Wrongful Termination Cases

AUDIE E. TREXLER, Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY, a corporation; THOMAS L. LYNCH; JAMES H. FORREST; C.L. CRABTREE; and NORFOLK SOUTHERN CORPORATION, a corporation, Defendants No. COA00-346 (Filed 7 August 2001) Employer and Employee— wrongful discharge claim — collective bargaining contract The trial court did not err by granting summary judgment for defendants on a wrongful discharge claim by a railroad employee subject to a collective bargaining agreement which provided that he could not be removed or disciplined except for just and sufficient cause after a preliminary hearing. The proper claim for this plaintiff was breach of contract. On writ of certiorari to review order entered 16 March 1999 by Judge Michael E. Beale in Rowan County Superior Court. Heard in the Court of Appeals 24 January 2001. Wallace & Graham, by Richard Huffman, and C. Marshall Friedman, P.C., by Kenneth E. Rudd, for plaintiff-appellant. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Allison M. Grimm, and Gibbes & Burton, L.L.C., by Frank H. Gibbes, III, for defendant-appellees. JOHN, Judge. Plaintiff Audie E. Trexler seeks review of the trial court’s entry of summary judgment in favor of defendants Norfolk Southern Railway Company, Thomas L. Lynch, James H. Forrest, C.L. Crabtree and Norfolk Southern Corporation (collectively defendants). We affirm the trial court. The record reflects the following generally uncontroverted factual and procedural backgroung information: Plaintiff was hired by defendant Norfolk Southern Railway Company (NSRC) on or about 12 November 1979 and worked at NSRC’s Linwood, North Carolina facility. As a Carman for NSRC, plaintiff was represented by his labor organization, the Transportation Communications International Union, Brotherhood of Railway Carmen Division (the Union). Plaintiff was also subject to the terms of a Collective Bargaining Agreement (the Agreement) between NSRC and the Union. Rule 34(a) of the Agreement specified as follows: [a]n employee will not be removed from service or disciplined (including discharge) except for just and sufficient cause after a preliminary hearing. On or about 5 December 1995, plaintiff testified under oath in a case brought by the Union and a co-worker against defendants Norfolk Southern Corporation (NSC) and NSRC in United States District Court for the Eastern District of Tennessee, Knoxville Division. In his sworn statement, plaintiff related he had heard defendant Thomas L. Lynch (Lynch), a NSRC Master Mechanic, state to employees of NSRC that he “did not recommend that we vote Jack [Wright] in as local chairman because ... Jack always stirred up problems” and that “we did not need Jack in there, because he would cause problems.” At the time, Wright was a candidate for election as local chairperson of the Union. Shortly thereafter, Timothy T. Malloy, Assistant Director of Labor Relations for NSRC, contacted Lynch and inquired if Lynch had indeed made such a statement. Lynch denied having done so. Defendant J.H. Forrest (Forrest), Senior General Foreman at NSRC’s Linwood facility and plaintiff’s supervisor, reviewed a copy of plaintiff’s sworn testimony at the request of Lynch. According to Forrest, he subsequently interviewed employees and supervisors “who could have been in the meeting or gathering where [plaintiff] alleged [Lynch] made the statement in question,” but each of the “individuals [interviewed] indicated they had not heard any supervisors at Linwood tell anyone not to vote for Jack Wright.” Pursuant to Rule 34 of the Agreement and on behalf of NSRC, Forrest wrote plaintiff a letter dated 4 January 1996. Plaintiff was directed therein to report “for a formal investigation to determine [plaintiff’s] responsibility for conduct unbecoming an employee” in connection with plaintiff’s sworn statement regarding Lynch. Defendant C.L. Crabtree (Crabtree), a NSRC official, presided over the 23 January 1996 investigation. Plaintiff, accompanied by his duly authorized Union representatives, presented testimony from five witnesses and documented polygraph test results. By letter dated 31 January 1996, Crabtree returned the documentation to plaintiff, indicating the polygraph results had been deleted from the record and would not be considered because such evidence was prohibited under the provisions of “the federal Employee Polygraph Protection Act, 29 U.S.C., Section 2001, et seq." By separate letter the same date, Crabtree also informed plaintiff the 'evidence presented at the investigation “clearly reflected] that [plaintiff was] guilty of the charge brought against [him,]” and that plaintiff was “dismiss[ed] from all services” of NSRC. Pursuant to the Agreement, plaintiff subsequently appealed to a Public Law Board which upheld his termination. Seeking compensatory and punitive damages, plaintiff instituted the instant action 31 January 1996, alleging claims of wrongful discharge in violation of public policy, defamation, negligent and intentional infliction of emotional distress, tortious interference with an employment contract and civil conspiracy. The case initially was removed to federal court and then remanded to Rowan County Superior Court. See Trexler v. Norfolk Southern Ry. Co., 957 F. Supp. 772 (M.D.N.C. 1997). Defendants’ subsequent motion for summary judgment was granted 16 March 1999 and all claims were dismissed with prejudice. Plaintiff’s appeal was dismissed by the trial court 11 October 1999 for failure to comply with the N.C. Rules of Appellate Procedure. On 3 December 1999, plaintiff filed a “Petition for Writ of Certiorari” (Petition) with this Court, which Petition was conditionally allowed and referred to this panel. We elect to entertain plaintiff’s appeal. See N.C.R. App. P. 21. Although plaintiff originally assigned error to dismissal of each of his six claims, his Petition sought review solely of the claim for wrongful discharge and only that cause of action has been addressed by plaintiff in his appellate brief. Plaintiff’s remaining assignments of error are thus deemed abandoned and we do not address them. See N.C.R. App. P. 28(b)(5) (assignments of error “in support of which no . . . argument is stated . .. will be taken as abandoned”). In short, plaintiff maintains on appeal that the trial court erred in granting defendants’ summary judgment motion regarding plaintiff’s claim for wrongful discharge. We do not agree. Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56 (1999). A summary judgment movant bears the burden of establishing the lack of any triable factual issue. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-42 (1992). The movant may meet its burden by: (1) demonstrating that an essential element of the plaintiff’s claim is nonexistent; (2) establishing through discovery that the plaintiff’s cannot produce evidence to support an essential element of the claim; or (3) showing that plaintiff cannot survive an affirmative defense, such as governmental immunity. Bernick v. Jurden, 306 N.C. 435, 440-41, 293 S.E.2d 405, 409 (1982). Plaintiff asserts he was entitled to sue in tort for wrongful discharge in violation of public policy “even though he was employed pursuant to a collective bargaining agreement.” Previous decisions of our appellate courts indicate plaintiff’s argument must fail. North Carolina’s first appellate decision adopting the tort of wrongful discharge in violation of public policy was Sides v. Duke Univ., 74 N.C. App. 331, 328 disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). The plaintiff nurse in Sides alleged her at will employment with the defendant had been terminated in retaliation for her refusal to commit perjury in a medical malpractice action against her employer. In upholding the plaintiff’s claim, this Court reasoned that: while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. ... We hold, therefore, that no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case as plaintiff alleges happened here. Id. at 342, 328 S.E.2d at 826. Our Supreme Court subsequently adopted a public-policy exception to employment at will in Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (employer’s alleged discharge of plaintiff for refusal to violate U.S. Department of Transportation regulations by driving excessive hours and falsifying records “offend[s] the public policy of North Carolina”). Three years later, in Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992), the Court considered a claim that three employees had been ordered to work for reduced pay, below the statutorily prescribed minimum wage, or suffer termination of their employment. Id. at 350, 452 S.E.2d at 168. In rejecting the defendants’ assertion that they had not violated public policy because the “alleged acts [we]re peculiar to the plaintiff[s],” id. at 352, 416 S.E.2d at 169, the Court observed that: [although the definition of “public policy” approved by this Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Id. at 353, 452 S.E. 2d at 169 (footnote omitted). Plaintiff relies heavily upon the foregoing cases. Unlike plaintiff, however, we do not read these decisions to entitle all terminated employees to assert the tort of wrongful discharge. Rather, in each of the cited instances the tort was recognized solely in the context of employment at will. See id, 331 N.C. at 350, 416 S.E.2d at 167 (1992) (noting Coman explicitly adopted a public policy exception to the well-entrenched employment at will doctrine), and Williams v. Hillhaven Corp., 91 N.C. App. 35, 39, 370 S.E.2d 423, 425 (1988) (observing Sides created “an exception to the general rule that an employee at will has no tort claim for retaliatory discharge”). In addition, this Court has expressly stated that: [wrongful termination may be asserted “only in the context of employees at will,” and not by an employee “employed for a definite term or . . . subject to discharge only for ‘just cause.’ ” Houpe v. City of Statesville, 128 N.C. App. 334, 343, 497 S.E.2d 82, 88, (citations omitted) (emphasis added), disc. review denied, 348 N.C. 72, 505 S.E.2d 871 (1998). Further, in rejecting a schoolteacher’s claim she had been wrongfully “constructively discharged by Defendants in violation of public policy,” this Court reasoned as follows: Breach of contract is the proper claim for a wrongfully discharged employee who is employed for a definite term or an employee subject to discharge only for “just cause.” Plaintiff is not an employee at will because she had attained the status of a career teacher under § N.C. Gen. Stat. 115C-325(c) and could not be dismissed or demoted except for reasons specified in Section 115C-325(e)(1). Wagoner v. Elkin City Schools’ BD. of Education, 113 N.C. App. 579, 588-89, 440 S.E.2d 119, 125, (citations omitted) (emphasis added), disc. review denied, 336 N.C. 615, 447 S.E.2d. 414 (1994). Finally, in Claggett v. Wake Forest University, 126 N.C. App. 602, 486 S.E.2d 443 (1997), this Court affirmed the trial court’s dismissal of a university professor’s tort claim for wrongful discharge, reiterating that [b]reach of contract is the remedy for a wrongfully discharged employee who is employed for a definite term or who is subject to discharge only for just cause. Plaintiff alleges that he was employed pursuant to teaching appointments of definite duration; he was not, therefore, an at-will employee. Id. at 611, 486 S.E.2d at 448. In the case sub judice, the Agreement explicitly provided that plaintiff might not be “removed from service or disciplined (including discharge) except for just and sufficient cause after a preliminary hearing.” As with the plaintiffs in Wagoner and Claggett, therefore, “breach of contract [w]as the proper claim, Wagoner, 113 N.C. App. at 588, 440 S.E.2d at 125, by which plaintiff herein might have challenged termination of his employment in that he was “an employee subject to discharge only for “just cause,” id. Accordingly, an essential element of plaintiffs wrongful discharge claim was “nonexistent,” Roumillat, 331 N.C. at 63, 414 S.E.2d at 342, and the trial court did not err in granting summary judgment in favor of defendants regarding that claim. In light of this holding, we further hold the trial court properly allowed summary judgment as to plaintiffs claim for punitive damages. See Jones v. Gwynne, 312 N.C. 393, 405, 323 S.E.2d 9, 16 (1984) (before punitive damages may be awarded, “jury must find that the defendant committed an actionable legal wrong against the plaintiff’). Affirmed. Judges WYNN and McGEE concur.

