Wrongful Termination Cases

Schools—Appeal from court of appeals' grant writ of mandamus, compelling East Cleveland City School District Board of Education to issue an employment contract to relator and to pay him all back pay and benefits to which he is entitled, dismissed as moot—Denial of relator's request for attorney fees affirmed.

Ronald Bellin vs. Frederick J. Kelley, Jr., & others. Middlesex. February 8, 2001. - October 11, 2001. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Criminal Offender Record Information. Labor, Polygraph test, Discharge. Statute, Construction. On a motion for summary judgment at the trial of a civil complaint alleging that the defendant police officer wrongly revealed information from the plaintiff’s criminal offender record to the plaintiff’s employer, the plaintiff failed as a matter of law to show a violation of G. L. c. 6, § 172, where the officer was acting pursuant to a regulation permitting a criminal justice agency with official responsibility for a pending criminal investigation to disseminate criminal offender record information that is specifically related to and contemporaneous with that investigation, which regulation was not illegal, arbitrary, or capricious; moreover, the regulation was in harmony with the legislative mandate of G. L. c. 6, § 178A, which authorizes the release to victims and witnesses of such criminal offender record information pertaining to the offense with which they were involved as is necessary for their security and well being. [264-269] On a motion for summary judgment at the trial of a civil complaint alleging that the defendant employer wrongly threatened to fire the plaintiff employee if he persisted in his refusal to take a polygraph examination requested by police after a break-in at the employer’s place of business, the plaintiff failed as a matter of law to show a violation of G. L. c. 149, § 19B (2), where the statute permits an employer to request or require an employee to take a polygraph examination when a law enforcement agency lawfully seeks to conduct such an examination of the employee as part of a criminal investigation. [269-273] Civil action commenced in the Superior Court Department on June 28, 1995. The case was heard by Isaac Borenstein, J., on motions for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Ira H. Zaleznik for the plaintiff. Pamela L. Hunt, Assistant Attorney General {Peter T. Wech-sler, Assistant Attorney General, with her) for the intervener. Mark D. Robins for Wayne J. Minichielli & another. George L. Dresser {Nadia R. Totino Beard with him) for Frederick J. Kelley, Jr., & another. Kelley Consultants, Inc., Wayne J. Minichielli, and the town of Hopedale. We allowed a motion to intervene filed by the Attorney General. Sosman, J. The plaintiff has appealed from orders of the Superior Court allowing the defendants’ motions for summary judgment. The plaintiff’s claims stem from alleged misconduct by his employer and by the police in their investigation of a break-in at the employer’s business, an investigation that led to no criminal charges but that resulted in the termination of the plaintiff’s employment. The Appeals Court affirmed the order granting summary judgment in favor of the employer and its president, but reversed in part with respect to the defendant police officer and the town that employed him. Bellin v. Kelley, 48 Mass. App. Ct. 573, 583 (2000). We granted all applications for further appellate review. For the following reasons, we affirm the orders allowing summary judgment in favor of all defendants. 1. Facts. Kelley Consultants, Inc. (KCI), provides tax collection services to various Massachusetts municipalities. The plaintiff, Ronald Beilin, was employed at KCI as a collector beginning in the summer of 1991. One year later, during the weekend of August 1, .1992, a significant amount of cash was stolen from KCI during a break-in at its Hopedale office. Officer Wayne Minichielli of the Hopedale police department was dispatched to investigate. Based on his initial investigation, Minichielli suspected that the break-in had been perpetrated by or with the assistance of someone familiar with KCI’s office, characterizing the theft as an “inside job.” At the time, KCI had approximately six employees, including Beilin. Minichielli ran a background check on all those employees. That check revealed that Beilin had a prior criminal record, including multiple charges of larceny and fraud arising out of the passing of bad checks. No other KCI employee was found to have any prior criminal record. After uncovering this information, Minichielli met with Beilin at the Hopedale police station. Minichielli gave Beilin his Miranda rights, and requested that Beilin take a polygraph examination. Initially, Beilin agreed to the examination but, shortly before the scheduled date, Beilin contacted Minichielli and told him that he had changed his mind. Beilin contends that, during the course of that conversation, Minichielli threatened to reveal Beilin’s criminal record to KCI if he did not take the examination. Despite this alleged threat, Beilin refused to take the examination. After this conversation, Minichielli spoke with Frederick Kelley, the president and treasurer of KCI, and advised him that Beilin was a suspect in the break-in. Minichielli told Kelley that Beilin had a prior criminal record and that Beilin had refused to take a polygraph examination. Kelley then confronted Beilin, and told Beilin that, unless he took the polygraph examination as requested by the police, he would be fired. In order to avoid losing his job, Beilin agreed to proceed with the examination. Beilin’s polygraph examination was administered by a State trooper on October 29, 1992. Immediately prior to the examination, Beilin signed an acknowledgment that he was taking the examination “voluntarily — without threats, duress, coercion, force, promise of immunity or reward.” On completion of the examination, the examiner concluded that Beilin had exhibited signs of deception. That result was communicated to KCI, whereupon Beilin was fired. No one (including Beilin) was ever charged with any crime stemming from the break-in at the KCI office. 