer for an intentional tort—Fyffe v. Jeno's, Inc., applied—Determining whether sufficient evidence exists to survive employer's motion for a directed verdict.

Sandy Williams vs. Episcopal Diocese of Massachusetts & another. Suffolk. February 4, 2002. - April 25, 2002. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Church. Religion. Employment, Discrimination. Anti-Discrimination Law, Employment, Termination of employment. Constitutional Law, Establishment of religion, Freedom of religion. Jurisdiction, Ecclesiastical controversy. The First Amendment to the United States Constitution precluded a Superior Court judge’s exercise of jurisdiction over an employment discrimination complaint brought by a priest against the Episcopal Diocese of Massachusetts and its presiding bishop, where resolution of the dispute would involve assessment of the diocese’s priorities of its ministries and require the defendants to defend the church’s policies regarding its ministers. [579-582] This court declined to address the issue, not presented on the facts of an appeal, whether the First Amendment provided a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim. [582-583] Civil action commenced in the Superior Court'Department on July 21, 2000. A motion to dismiss was heard by Margaret R. Hinkle, J. The Supreme Judicial Court granted an application for direct appellate review. David R Angueira for the plaintiff. L. Martin Nussbaum, of Colorado (William F. Looney, Jr., & Kimberly Y. Jones with him) for the defendants. The presiding Bishop of the Episcopal Diocese of Massachusetts. Greaney, J. The plaintiff, an Episcopal priest, filed an employment discrimination action in the Superior Court, alleging that the defendants, the Episcopal Diocese of Massachusetts (Diocese) and the Right Reverend M. Thomas Shaw (the presiding bishop of the Diocese [Bishop]), discriminated against her based on her gender, in violation of G. L. c. 151B, § 4 (1) and (4), resulting in her constructive discharge when she was forced to resign from her position as an ordained minister and vicar of Saint Andrew’s Episcopal Church of the Deaf in Brookline (St. Andrew’s). The plaintiff’s complaint alleges that (1) throughout her employment, she was paid considerably less than her similarly situated male colleagues; (2) when she complained about the disparate treatment, she was admonished and threatened with termination; and (3) she was constructively discharged as a result of being forced to work in a hostile work environment. The defendants moved to dismiss under Mass. R. Civ. R 12 (b) (6), 365 Mass. 754 (1974), or, alternatively, for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974). A Superior Court judge considered the defendants’ motion as one pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974), and allowed the motion on the ground that the First Amendment to the United States Constitution precludes civil courts from adjudicating disputes between a priest and her diocese. We granted the defendants’ application for direct appellate review, and we now affirm the judgment of dismissal. We begin by summarizing the factual background of this dispute, incorporating relevant facts alleged by the plaintiff in her complaint and supporting affidavit, as well as undisputed facts presented in documents submitted by the parties that were considered by the judge. In 1989, the plaintiff was hired by the Diocese to be director of liturgical life at Saint Andrew’s, and to act as liaison between the deaf community and the Diocese. Part of the plaintiff’s job was to advocate for the members of her congregation and defend their rights under civil and canon law. During the eight years of her employment, the plaintiff claims, she was treated disparately as compared to her male counterparts, including, but not limited to, her rate of pay and benefits. When the plaintiff complained of the disparate treatment, she was either ignored, had her salary and benefits frozen or reduced, or was told that she had no civil or ecclesiastical right to question the treatment she received. Specifically, the plaintiff’s affidavit states that, when she interviewed for the position at Saint Andrew’s, she was given an information packet that contained a salary and benefit range that was above the level of compensation she eventually received for her work. Her complaints to the Diocesan treasurer regarding the insufficient travel allowance provided her, according to the plaintiff, marked “the start of a pattern of behavior directed at [her] that was not directed at [her] male counterparts.” The plaintiff’s affidavit states that the presiding bishop of the Diocese at that time (the predecessor to the Bishop who is a defendant in this action) consistently discredited her work and excluded her from important meetings. He once attempted to fire the plaintiff. Shortly after a new presiding bishop (the defendant Shaw) was elected, the plaintiff discussed with him the discriminatory actions taken against her and informed him that she was considering legal action against the Diocese. The Bishop then expressed his desire to work things out with the plaintiff. Although she received regular salary raises for the next two years, the plaintiff states in her affidavit that she “do[es] not believe [she] was ever raised to the Diocesan minimum standard, nor to the level of [her] male counterparts.” The plaintiff continued to feel ignored by the Diocese. When the plaintiff expressed interest in relocating her ministry from Saint Andrew’s, due to the possibility of a gift of land on the North Shore that was adjacent to two institutions for the deaf, the plaintiff felt that the Bishop failed sufficiently to consider the matter. The plaintiff’s affidavit states that “if [she] had not been a woman, [the Bishop] would have taken this issue seriously, which he didn’t.” On April 21, 1997, on learning that the Bishop intended to conduct an evaluation of her ministry by outside consultants, the plaintiff tendered the Bishop her letter of resignation, effective July 31, 1997. The plaintiff’s letter offered the following reasons for her resignation: (1) “the failure of the Episcopacy and the Episcopal staff to recognize and respect the primary role that the members of St. Andrew’s must have in deciding, not only their own destiny, but also the direction of [d]eaf [mjinistry in the Diocese”; (2) the Bishop’s “failure to respect and trust [the plaintiff’s] insights and judgments .... [The Bishop’s] need to bring in [a m]issioner to the [d]eaf from another [d]iocese to evaluate the program here indicates to me that you do not trust the [m]issioner you have”; (3) the lack of “advocacy and support, both tangible and emotional, from the Episcopacy” and the “cloud of distrust and animosity that ha[s] plagued this Diocese since before either [the Bishop or the plaintiff] were ordained”; and (4) the “inequity of salary and benefits” that she was receiving. The judge allowed the defendants’ motion to dismiss the plaintiff’s claims on the ground that the First Amendment deprived the Superior Court of subject matter jurisdiction. The judge recognized that the doctrine known as the “ministerial exception,” adopted by Federal courts in the context of