EDWIN SWAIN, Plaintiff v. CAROLYN ELFLAND, individually and in her official capacity as an Assistant Vice Chancellor for Auxiliary Services of the University of North Carolina at Chapel Hill, JEFFREY McCRACKEN, individually and in his official capacity as Major in the Police Department of the University of North Carolina at Chapel Hill, DRAKE MAYNARD, individually and in his official capacity as Human Resources Administrator for the University of North Carolina at Chapel Hill, and OTHER UNKNOWN UNIVERSITY OFFICIALS, and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants No. COA00-258 (Filed 7 August 2001) 1. Employer and Employee— wrongful discharge — retaliation — conj ecture The trial court did not err by granting summary judgment for defendants on wrongful discharge and conspiracy claims by a UNC police officer who issued an underage drinking citation to the daughter of a University trustee. Plaintiff presented nothing more than conjecture to support his allegations of retaliation and there was no evidence of any agreement to unlawfully discharge plaintiff. 2. Public Officers and Employees— whistleblower claim— failure to exhaust administrative remedies The trial court did not err by dismissing a UNC police officer’s whistleblower claim for failure to exhaust administrative remedies where there was no question that he had unsuccessfully exercised his right to seek relief from the State Personnel Commission under N.C.G.S. § 126-34.1(a)(7) and did not seek judicial review. Although plaintiff contends that he could maintain an administrative action under N.C.G.S. § 126-34.1(a) (7) and an action in superior court under N.C.G.S. § 126-85, the only reasonable interpretation of these statutes is that a state employee may choose to pursue a whistleblower claim in either forum, but not both. Moreover, plaintiff did not include the required allegations that exhaustion of his administrative remedy would be futile, and, even if the two statutory provisions are assumed to be in para materia, N.C.G.S. § 126-34.1(a)(7) controls as the more recent enactment. 3. Constitutional Law— free speech — official capacities— adequate state remedy A dismissed UNC police officer’s state constitutional claim was properly dismissed where plaintiff brought a claim for alleged constitutional violations against defendants in their official capacities and had an adequate state remedy available to him. Appeal by plaintiff from order entered 13 December 1999 by Judge James C. Davis in Orange County Superior Court. Heard in the Court of Appeals 22 January 2001. McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellant. Attorney General Michael F. Easley, by Senior Deputy Attorney General Ann Reed, Assistant Attorneys General Bruce S. Ambrose, and Richard E. Slipsky, for defendant appellees. SMITH, Judge. The plaintiff, Lt. Edwin Swain, Jr., is employed as a police officer at the University of North Carolina at Chapel Hill. On 27 September 1997, plaintiff was assigned to an “Interdiction and Arrest” team at a football game at Kenan Stadium. The primary purpose of the team was to enforce the alcohol laws. After the game, plaintiff observed a young woman, Caroline Hancock, holding what appeared to be a malt beverage. When plaintiff approached Hancock, a member of Hancock’s party alerted her to plaintiffs presence. Hancock took the bottle and placed it in the back of a truck. Plaintiff told Hancock he saw her in possession of a malt beverage, asked her if it was a beer, and she replied affirmatively. Plaintiff then requested Hancock’s driver’s license, which listed her age as eighteen years old. Plaintiff proceeded to write her a citation for underage drinking. Soon thereafter, Hancock’s father approached, and plaintiff informed him that he was citing Hancock. Hancock’s father, Billy Armfield, was a member of the University Board of Trustees. Armfield asked plaintiff not to issue the citation, but plaintiff declined the request. Plaintiff then left and headed back to the police department. After the game, Armfield protested his daughter’s citation to University officials. Plaintiff’s superior, Major Jeffrey McCracken, later communicated to plaintiff that there were questions regarding plaintiff’s probable cause to issue the citation. On 29 September 1997, plaintiff reported for duty and entered Hancock’s citation into the computer. According to plaintiff, Major McCracken ordered him to turn over the copies of the citation to him, and tried to persuade him to withdraw the citation. The citation was later pulled from a stack of citations ready for transfer to a magistrate. Plaintiff accused his superiors of obstruction of justice and refused to cooperate with them. On 31 September 1997, the citation was returned to the “judicial stream” and forwarded to the magistrate. Soon thereafter, plaintiff reported the alleged “coverup” to the media, and several news accounts appeared in the press. Plaintiff later filed a grievance to protest his supervisor’s decisions, and requested an investigation into what he believed was improper police procedures and obstruction of justice. Plaintiff’s grievances were denied. On 30 October 1997, Major McCracken received information that plaintiff, while on duty, had visited the offices of the Chapel Hill News. Plaintiff was seen there between the hours of noon and 2:00 p.m., and he was not there on official UNC-CH business. Major McCracken later confirmed this information with Anne England, an employee at the newspaper. Plaintiff had not informed his dispatcher of his location during this time period. Major McCracken did not immediately confront plaintiff with this information and instead decided to wait and see whether plaintiff claimed the time as personal time on his timecard. After plaintiff submitted his timecard, Major McCracken asked him about the time he spent at the newspaper on 30 October 1997. Plaintiff had not claimed the time as personal leave. Plaintiff’s reply was “interesting” without further elaboration. Major McCracken then gave plaintiff the opportunity to change his timecard, but plaintiff refused. A pre-disciplinary conference was held on 17 November 1997, and plaintiff declined to provide any explanation for his time-card. On 19 November 1997, Major McCracken fired plaintiff. Plaintiff filed the instant lawsuit on or about 2 December 1997 alleging: (1) violation of N.C. Gen. Stat. § 126-85 (1999), the “Whistleblower Act”; (2) wrongful discharge in violation of public policy and racial discrimination in violation of N.C. Gen. Stat. § 143-422.2 (1999); (3) violation of his state constitutional rights to free speech; and (4) a conspiracy by Carolyn Elfland, Major McCracken, and Drake Maynard to unlawfully discharge plaintiff from his employment. Shortly after plaintiff filed this action, his dismissal was rescinded by Chancellor Michael Hooker. Chancellor Hooker adopted the findings of an independent investigation which found there was just cause for discipline, but that dismissal was too harsh a penalty. Plaintiff was reinstated but suspended for one week without pay. On or about 23 December 1997, plaintiff filed a petition for a contested case hearing in the North Carolina Office of Administrative Hearings. Plaintiff alleged his suspension was without cause, and was the result of racial discrimination and retaliation. A hearing was held on 11-14 May 1998. On 31 July 1998, Judge Fred G. Morrison issued a Recommended Decision concluding that defendants had just cause to discipline plaintiff for unacceptable personal conduct, and that plaintiff was not the victim of illegal discrimination or retaliation. Accordingly, the suspension of plaintiff without pay for one week was affirmed. On 18 November 1998, the State Personnel Commission upheld the Recommended Decision. Plaintiff did not appeal. On 27 October 1999, defendants moved for summary judgment in the instant case. On 13 December 1999, the trial court granted summary judgment to defendants. The trial court concluded that: (1) plaintiffs Whistleblower claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (2) plaintiffs wrongful discharge claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (3) plaintiffs state constitutional claims were dismissed because plaintiff had an adequate state remedy available, and thus his claim was lacking an essential element; and (4) summary judgment on all claims in the complaint was allowed on the ground that there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law. Plaintiff appealed. I. We first consider whether the trial court erred in dismissing plaintiffs complaint on summary judgment because there was no genuine issue as to any material fact. Specifically, plaintiff challenges the trial court’s dismissal of his claim of wrongful discharge, and his allegation that defendants conspired to unlawfully discharge him. To establish a cause of action for wrongful discharge or demotion in violation of his right to freedom of speech, plaintiff must forecast sufficient evidence “ ‘that the speech complained of qualified as protected speech or activity’ ” and “ ‘that such protected speech or activity was the ‘motivating’ or ‘but for’ cause for his discharge or demotion.’ ” Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525-26, 410 S.E.2d 232, 234 (1991) (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)). “ ‘[T]he resolution of these two critical issues is a matter of law and not of fact.’ ” Id. See also Evans v. Cowan, 132 N.C. App. 1, 9, 510 S.E.2d 170, 175 (1999). The only motivation established by the competent evidence in the case sub judice was that plaintiff was dismissed due to the discrepancies in his timecard and his refusal to either amend his timecard or provide an explanation for the discrepancies. Major McCracken, who was plaintiff’s supervisor, and made the decision to dismiss plaintiff, testified that plaintiff’s grievances over the ticket had “nothing to do” with the decision to dismiss plaintiff. In fact, Major McCracken testified that he took disciplinary action against plaintiff in spite of the publicity, not because of it. Major McCracken admitted that plaintiff’s submission of the falsified time-card created a “terrible timing” problem, but that he “had to act on it.” Chancellor Hooker testified that he concluded that plaintiff had violated policies, and although he believed the punishment of dismissal was too severe, there was no evidence to support a conclusion that any UNC-CH official was motivated to retaliate against plaintiff because he had gone to the newspapers. Chancellor Hooker also stated that the disciplinary action against plaintiff was in spite of all the attendant publicity, and not because of it. “Although evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation.” Lenzer v. Flaherty, 106 N.C. App. 496, 510, 418 S.E.2d 276, 284, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Here, plaintiff presented nothing more than mere conjecture to support his allegations of retaliation. Accordingly, we conclude that the trial court properly dismissed plaintiff’s retaliatory discharge claim. Because plaintiff’s underlying claims were properly dismissed, his allegation that defendants conspired to unlawfully discharge him must likewise fail. “A claim for conspiracy . . . cannot succeed without a successful underlying claim . . . .” Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 599, 534 S.E.2d 233, 236, disc. review denied, 353 N.C. 265, 546 S.E.2d 100 (2000). See Burton v. Dixon, 259 N.C. 473, 476, 131 S.E.2d 27, 30 (1963) (“A civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy ....”). Assuming arguendo that plaintiff had succeeded on his underlying claims, plaintiff has not pointed to any competent evidence in the record to support his allegations that defendants conspired to unlawfully discharge him, and our review of the record discloses no such evidence. This Court has stated: A civil conspiracy claim consists of: (1) an agreement between two or more persons; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) which agreement resulted in injury to the plaintiff. Although an action for civil conspiracy may be established by circumstantial evidence, sufficient evidence of the agreement must exist “to create more than a suspicion or conjecture in order to justify submission of the issue to a jury.” Boyd v. Drum, 129 N.C. App. 586, 592, 501 S.E.2d 91, 96 (1998) (citations omitted) (quoting Dickens v. Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981)), aff'd, 350 N.C. 90, 511 S.E.2d 304 (1999). Where such an agreement exists, “ ‘all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.’ ” Johnson v. First Union Corp., 128 N.C. App. 450, 459, 496 S.E.2d 1, 7 (1998) (quoting Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987)). In the case at bar, there is no evidence of any agreement among defendants to unlawfully discharge plaintiff. Carolyn Elfland testified that she did not make the decision to dismiss plaintiff, and did not instruct Major McCracken to dismiss him. Elfland was the Associate Chancellor for Auxiliary Services at the University and Major McCracken’s supervisor. Drake Maynard, Senior Director of Human Resources, testified that he provided information about the disciplinary process to Elfland and Major McCracken, but played no role in the decision to dismiss plaintiff. Thus, there is no evidence that defendants acted in concert to willfully and intentionally discredit and discharge plaintiff in violation of his rights, only plaintiff’s allegations based on mere suspicion. This assignment of error is overruled. II. We next consider whether the trial court erred in dismissing plaintiff’s “Whistleblower” claim on the ground that plaintiff failed to exhaust his administrative remedies. Plaintiff argues that N.C. Gen. Stat. § 126-86 (1999) expressly authorizes superior court jurisdiction over a state employee’s claim of retaliation for reports of governmental wrongs. Plaintiff asserts that he chose to sue in superior court pursuant to N.C. Gen. Stat. 126-86, and there is “no exhaustion condition precedent.” We are not persuaded by plaintiffs argument. Two statutes provide avenues to redress violations of the Whistleblower statute. N.C. Gen. Stat. § 126-86 states that “[a]ny State employee injured by a violation of G.S. 126-85 may maintain an action in superior court . . . .” N.C. Gen. Stat. § 126-34.1(a)(7) (1999) provides that a State employee may file in the Office of Administrative Hearings a contested case for “[a]ny retaliatory personnel action that violates G.S. 126-85.” Here, plaintiff alleged in his petition for a Contested Case Hearing that he had been retaliated against. Thus, it is without question that he exercised his right under N.C. Gen. Stat. § 126-34.1(a)(7) to seek relief from the State Personnel Commission of the alleged violation of the Whistleblower Act. Under plaintiff’s interpretation of the statutes at issue, he could maintain an administrative action and an action in superior court simultaneously. However, this would allow plaintiff two bites of the apple, could lead to the possibility that different forums would reach opposite decisions, as well as engender needless litigation in violation of the principles of collateral estoppel. See University of Tennessee v. Elliott, 478 U.S. 788, 797, 92 L. Ed. 2d 635, 645 (1986) (“[I]t is sound policy to apply principles of issue preclusion to the fact-finding of administrative bodies acting in a judicial capacity.”). The only reasonable interpretation of these statutes is that a state employee may choose to pursue a Whistleblower claim in either forum, but not both. See Hobbs v. Moore County, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966) (“If possible, the language of a statute will be interpreted so as to avoid an absurd consequence. A statute is never to be construed so as to require an impossibility if that result can be avoided by another fair and reasonable construction of its terms.”). Id. (citations omitted). Plaintiff chose to pursue an administrative action, the administrative law judge ruled against plaintiff, and plaintiff did not seek judicial review. See Huang v. N.C. State University, 107 N.C. App. 710, 715, 421 S.E.2d 812, 815 (1992) (“[T]he policy of requiring the exhaustion of administrative remedies prior to the filing of court actions ‘does not require merely the initiation of prescribed administrative procedures, but that they should be pursued to their appropriate conclusion and their final outcome awaited before seeking judicial intervention . . . .’ ”). Id. (quoting 2 Am. Jur. 2d Administrative Law § 608 (1962)). Additionally, plaintiff did not allege in his complaint that exhaustion of his administrative remedy would be futile. “The burden of showing the inadequacy of the administrative remedy is on the party claiming the inadequacy, and the party making such a claim must include such allegation in the complaint.” Id. (citation omitted). Accordingly, we conclude that plaintiff has failed to exhaust his administrative remedies for this claim, and it was properly dismissed. Even if we were to assume arguendo that the two provisions in question here are in pari materia, but are in irreconcilable conflict, the provisions of N.C. Gen. Stat. § 126-34.1(a)(7) would control, because it is the more recent enactment. This Court has stated: Statutes in pari materia, although in apparent conflict or containing apparent inconsistencies, should, as far as reasonably possible, be construed in harmony with each other so as to give force and effect to each; but if there is an irreconcilable conflict, the latest enactment will control, or will be regarded as an exception to, or qualification of, the prior statute. State v. Hutson, 10 N.C. App. 653, 657, 179 S.E.2d 858, 861 (1971); see also Caudill v. Dellinger, 129 N.C. App. 649, 655, 501 S.E.2d 99, 103 (1998), aff’d in part, dismissed in part, 350 N.C. 89, 511 S.E.2d 304 (1999). Thus, N.C. Gen. Stat. § 126-34.1(a)(7) would control and plaintiff’s exclusive remedy would be administrative. III. We next consider whether the trial court erred in dismissing plaintiffs state constitutional claim on the grounds that plaintiff had an adequate state remedy available to him, and thus, plaintiff was lacking an essential element of his claim. Plaintiff alleged in his complaint that his discharge “was made to chill his free speech rights.” Plaintiff contended that “[t]he retaliatory discharge described here violates the public’s interest in free expression to make decisions about public funds and policies. If this retaliatory discharge is declared constitutional, it would create a chilling wind against plaintiff, other police officers, and other employees of this and other public institutions.” Plaintiff then stated he was bringing his claim directly against defendants, under the North Carolina Constitution, because no other legal remedy was available to him. We disagree with plaintiff’s arguments. Plaintiff’s complaint seeks a monetary remedy for alleged state constitutional violations by defendants. “Such a claim is commonly called a ‘Corum claim.’ ” Ware v. Fort, 124 N.C. App. 613, 616, 478 S.E.2d 218, 220 (1996). See Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied sub. nom. Durham v. Corum, 506 U.S. 985, 616, 121 L. Ed. 2d 431 (1992). To the extent that plaintiff alleges a Corum claim against defendants in their in

FRANK A. CONSIDINE, Plaintiff-Appellant v. COMPASS GROUP USA, INC., Defendant-Appellee No. COA00-843 (Filed 7 August 2001) Employer and Employee— wrongful discharge — employee-at-will — violation of public policy — specific conduct and specific policy not alleged The trial court did not err by dismissing a wrongful discharge complaint pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6), where plaintiff alleged that he had been employed as in-house counsel by a corporation providing food service to government and private corporations, that he had discovered and sought to end violations of a compliance program that affected federal, state and local government contracts, and that he was discharged for doing what his job required as a monitor of the compliance program. Exceptions to the employment-at-will-doctrine have been recognized in North Carolina, including a prohibition against termination for a purpose in contravention of public policy, but the plaintiff here failed to allege specific conduct violating a public policy specifically expressed in North Carolina’s statutes or constitution. Chief Judge EAGLES dissenting. Appeal by plaintiff from order entered 3 April -2000 by Judge Timothy S. Kincaid in Superior Court, Mecklenburg County. Heard in the Court of Appeals 21 May 2001. Ferguson, Stein, Wallas, Adkins, Gresham, & Sumter, P.A., by John W. Gresham, for plaintiff-appellant. Smith Helms Mulliss & Morre, L.L.P., by H. Landis Wade, Jr. and Paul M. Navarro, for defendant-appellee. McGEE, Judge. Frank A. Considine (plaintiff) appeals the dismissal by the trial court, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), of his complaint alleging wrongful discharge from employment by his former employer, Compass Group USA, Inc. (defendant) in violation of North Carolina public policy. Plaintiff also alleged he was a third-party beneficiary of a settlement agreement between defendant and the United States government but plaintiff filed a voluntary dismissal without prejudice of this claim. Relevant allegations in plaintiffs complaint filed 6 December 1999 include: 1. The Plaintiff, Frank A. Considine, is a citizen of North Carolina and a resident of Mecklenburg County. Until November 15, 1996, Plaintiff was employed as in-house counsel by Compass Group, USA, Inc. 2. Defendant, Compass Group, USA, Inc. (hereinafter “Compass Group” or “Compass”) is a Delaware corporation having it’s principle [sic] place of business in Charlotte, North Carolina. Compass Group provides products and services under food service contracts for federal, state, local government, and private corporations throughout the United States. 3. Compass, as of the time of the events complained of herein, owned and controlled various food service contracts, including those of Canteen Corporation, Flagstar Corporation, and Service America Corporation. 4. Plaintiff was employed by Defendant in June of 1996, as an in-house corporate counsel. His original assignment was to implement the acquisition of certain assets of Service America Corporation by Compass. 5. Plaintiff was also assigned duties regarding a compliance program mandated by a settlement agreement between Canteen and the federal government. 6. Between January 1988 and January 1994, Canteen provided commissary and restaurant services to the United States in Canteen’s mid-Atlantic region. Canteen provided these services pursuant to various contracts with the United States. 7. Canteen was required under the terms of a settlement agreement entered into in December of 1995, with the United States, to pay the sum of $900,000.00 for its failure to pass through rebates under the service contracts and to implement a compliance program to ensure that Canteen properly rebated monies to the United States under ongoing contracts. 8. Under the terms of the settlement agreement, Defendant was specifically prohibited from retaliating against an employee for reporting the failure to properly credit rebates. 9. In carrying out his duties regarding the compliance program, Plaintiff discovered unlawful conduct on the part of the Defendant which affected both federal, state and local government service contracts. 10. Plaintiff then advised his supervisor, the general counsel for the Defendant, regarding the conduct he had discovered. Plaintiff also sought advice from outside counsel regarding ways for the Defendant to remedy its conduct. 11. Less than two weeks later, on November 15, 1996, Plaintiff was discharged without warning on the grounds that “things just weren’t working out.” 12. Plaintiff was then asked to leave the building without returning to his office. When he did return to his office to obtain his personal effects, he found the general counsel rifling through his desk in search of documents which would show the unlawful conduct of the Defendant. 13. Plaintiff was then asked to sign an agreement that would provide him three months’ severance pay if he waived his right to bring any legal action against the Defendant and signed a confidentiality agreement with the Defendant. Plaintiff refused to do so. 14. Plaintiff was terminated because he had learned of the unlawful conduct, reported it to his supervisors and sought to end the unlawful practices. 15. The Defendant’s actions as set out herein violate the public policies of North Carolina and are thus unlawful. 16. Because of the unlawful conduct set out herein, Plaintiff has been damaged in an amount in excess of $10,000.00. Defendant filed a motion to dismiss plaintiff’s complaint for wrongful discharge pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted. Following a hearing on defendant’s motion, the trial court granted the motion to dismiss plaintiff’s claim for wrongful discharge in an order filed on 3 April 2000. Plaintiff appeals. The essential question in reviewing the grant of a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1 (1999) Rule 12(b)(6) is whether, “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.” Lynn v. Overlook Development, 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991) (citation omitted). A motion to dismiss pursuant to Rule 12(b)(6) should not be granted “ ‘unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.’ ” Sutton v. Duke, 277 N.C. 94, 103, 176 S.E.2d 161, 166 (1970) (citation omitted) (emphasis in original). Therefore, we review the allegations in plaintiffs complaint to determine whether the trial court erred in dismissing plaintiff’s claim for wrongful discharge under Rule 12(b)(6). The discharge of an employee at will generally does not support an action for wrongful discharge in this state. However, as argued by plaintiff, exceptions to this general rule have been recognized by our appellate courts, including a prohibition against termination for a purpose in contravention of public policy. Plaintiff cites the leading cases that have recognized this exception, being Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985), overruled on other grounds, 347 N.C. 329, 493 S.E.2d 420 (1997); Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989); and Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992). In each of these cases, our Courts have recognized an exception to the employment at will doctrine by identifying a cause of action for wrongful discharge in violation of public policy. Under the exception, the employee has the burden of pleading and proving that the employee’s dismissal occurred for a reason that violates public policy. The plaintiff in Sides alleged in her complaint “that her wrongful discharge [was] in retaliation for truthfully testifying in court [and] was a wanton and reckless violation of public policy and her rights[.]” Sides, 74 N.C. App. at 335, 328 S.E.2d at 822. She alleged in her complaint a series of specific actions by the defendant-employer that culminated in the plaintiff’s discharge in retaliation for her refusal to testify falsely in a medical malpractice case. These alleged actions by the defendant included threats, a hostile attitude and isolation of the plaintiff in her work environment. Our Court began the analysis of the plaintiff’s claim for wrongful discharge by stating “that the legislature is not at all adverse to courts of this State entertaining actions based on a violation of policies that have been enacted or otherwise established for the protection and benefit of the public.” Id. at 337, 328 S.E.2d at 823. Our Court in Sides cited criminal statutes and a public policy that defendant’s alleged conduct violated in holding defendant had no right to terminate plaintiff for an unlawful reason or purpose that contravenes public policy. We further noted that [p]erjury and the subornation of perjury were both felonies at common law and are so punishable by G.S. 14-209 and G.S. 14-210. The