2. Discussion. Beilin has brought a series of claims against Minichielli, the town of Hopedale, KCI, and Kelley, all premised on the theory that Minichielli’s disclosure of information from Beilin’s criminal record was in violation of G. L. c. 6, § 172, and that Kelley’s threat to fire him if he did not take the polygraph examination was in violation of G. L. c. 149, § 19B. As a matter of law, Beilin has failed to show that either statute was violated. The defendants were thus entitled to summary judgment on all claims, as those alleged statutory violations formed the basis of all claims against them. a. Disclosure of criminal offender record information, G. L. c. 6, § 172. Beilin contends that G. L. c. 6, § 172, prohibited any police disclosure of his prior criminal record, which the statute protected as criminal offender record information (CORI). The statute provides that “criminal offender record information . . . shall be disseminated, whether directly or through any intermediary, only to (a) criminal justice agencies; (b) such other agencies and individuals required to have access to such information by statute . . . and (c) any other agencies and individuals where it has been determined that the public interest in disseminating such information to those parties clearly outweighs the interest in security and privacy.” Id. For criminal justice agencies, “[t]he extent of such access shall be limited to that necessary for the actual performance of the criminal justice duties . . . .” Id. For access under clause (c), the criminal history systems board (established by G. L. c. 6, § 168) (board) must first determine and certify by a two-thirds majority “that the public interest in disseminating such information to such party clearly outweighs the interest in security and privacy.” G. L. c. 6, § 172. Because KCI and Kelley do not qualify as “criminal justice agencies,” are not required to have access under some other statute, and did not obtain the requisite certification from the board under clause (c), Beilin contends that his prior record could not lawfully be disclosed to them. The defendants rely on a board regulation, 803 Code Mass. Regs. § 2.04 (5) (a), as authorization for the disclosure made in this case. The regulation provides that “[a] criminal justice agency with official responsibility for a pending criminal investigation or prosecution may disseminate CORI that is specifically related to and contemporaneous with an investigation or prosecution.” Id. The Hopedale police department was the criminal justice agency responsible for investigating the break-in and theft at KCI’s office; Beilin’s prior record of larceny was “specifically related to” that investigation (as it formed one of the bases for suspecting him of the break-in); and the disclosure occurred while the investigation was still ongoing. As such, the regulation would appear to authorize Minichielli’s disclosure to Kelley.* ** However, Bellin contends (and the Appeals Court agreed) that the regulation was in excess of the board’s statutory authority and therefore invalid. Bellin v. Kelley, 48 Mass. App. Ct. 573, 577-578 (2000). We disagree with that analysis and uphold the validity of the regulation. A party challenging the validity of a regulation must prove “that the regulation is illegal, arbitrary, or capricious.” Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 722, cert, denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983). “A plaintiff must prove ‘the absence of any conceivable ground upon which [the rule] may be upheld.’ ” Id., quoting Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 776 (1980). Therefore, we “must apply all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.” Borden, Inc. v. Commissioner of Pub. Health, supra at 723, quoting American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 477, cert, denied, 464 U.S. 850 (1983). “[E]nforcement of such regulations should be refused only if they are plainly in excess of legislative power.” Berrios v. Department of Pub. Welfare, 411 Mass. 587, 596 (1992). However, “a regulation that is irreconcilable with an agency’s enabling legislation cannot stand.” Quincy v. Massachusetts Water Resources Auth., 421 Mass. 463, 468 (1995). Here, the Legislature authorized the board to “promulgate regulations regarding the collection, storage, access, dissemination, content, organization, and use of criminal offender record information.” G. L. c. 6, § 168. This mandate, in and of itself, provides the board with broad powers to address situations not specifically enumerated in the statute. See Dowell v. Commissioner of Transitional Assistance, 424 Mass. 610, 614 (1997); Massachusetts Respiratory Hosp. v. Department of Pub. Welfare, 414 Mass. 330, 334 (1993). Notwithstanding that broad delegation of rule making authority, Beilin argues that the three permissible forms of dissemination listed in G. L. c. 6, § 172, are exclusive, and that the board may not expand that list by regulation without thwarting the legislative mandate. The argument ignores the express provision allowing criminal justice agencies access to CORI, which implicitly allows such agencies to use that information in “the actual performance of [their] criminal justice duties.” Id. Depending on the specifics of a particular investigation, it may be necessary to engage in widespread dissemination of information that would otherwise be protected by the statute. As but one example, the police may need to distribute flyers containing information from a suspect’s prior criminal history in order to locate and apprehend that suspect. See 803 Code Mass. Regs. § 2.04 (5) (b) (law enforcement “may disseminate CORI that is specifically related to and contemporaneous with the search for or apprehension of any person”). Under Beilin’s cramped reading of the statute, all disclosures by police, no matter how justified by the exigencies of an investigation, would be prohibited. Such a reading does not comport with the Legislature’s intent that law enforcement have access to CORI for the purpose of “perform[ing]” their “criminal justice duties.” G. L. c. 6, § 172. See Whirty v. Lynch, 27 Mass. App. Ct. 498, 500-501 (1989) (rejecting argument that prosecutor could not disclose CORI to judge setting bail). Beilin’s argument also ignores other sections of the statute that allow (and in some cases require) disclosure of CORI in a wide variety of circumstances. Most pertinent for our analysis of this particular regulation, G. L. c. 6, § 178A, provides that victims and witnesses of crime “shall be certified” to receive CORI pertaining to the offense with which they were involved and authorizes criminal justice agencies to disclose “to such persons such additional information, including but not limited to evaluative information, as such agencies determine, in their discretion, is reasonably necessary for the security and well being of such persons.” This provision recognizes that victims and witnesses have a justifiable need for information, including CORI, that pertains to the crime that they have either suffered or witnessed, and indeed requires that the board approve their requests for such access to CORI. Cf. G. L. c. 258B, § 3 (a) (requirement that prosecutor “periodically apprise the victim of significant developments in the case”). Section 178A also recognizes that, in some cases, victims and witnesses may need such information for their own safety and security, and allows criminal justice agencies discretion to reveal to victims and witnesses information that is “reasonably necessary” for that purpose. The challenged regulation, 803 Code Mass. Regs. § 2.04 (5) (a), represents the board’s reasonable determination that, during the course of an investigation, law enforcement agencies often need to reveal CORI that is related to that investigation. The statute implicitly allows criminal justice agencies to use CORI to perform their criminal justice duties, and the board’s regulation simply authorizes the use of such information for that fundamental law enforcement purpose. Reliance on that regulation to justify disclosure to the victim in this case closely mirrors the disclosure to victims provided in G. L. c. 6, § 178A. Here, the officer investigating the crime suspected that the perpetrator was an employee of the victim. Notifying the employer of those suspicions (and the bases for those suspicions) allowed the employer to take precautions to protect himself and his company from any further criminal acts of a possibly disloyal insider. Leaving a victim in ignorance in such circumstances, and thus completely vulnerable to further criminal acts, would have been viewed as irresponsible on the part of the police. The statute, G. L. c. 6, § 178A, is designed to address such situations, and the regulation under review, 803 Code Mass. Regs. § 2.04 (5) (a), is “in harmony” with that legislative mandate. Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 723 (1983), quoting American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 477 (1983). The plaintiff has not met his burden of demonstrating that the regulation is “plainly in excess of legislative power,” Berrios v. Department of Pub. Welfare, 411 Mass. 587, 596 (1992), and we therefore hold that the regulation is valid. The CORI disclosure that occurred here was authorized under the regulation, and that disclosure was therefore lawful. b. The polygraph examination. Beilin’s further claims assert, as their fundamental premise, that Kelley wrongfully threatened to fire him if he persisted in his refusal to take a polygraph examination. Beilin relies on G. L. c. 149, § 19B (2), which provides as follows: “It shall be unlawful for any employer or his agent, with respect to any of his employees, or any person applying to him for employment, including any person applying for employment as a police officer, to subject such person to, or request such person to take a lie detector test within or without the commonwealth, or to discharge, not hire, demote or otherwise discriminate against such person for the assertion of rights arising hereunder. This section shall not apply to he detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.” While the first sentence of this subsection prohibits employers from requesting or requiring an employee to take a polygraph examination, the exception set forth in the second sentence allows employers to make such requests and impose such requirements when a law enforcement agency lawfully seeks to conduct such an examination of the employee as part of a criminal investigation. Baker v. Lawrence, 379 Mass. 322, 326-329 (1979). Beilin seeks to distinguish Baker v. Lawrence, supra, on various grounds, none of which is persuasive. First, he argues that the alleged criminal conduct of the employees in Baker occurred while they were performing their jobs. The break-in at issue in the present case occurred while Beilin was off duty. Our explication of the exception in § 19B (2) does not support any such distinction: “The situation plainly within the exception is one where a law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is. permitted, i.e., not forbidden, to administer a polygraph test to that employee.” Baker v. Lawrence, supra at 327. We noted, however, that we were dealing “with the core meaning” of the exception and that we did not, in that case, need “to explicate any possible ampler meaning” of the exception. Id. at 327 n.8. The literal wording of § 19B (2) contains no express limitation restricting the exception to situations involving some particular form or degree of connection between the criminal conduct under investigation and the employee’s job. However, as in Baker, we need not “explicate any possible ampler meaning” of the exception in this case. While Beilin was not literally on duty at the time of the weekend break-in at KCI, an employee’s theft of an employer’s property during off hours, using the employee’s inside knowledge in order to perpetrate that theft, would constitute conduct closely connected to the employee’s work. To whatever extent (if any) the statute imposes a requirement that the crime being investigated have some connection to the employee’s job, that requirement has been met in this case. Beilin argues, as a further distinction between this case and Baker v. Lawrence, supra, that the employees in that case had actually been accused of a crime, whereas the police were merely suspicious of Beilin based on “overwrought imagination.” While there may be such distinctions between the facts of the two cases, nothing in § 19B (2) requires any particular degree of support or verification of the police suspicions before an employer may insist that the employee cooperate with a police polygraph examination. Beilin next argues that the exception does not apply because the State police polygraph examination was not “otherwise permitted.” He contends that, in order to be “permitted,” the examination must be voluntary or, in the alternative, the person being examined must be granted immunity. As to the argument that voluntariness is a predicate for the exception in § 19B (2), we rejected such an argument in Baker v. Lawrence, supra at 327-329. The imposition of a requirement that the employee take the polygraph test voluntarily in order for the employer to have the benefit of the exception “would reduce the exception of the second sentence of § 19B [(2)] to a virtual nullity.” Id. at 328. As to immunity, there is no requirement that a person employe

JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant No. COA00-364 (Filed 4 September 2001) Civil Rights— racial discrimination — Equal Employment Practices Act — race or retaliation as determinative factor The trial court erred in a racial discrimination case under 42 U.S.C. § 1981 and the Equal Employment Practices Act of N.C.G.S. § 143-422.1 by failing to give plaintiff employee’s proposed jury instructions that plaintiff must prove by a preponderance of the evidence that race or retaliation was a determinative factor in the action taken by defendant to terminate plaintiff’s employment based on plaintiff filing discrimination charges with the Equal Employment Opportunity Commission because the instant case of intentional discrimination was in the category of a circumstantial evidence or pretext case, meaning the dispositive question should be whether race or retaliation was a determinative factor in the adverse employment decision. Judge Walker dissenting. Appeal by plaintiff from judgment entered 18 May* 1999 and orders entered 12 May and 17 July 1999 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 22 February 2001. Julie H. Fosbinder; and Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John W. Gresham, for plaintiff appellant. Robinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot and Frank H. Lancaster, for defendant appellee. SMITH, Judge. This is the second