Federal employment discrimination suits, precludes civil courts from adjudicating employment discrimination suits by ministers against their church or religious institution. See McClure v. Salvation Army, 460 F.2d 553, 559-561 (5th Cir.), cert. denied, 409 U.S. 896 (1972) (reviewing cases in which United States Supreme Court had placed matters of church government and administration beyond regulation of civil authorities; holding that application of Title VII of the Civil Rights Act of 1964 to employment relationships between ministers and churches involves prohibited intrusion into matters of ecclesiastical concern). See also Combs v. Central Tex. Annual Conference of the United Methodist Church, 173 F.3d 343, 348-349 (5th Cir. 1999); Schmoll v. Chapman Univ., 70 Cal. App. 4th 1434, 1436, 1438-1440 (1999); Van Osdol v. Vogt, 908 P.2d 1122, 1129, 1132-1133, 1134 (Colo. 1996); Newport Church of the Nazarene v. Hensley, 161 Or. App. 12, 22-23 (1999). The “ministerial exception” doctrine is based on the premise that a minister’s relationship to an organized church is intrinsically religious. Because civil resolution of disputes surrounding a minister’s employment unavoidably would involve investigation and review of the church’s practices and decisions with respect to, among other matters, the minister’s assignment, salary, and duties, allowing jurisdiction of employment discrimination claims would result in governmental intrusion into an area of religious freedom forbidden by the principles of the First Amendment. See McClure v. Salvation Army, supra at 560 (articulating, for first time,- the “ministerial exception” to Title VII claims). In the words of the United States Court of Appeals for the Fifth Circuit in the McClure decision, as quoted by the judge: “The relationship between an organized chinch and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.” Id. at 558-559. The judge reasoned that, given the “ministerial exception” doctrine’s widespread acceptance in Federal and State appellate courts, including its application by the United States Court of Appeals for the First Circuit, see Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989), and Dowd v. Society of St. Columbans, 861 F.2d 761 (1st Cir. 1988), the doctrine should be applied to this case. The judge subsequently concluded that the exception “squarely addressed” the plaintiff’s claims. 1. The plaintiff’s primary claim on appeal is that the judge erred in applying the “ministerial exception” to this case, because the challenged employment decisions do not implicate religious beliefs, procedures, or law. She asserts an entitlement to the opportunity to prove that any assertion of a legitimate motive on the defendants’ part is a pretext, and that she was constructively discharged solely because she is female. The plaintiff argues that courts should afford an aggrieved minister the same protections provided to plaintiffs in secular employment settings to investigate claims of illegal discrimination in the workplace. The plaintiff contends that the rule applied by the judge, which arbitrarily excludes employment discrimination claims by a minister against a church regardless of their basis, will lead to a situation where “any church and minister, no matter how outrageous and illegal the conduct, will be granted a license to flagrantly violate the discrimination laws of Massachusetts without repercussions.” It is not necessary that we respond to the plaintiff’s specific contentions regarding the “ministerial exception.” The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The principle that this language precludes jurisdiction of civil courts over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships is firmly established in Massachusetts case law. See Parish of the Advent v. Protestant Episcopal Diocese of Mass., 426 Mass. 268, 280 (1997); Fortin v. Roman Catholic Bishop of Worcester, 416 Mass. 781, 785, cert. denied, 511 U.S. 1142 (1994); Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 850, cert. denied, 502 U.S. 865 (1991); Wheeler v. Roman Catholic Archdiocese of Boston, 378 Mass. 58, 61, cert. denied, 444 U.S. 899 (1979). The facts alleged in the plaintiff’s complaint and supporting affidavit present a quintessential example of such a church dispute. The plaintiff’s resignation appears to have been motivated, essentially, by her frustration over the direction of her ministry and the perceived value placed on it by her superiors. A trial on this matter clearly would involve assessment of the church’s priorities of its ministries and require the defendants to defend the church’s policies regarding its ministers. Thus, jurisdiction is precluded in this case, regardless of whether we adopt the “ministerial exception.” It is true that the plaintiff’s claims do not, on their face, question the verity of religious doctrines or beliefs. It is hard to conceive, however, how a court could inquire into the reasons for the defendants’ decisions regarding the plaintiff’s ministry without intruding into matters of the internal management of the Diocese. Irrespective of whether the defendants’ treatment of the plaintiff and her ministry was based on legitimate or illegitimate grounds, the plaintiff’s claims, by their very nature, implicate the defendants’ First Amendment rights. To argue otherwise diminishes the importance of the constitutional separation of chinch and State. We reject the plaintiff’s contention that a balancing test is appropriate to determine to what extent judicial scrutiny of her claims would offend the defendants’ religious freedoms under either the establishment clause, see Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), or the free exercise clause, see Sherbert v. Verner, 374 U.S. 398, 407 (1963), of the First Amendment. The application of First Amendment principles, in circumstances such as these, involves no balancing test. If adjudication of the plaintiff’s claims would implicate matters of ecclesiastical relationships, the courts should not intrude. See Madsen v. Erwin, 395 Mass. 715, 722-723 (1985) (“the decision to fire [the plaintiff] can only be construed as a religious one, made by a Church as employer”); Alberts v. Devine, 395 Mass. 59, 72-73, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985) (“It is clear that the assessment of an individual’s qualifications to be a minister, and the appointment and retirement of ministers, are ecclesiastical matters entitled to constitutional protection against judicial or other State interference”); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir. 1989) (no jurisdiction over minister’s claim of wrongful termination, notwithstanding allegation that organization failed to follow own rules; “[b]y its very nature, the inquiry . . . plunges an inquisitor into a maelstrom of Church policy, administration, and governance”); Dowd v. Society of St. Columbans, 861 F.2d 761, 764 (1st Cir. 1988) (“actions involving] rules, policies, and decisions [] should be left to the exclusive religious jurisdiction of the church”). The plaintiff’s attempts to frame this action as a secular dispute pertaining to the defendants’ “unlawful acts in violation of their own company policies and procedures specifically enacted ... to prohibit discrimination of any type against its employees” is unavailing. That the Diocese may have acted in violation of antidiscrimination policies set forth in its own personnel handbook is irrelevant. We decline to venture into the realm of interpreting internal guidelines and procedures that have been adopted by the Episcopal Church. As discussed above, a church must be free to decide for itself what its obligations to its ministers are, without being subject to court interference. See Dowd v. Society of St. Columbans, supra at 764 (“The [Diocese’s] own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention”). 