intimidation of witnesses was an offense at common law and is punishable by G.S. 14-226 as a misdemeanor. These offenses are also an affront to the integrity of our judicial system, an impediment to the constitutional mandate of the courts to administer justice fairly[.] Id. at 337-38, 328 S.E.2d at 823-24. The plaintiff in Goman alleged in his complaint that the defendant-employer discharged him for his refusal to violate United States Department of Transportation regulations by operating his vehicle excessive hours and his refusal to falsify records. The complaint also alleged that the plaintiff was informed by the defendant that he would have to continue to drive for periods of time that violated federal regulations if he wanted to keep his job and that if the plaintiff refused, his pay would be reduced by fifty percent. Our Supreme Court, in finding that the complaint stated a cause of action for wrongful discharge, noted that the alleged conduct by defendant not only violated federal regulations, but “also violated the public policy of North Carolina. N.C.G.S. 20-384 provides that the Division of Motor Vehicles may promulgate highway safety rules[.]” Coman, 325 N.C. at 176, 381 S.E.2d at 447. The Court cited a series of statutes enacted to carry out the public policy of our state to protect the safety of our highways that the defendant’s alleged conduct violated. The plaintiffs in Amos alleged in their complaint that the defendant-employer had discharged the plaintiffs for refusing to work for less than the statutory minimum wage in violation of North Carolina public policy as set forth in N.C. Gen. Stat. § 95-25.3. Our Supreme Court determined that the plaintiffs’ complaint established a cause of action for wrongful discharge as the defendant’s alleged conduct had violated the public policy when the defendant discharged the plaintiffs “in contravention of express policy declarations contained in the North Carolina General Statutes.” Amos, 331 N.C. at 353, 416 S.E.2d at 169. The Supreme Court cited Article 2A of Chapter 95 of the North Carolina General Statutes, the Wage and Hour Act, as setting forth the public policy of this state dealing in part with the wage levels of employees. The Court also held that the public policy exception to the employment at will doctrine adopted in Coman is “a judicially created doctrine, designed to vindicate the rights of employees fired for reasons offensive to the public policy of this State.” Id. at 356, 416 S.E.2d at 171. (emphasis added). Plaintiff also asserts that his complaint states a claim for wrongful discharge pursuant to our Court’s decision in Johnson v. Mayo Yarns Inc., 126 N.C. App. 292, 484 S.E.2d 840, disc. review denied, 346 N.C. 547, 488 S.E.2d 802 (1997). Plaintiff contends that our Court’s dicta in Mayo that “a definition of ‘public policy’ has evolved which connotes the principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good,” Id. at 296, 484 at 842-43, establishes that an employee in North Carolina can assert a claim for wrongful discharge without demonstrating an express public policy declaration within the North Carolina Constitution or General Statutes. However, plaintiff cites no decision by our appellate courts that supports this assertion. Defendant responds that plaintiff’s reliance on Mayo is misplaced as our Court clearly examined the North Carolina Constitution in that case to determine if there was a public policy that the defendant’s alleged conduct may have violated and concluded that the plaintiff’s conduct carried out in private employment was not constitutionally protected activity. Id. at 297, 484 S.E.2d at 843. Therefore, our Court must determine whether the allegations in plaintiff’s complaint sufficiently allege conduct by defendant that violates the public policy of North Carolina when defendant allegedly discharged plaintiff for plaintiffs discovery of defendant’s unspecified unlawful conduct that affected federal, state and local government service contracts in a federally mandated rebate compliance program. Plaintiff contends that he has stated in his complaint a valid claim for wrongful discharge in violation of North Carolina public policy by asserting that “[u]nlawful conduct in billing state and local government agencies is clearly injurious to the public and against the public good.” We first note, however, that plaintiff’s complaint does not allege unlawful conduct in billing state and local government agencies by defendant. Plaintiffs complaint alleges unspecified conduct by defendant that allegedly violates “a compliance program to ensure that [defendant] rebated monies to the United States under ongoing contracts.” Plaintiff’s complaint does not assert that defendant’s unspecified conduct violated any public policy that has been established by our state’s statutes or constitution. “The narrow exceptions to [the employment at will doctrine] have been grounded in considerations of public policy designed either to prohibit status-based discrimination or to insure the integrity of the judicial process or the enforcement of the law.” Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 333-34, 493 S.E.2d 420, 423 (1997). In Deerman v. Beverly California Corp., 135 N.C. App. 1, 6, 518 S.E.2d 804, 807 (1999), disc. review denied, 351 N.C. 353, 542 S.E.2d 208 (2000), our Court carefully reviewed and analyzed the plaintiff’s complaint pursuant to “the public policy of North Carolina as set forth in the Nursing Practice Act (NPA), N.C.G.S. §§ 90-171.19 [through] 90-171.47 (1993), and the administrative regulations promulgated thereunder.” Unlike plaintiff’s complaint in the case before us that alleges no specific statutory or constitutional violation, the plaintiff in Deerman “alleged that in advising the patient’s family concerning choice of physicians, [plaintiff] had complied with the North Carolina General Statutes and the North Carolina Administrative Code regulating the practice of nursing.” Id. at 3, 518 S.E.2d at 805. The plaintiff in Deerman alleged that her employment duties were mandated under the public policy of our state pursuant to the General Statutes. Her complaint therefore alleged specific conduct by the defendant that violated “strong public policy favoring administering of nursing services to those acutely or chronically ill and the supervising by nurses of patients during convalescence and rehabilitation.” Id. Similarly, in Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992) the plaintiff alleged wrongful discharge in violation of N.C. Gen. Stat. § 122C-66, which makes it a crime to knowingly injure mentally disabled patients in state facilities. The plaintiff alleged that the defendants’ conduct violated the statute and she was fired for reporting defendants’ alleged abuse. In Vereen v. Holden, 121 N.C. App. 779, 468 S.E.2d 471 (1996), disc. review denied, 347 N.C. 410, 494 S.E.2d 600 (1997), the plaintiff alleged that he was discharged by the defendants due to his political affiliation and activities. Our Court found that this allegation, if true, violated our state constitution and state statutes and therefore the defendants’ conduct violated public policy. In Caudill v. Dellinger, 129 N.C. App. 649, 501 S.E.2d 99 (1998), disc. review denied, 349 N.C. 353, 517 S.E.2d 888 (1999), the plaintiff’s complaint alleged that the defendant’s conduct violated N.C. Gen. Stat. § 126-84 and Article 1, Section 19 of the North Carolina Constitution. In Simmons v. Chemol Corp., 137 N.C. App. 319, 528 S.E.2d 368 (2000), the plaintiff’s complaint alleged that the defendant’s conduct violated public policy pursuant to N.C. Gen. Stat. § 143-422.2. The plaintiff alleged that he was handicapped and that the defendant discharged him because of his handicap in violation of the statute. Plaintiff in the case before us has failed to identify any specified North Carolina public policy that was violated by defendant in discharging plaintiff. The complaint does not allege that defendant’s conduct violated any explicit statutory or constitutional provision, nor does it allege defendant encouraged plaintiff to violate any law that might result in potential harm to the public. See Teleflex Info. Sys., Inc. v. Arnold, 132 N.C. App. 689, 513 S.E.2d 85 (1999). The complaint does not allege any of “[t]he narrow exceptions to [the employment at will doctrine] grounded in considerations of public policy designed either to prohibit status-based discrimination or to insure the integrity of the judicial process or the enforcement of the law.” Kurtzman, 347 N.C. at 333-34, 493 S.E.2d at 423. Plaintiff argues that it is a violation of public policy for an employer to discharge an employee after the employee has “learned of the [employer’s] unlawful conduct, reports [the employer’s conduct] to his supervisors and [seeks] to end the unlawful practices.” Plaintiff alleged that defendant’s unspecified conduct was in violation of a compliance program that affected federal, state and local government service contracts. Plaintiff’s complaint alleged that he was discharged for doing what his job required as a monitor of defendant’s compliance program. However, unlike the previously noted case law, plaintiff’s complaint fails to allege what defendant’s alleged conduct was and how that conduct is in violation of North Carolina public policy. Any exception to the at will employment doctrine “should be adopted only with substantial justification grounded in compelling considerations of public policy.” Id. at 334, 493 S.E.2d at 423. Plaintiff failed to allege in his complaint a compelling consideration of public policy as expressed in our state’s statutes or constitution that was violated by defendant, or to allege any specific conduct by defendant that violated this same expression of our state’s public policy. “In order to support a claim for wrongful discharge of an at-will employee, the termination itself must be motivated by an unlawful reason or purpose that is against public policy.” Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999). In light of the case law that cites specific conduct by a defendant that violated a specific expression of North Carolina public policy, we hold that plaintiff’s complaint does not state a claim for wrongful discharge. The trial court did not err in dismissing plaintiffs complaint pursuant to Rule 12(b)(6). Having affirmed the trial court’s dismissal of plaintiff’s wrongful discharge claim for failure to allege a cause of action, we do not address plaintiff’s additional argument that his status as defendant’s former in-house counsel does not preclude his wrongful discharge claim grounded in public pol

Carol Perkins vs. Commonwealth & others. No. 98-P-1988. Worcester. October 5, 2000. July 31, 2001. Present: Laurence, Dreben, & Celinas, JJ. Negligence, Employer. Workers’ Compensation Act, Exclusivity provision, To whom act applies. Common Law. Employment, Constructive discharge, Termination. Public Employment, Police. Public Policy. Anti-Discrimination Law, Employment. A claim by a cadet at the State police academy alleging negligence — premised upon allegations that academy personnel exacerbated an existing medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication — was precluded by the exclusivity provisions of the workers’ compensation act, where, if the claims were sustained at trial, the harm caused by the defendants’ conduct would be compensable under G. L. c. 152, § 1(7A), as such conduct was at least a major cause of her disability or need for treatment [176-177]; further, there was no merit to the cadet’s contention that her negligence claims were not barred because of the so-called “dual persona” doctrine [177-178], A claim by a cadet at the State police academy that academy personnel, by allowing her to be hazed, constructively discharged her in violation of public policy, namely G. L. c. 269, § 17, was precluded by the workers’ compensation act, where there was no Legislative directive or enunciated public policy that prevented the academy, a quasi military training institution, from discharging a cadet who could not tolerate the rigors and discipline required of other recruits or from discharging a cadet without any cause at all. [178-181] A claim by a cadet at the State police academy that an employee of the academy refused to allow her to obtain sufficient water during training, and violated the Massachusetts Civil Rights Act by hazing and depriving her of a safe work environment and appropriate medical care was barred, where the cadet was unable to clearly identify any secured right with which the academy employee interfered. [181-182] Civil action commenced in the Superior Court Department on May 5, 1995. The case was heard by James P. Donohue, J., on motions for summary judgment. Gary H. Goldberg for the plaintiff. Brian Rogal (Sheila E. McCravy with him) for Johanna Lawlor & others. Howard R. Meshnick, Assistant Attorney General, for the Commonwealth & others. Dreben, J. While training as a cadet at the State Police Academy (Academy), the plaintiff became ill with a severe cold. She brought this action against three agencies of the Commonwealth and three employees of the Academy, alleging that during her illness she was required to participate in physical activities contrary to a physician’s advice, was deprived of sufficient water, and suffered other humiliations and hazing. As a result, she became fearful for her health and found it necessary to resign. She contends that the defendant agencies were negligent in providing her with medical care and, citing G. L. c. 269, § 17, see note 7, infra, that the defendants, by allowing her to be hazed by Academy personnel, constructively discharged her in violation of public policy. She also claims that one of the individual defendants, Trooper Cambria, violated her civil rights. She sought damages for physical and emotional distress, loss of compensation and benefits, attorneys’ fees, and reinstatement as a cadet at the Academy. A judge of the Superior Court granted motions for summary judgment for all the defendants. We affirm. Although the defendants deny that the plaintiff was deprived of rest, water or medicine, for purposes of reviewing the motion judge’s ruling, we assume the facts to be as alleged by the plaintiff and make all logically permissible inferences in her favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203 (1991). 