appeal arising out of the present case. For a complete statement of the facts in this case, see this Court’s previous opinion at Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 504 S.E.2d 580 (1998), disc. review denied, 350 N.C. 91, 527 S.E.2d 662 (1999) (Brewer I). However, under the facts of the case sub judice, no recitation of the facts is necessary for an understanding of our opinion other than as stated herein. Plaintiffs action was initiated by application and order extending time to file complaint dated 16 March 1995. Plaintiff alleged that defendant discriminated against him on the basis of race and for retaliation for filing a complaint of racial discrimination, in violation of 42 U.S.C. § 1981 and the Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1 (1999). Cabarrus Plastics, Inc. (CPI) filed a motion for summary judgment, which was denied on 6 November 1995. The case was first tried in May 1996. At the close of plaintiffs evidence, CPI moved for directed verdict. The motion was granted and judgment entered on 28 May 1996. Plaintiff appealed. This Court reversed and remanded the matter for a new trial. Brewer I, 130 N.C. App. at 681, 504 S.E.2d at 580. The second trial was held in May 1999. On 14 May 1999, the jury returned with a verdict in favor of defendant. The trial court entered judgment on 18 May 1999. Plaintiff appeals. We first consider whether the trial court erred by failing to give plaintiff’s proposed jury instructions. Plaintiffs proposed instruction in part stated: The plaintiff must prove by a preponderance of the evidence that race or retaliation was a determinative factor in the action taken by the Defendant. The plaintiff need not establish that race and/or retaliation was the sole factor motivating the defendant. Other factors may have motivated the Defendant as well. The Plaintiff demonstrates that race and/or retaliation was a determinative factor if he shows that “but for” either or both of those factors, the discipline or the termination would not have taken place. Instead, the trial court instructed the jury that the burden of proof was on plaintiff to prove by the greater weight of the evidence “that the defendant terminated the plaintiff’s employment on account of his race or on account of his filing discrimination charges with the equal employment opportunity commission.” (Emphasis added). Plaintiff argues that the trial court’s instruction does not address the issue of dual motivation, and suggested to the jury that if an employer had a separate lawful motivation for the termination, plaintiff could not prevail. Plaintiff additionally argues that the trial court should have granted its request for an instruction that if the jury found direct evidence of a discriminatory or retaliatory motive, then the burden would shift to defendant to prove “by a preponderance of the evidence that it would have made the decision to discipline and/or terminate [plaintiff] irrespective of the motivation which has been shown by the direct evidence.” After careful review of the record, briefs, and contentions of the parties, we reverse and remand the matter for a new trial. Plaintiff alleged in his complaint that defendant discriminated against him on the basis of race in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Plaintiff also alleged that defendant fired him in retaliation for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC). “Plaintiff’s retaliation claim is likewise actionable under § 1981.” Brewer I, 130 N.C. App. at 686, 504 S.E.2d at 583. We also note that, although plaintiff filed suit pursuant to a federal statute in state court, plaintiffs relief would be the same as though he had proceeded in federal court under § 1981. See Glenn-Robinson v. Acker, 140 N.C. App. 606, 612, 538 S.E.2d 601, 607 (2000), appeal dismissed and disc. review denied, 353 N.C. 372, 547 S.E.2d 811 (2001). Furthermore, plaintiffs state claims alleging discrimination and retaliation in violation of the Equal Employment Practices Act, N.C. Gen. Stat. § 143-422, et seq., are likewise analyzed under federal law. Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983). In determining claims of intentional discrimination in employment under § 1981, two categories of analysis have developed: (1) the circumstantial evidence or pretext model, and (2) the direct evidence or mixed-motive model. Brewer I, 130 N.C. App. at 686, 504 S.E.2d at 584; Fuller v. Phipps, 67 F.3d 1137, 1141 (4th Cir. 1995). The distinction between these two categories is crucial, because plaintiffs enjoy more favorable standards of liability in mixed-motive cases. Fuller, 67 F.3d at 1141. In circumstantial evidence cases: Establishment of a prima facie case gives rise to a presumption that “the employer unlawfully discriminated against the employee.” The employer then has the “burden of producing evidence to rebut the presumption of discrimination.” The employer’s burden of production is satisfied “if he simply explains what he has done or produces evidence of legitimate non-discrinúnatory reasons.” Upon production by the employer of an “explanation . . . legally sufficient to support a judgment” in its favor, “the [employee] is then given the opportunity to show that the employer’s stated reasons are in fact a pretext for intentional discrimination.” In doing so, the employee may rely on evidence offered to establish a prima facie case “to carry his burden of proving pretext.” Brewer I, 130 N.C. App. at 687, 504 S.E.2d at 584 (citations omitted). See also Hawkins v. Pepsico, Inc., 203 F.3d 274, 278 (4th Cir. 2000). Most discrimination cases fall within this category. Fuller, 67 F.3d at 1141. This framework applies to retaliation claims as well. Hawkins, 203 F.3d at 281 n.1. “By contrast, if plaintiffs can present sufficiently direct evidence of discrimination, they qualify for the more advantageous standards of liability applicable in mixed-motive cases.” Fuller, 67 F.3d at 1141. “To earn a mixed-motive instruction ... a plaintiff must satisfy the evidentiary burden necessary to make out a mixed-motive case. This requires ‘direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion.’ ” Id. at 1142 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 104 L. Ed. 2d 268, 305 (1989) (plurality opinion)). Specifically, plaintiff must present “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Id. (emphasis added). “Whether a plaintiff has satisfied this evidentiary threshold is a decision for the [trial] court after it has reviewed the evidence.” Fuller, 67 F.3d at 1142 (footnote omitted). In the case at bar, plaintiff failed to present sufficient evidence to satisfy both prongs necessary to establish a mixed-motive case. While plaintiff did put on evidence of racial epithets allegedly used by plaintiffs supervisor, the alleged epithets were not directly related in any way to the contested employment decision. Id. Thus, the trial court properly denied plaintiffs request for a direct evidence or mixed-motive instruction. Accordingly, because plaintiff presented no direct evidence of discrimination, the instant case is more properly categorized as a pretext case. As discussed previously, in pretext cases, the plaintiff must prove that the defendant’s explanation for an adverse employment decision is really a pretext, and the contested employment decision was racially motivated. The “dispositive question” in a pretext case should be whether race or retaliation “was a determinative factor in the adverse employment decision.” Id. at 1144 (emphasis added). By “determinative factor,” it is meant that “liability depends on whether the protected trait . . . actually motivated the employer’s decision.