2. One final point merits discussion. The plaintiff’s counsel, at oral argument, suggested that the plaintiff’s claim involves prohibited conduct of a sexual nature. This basis for the plaintiff’s claim was not, apparently, presented to the judge, nor was it developed in the plaintiff’s brief submitted to this court. It is true that the plaintiff’s complaint states a claim of “gender harassment,” as well as for gender discrimination, against the Bishop and the Diocese. In her supporting affidavit, however, although the plaintiff stated that the Bishop’s predecessor treated her in an “uncomfortably ‘friendly’ ” manner and that he “put his arm around [her] several times, something he never did to men,” she also stated that he made no “overt sexual advances.” Importantly, she described his attitude toward her as merely “patronizing and condescending.” There is nothing in the record to support an inference of conduct that could properly be characterized as sexual harassment for purposes of G. L. c. 151B. This case does not present the question, therefore, considered by the United States Court of Appeals for the Ninth Circuit in Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1999), whether the First Amendment provides a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim. See id. at 949-950 (considering plaintiff’s claims of sexual harassment by church; allowing limited inquiry into whether Jesuit order exercised reasonable care to prevent and correct sexual harassment, and whether plaintiff failed to take advantage of opportunities to limit harm). The First Amendment, as applied to the States by the Fourteenth Amendment to the United States Constitution, requires courts of this Commonwealth “to ensure that individuals or organizations are not unjustly deprived of their right to exercise freely their religious beliefs.” Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 850 (1991). To the extent that this case involves a conflict between the legislative mandate of G. L. c. 15 IB to eliminate discrimination in the workplace and our constitutional mandate to preserve the separation of church and State, the constitutional directive must prevail. 3. We treat the judgment that was entered as a judgment under Mass. R. Civ. P. 12 (b) (1) and, so treated, the judgment is affirmed. So ordered. Although the issue is not raised by either party, we note that the judge properly converted the defendant’s motion under Mass. R. Civ. R 12 (b) (6), 365 Mass. 754 (1974), as one pursuant to Mass. R. Civ. R 12 (b) (1), 365 Mass. 754 (1974). The judge, however, could have decided the motion on the ground of the complaint’s failure to state a claim on which relief can be granted. See Mathias v. Beatrice Foods Co., 23 Mass. App. Ct. 915, 916 n.4 (1986). See also Madsen v. Erwin, 395 Mass. 715, 717 (1985) (jurisdiction preclusion based on First Amendment protection raised in context of motion to dismiss under rule 12 [b] [6]); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1576 (1st Cir. 1989) (same issue raised in context of motion to dismiss under Fed. R. Civ. P. 12 [b] [6]). The important point is that consideration of matters outside of the pleadings generally compels a judge to treat a motion to dismiss under rule 12 (b) (6) as a motion for summary judgment. See Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106, 109 (1995). Such is not the case when deciding a motion to dismiss under rule 12 (b) (1). See id. Cf. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 555 (1999) (authorized in certain circumstances). This difference is not merely technical — under a rule 12 (b) (1) motion, a plaintiff bears the burden of proving jurisdictional facts, see New Hampshire Ins. Guar. Ass’n v. Markem Corp., 424 Mass. 344, 346 (1997); Brown v. Tobyne,

ROBERTSON v DAIMLERCHRYSLER CORPORATION Docket No. 116276. Argued November 7, 2001 (Calendar No. 6). Decided April 9, 2002. Warren M. Robertson, Jr., sought worker’s compensation benefits for a mental disability. A magistrate denied the claim, finding that the plaintiff had mispereeived an actual work event and, thus, failed to establish a disability under the act. The Worker’s Compensation Appellate Commission affirmed. The Court of Appeals, Collins, P.J., and Hood and Doctoroff, JJ., in an unpublished order, vacated the decision of the wcac and remanded the case to the magistrate, finding the plaintiffs perception of work events to be irrelevant in a mental disability analysis. (Docket No. 222363). The defendant appeals. In an opinion by Justice Markman, joined by Chief Justice Corrigan, and Justices Taylor and Young, the Supreme Court held: To satisfy the mental disability requirements under the second sentence of MCL 418.301(2), a claimant must demonstrate that there has been an actual employment event leading to the mental disability, i.e., that the event in question occurred in connection with employment and actually took place, and that any perception or apprehension of the actual employment event was not unfounded, i.e., that the perception or apprehension was grounded in fact or reality. The statutory language at issue states that “[mjental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.” By requiring that the claimant’s perception of actual employment events be not unfounded, this Court gives effect and meaning to the statutory words “not unfounded perceptions thereof.” Moreover, in determining whether there has been an actual employment event leading to a mental disability, and a perception of that event that is not unfounded, the inquiry must be conducted under an objective standard. Under an objective standard, the factfinder must first determine whether actual events of employment indeed occurred. Then, in analyzing whether a claimant’s, perception of the actual events of employment had a basis in fact or reality, the factfinder must apply an objective review by examining all the facts and circumstances surrounding the actual employment events in question to determine whether the claimant’s perception of such events was reasonably grounded in fact or reality. Justice Weaver, concurring, stated that because the majority clearly explains how the Court in Gardner v Van Burén Pub Schs, 445 Mich 23 (1994), incorrectly construed MCL 418.301(2) by reading the phrase “not unfounded perceptions thereof’ out of the statute, its response to the dissent in part iv is unnecessary. Vacated and remanded. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that the doctrine of stare decisis mandates the reaffirmance of Gardner v Van Buren Pub Schs, 445 Mich 23 (1994), and affirmance of the Court of Appeals decision. Under Gardner a compensable mental disability claim arises when an actual event of employment, not an imaginary or hallucinatory one, significantly contributes to, aggravates, or accelerates a mental disability. The Court noted that almost all mental disabilities are based on unfounded perceptions of actual events, and correctly concluded that if MCL 418.301(2) is read to prohibit compensation for claims based on unfounded perceptions of actual events, as opposed to prohibiting compensation for claims based on imagined or hallucinatory events, the statute would make little sense. Gardner invalidated an earlier interpretation of the statute that allowed a compensable disability to be based on imagined events and did away with any need to prove a factual causal connection between the disability and the employment events. It concluded that the Legislature clearly intended to eliminate this interpretation by requiring objective actual events and a significant causal connection. It is illogical to conclude that a person with a mental disability must comply with an objective reasonableness test when the entire basis of a mental disability is the inability to reason. This interpretation supports the basic premise that employers take employees as they are. Absent an explicit legislative mandate, this premise should be followed for mental disabilities as well as physical infirmities. The relevant inquiry under § 301(2) is, given actual events and a particular claimant, with all the claimant’s preexisting mental frailties, can the actual events objectively be said to have contributed to, aggravated, or accelerated the claimant’s mental disability in a significant manner? The doctrine of stare decisis mandates Gardner's reaffirmance. Because the Legislature has not reacted to the Gardner Court’s statutory interpretation in the eight years since it was decided, it may be concluded that the Legislature is satisfied with the Gardner inteipretation and the majority’s interpretation is not only incorrect, but unnecessary. Zamler, Mellen & Shiffman, P.C. (by Paul S. Rosen) (Daryl Royal, of counsel), for the plaintiffappellee. Lacy & Jones (by Michael T. Reinholm) for the defendant-appellant. Amici Curiae: Conklin, Benham, Ducey, Listman & Chuhran, P.C. (by Martin L. Critchell), for the Michigan Self-Insurers Association. Lacey & Jones (by Gerald M. Marcinkoski) for the Michigan Insurance Federation. Clark, Hill, P.L.C. (by F. R. Damm, Paul E. Scheidemantel, and Mary C. Dirkes), for the Michigan Manufacturers Association. Jill S. Mulder, Assistant General Counsel, for the Accident Fund Company. Markman, J. In this worker’s compensation case, we must determine whether the Court of Appeals properly vacated the Worker’s Compensation Appellate Commission (WCAC) order affirming the magistrate’s decision denying worker’s compensation benefits. In part, the magistrate considered plaintiff’s perceptions of an actual work event in deciding whether plaintiff had established a compensable mental disability injury under MCL 418.301(2). The Court of Appeals determined that such considerations by the magistrate were irrelevant to a mental disability analysis. We vacate the Court of Appeals order and remand this matter to the magistrate for analysis under the statutory framework as set forth below. I FACTS AND PROCEEDINGS Plaiutiff began working for defendant employer in 1973, working at various auto assembly plant locations. In 1984, he began working at defendant’s Sterling Heights Assembly Plant. Plaintiff worked on the assembly line in the paint department on what he described as the “sealer deck or decking job.” Because plaintiff was also artistically talented, he was placed in the Product Quality Improvement Partnership (pqip) department and given the position of “artist.” In the early part of 1994, plaintiff was assigned a new supervisor, George Asher. According to plaintiff, Asher began “needling” plaintiff to use his artistic abilities and “redo” some paintings on Asher’s boat. Plaintiff stated that he told Asher that he would do the work on his own time at his home. However, according to plaintiff, Asher insisted that it be done on company time. Plaintiff refused to do this. Later that year, plaintiff, on his own time, worked on a personal project for another executive employed by defendant. Plaintiff completed this project for this executive before a 1995 New Year’s Eve party. According to plaintiff, that is when “things got out of hand” with Asher. Plaintiff stated that in February 1995, Asher disciplined plaintiff for having improperly taken a personal day off two months earlier. Several days later, plaintiff and a fellow employee, A1 Sipes, were called into Asher’s office. Asher informed the two men that they would no longer be working in the PQIP department, and that they were to return to their previous designated positions. Plaintiff stated that he then “lost it.” Specifically, plaintiff admitted that he and Asher exchanged harsh words. Asher claimed that plaintiff backed him into a comer with a 2 x 2 piece of wood and threatened him and his family. Plaintiff left work following this incident. Later that evening, plaintiffs wife called the plant manager, Frank Slaughter, to inquire into these events. Slaughter informed plaintiffs wife that the pqip department had been discontinued and that plaintiff had been asked to return to his previous position. Slaughter further requested that plaintiffs wife have plaintiff return to work the following Monday morning. However, when plaintiff returned to work, he was escorted from the building. Plaintiff had been given a five-day suspension for using abusive language and disorderly conduct. Plaintiff later stated that he then went “out of control” and “would probably have killed someone” if he had not received help. He admitted himself to an inpatient mental health facility that same day, and remained in the facility for about six weeks. Upon release, he continued receiving psychiatric treatment, and never returned to work. In August 1995, plaintiff filed a claim for worker’s compensation benefits. At the hearing on plaintiff’s claim, he testified with regard to several precipitating factors for his hospitalization including: “Chrysler Commercial Art Supervisor wanted me to do work on his boat on company time. I refused and now I’m in trouble at work. I’m very depressed” and “I worked hard to get the status and overnight this individual [Mr. Asher] wiped it out.” Additionally, Dr. Dabbagh, plaintiff’s mental health provider, concluded that the conflict between defendant and Mr. Asher was the pivotal reason for plaintiffs depression and anger. In part, Dr. Babbagh stated that there was a conflict between him and the supervisor, and for that reason, he was removed from his job and put on the line after about eighteen [years], if I recall, from working on that job, and that’s what really basically has precipitated his episode of depression and anger. Slaughter testified that plaintiffs transfer from PQIP to his previous position was the result of the department having been shut down. Specifically, he stated that in late 1994 and early 1995, new car launches at defendant company were