1. Negligence. The plaintiff recognizes that under G. L. c. 152, § 24, unless an employee expressly preserves his or her common law rights of action, a claim alleging negligence of an employer or of a coemployee is foreclosed by the exclusivity provisions of the workers’ compensation act (act). Foley v. Boston Housing Authy., 407 Mass. 640, 641 n.3 (1990). The plaintiff, however, argues that her common law claim of negligence is not barred because her illness, initially a severe cold, may have arisen from sources outside her employment and hence is not compensable under the act. This argument is without merit, as her negligence claims are premised upon allegations that Academy personnel exacerbated her medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication. If these claims were sustained at trial, the harm caused by the defendants’ conduct would be compensable under G. L. c. 152, § 1(7A), as such conduct was at least a major cause of her disability or need for treatment. The exclusivity provisions of the act would, therefore, control and preclude her negligence claim. The plaintiff also urges that her negligence claims are not barred because of the “dual persona” doctrine which provides that an employer’s conduct may in some instances be regarded as conduct of a third party and be subject to liability despite the exclusivity provisions of G. L. c. 152. Under this theory, an employer may be subject to suit if its “liability to the injured employee ‘derives from a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.’ ” Barrett v. Rodgers, 408 Mass. 614, 617 (1990), quoting from Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 620-621 (1990), in turn quoting from 2 A. Larson, Workmen’s Compensation § 72.80, at 14-229 (1988). That doctrine, which has not been explicitly adopted in Massachusetts, although it has been alluded to favorably, Barrett v. Rodgers, supra at 617, does not aid the plaintiff’s cause. The acts and omissions of the medical personnel claimed to be wrongful were an integral part of the Academy’s role of providing medical assistance to cadets. The plaintiff did not see the medical personnel as a private patient, but rather as a cadet entitled to medical services. See Scott v. Wolf Creek Nuclear Operating Corp., 23 Kan. App. 2d 156, 160 (1996) (malpractice action against company medical personnel barred by workers’ compensation statute). 2. Constructive discharge. Claims for emotional or physical injuries because of wrongful termination or constructive discharge are also precluded by the workers’ compensation act, Simmons v. Merchants Mut. Ins. Co., 394 Mass. 1007, 1007-1008 (1985); see Anzalone v. Massachusetts Bay Transp. Authy., 403 Mass. 119, 124-125 (1988), unless they are sustained in connection with claims that are not barred by the exclusivity provisions of the workers’ compensation act. Green v. Wyman-Gordon Co., 422 Mass. 551, 560-561 (1996). For this reason, the plaintiff argues that her claim of constructive discharge seeks contract damages. Although it is dubious that she can show that she was constructively discharged, that is, that her employer created “working conditions ... so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign,” GTE Prods. Corp. v. Stewart, 421 Mass. 22, 34-36 (1995), quoting from Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977), we will again assume for purposes of reviewing the summary judgment motion that she can sustain the claim. Recognizing that an at-will employee may be terminated at any time for any reason or for no reason at all, Upton v. JWP Businessland, 425 Mass. 756, 757 (1997), the plaintiff points out that liability may be imposed on the employer if the employee is terminated “for a reason that violates a clearly established public policy.” Ibid. The plaintiff claims that G. L. c. 269, § 17, is such a policy. That statute, set out fully in the margin, defines “hazing” as “any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person” (emphasis supplied). The “brutal treatment or forced physical activity” made criminal by the statute is directed at student organizations, not at the educational institutions themselves. The “lengthy statement” of Attorney General Shannon mentioned in Shepard v. Attorney Gen., 409 Mass. 398, 400 (1991), and made a part of the record on this appeal, also considers the statute as applying solely to student organizations. Compare Shepard, supra at 400 n.3, where the trial judge found that State troopers and employees of the Massachusetts Criminal Justice Training Council may have violated the hazing statute. Our cases interpret the public policy exception narrowly. King v. Driscoll, 418 Mass. 576, 582 (1994). For example, in Upton v. JWP Businessland, 425 Mass. at 759, a mother was not permitted to invoke public policy to bring an action for wrongful discharge where, because of childcare commitments, she could not work the long hours required by her employer. The court so held despite the strong policy favoring the care and protection of children, which is reflected in the possible eligibility for unemployment compensation in such circumstances. Moreover, “the internal administration, policy, functioning and other matters of an organization cannot be the basis for a public policy exception to the general rule that at-will employees are terminable at any time with or without cause.” King v. Driscoll, 418 Mass. at 583. The requirements of police training and the rigors to which cadets are subjected are internal matters of the Academy. See the portion of the Police Academy Handbook set out in the margin. Here, there is no Legislative directive or enunciated public policy that precludes the Academy, a quasi military training institution, from discharging a cadet who cannot tolerate the rigors and discipline required of other recruits or from discharging a cadet without any cause at all. The Academy need not “adjust its expectations, based on a case-by-case analysis of an at-will employee’s [fears for her or his health], or face liability for having discharged the employee.” Upton v. JWP Businessland, 425 Mass. at 760. 3. Civil rights claims. Claims under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I, are not barred by the exclusivity provisions of the workers’ compensation act. Foley v. Polaroid Corp., 381 Mass. 545, 553 (1980). The claim here is that the defendant Trooper Cambria refused to allow the plaintiff to obtain sufficient water, and violated the MCRA by hazing and by depriving her of a safe work environment and appropriate medical care. To establish a claim under the MCRA, a plaintiff must prove that “(1) [her] exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation or coercion.’ Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395 (1996).” Brunelle v. Lynn Pub. Schools, 433 Mass. 179, 182 (2001). The plaintiff’s claims founder on the first requirement and we need not reach the other two. She has not, as required, “clearly identified any ‘secured right’ with which [Trooper Cambria] interfered.” See Flesner v. Technical Communications Corp., 410 Mass. 805, 818 (1991). As indicated earlier, G. L. c. 269, § 17, the hazing statute, is not applicable to the Academy, as it is not a student organization, but rather a school, an educational institution. Moreover, even if the statute were applicable, in order “to seek redress through [MCRA as under its Federal analog, 42 U.S.C.] § 1983 ... a plaintiff must assert the violation of a federal [or State] right, not merely a violation of federal [or State] law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original). Our courts are “reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference.” Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544 (1998). Moreover, “penal statutes [G. L. c. 269, § 17, is such a statute] have been construed as creating a new cause of action ... if, and only if, that appears by express terms or by clear implication to have been the legislative intent.” Johnson v. United States Steel Corp., 348 Mass. 168, 169-170 (1964), quoting from Mezullo v. Maletz, 331 Mass. 233, 238 (1954). No such intent is evident in the hazing statute. “[I]t would be anomalous, on the facts of this case, to allow a remedy under the State Civil Rights Act where a legislative remedy was not made available under [c. 269, § 17].” Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. at 210 n.11. In addition to the hazing statute, the plaintiff cites to G. L. c. 149, §§ 3, 5, and 6, to sustain her claim that she has a secured right to a safe working environment. Section 3 provides for “inspection and investigation” by the Attorney General of “all places of employment,” and § 5 permits him or her to investigate conditions existing in any industry, and to receive complaints “concerning alleged violations of any laws enforced under his direction.” Section 6 permits “any person aggrieved” by the violation of any “rule, regulation or requirement made by the department” of labor and workforce development to file a complaint in the District Court. Assuming, without deciding, that such a violation creates a secured right, but see Loffredo v. Center for Addictive Behaviors, 426 Mass. at 545-546, the plaintiff has not pointed to any rule or regulation that has been violated. See Collins v. Harker Heights, 503 U.S. 115, 126-129 (1992) (no Federal due process right to a safe working environment; such a claim is “unprecedented”). The plaintiff has made no argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), in support of her contention that she is entitled to appropriate medical care under the MCRA, and, accordingly, we do not reach that claim. Since there are here no genuine issues of material fact, and the record as presented shows that the defendants are entitled to judgment as matter of law, the motion judge was correct in granting summary judgment for the defendants. Judgments affirmed. Executive Office of Public Safety, Massachusetts Criminal Justice Training Council, and Department of State Police. Leslie Bodor, Johanna Lawlor, and Lorraine Cambria. The parties, and hence we, proceed on the premise that cadets at the Academy are employees covered by the workers’ compensation act. No party argues that G. L. c. 152, § 69, applies to exclude the plaintiff. The first sentence of G. L. c. 152, § 24, as amended by St. 1991, c. 398, § 43, provides in relevant part: “An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury that is compensable under this chapter, to recover damages for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right. ...” “To be compensable [under the workers’ compensation act], injury must arise . . . from an identifiable condition that is not common . . . to all or a great many occupations.” Zerofski’s Case, 385 Mass. 590, 594-595 (1982). General Laws c. 152, § 1(7A), provides: “If a compensable injury . . . combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.” Apparently, where physical or mental harm is incidental and not an indispensable ingredient of the contract claim, damages for such harms may be recovered. Green v. Wyman-Gordon Co., 422 Mass. at 560-561. General Laws c. 269, § 17, provides: “Whoever is a principal organizer or participant in the crime of hazing, as defined herein, shall be punished by a fine of not more than three thousand dollars or by imprisonment in a house of correction for not more than one year, or both such fine and imprisonment. “The term ‘hazing’ as used in this section and in sections eighteen and nineteen, shall mean any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person. Such conduct shall include whipping, beating, branding, forced calisthenics, exposure to the weather, forced consumption of any food, liquor, beverage, drug or other substance, or any other brutal treatment or forced physical activity which is likely to adversely affect the physical health or safety of any such student or other person, or which subjects such student or other person to extreme mental stress, including extended deprivation of sleep or rest or extended isolation. “Notwithstanding any other provisions of this section to the contrary, consent shall not be available as a defense to any prosecution under this action.” For an enumeration of cases where the public policy exception made redress available to an at-will terminated employee and a list of cases where termination did not warrant recovery, see Upton v. JWP Businessland, 425 Mass. at 757-758. On page two of an undated publication of the Department of State Police contained in the record appendix, issued under the names of William F. Weld, Governor, Thomas C. Rapone, Secretary, and Charles P. Henderson, Colonel, and entitled Massachusetts State Police, Academy Handbook, the following is stated: “To prepare recruits for this function, military drill and civil disturbance training are essential components of the State Police Academy recruit training program. Recruits learn to recognize rank, follow orders, practice facing movements, and become familiar with formations and techniques for responding to civil disturbances. In addition, recruits leam to keep their emotions in check and perform under pressure. “The academy atmosphere is purposefully designed to develop these capabilities, build esprit de corps, and assist the recruit in making the challenging transition from civilian to disciplined Trooper. During the early phases of training, recruit behavior is tightly controlled and strictly directed to instill military discipline.” “[T]he Legislature intended to provide a remedy under G. L. c. 12, § 11I, coextensive with 42 U.S.C. § 1983 . . . , except that the Federal statute requires State action whereas its State counterpart does not.” Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-823 (1985).