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 123 L. Ed. 2d 338, 346 (1993). In the instant case, the trial court never instructed the jury that the standard to be applied was that if race was “a determinative factor” in the employment decision, they would find for plaintiff. Instead, the trial court instructed the jury that plaintiff must prove that defendant terminated plaintiff’s employment on account of race or retaliation, omitting the “determinative factor” test approved and utilized in Fuller. We find that the trial court’s instruction was erroneous. The term “on account of,” without a modifier, even when read in the context of the overall charge, could have been misconstrued by the jury to require that race be the sole decisional factor in the employment decision. See Fuller, 67 F.3d at 1144 (explaining that instructions are in error if the jury could construe them to require that race be the sole decisional factor in the adverse employment decision). Accordingly, we reverse and remand the matter for a new trial. We finally note that plaintiff argued at trial that the trial court should instruct the jury that race, retaliation, or a combination of both factors could be the determinative factor in the adverse employment decision. We disagree. Although claims of retaliation are determined under the same evidentiary standards as claims of discrimination, each is a separate claim and plaintiff has the burden of establishing a prima facie case to support each claim independent of the other. Thus, we believe that on retrial, the trial judge should submit issues on each claim to the jury rather than combining them. In light of our disposition in this matter, we need not address the other issues raised in this appeal. Reversed and remanded for new trial. Judge BIGGS concurs. Judge WALKER dissents. WALKER, Judge, dissenting: I respectfully dissent from the majority opinion which concludes there was reversible error in the jury instructions as given by the trial court and grants plaintiff a new trial. I agree with the majority opinion which holds that plaintiff presented no direct evidence of discrimination and the case is more properly categorized as a pretext case. In a pretext case, the jury must determine whether the employer “ ‘intentionally discriminated against [the employee]’ because of his race.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 125 L. Ed. 2d 407, 418 (1993) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207 (1981)). See also Fuller v. Phipps, 67 F.3d 1137, 1141 (4th Cir. 1995); Mullen v. Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988). In Fuller, the plaintiff was alleging race discrimination. The court reviewed the jury instructions which asked the jury to determine whether “his race was the determinative factor” and whether “but for the fact that he is black he would have been reappointed.” Fuller, 67 F.3d at 1141 (emphasis added). Further, the jury was instructed that “if [the employer] chose not to hire Fuller for any other reason, then Fuller cannot recover.” Id. (emphasis added). The instructions concluded with the jury having to decide whether “race was a determinative factor in Fuller not being hired.” Id. (emphasis added). The court held that those jury instructions, taken as a whole, did not rise to the level of reversible error. Id. at 1145. The court also specifically recognized that “the ‘but for’ instruction is an accurate one in pretext cases.” Id. at 1144. In the present case, the jury instructions given were similar to those in Fuller. The jury was asked to determine whether the termination of the plaintiff was “on account of his race or on account of his filing discrimination charges with the Equal Employment Opportunity Commission.” (emphasis added). The jury was further instructed that “employers are prohibited from treating employees differently because of their race.” (emphasis added). This instruction is an accurate statement of the law in pretext cases. See Hicks, 509 U.S. at 511, 125 L. Ed. 2d at 418; Fuller, 67 F.3d at 1141; Mullen, 853 F.2d at 1137. The phrase “because of” was approved by the U.S. Supreme Court in Hicks. Hicks, 509 U.S. at 511, 125 L. Ed. 2d at 418. The question in the present case then becomes whether the phrase “on account of’ is sufficiently similar to the approved language “because of’ and “but for” when construing the jury instructions as a whole. Jury instructions should' be a “straightforward explanation” of the law made in a “simple fashion.” Mullen, 853 F.2d at 1137, 1138. In the common vernacular, the phrases “but for,” “because of,” and “on account of’ are used interchangeably. Using language which is in the common vernacular and easily understood by the jury, such as “on account of’ and “because of,” is a proper means of instructing the jury on the law it is to' apply to the facts. Just as the “but for” instruction in Fuller “restates in different language the court’s unobjectionable ‘a determinative factor’ instruction,” the “on account of” instruction in this case restates the same unobjectionable instruction. Fuller, 67 F.3d at 1144. Although the plaintiff has cast his proposed jury instructions under the title “Circumstantial Evidence — Pretext,” he did not submit an accurate statement of law to be applied in pretext cases. The plaintiff tendered instructions which state in part: “The plaintiff need not establish that race and/or retaliation was the sole factor motivating the defendant. Other factors may have motivated the Defendant as well.” However, this proposed instruction on the “sole factor” and “other factors” is to be applied in a mixed-motive case rather than in a pretext case as here. See Fuller, 67 F.3d at 1141 (explaining that instruction based on statutory language, which reads in part: “race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice,” was “meant to apply only in mixed-motive cases, not in pretext cases”). Because the plaintiff did not present sufficient evidence to make out a mixed-motive case, this case is properly categorized as a pretext case. As in Fuller, the jury instructions, when taken as a whole, “plainly put before the jury the appropriate standards of liability in a pretext case.” Fuller, 67 F.3d at 1145. Thus, jury instructions using the phrases “on account of’ and “because of’ when stating the law to be applied in pretext cases do not rise to the level of reversible error.