going poorly. To compound this problem, employees were working considerable overtime and there were significant equipment problems. Thus, costs were high. To solve this problem, defendant reduced overtime and cut “nonstandard” positions. Plaintiffs position was “nonstandard”; thus, he was returned to his prior position. Slaughter asserted that this decision was his own and that he did not consult with Asher, who confirmed that he had not been consulted about plaintiffs transfer. The worker’s compensation magistrate determined that plaintiff “failed to establish that he is or was disabled as defined by the act.” According to the magistrate, the evidence showed that “any conflict between George Asher and plaintiff was clearly the product of plaintiff’s expansive mind and is a misperception.” The magistrate further stated that the “credible” testimony of defendant’s witnesses indicated that there had been no retaliatory intent behind plaintiff’s reassignment, but instead that it represented a “simple economic business decision by upper management.” Because the actual event of plaintiffs reassignment to the assembly line could not be “seen as significantly contributing to, aggravating, or accelerating plaintiffs mental disability,” the magistrate concluded that plaintiff had failed to establish that he was disabled as defined by the act. Upon review, the wcac stated that the job transfer had been the only actual event, and that there was no evidence of any animus on Asher’s part directed toward plaintiff. Thus, the WCAC affirmed the magistrate’s decision. The Court of Appeals vacated the decision of the WCAC and remanded the case to the magistrate. Robertson v Chrysler Corp, unpublished order, entered January 11, 2000 (Docket No. 222363). The Court stated that the magistrate’s decision that the actual work event did not significantly contribute to or aggravate plaintiff’s mental disability was erroneous because it “appears to have been influenced by his findings that the plaintiff misperceived the reason for the reassignment, and that the reassignment was the result of business considerations and was not retaliatory.” In the view of the Court of Appeals, “whether plaintiff correctly or incorrectly perceived or interpreted the events at work is irrelevant, as is the existence of a legitimate business reason for the reassignment.” While such a conclusion is consistent with a previous decision of this Court, we believe that decision wrongly interpreted Michigan law and must be overruled. H STANDARD OP REVIEW Whether a worker’s compensation claimant’s perceptions of actual events of employment are to be considered in deciding whether a claimant has established a compensable mental disability under MCL 418.301(2) is a matter of statutory interpretation. Matters of statutory interpretation are questions of law. In re MCI Telecommunications, 460 Mich 396, 413; 516 NW2d 164 (1999). This Court reviews questions of law under a de novo standard of review. DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000). m. DISCUSSION A. DEVELOPMENT OF THE LAW From its inception in 1912, Michigan’s worker’s compensation system has provided benefits for employees who are injured in the course of their employment. The initial worker’s compensation act, however, did not expressly provide compensation for employees who suffered mental disabilities. Despite this, our Court determined that coverage existed for mental disability injuries because such injuries were merely a variant of personal injury within the scope of the act. See, e.g., Klein v Len H Darling Co, 217 Mich 485; 187 NW 400 (1922). Thus, if the mental disability arose out of, and in the course of, an employee’s employment, that employee would be covered under the act. This can first be seen in Klein where the employee died as a result of severe emotional shock experienced after he accidentally dropped a radiator on the head of a co-worker. Id. at 487. The decedent believed, erroneously, that he had killed the other worker, and this belief caused him such mental strain that he lapsed into delirium and died. Id. at 488. This Court held that the shock received by the decedent from witnessing this injury constituted an accidental personal injury within the meaning of the worker’s compensation act and that the claimant, the decedent’s wife, therefore was entitled to compensation for his death. Id. at 494. The next significant case in the development of compensable mental disabilities is Rainko v Webster Eisenlohr, Inc, 306 Mich 328, 332; 10 NW2d 903 (1943). In Rainko, this Court expanded the scope of compensability to cases in which no outward physical injury occurred to either the employee or to another employee as in Klein. Specifically, this Court stated that “[i]t is not necessary to establish physical injury (resulting in) outward evidence of violence or trauma to justify an award of compensation.” Id. at 332. In Carter v General Motors Corp, 361 Mich 577; 106 NW2d 105 (1960), this Court again extended the scope of mental disability coverage. In Carter, the employee suffered an emotional collapse, later diagnosed as paranoid schizophrenia, resulting from accumulated stress he experienced in trying to perform his tasks on an assembly line. Upon review, this Court held that compensation could be awarded for a mental disability injury that arose out of and in the course of employment as a result merely of the effects of work place stresses on a preexisting mental weakness. In 1978, worker’s compensation coverage for mental disabilities was again broadened. In Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1, 26; 268 NW2d 1 (1978), this Court adopted the “subjective causal nexus” standard to determine the compensability of a mental disability claim: We hold, as a matter of law, that in cases involving mental . . . injuries, once a plaintiff is found disabled and a personal injury is established, it is sufficient that a strictly subjective causal nexus be utilized by referees and the WCAB to determine compensability. Under a “strictly subjective causal nexus” standard, a claimant is entitled to compensation if it is factually established that the claimant honestly perceives some personal injury incurred during the ordinary work of his employment “caused” his disability. This standard applies where the plaintiff alleges a disability resulting from either a physical or mental stimulus and honestly, even though mistakenly, believes that he is disabled due to that work-related injury and therefore cannot resume his normal employment. In a dissenting opinion, Justice Coleman criticized the majority’s holding. Id. at 46. Justice Coleman believed that the “subjective causal nexus” standard, in application, afforded “no standard at all.” Id. at 48. In her view, “the majority’s test for causal nexus would result in an award of compensation for virtually all, if not all, claims based on mental disorders.” Id. That was so because, “[i]f the claimant perceived that the job caused the problem, even if this were not true, the employer would be liable.” Id. (emphasis added). Thus, following Deziel, the controlling law was that compensation for a mental disability claim would be permitted if the claimant “honestly, even