Juvenile law—Child abuse—Within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421 expressly imposes liability for failure to perform duty to report known or suspected child abuse—Political subdivision may be held liable for failure to perform duty expressly imposed on its employee by R.C. 2151.421—Employee of political subdivision may be held liable for failure to perform duty expressly imposed by R.C. 2151.421.

JOHN S. RENEGAR, Plaintiff v. R.J. REYNOLDS TOBACCO COMPANY, Defendant No. COA00-450 (Filed 17 July 2001) Statute of Limitations— wrongful discharge — filing state action after voluntary dismissal of federal action The trial court did not err in a wrongful discharge action by granting summary judgment in favor of defendant employer based on the expiration of the three-year statute of limitations under N.C.G.S. § 1-52(5) even though plaintiff filed the instant state action within one year of the voluntary dismissal without prejudice of his non-diversity federal complaint under Federal Rule 41, because: (1) plaintiffs voluntary dismissal of a non-diversity case failed to implicate the savings provision of N.C.G.S. § 1A-1, Rule 41(a) and Federal Rule 41 contains no savings provision; (2) plaintiffs federal complaint reveals no basis upon which the federal court might have assumed supplemental jurisdiction under 28 U.S.C.A.§ 1367(a) for plaintiff’s wrongful discharge claim; and (3) plaintiffs state court action was not a new action based upon the same claims as those asserted in the prior action so as to bring N.C.G.S. § 1A-1, Rule 41(a) into play. Appeal by plaintiff from order entered 29 November 1999 by Judge Peter M. McHugh in Forsyth County Superior Court. Heard in the Court of Appeals 30 January 2001. Herman L. Stephens for plaintiff-appellant. Gonstangy, Brooks & Smith, L.L.C., by W.R. Loftis, Jr. and Virginia A. Piekarski, for defendant-appellee. JOHN, Judge. Plaintiff John S. Renegar appeals the trial court’s 29 November 1999 order granting summary judgment in favor of defendant R.J. Reynolds Tobacco Company (RJR). We affirm the trial court. Our disposition of plaintiff’s appeal renders a lengthy recitation of the underlying facts unnecessary. Plaintiff began employment with RJR on 2 June 1984 and was terminated 15 April 1996. In June 1998, plaintiff filed a pro se civil action (plaintiff’s federal action) against RJR in the United States District Court for the Middle District of North Carolina. Plaintiff amended his complaint 7 July 1998, alleging the following six separate causes of actions: (1) discrimination against plaintiff in violation of title VII of the federal Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (1994); (2) discrimination against plaintiff in violation of 42 U.S.C.A. § 12101 et seq. (1995), the Americans With Disabilities Act; (3) violation of plaintiff’s rights under the federal Family and Medical Leave Act, 29 U.S.C.A. § 2601 et seq. (1999); (4) violation of plaintiffs federal constitutional rights to privacy and speech under the First, Fourth and Fourteenth Amendments to the United States Constitution; (5) “infliction of daily emotional distress” as a result of discrimination, harassment and retaliation; (6) and discrimination against plaintiff in violation of 29 U.S.C.A. § 621 et seq. (1999), the Age Discrimination in Employment Act. On 29 August 1998, plaintiff filed a voluntary dismissal without prejudice, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure (Federal Rule 41), as to each of the foregoing claims. See Fed. Rules Civ. Proc. Rule 41(a), 28 U.S.C.A. (1992). Precisely one year later, on 29 August 1999, plaintiff filed a complaint against RJR in Forsyth County Superior Court (plaintiffs state action) asserting a claim of wrongful discharge in violation of public policy. RJR thereupon moved to dismiss plaintiffs complaint pursuant to N.C.G.S. § LA-1, Rule 12(b)(6) (1999) on grounds “it fail[ed] to state a claim upon which relief can be granted because the claim asserted by Plaintiff therein is time-barred” (RJR’s motion). The trial court treated RJR’s motion as one for summary judgment and, by order dated 29 November 1999, granted the motion on the basis that the applicable statute of limitations had expired. Plaintiff appeals. It is undisputed that the statute of limitations for a wrongful discharge action under North Carolina law is three years from the date of discharge. See N.C.G.S. § 1-52(5) (1999). In the case sub judice, therefore, the statute began to run 15 April 1996, the date of plaintiff’s termination, and thus ordinarily would have expired 15 April 1999, several months prior to the filing of plaintiff’s state action. Rule 41 of the North Carolina Rules of Civil Procedure differs from its federal counterpart in that it contains the following additional provision: If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time. G.S. § 1A-1, Rule 41(a)(1) (1999). “The effect of this provision is to extend the statute of limitations by one year after a voluntary dismissal.” Staley v. Lingerfelt, 134 N.C. App. 294, 298, 517 S.E.2d 392, 395, disc. review denied, 351 N.C. 109, 540 S.E.2d 367 (1999). Disposition of the instant appeal therefore turns upon the applicability of the one-year savings provision of N.C. Rule 41 to plaintiffs state action. Plaintiff argues the trial court erred in allowing RJR’s motion in light of the savings provision of N.C. Rule 41. According to plaintiff, the federal court had supplemental or “pendent” jurisdiction over his wrongful discharge claim. See 28 U.S.C.A. § 1367(a) (1993) (when federal district court has original jurisdiction over a civil action, it may also exercise “pendent” or “supplemental” jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy). As such, plaintiff maintains “state substantive law governs all pendent jurisdiction North Carolina state law claims” in a federal case. Because he commenced the instant state action within one year of the voluntary dismissal of his federal complaint, plaintiff concludes his state action was timely filed under N.C. Rule 41(a). However, regarding his initial federal action, plaintiff concedes “[t]here was no diversity of citizenship between plaintiff and [RJR],” and that “[t]he federal court’s jurisdiction was based on the federal questions he presented in his federal complaint.” Accordingly, plaintiff’s first complaint was not predicated upon diversity of citizenship jurisdiction, i.e., it was a “non-diversity” case. This is significant because determination of the law to be applied in federal court is governed by the source of the right or issue being adjudicated. 19 C. Wright, A. Miller & E. Cooper, Fed. Prac. & Proc. 2d § 4520 (1996). For example, “[t]he tolling of a state statute of limitation in a diversity case is strictly a substantive matter of state law,” Kahn v. Sturgill, 66 F.R.D. 487, 491 (M.D.N.C. 1975) (emphasis added), which the federal court must follow, id.; see Erie Railroad v. Tomkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 1194 (1938) (federal court in diversity case is to apply substantive provisions of state law), and Guaranty Trust Co. v. York, 326 U.S. 99, 108, 89 L. Ed. 2079, 2086 (1945) (“federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State”). Conversely, where a federal court gains jurisdiction over state claims supplementally, pursuant to 28 U.S.C.A. § 1367(a), because the action was . . . brought based on federal or constitutional law, the [federal] court is not bound to state substantive law only. Harter v. Vernon, 139 N.C. App. 85, 94, 532 S.E.2d 836, 841, appeal dismissed and disc. review denied, 453 N.C. 263, 546 S.E.2d 97 (2000), cert. denied,-U.S.-,-L. Ed. 2d - (2001). In response to plaintiffs arguments, RJR maintains that plaintiffs voluntary dismissal under Federal Rule 41 of a non-diversity case failed to implicate the savings provision of N.C. Rule 41(a), and further that plaintiffs state court action in any event was not “a new action based upon the same claims as those asserted in the prior action” (emphasis in original) so as to bring N.C. Rule 41(a) into play. In sum, the issue before us is whether plaintiff, after having first filed a voluntary dismissal without prejudice under Federal Rule 41 of his federal action, a non-diversity case, was improperly precluded, in light of the one-year savings provision of N.C. Rule 41(a)(1), from pursuing a claim in state court after the statute of limitations had run on that claim. Previous decisions of our appellate courts indicate this issue must be resolved against plaintiff. In Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991), the plaintiffs filed a complaint in federal court sitting in diversity jurisdiction alleging various state malpractice claims. Id. at 437, 402 S.E.2d at 628. Plaintiffs subsequently stipulated to a voluntary dismissal without prejudice as to one of the claims, refiling that claim in state court within one year of the voluntary dismissal, but beyond the applicable limitations period for the dismissed claim. Id. The trial court rejected the suit as untimely and plaintiffs appealed. Our Supreme Court characterized the issue on appeal as the effect of the dismissalf] on plaintiffs’ subsequent attempt to refile the action in state court within the one-year savings provision in N.C.G.S. § 1A-1, Rule 41(a)(1), but outside the period of limitations that controls unless N.C.G.S. § 1A-1, Rule 41(a)(1) applies. Id. at 438, 402 S.E.2d at 628. Citing decisions from the federal courts, the Court stated that the effect of a voluntary dismissal under Federal Rule 41 was dependent upon “whether the federal court’s jurisdiction was based on the existence of a federal question or on diversity of citizenship.” Bockweg, 328 N.C. at 441, 502 S.E.2d at 630. Further, [fjederal courts ordinarily need not consider the applicability of a savings provision, as the federal rule contains no such provision. This applies to cases in federal court in which jurisdiction is not based on diversity of citizenship and in which there is no occasion for the federal court to apply state substantive law. Id. at 438, 402 S.E.2d at 629 (emphasis added). Finally, relying on Humphreys v. United States, 272 F.2d 411 (9th Cir. 1959), the Court stated that “a voluntary dismissal under the Federal Rules in a nondi-versity case in federal court does not toll the statute of limitations or invoke [the] savings provision.” Bockweg, 328 N.C. at 439, 402 S.E.2d at 629. The Court also pointed out that federal courts sitting in diversity, and thus following North Carolina law, have applied the one-year savings provision of N.C. Rule 41 to diversity cases dismissed in federal court and recommenced in that court. Id. at 439-40, 402 S.E.2d at 629-30; see Haislip v. Riggs, 534 F. Supp. 95 (W.D.N.C. 1981); Shuford v. K.K. Kawamura Cycle Co., 649 F.2d 261 (4th Cir. 1981); and Webb v. Nolan, 361 F. Supp. 418 (1972), aff’d, 484 F.2d 1049 (4th Cir. 1973), cert. denied, 415 U.S. 903, 39 L. Ed. 2d 461 (1974). Accordingly, [i]n diversity cases in which state law concerning voluntary dismissal is different from federal law, the federal court will conduct an analysis under Erie and its progeny to determine the applicable law. Further, federal courts sitting in diversity applying North Carolina substantive law have concluded that when a plaintiff voluntarily dismisses in federal court and recommences in federal court, he is entitled to the benefit of the North Carolina savings provision as a matter of state substantive law. Bockweg, 328 N.C. at 441, 402 S.E.2d at 630. Applying the foregoing reasoning to the case before it, the Court held that a plaintiff who stipulates to a voluntary dismissal, without prejudice, of a timely filed action in a federal court sitting in diversity and applying North Carolina law, and refiles the action in North Carolina state court, may invoke the one-year savings provision in N.C.G.S. § 1A-1, Rule 41. Id. at 450, 402 S.E.2d at 635 (emphasis added). However, as in Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 807, 431 S.E.2d 227, 229 (1993), aff'd, 336 N.C. 599, 444 S.E.2d 223 (1994) (plaintiffs federal case involuntarily dismissed because of lack of diversity, Bockweg inapplicable, and plaintiffs subsequent state action filed outside the appropriate statute of limitations properly dismissed as time barred), Bockweg is inapposite to the case sub judice. Unlike the plaintiffs in Bockweg, plaintiff by his own admission brought his federal action pursuant to the court’s federal question jurisdiction as opposed to its diversity of citizenship jurisdiction. Under Bockweg, therefore, the effect of