Patricia A. Weber vs. Community Teamwork, Inc., & others. Middlesex. April 5, 2001. August 13, 2001. Present: Marshall, C.J., Greaney, Spina, Sosman, & Cordy, JJ. Anti-Discrimination Law, Termination of employment, Prima facie case, Burden of proof. Employment, Discrimination, Termination, Retaliation. Contract, Employment. Unlawful Interference. Malice. In an action by the plaintiff alleging unlawful discrimination in her employer’s failure to promote her, the judge correctly concluded that the plaintiff had established a prima facie case of discrimination, but had not met her burden of proving unlawful discrimination because there was evidence to support some of her employer’s “legitimate, nondiscriminatory” reasons for choosing a male applicant over the plaintiff. [766-769] In an action by the plaintiff alleging unlawful discrimination in her employer’s termination of her employment, the judge correctly concluded that the plaintiff had established a prima facie case of discrimination; however, the record did not support the judge’s conclusions that the defendants’ proffered reasons for terminating the plaintiff were “wholly lacking” in evidentiary support and in credibility; moreover, while the judge made the requisite findings that the plaintiff was a member of a protected class and was harmed by the termination, she did not determine whether the defendants harbored any discriminatory animus and, if so, whether that animus was the determinative cause in bringing about the plaintiff’s termination, and consequently, this court remanded the case so that the judge could make findings and reach conclusions on those two essential elements. [769-778] In an action by the plaintiff alleging breach of contract in her employer’s termination of her employment, the judge erred in concluding that a progressive discipline policy, implemented during the tenure of the plaintiff’s predecessor, constituted an implied employment contract between the plaintiff and her employer that the employer breached, where the policy was not binding on the employer because it was not submitted to or approved by its board; where, by its own terms, the policy did not apply to disciplinary action taken by the employer’s executive director against a department head such as the plaintiff; and where the plaintiff failed to establish that she relied on the terms of the policy as a condition of her continuing employment. [778-781] This court vacated a ruling by a Superior Court judge that a nonprofit corporation’s executive director had unlawfully interfered with the plaintiff employee’s advantageous relations with her employer, and the plaintiff’s claim was remanded for further findings with regard to the requirement that the plaintiff show, as to “improper motive or means,” that the “controlling factor” in the alleged interference was “actual” malice. [781-783] In an action arising out of the plaintiff’s termination from her employment, the judge erred in allowing the plaintiff to amend her complaint to state a claim for retaliatory discrimination under G. L. c. 151B, § 4 (4), raised for the first time after the close of the evidence, where, since the plaintiff asserted her claim for retaliatory discrimination nearly four years after the last allegedly retaliatory act was committed, the retaliation claim was barred by the three-year statute of limitations provided by G. L. c. 151B, § 9, and where, since her claim did not “arise out of the conduct, transaction, or occurrence” she alleged in her earlier pleadings, Mass. R. Civ. R 15 (c), it did not relate back to her earlier pleadings. [783-786] Civil action commenced in the Superior Court Department on December 10, 1993. The case was heard by Sandra L. Hamlin, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Cheryl M. Cronin (Douglas Phillips with her) for the defendants. Frederick T. Golder (Elisabeth M. LeBrun & Jeffrey R. Mazer with him) for the plaintiff. The following submitted briefs for amici curiae: Sally L. Adams, Daryl J. Lapp, & Steven L. Schreckinger for Association of Independent Colleges and Universities in Massachusetts. Robert S. Mantell, Jonathan J. Margolis, & James E. Fitzgerald for Massachusetts Employment Lawyers Association. Thomas H. Conway, Jr., and James L. Canavan, Jr. Marshall, C.J. In early 1992, Patricia Weber, a longtime employee of Community Teamwork, Inc. (CTI), applied for, but was not promoted to, the position of CTI’s executive director. Some months later she was terminated by CTI’s new executive director, James L. Canavan, Jr. She brought suit against CTI, Canavan, and Thomas H. Conway, Jr., a member of CTI’s board of directors, alleging discrimination on the basis of sex and sexual orientation, breach of contract, unlawful interference with contractual relations, retaliatory discrimination, wrongful termination in violation of public policy, and a violation of the Massachusetts equal rights statute, G. L. c. 93, § 102. After a jury-waived trial, a judge in the Superior Court rejected Weber’s claims that CTI’s failure to promote her was discriminatory or that her termination from CTI was a violation of any public policy. The judge ruled, however, that Weber’s termination constituted discrimination, breach of contract, unlawful interference with contractual relations, and retaliatory discrimination. She awarded Weber back pay damages and benefits in the amount of $133,704, fifteen years of front pay damages in the amount of $546,480, and emotional distress damages of $100,000. The judge also awarded Weber her attorney’s fees in an unspecified amount. The parties filed cross appeals, and we transferred the case to this court on our own motion. We affirm the judge’s rulings that CTI’s failure to promote Weber was lawful. We vacate the remaining aspects of the judgment challenged by the defendants, and remand the case to the Superior Court for additional findings and conclusions by the judge on Weber’s claims of discrimination and unlawful interference with contractual relations. I We summarize the procedural history because it is relevant to some of the issues on appeal. Weber first filed her charges with the Massachusetts Commission Against Discrimination (MCAD), alleging that all three defendants had discriminated against her on the basis of her sex by failing to promote her to the position of executive director of CTI in October, 1992, and by terminating her without warning in March, 1993. See G. L. c. 151B, § 5. Weber, who is a lesbian, subsequently amended her charges to include claims of discrimination on the basis of sexual orientation. Before the MCAD