though mistakenly” perceived that a disability was related to a precipitating work event. Apparently, the Legislature was also dissatisfied with Deziel’s “subjective causal nexus” standard. In 1980, it reacted to Deziel by enacting, the statutory provision currently at issue, MCL 418.301(2). Hurd v Ford Motor Co, 423 Mich 531, 534; 377 NW2d 300 (1985). Section 301(2) provides: Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof. Section 301(2) constituted a direct response to the articulation in Deziel of an extraordinarily broad standard for determining compensability for mental disability claims, a standard that was the culmination of more than sixty years of judicial expansion of such claims. The Legislature’s swift action in this realm following Deziel reflected an unequivocal desire to address such expansion. As Farrington v Total Petroleum Inc, 442 Mich 201, 216, n 16; 501 NW2d 76 (1993), observed, the reason that the Legislature enacted MCL 418.301(2) was to “overturn or modify expansive interpretations placed upon the act by this Court.” B. GARDNER v VAN BUREN PUBLIC SCHOOLS 1. MAJORITY OPINION The first case in this Court to address § 301(2) was Gardner v Van Buren Pub Schs, 445 Mich 23; 517 NW2d 1 (1994). Specifically, this Court granted leave to interpret, among other things, the second sentence of § 301(2). In analyzing this sentence, the Gardner majority explained that it was faced with the problem of distinguishing between “actual events of employment” and “unfounded perceptions thereof.” Id. at 43. Unable to harmonize these two phrases, the majority determined that the statute only meant that actual events of employment must occur as a precondition to a claim, rather than imaginary or hallucinatory ones. Id. at 44-46. The Court rejected any perception analysis with regard to determining the compensability of a mental disability injury. The Court reasoned that such an analysis was inappropriate because, in many instances, individuals with mental disabilities can misperceive or altogether lose contact with reality. Id. at 43-44. Because “many, if not all, mental disabilities are based on ‘unfounded perceptions’ of ‘reality’ or ‘actual eventfs],’ ” the majority c

TREPANIER v NATIONAL AMUSEMENTS, INC Docket No. 224262. Submitted November 13, 2001, at Detroit. Decided April 5, 2002, at 9:00 AM. Leave to appeal sought. Gary Trepanier brought an action in the Genesee Circuit Court against National Amusements, Inc., his former employer, alleging that the defendant’s discharging him from his employment constituted a violation of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seg., was in violation of public policy, was a breach of his contract with the defendant, and was unlawful because it was gender based. The plaintiff also alleged that the defendant had slandered him. After an intimate relationship between the plaintiff and a coworker had ended, the co-worker began to make threatening telephone calls to the plaintiff and his girlfriend at the plaintiff’s home. The plaintiff contacted the police, who advised him to request a personal protection order (ppo). The plaintiff then requested a ppo for the purpose of trying to stop the co-worker from making threatening telephone calls to the plaintiff’s home. After the plaintiff’s girlfriend contacted the defendant’s corporate headquarters and indicated that the plaintiff was being subjected to a hostile work environment, a corporate representative contacted the plaintiff and advised him to go home from work and to have no contact with the workplace until the representative could investigate. Although the plaintiff did stay away from the workplace, he admitted going to the co-worker’s home to ask her why she was harassing him. The corporate representative, upon learning that the plaintiff had contacted the co-worker at her home, terminated the plaintiffs employment, apparently believing that the plaintiff’s contact with the co-worker at her home violated the instructions that the representative had given to the plaintiff. The plaintiff stipulated the dismissal of the slander claim. The court, Archie L. Hayman, J., granted summary disposition for the defendant with respect to the plaintiff’s claims based on breach of contract and sex discrimination, but denied summary disposition for the defendant with respect the claims based on the wpa and discharge in violation of public policy. The plaintiff agreed to dismiss the claim based on violation of public policy. The defendant appealed by leave granted the trial court’s denial of summary disposition with respect to the wpa claim. The Court of Appeals held: 1. The plaintiff alleged that the defendant violated the provisions of the wpa by discharging him, in part, because he had sought a ppo against the co-worker. The defendant argued that the plaintiff had not been engaged in a protected activity under the wpa because the necessity of the ppo arose out of a personal affair and the plaintiff could neither show any direct connection between the ppo and the defendant’s business nor claim that the ppo was based on a desire to inform the public on a matter of public concern. 2. In order to establish a claim of an unlawful discharge under the WPA, the plaintiff was required to show that he was engaged in a protected activity as delineated in the wpa, that the defendant discharged him, and that a causal connection exists between the protected activity and the discharge. A protected activity under the wpa occurs where a person reports a violation or suspected violation of a law or regulation to a public body, is about to report such a violation to a public body, or is asked by a public body to participate in an investigation. 3. There is no question that the plaintiff’s request for a ppo on the basis of the co-worker’s threatening telephone calls constituted a protected activity under the provisions of the wpa. Although the evidentiary connection between the plaintiff’s protected activity in requesting the ppo and the defendant’s discharge of the plaintiff is a tenuous one, a sufficient evidentiary connection between the protected activity and the discharge was shown to allow a jury to find that the defendant’s discharge of the plaintiff resulted from the plaintiff’s undertaking of an activity protected under the provisions of the wpa. Accordingly, the trial court did not err in denying the defendant’s motion for summary disposition with respect to the wpa claim. Affirmed. Labor Relations — Whistleblowers’ Protection Act — Protected Activity — Personal Protection Orders. A claim of an unlawful discharge under the Whistleblowers’ Protection Act is established by showing that an employee was engaged in a protected activity as set forth in the Whistleblowers’ Protection Act, that the employer discharged the employee, and that a causal connection exists between the protected activity and the discharge; a protected activity under the Whistleblowers’ Protection Act occurs where a person reports a violation or suspected violation of a law or regulation to a public body, is about to report such a violation to a public body, or is asked by a public body to participate in an investigation; the seeking of a personal protection order by an employee against