the voluntary dismissal of plaintiffs federal action upon his state action was governed by Federal Rule 41 which contains no savings provision. See Bockweg, 328 N.C. at 438, 402 S.E.2d at 629; see also Harter v. Vernon, 139 N.C. App. 85, 93-4, 532 S.E.2d 836, 841 (2000) (voluntary dismissal under federal Rule 41 in a nondiversity case does not toll the statute of limitations or implicate the savings provision of N.C. Rule 41(a)). Accordingly, because plaintiffs state action was filed outside North Carolina’s three year statute of limitations for a wrongful discharge claim, see G.S. § 1-52(5), and the savings provision of N.C. Rule 41 was inapplicable to plaintiff’s state action, the trial court did not err in entering summary judgment against plaintiff. Notwithstanding, plaintiff advances the proposition that the federal court maintained “supplemental” jurisdiction, see 28 U.S.C.A § 1367(a), over his wrongful discharge claim in plaintiff’s federal action, thereby necessitating application of North Carolina substantive law, including N.C. Rule 41, to that claim. We do not agree. First, Bockweg did not address supplemental jurisdiction of a federal court over a state action, but rather held that a federal court sitting in diversity and applying North Carolina law, i.e., N.C. Rule 41(a)(1), would allow up to one-year for refiling an action which had been voluntarily dismissed. Bockweg, 328 N.C. at 450, 402 S.E.2d at 635. We reiterate that plaintiff has conceded that jurisdiction over his federal action was based upon “federal question jurisdiction rather than diversity of citizenship jurisdiction.” Perhaps more significantly, careful review of plaintiff’s federal complaint reveals no basis upon which the federal court might have assumed supplemental jurisdiction of plaintiffs wrongful discharge claim. Assuming arguendo plaintiffs claim of wrongful discharge may have been “so related to claims in the action within [the] original jurisdiction [of the federal court] that [it] form[ed] part of the same case or controversy,” 28 U.S.C.A. § 1367(a), plaintiffs federal complaint alleged six claims of action based solely upon federal statutes and the federal constitution and set forth no specific claim under North Carolina substantive law, and specifically no North Carolina wrongful discharge claim, such that the federal court would have been accorded supplemental jurisdiction over that claim. It is well established, moreover, that [t]o benefit from the one year extension of the statute of limitation, the second action must be “substantially the same, involving the same parties, the same cause of action, and the same right. ...” Cherokee Ins. Co. v. R/I, Inc., 97 N.C. App. 295, 297, 388 S.E.2d 239, 240 (citation omitted), disc. review denied, 326 N.C. 594, 393 S.E.2d 875 (1990). Assuming arguendo North Carolina Rule 41(a)(1) was applicable to plaintiffs state action, therefore, plaintiff was not entitled to invoke the one-year savings provision because that action and his prior federal action were not “based on the same claim[s].” G.S. § 1A-1, Rule 41(a)(1). In Stanford v. Owens, 76 N.C. App. 284, 332 S.E.2d 730, disc. review denied, 314 N.C. 670, 336 S.E.2d 402 (1985), a claim of fraud, first alleged during re-filing of a previously voluntarily dismissed negligence claim, was held to have been time-barred by the statute of limitations. The plaintiffs maintained the fraud claim was properly filed within one year of the dismissal in that it ha[d] in effect been before the court all along, since it rest[ed] upon somewhat the same allegations that were made in support of the negligent misrepresentation claim when the action was first filed .... Id. at 289, 332 S.E.2d 733. This Court disagreed, concluding that “[a] claim for fraud is fundamentally different from a claim for negligence,” id., and that plaintiffs original allegations of negligence “did not in effect or otherwise,” id., allege fraud. In Staley v. Lingerfelt, 134 N.C. App. 294, 517 S.E.2d 392, this Court considered the circumstance wherein the plaintiffs’ first complaint [filed 4 August 1995] arose out of the [collision] on 11 June 1993, but alleged on a section 1983 claim and a claim of loss of consortium. Id. at 298, 517 S.E.2d at 395. Plaintiffs subsequently voluntarily dismissed that action and thereafter instituted an action 5 September 1995 alleging the two original claims as well as claims of assault and battery, false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass by a public officer, violations of the North Carolina Constitution, and a claim for punitive damages. Id. at 296, 517 S.E.2d at 394. This Court held the latter claims, filed within one year after voluntarily dismissal of the first complaint but outside the applicable limitations period, did not fall within the one year savings provision of North Carolina Rule 41(a)(1) and thus were barred. Id. at 299, 517 S.E.2d at 396. We reasoned that [although the claims [in plaintiffs’ second complaint] ar[o]se from the same events as the section 1983 and loss of consortium claims, defendants were not placed on notice that they would be asked to defend these claims within the time required by the statute of limitations. Id. In the case sub judice, the claims set forth in plaintiff’s federal and state actions arose from the same event, his discharge by RJR. However, the claim of wrongful discharge alleged in the state action and the federal statutory and constitutional claims alleged in the federal action each constitute “independent cause [s] of action with unique elements which must be proven by plaintiff[],” id., and RJR thus was not placed on notice by plaintiff’s federal action that it would be asked to defend plaintiff’s state wrongful discharge claim “within the time required by the statute of limitations,” id. In short, plaintiff’s state action thus was not “based on the same claims,” G.S. § 1A-1, Rule 41(a)(1), alleged in his federal action. To conclude, plaintiff’s state action, filed 20 August 1999, was not timely filed, and the trial court properly granted summary judgment in favor of RJR. Affirmed. Judges GREENE and TYSON concur.

Martha C. Lipchitz vs. Raytheon Company. Middlesex. February 8, 2001. July 9, 2001. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Sex, Prima facie case, Burden of proof, Employment. Employment, Discrimination. Practice, Civil, Instructions to jury. Evidence, Statistics. At the trial of a civil action brought against the plaintiff's employer, alleging that the plaintiff was denied a promotion because of her gender in violation of G. L. c. 151B, § 4, the judge properly denied the employer’s motion for a directed verdict where, viewing the evidence in the light most favorable to the plaintiff, the evidence was sufficient to support a finding that at least one of the reasons advanced by the employer for denying the promotion was false, from which the jury could have inferred that the plaintiff was denied a promotion because of her gender. [498-499] This court declined to adopt an employer’s argument that an employee, who alleged that she was denied a promotion because of her gender in violation of G. L. c. 151B, § 4, had the burden of proving that the employer’s reasons for not promoting her were a “pretext for discrimination,” and that a judge’s use of the term “pretext,” without more, lowered the employee’s burden of proof. [499-501] At the trial of a civil action brought against the plaintiff’s employer, alleging that the plaintiff was denied a promotion because of her gender in violation of G. L. c. 15 IB, § 4, the employer was entitled to an instruction that the plaintiff had the burden of proving the element of discriminatory animus [501-504], and that discrimination was “the determinative cause” of the adverse employment decision [504-507]; the judge’s failure to instruct on these elements was prejudicial, requiring that the case be retried [507], This court stated that, in future discrimination cases based on indirect evidence, judges should abandon the use of jury instructions that rely on the terms “pretext” and “pretext for discrimination,” and that are framed in terms of shifting burdens, and craft instructions that will focus the jury’s intention on the ultimate issues of harm, discriminatory animus and causation. [507-508] On a claim of individual disparate treatment on the basis of gender in violation of G. L. c. 15 IB, § 4, by an employee against a corporate defendant, the plaintiff’s statistical evidence indicating that, until 1993, there were no women in the highest ranks of the corporation was relevant, and was properly introduced in evidence. [508-509] Civil action commenced in the Superior Court Department on June 7, 1995. The case was tried before Paul A. Chernoff, J. The Supreme Judicial Court granted an application for direct appellate review. Joan A. Lukey (Mary B. Strother with her) for the defendant. Jody L. Newman (Phyllis A. Flora with her) for the plaintiff. Marisa A. Campagna, Betsy Ehrenberg & James S. Weliky for National Employment Lawyers Association, Massachusetts Chapter & others, amici curiae, submitted a brief. We acknowledge receipt of the joint amicus brief filed by the Massachusetts chapter of the National Employment Lawyers Association, the Disability Law Center, Gay & Lesbian Advocates and Defenders, and the Women’s Bar Association of Massachusetts. Spina, J. Martha C. Lipchitz brought this civil action in 1995 against her employer, Raytheon Company, alleging that she was denied a promotion to the position of corporate medical director (CMD) because of her gender in violation of G. L. c. 151B, § 4. The jury returned a verdict for the plaintiff and awarded her $500,000 in compensatory damages, including $30,000 in back pay, $150,000 in front pay, and $320,000 for emotional distress. Raytheon filed several posttrial motions, all of which were denied, except for Raytheon’s motion for remittitur. The plaintiff moved for attorney’s fees and costs and received an award of $225,000 and $20,681, respectively. Raytheon appealed, and we granted its application for direct appellate review. Raytheon claims that the jury were improperly instructed that the plaintiff was only required to prove “pretext” rather than “pretext for discrimination,” and that it was entitled to an instruction that gender was “the determinative factor” in the promotion decision. We do not adopt Raytheon’s argument as to how a jury should be instructed on the question of pretext. We conclude, however, that Raytheon was entitled to an instructian that the plaintiff had the burden of proving the elements of discriminatory animus, and that discrimination was “the determinative cause” of the adverse employment decision as we later define that term. We vacate the judgment and remand the case to the Superior Court for a new trial. We further recommend that in discrimination cases based on indirect evidence, judges abandon the use of jury instructions that rely on the terms “pretext” and “pretext for discrimination,” and that are framed in terms of shifting burdens. 