acted on her charges, she brought suit in Superior Court pursuant to G. L. c. 151B, §§ 4, 9, adding claims for breach of contract, intentional interference with contractual relations, and a violation of the Massachusetts equal rights statute, G. L. c. 93, § 102. The trial commenced in February, 1997. At the close of Weber’s evidence the judge allowed the defendants’ motion to dismiss Weber’s equal rights claim, G. L. c. 93, § 102, but denied their motion in all other respects. She later denied their motion for a directed verdict. On the final day of trial, and immediately prior to closing arguments, Weber moved to amend her complaint to add claims that her termination violated public policy and constituted retaliatory discrimination in violation of G. L. c. 151B, § 4 (4). Over the defendants’ objection, the judge allowed her motion. The judge subsequently entered findings of fact and conclusions of law, which we shall summarize in greater detail below. On appeal Weber claims that it was error for the judge to conclude that CTI’s failure to promote her to the position of CTI’s executive director did not constitute unlawful discrimination in violation of G. L. c. 151B, and to deny her punitive damages on her retaliation claim. The defendants challenge the judge’s rulings that (1) Weber’s termination from CTI constituted unlawful employment discrimination; (2) they breached Weber’s employment contract with CTI; and (3) Canavan had unlawfully interfered with Weber’s advantageous relationship with CTI. See note 4, supra. They also challenge the judge’s ruling permitting Weber to amend her complaint to add a claim for retaliatory discrimination, and her subsequent ruling that the defendants had in fact engaged in retaliatory discrimination. As to damages, the defendants challenge the award to Weber of fifteen years of front pay under G. L. c. 151B, and argue that any damages awarded for violations of that statute by the defendants should, in any event, be capped at $20,000 pursuant to G. L. c. 231, § 85K. Finally, they challenge the award to Weber of attorney’s fees for so much of her G. L. c. 151B claim on which she did not prevail. n Before turning to consider the respective arguments, we summarize the chronology of Weber’s career at CTI because it provides helpful context to her claims. Weber was hired by CTI in 1975 as an assistant director of family day care. In the succeeding twelve years, Weber assumed steadily increasing program development and supervisory responsibilities, serving from 1976 to 1978 as an assistant director of the family life services department, and from 1978 to 1987 as that department’s director. In 1987, she was named associate director of programs, in which capacity she reported directly to CTI’s longtime executive director, Leo Desjarlais, and became the direct supervisor of CTI’s eight department directors, including the director of its housing and community development department. Sometime thereafter, Weber discovered that Desjarlais was mishandling CTI’s funds. She triggered an investigation by the office of the Auditor of the Commonwealth, which ultimately led to Desjarlais’s discharge from CTI in 1991. In late 1991, following Desjarlais’s discharge, the board appointed the defendant Conway, then the president of CTI’s board of directors, as CTI’s acting executive director. Fearing that her position as associate director of programs was in jeopardy with the impending appointment of a new executive director, and although she herself became a candidate for that position, Weber asked Conway to appoint her as the director of CTI’s housing and community development department. Weber had not previously worked in the housing department, but Conway agreed, and in February, 1992, Weber assumed that position. Shortly thereafter, she applied for the position of executive director, but an outside candidate, Canavan, was the successful applicant. Ill We first address Weber’s argument that the judge erred by ruling that CTI’s failure to promote her to the position of executive director did not constitute unlawful discrimination. We recount the judge’s findings relevant to this claim. From 1987 to 1992, in her tenure as associate director of CTI, Weber served “in all but title” as CTI’s executive director. The judge found that Weber was a “hardworking, responsible, talented, caring and dedicated employee with excellent administrative ability,” who consistently received “excellent” performance reviews. When it became necessary to replace Desjarlais, the board advertised the position and ultimately hired Canavan, who served at the time as the director of development and planning at an agency similar to CTI. Canavan previously had worked from 1987 to 1990 as an assistant energy planner, an assistant director of the housing services program, and finally as the acting director of the office of community and economic development within the Executive Office of Communities and Development (EOCD). EOCD provides housing subsidies to low-income persons and ensures that subsidized housing units comply with Federal and State regulations. It had contracted with CTI’s department of housing and community development to run various low-income housing programs. EOCD was in fact one of CTI’s primary sources of funding. There was extensive testimony that, in the wake of Desjarlais’s mismanagement, CTI was in a financial crisis, its staff lacked morale and strong leadership, and it had lost credibility with EOCD. There was unrebutted testimony that CTI’s board believed that new leadership by an outsider, but one who “had the experience and the knowledge of . . . what [CTI’s] kind of agency was about,” was essential to meeting CTI’s goals of improving its fractured relationship with EOCD and remedying its fiscal crisis. CTI explained at trial that these were the reasons it appointed Canavan as CTI’s new executive director. The judge found that, based on her resume, background, and work experience, Weber was “eminently more qualified” than Canavan to assume the position of CTI’s executive director. She also found that, before Canavan was hired, a “sexist attitude prevailed at CTI” and that it was “common knowledge” throughout the organization that Weber is a lesbian. The judge then applied the analytical framework of Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-446 (1995). She concluded that Weber had established a prima facie case of discrimination, but had not met her burden of proving unlawful discrimination because there was evidence to support some of CTI’s “legitimate, nondiscriminatory” reasons for choosing