a co-worker in an effort to halt the co-worker’s harassment of the employee, even if the harassment takes place away from the workplace, may constitute a protected activity for the purpose of the Whistleblowers’ Protection Act (MCL 15.362). Law Offices of Glen Lenhoff (by Glen N. Lenhoff and Julie A. Gafkay), for the plaintiff. Collins, Einhom, Farrell & Ulanoff P.C. (by Janice G. Hildenbrand and J. Mark Cooney), for the defendant. Before: Cavanagh, P.J., and Doctoroff and Jansen, JJ. Per Curiam. Defendant appeals by leave granted from the trial court’s order denying its motion for summary disposition of plaintiff’s claim under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq. We affirm. Defendant employed plaintiff from 1983 until plaintiff was discharged on September 21, 1998. From 1995 until his termination, plaintiff was the managing director of defendant’s Showcase West Theater in Flint. In October or November 1996, plaintiff began a sexual relationship with Coleen Heathcoat, who was also employed by defendant. After the relationship ended in January 1997, Heathcoat began to make threatening telephone calls to plaintiff at his home, prompting plaintiff to change his telephone number. Heathcoat also complained to plaintiff’s supervisor, Brad Wick, who told plaintiff that he would have to work with Heathcoat in a businesslike manner and advised plaintiff not to let the personal relationship affect his work. In the fall of 1997, plaintiff and Heathcoat resumed their sexual relationship, which lasted until July 1998. In August 1998, Heathcoat again made threatening telephone calls to plaintiffs home. At the time, plaintiff had a live-in girlfriend, Linda Ptacek, who was unaware of plaintiff’s sexual relationship with Heathcoat. On August 27, 1998, plaintiff contacted the police, who recommended that plaintiff request a personal protection order (ppo). Plaintiff then requested a ppo to try to stop Heathcoat from calling his home and threatening his girlfriend. Plaintiff admitted that the ppo pertained to Heathcoat’s harassment at his home and did not have anything to do with her conduct at work. On August 31, 1998, Wick met with plaintiff again and offered to arrange a transfer for plaintiff. During this period, Ptacek contacted a senior vice president at defendant’s corporate office and reported that plaintiff was being subjected to a hostile work environment because of Heathcoat’s conduct and that plaintiff had applied for a ppo. At that point, Cindy Montgomery, an employee from defendant’s headquarters, told plaintiff to go home until she was able to arrive in Michigan to investigate. Plaintiff was assured that he would be paid, but was asked not to have any contact with the theater. On September 4, 1998, plaintiff went to Heathcoat’s home to ask her why she was harassing him. During a meeting with Montgomery, plaintiff admitted that he had gone to Heathcoat’s home. Although plaintiff did stay away from the theater as requested, Montgomery apparently believed that plaintiff’s contact with Heathcoat violated her instruction. At a meeting on September 21, 1998, Montgomery informed plaintiff that he was terminated. Montgomery admitted that among the factors she considered in recommending plaintiff’s termination were the second incident of threatening telephone calls by Heathcoat and plaintiff’s relationship with Heathcoat. In October 1998, plaintiff filed a complaint alleging several claims, including that defendant violated the wpa by discharging him in part because he sought a ppo against Heathcoat. Defendant moved for summary disposition of plaintiff’s claims. Regarding the wpa claim, defendant argued that plaintiff was not engaged in a protected activity under the wpa because the necessity for a ppo arose out of a personal affair between plaintiff and the co-worker and that plaintiff neither could show any direct connection between the ppo and defendant’s business nor could claim that his need for a ppo was based on any desire to inform the public on a matter of public concern. The court granted summary disposition for the defendant with respect to plaintiff’s claims of breach of contract and sexual discrimination; however, the court denied summary disposition with respect to plaintiff’s claims under the wpa and of discharge in violation of public policy. Plaintiff subsequently agreed to dismiss the latter claim. Defendant sought and was granted leave to appeal the trial court’s denial of its motion for summary disposition regarding plaintiff’s wpa claim. This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). Because the trial court looked beyond the pleadings in deciding defendant’s motion, we review the motion under MCR 2.116(C)(10). A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court considers the pleadings, affidavits, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996); MCR 2.116(G)(5). Summary disposition may be granted if, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). In order to establish a claim of an unlawful discharge under the WPA, plaintiff was required to show that (1) he was engaged in protected activity as defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between the protected activity and the discharge. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998). A person is engaged in “protected activity” under the WPA where the person (1) reports a violation or suspected violation of a law or regulation to a public body, (2) is about to report such a violation to a public body, or (3) is asked by a public body to participate in an investigation. Id.) MCL 15.362. The principal issue in this case is whether plaintiff was involved in a protected activity, as that concept is delineated in the WPA, that was causally connected with his discharge from his employment. There is no question that plaintiff reported a violation or suspected violation of the law to a public body when he sought the ppo against his co-worker. Moreover, our Supreme Court has held that the wpa protects reports made against a co-worker, not just an employer. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 74-75; 503 NW2d 645 (1993). However, defendant maintains that the finding that plaintiff engaged in protected activity by requesting a PPO regarding a matter that was not related to defendant’s business is not consistent with the intent behind the WPA. The wpa was enacted to encourage employees to assist in law enforcement and to protect employees who participate in whistleblowing activities. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378; 563 NW2d 23 (1997). The underlying purpose of the act was to protect the public and to promote public health and safety by removing barriers that may interfere with employee efforts to report violations or suspected violations of the law. Id. at 378-379. A plain reading of the wpa reveals that employees who report violations or suspected violations of the law to a public body are entitled to protection under the act. As interpreted, the act provides protection to employees who report violations of law by either their employers or fellow employees. . . . Frequently, a close connection exists between the reported violation and the employment setting, although no such limitation is found in the statute. [Id. at 381 (citations omitted).] In Dolan, the plaintiff alleged that she was fired for reporting to the Drug Enforcement Agency the names of two airline passengers who fit a suspect profile after the defendant adopted a policy against employees directly contacting the dea without prior management approval. The Supreme Court found that the reported violation was sufficiently related to the plaintiffs employment setting to be protected under the wpa, commenting: “This is not to say that only those violations that are connected to the employment setting are contemplated under the WPA, only that the reported violation in the present case was sufficiently connected to the employment setting to be contemplated under the majority opinion in Dudewicz.” Dolan, supra at 382. In Dudewicz, supra at 70-71, the plaintiff was assaulted by a co-worker while on the job as the result of the plaintiffs having involved one of the owners of the business in a customer service dispute. The plaintiff filed criminal charges against the coworker and was told to drop the charges or he would be fired. The Supreme Court concluded that the activity at issue, reporting a co-worker’s violation of the Criminal Code resulting from a dispute over the handling of company business, fell within the WPA. Id. at 75-76. The Court stated: Admittedly, a strictly liberal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances. ... However, this is not the case and these are not the facts to test the outer limits of this rather broad statute. In concluding that it was intended to bar a discharge of an employee for reporting a crime by a fellow employee under the circumstances of this case does not begin to test those limits. In saying that, we note that not only was this a crime alleged to have been committed by a fellow employee, but the alleged crime arose out of a work incident at the work site. It is, therefore, very much within the employer-employee setting. [Dudewicz, supra at 77-78.] While the appellate courts of this state have opined that there are “outer limits” to a claim under the wpa, neither this Court nor the Supreme Court has defined those outer limits, leaving the issue to be decided case by case. See Terzano v Wayne Co, 216 Mich App 522, 528-529, 532; 549 NW2d 606 (1996). Although this case presents a close question, we conclude that summary disposition was properly denied. It is apparent that the plain language of the WPA does not limit protected activity to that which has a close connection to the work environment or to the employer’s business practices. MCL 15.362; Dolan, supra at 381. Moreover, remedial statutes, such as the WPA, should be “liberally construed in favor of the persons intended to be benefited.” Dudewicz, supra at 77. Therefore, we decline to interpret the wpa so as to create a limitation that is not apparent in the unambiguous language of the statute. Further, the submitted evidence established some connection, albeit a tenuous one, between plaintiff’s request for a ppo and defendant’s employment setting. Plaintiff showed that once he obtained the PPO, it became more difficult for him to work with Heathcoat. Further, there was evidence that, in firing plaintiff, defendant took into account the ongoing problems between plaintiff and his co-worker and how it was affecting defendant’s operations. Even if we were to conclude that the wpa only protects activity that is related to the conduct of the employer’s business, we would find that the evidence in this case meets that test. Defendant argues that plaintiff obtained the PPO for purely personal reasons, not out of concern for the public and, therefore, was not engaged in a protected activity, citing Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 621; 566 NW2d 571 (1997). However, the facts of Shallal are clearly distinguishable from the present case. In Shallal, the plaintiff told her agency’s president that she would report his alleged wrongdoing “if [he didn’t] straighten up.” Id. at 614. Our Supreme Court found that the threat was sufficient evidence that the plaintiff was “about to report” a violation or suspected violation of the law. Id. at 621. However, the Court concluded that the plaintiff failed to establish a causal connection between her actions and her firing because she used the threat of a report to prevent her termination. Id. at 622. [I]t is clear that plaintiff used her own situation to extort defendant not to fire her. . . . Furthermore, it is clear that the decision to fire plaintiff was made before her threat to [the agency president] and that plaintiff knew of this decision .... Plaintiff cannot use the whistleblowers’ act as a shield against being fired where she knew she was going to be fired before threatening to report her supervisor. To hold otherwise “would encourage other employees to hold off blowing the whistle until it becomes most advantageous for them to do so. Plaintiff has offered no evidence which suggests that the Michigan Legislature intended the Whistleblowers Act to be used as an offensive weapon by disgruntled employees.” [Id. at 622 (citations omitted).] Although plaintiff’s decision in this case to obtain a PPO may have been motivated by personal reasons, plaintiff did not use his protected activity to extort his employer, as did the plaintiff in Shallal. Further, although plaintiff’s primary purpose may have been to protect himself and his girlfriend from harassment, reasonable jurors could conclude that plaintiff was acting in the public’s interest, in addition to his own. Assuming the truth of plaintiffs assertions, Heath-coat’s threatening telephone calls could constitute aggravated stalking, a felony and a serious public safety issue. See MCL 750.41 li. Moreover, in this case there is evidence of a causal connection between plaintiff’s protected activity and his termination, namely, Montgomery’s admission that plaintiff was discharged because of circumstances surrounding Heathcoat’s harassment. Accordingly, we believe that the evidence, viewed most favorably to plaintiff, was sufficient to create a genuine issue of fact regarding whether plaintiff engaged in a protected activity for purposes of the wpa. Therefore, the trial court did not err in denying defendant’s motion for summary disposition. Affirmed. Plaintiff also alleged that (1) defendant terminated him in violation of public policy, (2) his discharge was in breach of a contract with defendant under which he could not be terminated without good cause, (3) defendant discharged him because of his gender in violation of MCL 37.2202, and (4) defendant slandered him. Plaintiff later stipulated the dismissal of his slander claim.

Attorneys at law—Kala test does not apply in determining whether attorney should be disqualified because nonattorney employee was formerly employed by attorney or firm representing an opposing party—Analysis to be used by court in ruling on motion to disqualify attorney based on attorney's employment of a nonattorney once employed by the attorney requesting an opposing party—Civil procedure—Pursuant to Civ.R. 32(A)(3)(e), prior testimony of a doctor in the same case may be submitted in a new trial as if it were deposition testimony.