Canavan over Weber. Weber now argues that, because the judge found that she was “eminently more qualified” than Canavan and that a “sexist attitude prevailed” at CTI, the judge should have concluded that the defendants’ asserted reason for hiring Canavan was a pretext. See id. at 444-446. The judge’s ruling was correct. Weber’s contention rests on the flawed supposition that the findings on which she relies precluded a finding that CTI’s asserted reasons for hiring Canavan were in fact its reasons for hiring him. There was sufficient evidence that Canavan’s “outsider” status and his prior work experience and previous dealings with EOCD were sound reasons for CTI to prefer him over a well qualified internal candidate, even one “eminently more qualified.” While it would have been preferable for the judge to make explicit what is implied by her findings, namely, that Weber and Canavan were both qualified for the position of executive director but were qualified in different ways, she did not err in concluding that Weber did not meet her burden of proving that the defendants’ failure to promote her constituted unlawful discrimination. Even if Weber had succeeded in persuading the judge that CTI’s asserted explanation for hiring Canavan was not the reason it actually hired him, a point not argued by the defendants, the judge would have been permitted to conclude that the failure to promote Weber did not amount to unlawful discrimination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000) (fact that employer’s asserted reason is pretext permits, but does not require, an inference that there was unlawful discrimination). The judge would have been entitled to weigh evidence indicating that the defendants had no discriminatory motive in hiring Canavan, or that they had some other lawful explanation for choosing Canavan over Weber that had been advanced and was supported by the evidence. See id. IV We turn next to the question of the judge’s ruling that Weber’s termination from CTI, in contrast to CTI’s failure to promote her to the position of executive director, did constitute unlawful employment discrimination. We summarize the judge’s findings on this aspect of the case, supplementing them where appropriate with uncontested facts in evidence. By early 1992, when Weber was appointed the director of CTI’s housing department, that department faced pervasive problems. For many years previously, Desjarlais had diverted funds from the department. There was also a perception that Desjarlais had hired individuals in that department based on favoritism rather than competence. By the time Desjarlais’s employment was terminated, the department had an operating deficit of approximately $150,000, and the housing staff were beset by poor morale. In short, the department was in crisis. Because subsidies provided by CTI to low-income tenants were funded by EOCD, CTI was subject to EOCD’s regulatory oversight, and there was evidence that EOCD had serious concerns about the management of CTI’s housing programs. CTI’s housing department suffered from a poor “lease-up rate.” Worse, CTI was subsidizing many housing units of marginal quality, and its “maintenance failure” rate was high. CTI’s own inspections confirmed the department’s poor record. The judge found that, in her first year as director, Weber’s “hard work” and “good management” made a difference. But see note 15, supra. Within eleven months, the department’s operating deficit decreased from $150,500 to $115,534; within three months, the “lease-up” rate of low-income housing units subsidized by CTI rose to 99%. The “staff failure” rate was also reduced under Weber’s “hands-on management” and her improvements in the housing inspection process. Despite these improvements, it was undisputed that EOCD remained deeply concerned about CTI’s housing program. According to Canavan, CTI’s new executive director, in early January, 1993, EOCD officials “were breathing down our necks” to take swift action to improve the inspections of, and conditions in, certain low-income housing developments subsidized by CU. On February 2, 1993, Weber, Canavan, and a third CTI employee met with three senior officials at EOCD. The EOCD officials expressed their serious concerns about the continuing inadequacy of CTI’s housing inspections, the poor maintenance of housing units subsidized by CTI, and the “overall history of mismanagement.” There was uncontroverted evidence that at this meeting the deputy secretary of EOCD threatened to terminate all of CTI’s substantial housing funding if it did not take aggressive steps by June, 1993, to correct the problems in the housing department. There was also unrebutted testimony that, during the February, 1993, meeting, a senior EOCD official instructed CTI to “fire” Darryl Courtnay, Weber’s deputy in the housing department. A senior EOCD official had also told Weber that she was “upset" with her. The threatened loss of EOCD’s housing subsidies was serious; the EOCD subsidies comprised one-third of CTI’s budget. There was uncontradicted evidence that CTI’s housing department depended entirely on EOCD for its funding. The loss of such significant funds would also have necessitated a number of lay-offs of CTI employees. While Weber had made improvements in the department, Canavan was left with the impression from that critical meeting that, to “save” the housing program, Darryl Courtnay and Weber “had to go.” On March 16, 1993, one week after Weber and Canavan last met to discuss progress in CTI’s housing department, Canavan called Weber to his office, and in the presence of several CTI board members, offered her the option of resigning or being terminated. Weber was given no explanation for this action. Weber chose to be terminated. That same day Canavan offered the same choice to Darryl Courtnay. Courtnay resigned. Several weeks later Canavan appointed another woman to fill the position vacated by Weber. Explaining her decision that Weber’s termination constituted unlawful discrimination, the judge pointed to the fact that, in the wake of the critical EOCD meeting in February, 1993, Canavan did not give Weber any “specific directions” about steps she should take to remedy the problems cited by EOCD. The judge also found that, in spite of Weber’s persistent efforts to hire more inspectors, Canavan “refused to move” on improving the staff failure rate, “consistently stalled on responding to her recommendations,” and “stymied her efforts to rectify the situation.” The judge found that Canavan had not told Weber that he was dissatisfied with her performance, nor ha