1. Background Facts. In 1975, Lipchitz began working as a physician in the medical department of Raytheon’s largest manufacturing plant located in Andover. The department was responsible for performing physical examinations and providing on-site general and emergency medical services for the plant’s 5,000 to 7,000 employees. In 1980, Lipchitz was promoted to manager of the Andover plant’s medical services department, in which capacity she supervised the plant’s medical department and staff. In addition to her regular administrative duties (including, for example, coordinating and monitoring the medical care of individuals receiving workers’ compensation, attending meetings, and writing reports), she also took the initiative to study health and safety issues affecting Raytheon’s employees, such as substance abuse, and developed teaching modules for plant supervisors on those subjects. At the time of trial in 1997, Lipchitz continued to be employed by Raytheon in this position. From 1980 until 1993, Lipchitz reported directly to Andover plant managers, and had a “dotted-line” supervisory relationship with the CMD, Stephen Alphas. Throughout those years, Lipchitz received highly favorable written performance reviews, the vehicle by which recommendations for merit increases generally were made. Lipchitz’s favorable evaluations resulted in a salary that was at the upper end of the salary grade for her position, as well as frequent bonuses and, eventually, stock options. In addition to the performance evaluations, Lipchitz wrote annual or biennial self-evaluations in which she catalogued her contributions and accomplishments, and noted her strong desire to advance into a corporate position. The only corporate position available to a practicing medical doctor was the CMD position, and as the years went by Lipchitz made known her desire to fill that position when Alphas retired. Her performance evaluations noted both her desire for advancement and her capacity for a management position. In 1988, after he underwent bypass surgery, Alphas continued in the CMD position but his superiors raised with him the question of who would succeed him. In 1989, Alphas hired Harry Azadian as a full-time plant physician. Azadian was a long-time acquaintance and colleague of Alphas and had been working one day a week at Raytheon since 1977. Lipchitz presented evidence to suggest that both the decision to offer Azadian the full-time position and the manner in which he was hired reflected Alphas’s expectation that Azadian would be his successor. There was additional evidence to suggest that this view was shared by Azadian. A job descriptionf for the position was written in 1990 and required that the CMD be “[bjoard [c]ertif[ied] in an appropriate area of specialization.” Azadian was board certified as a general surgeon; Lipchitz was not board certified. Alphas, the outgoing CMD, had not been board certified. Raytheon argued that its reason for passing over Lipchitz in favor of Azadian was primarily difficulties over the years between Lipchitz and Alphas, the CMD, as well as between her and various managers within the Andover plant. Lipchitz had pushed hard for certain opportunities she deemed necessary for her professional advancement, but the response she received from Andover plant managers was negative and, on occasion, patronizing. At the same time, she tended to rebuff requests from Alphas and other managers to take on additional responsibilities, requests that might have been viewed by them as ways to earn opportunities for advancement. Her superiors perceived her as unwilling to take on extra work without asking for additional compensation, and unwilling to be a “team player.” These perceptions were reflected in notations made on documents relevant to, and contemporaneous with, the promotion decision. Testimony regarding the difficulties with her superiors was corroborated by Lipchitz’s desk diary in which she had recorded her disagreements with various managers and supervisors over the years. These difficulties were not mentioned in Lipchitz’s annual reviews or in her self-evaluations. Alphas retired in January, 1994, and Azadian was promoted shortly after. Rather than receive a full promotion to CMD and a salary increase to that position’s salary grade, Azadian was appointed the acting CMD and his salary remained unchanged. The vice-president of human resources testified that Azadian was appointed to this provisional position because Alphas’s retirement was the opportunity he had been awaiting to consider reorganizing the medical department or outsourcing medical services. It was possible that such a change would eliminate the the CMD position. Testimony revealed, however, that as acting CMD, Azadian had all the authority of the CMD, and he expressed his belief that his title and salary had been on hold because of the litigation. 2. Sufficiency of the Evidence on Liability. After the close of the plaintiff’s evidence, Raytheon moved for a directed verdict. On appeal, it argues that there was insufficient evidence to support a finding of pretext at the third stage of the now-familiar order of proof originally set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by us in Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130 (1976). The plaintiff presented sufficient evidence from which a reasonable jury could find that at least one of Raytheon’s reasons was false and from this it properly could have inferred that she was not promoted because of unlawful discrimination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000). The reasons Raytheon presented for its decision were Lipchitz’s lack of board certification, and the personal and workstyle difficulties she had with members of management. However, where Lipchitz’s performance evaluations included comments suggesting that she was qualified to hold a management position, the jury could have found that the question of board certification was not the reason Lipchitz had not been promoted, and in other circumstances, the lack of board certification might have been accommodated. In addition, the jury could have credited Lipchitz’s contention that the difficulties she had with Alphas, the CMD, and her Andover managers were not the result of her personality and workstyle and therefore, were the result of gender bias. If the jury found Lipchitz to be a credible witness, and discredited the testimony of Raytheon’s witnesses, the jury could reasonably have believed that, had she been a man, her strict adherence to her principles and the official lines of command and her determination about advancing her career, might have been viewed with admiration rather than resentment. “The ultimate issue of discrimination, raised by the [parties’] conflicting evidence as to the defendants] motive, is not for a court to decide on the basis of [briefs and transcripts], but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 445 (1995). See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16 (1998). Viewing the evidence in its light most favorable to the plaintiff, the evidence was sufficient to support a finding that at least one of the reasons advanced by Raytheon was false, from which the jury could have inferred that the plaintiff was denied a promotion because of her gender. See Abramian v. President & Fellows of Harvard College, supra at 118. The motion for a directed verdict was properly denied. We do not address Raytheon’s argument that the verdict was against the weight of the evidence because we are remanding for a new trial due to errors in the jury instructions. 3. Jury Instructions. (a) Pretext. Raytheon submitted a written request for an instruction that Lipchitz had the burden of proving that Raytheon’s reasons for not promoting her were a “pretext for discrimination.” It renewed the request after the judge charged the jury and before the jury retired to deliberate. See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). The issue was preserved for appellate review. Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 678-679 (1980). Raytheon argues that the judge’s failure to give its requested instruction (“pretext for discrimination”) and to use instead the term “pretext,” without more, lowered Lipchitz’s burden in the third stage. Raytheon additionally argues that the jury’s inability to reach a consensus on question 4, one of the special questions that the judge asked the jury to answer, is evidence of this flaw in the instructions. Lipchitz counters that because Massachusetts is a “pretext only” jurisdiction, Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 443, Raytheon was not entitled to an instruction that she prove “pretext for discrimination” because it would have been an incorrect statement of the law. The phrase “pretext for discrimination” implies that the plaintiff must prove not only that a reason given by the employer for the adverse decision was false, but that the reason was given to cover a discriminatory animus. Our decisions do not require this. See Abramian v. President & Fellows of Harvard College, supra at 118. Cf. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). If the employee were able to prove by direct evidence that discriminatory animus motivated the decision, she would not have to rely on the indirect method of proving animus by disproving at least one of the employer’s articulated, nondiscriminatory reasons. Compare Wynn & Wynn, P.C. v. Massachusetts Comm’n Against Discrimination, 431 Mass. 655 (2000), with Buckley Nursing Home, Inc. v. Massachusetts Comm’n Against Discrimination, 20 Mass. App. Ct. 172 (1985). In an indirect evidence case, if the fact finder is persuaded that one or more of the employer’s reasons is false, it may (but need not) infer that the employer is covering up a discriminatory intent, motive or state of mind. See Riffelmacher v. Police Comm’rs of Springfield, 27 Mass. App. Ct. 159, 165 (1989). Permitting, but not requiring the fact finder to draw the inference strikes the proper balance by holding the plaintiff to her ultimate burden without requiring her to produce direct evidence of discriminatory animus, a form of evidence that, we recognize, rarely exists. See Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 137. Cf. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 615-616 (1983). That inference, combined with the evidence adduced to meet the employee’s burden of proof under the first stage of McDonnell Douglas, permits the fact finder to conclude that the employee has satisfied her ultimate burden of proving that the decision was made “because of” the unlawful discrimination as G. L. c. 151B, § 4(1), requires. See Abramian v. President & Fellows of Harvard College, supra at 118. (b) Discriminatory animus. Although a “pretext for discrimination” instruction was not required, we agree that the instructians on the issue of pretext, given without the benefit of any instructions on discriminatory animus, were, for the reasons that follow, erroneous. (The special verdict form the jury were asked to complete also reflected the error.) The statute sets out four elements: membership in a protected class, harm, discriminatory animus, and causation. See note 13, supra. See also Dahill v. Police Dep’t of Boston, ante 233, 243 (2001) (membership in protected class and causation); Abramian v. President & Fellows of Harvard College, supra at 117 (animus); MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (1996) (harm). It was undisputed that Lipchitz was a member of a protected class because she was a woman, and was harmed by an employment decision when Raytheon bypassed her for promotion. We therefore turn our attention to the element of discriminatory animus. As we have said, in an indirect evidence case, we permit the fact finder to infer discriminatory animus (and causation) from proof that the employer offered a false reason for the adverse employment decision. Permitting the fact finder to infer discriminatory animus from proof that the employer has advanced a false reason does not, however, eliminate the plaintiff’s burden to prove this essential element. See School Comm. of Boston v. Labor Relations Comm’n, 40 Mass. App. Ct. 327, 334 (1996). Stated differently, the “indirect evidence” moniker derives from the type of evidence (pretext) that may establish one or both statutory elements (discriminatory animus and causation). Cf. Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 299-300 (1991). Pretext does not thereby become the element. Here, the entire import of the instruction on Lipchitz’s burden to establish liability was whether she had proved “pretext,” not whether she had proved that Raytheon had refused to promote her “because of . . . [her] sex.” G. L. c. 151B, § 4 (1). See Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767 (1986). Cf. Carter v. Comm’r of Correction, 43 Mass. App. Ct. 212, 226 (1997). The instruction transformed “pretext” into an essential element of the plaintiff’s case. The error was compounded by the additional instruction that if Lipchitz established that the reasons given by Raytheon were not its “real reason,” she had established Raytheon’s liability and the jury were to move on to the question of assessing damages. See Abramian v. President & Fellows of Harvard College, supra at 117-118. The only “instruction” the jury received on discriminatory animus was given in connection with special question 4, an advisory question, which the judge described to the jury as having “no effect” on the verdict. The judge should have instructed that Lipchitz was required to prove that Raytheon acted with a discriminatory intent, motive or state of mind. As we said in Abramian v. President & Fellows of Harvard College, supra, decided two years after the trial in this case, juries should be instructed that this element of proof may be satisfied by circumstantial evidence, such as the inference of discriminatory animus that may be drawn from proof that one or more of the reasons advanced by the employer is false. (c) Causation. Raytheon also requested an instruction that Lipchitz had to persuade the jury that her gender was “the determining factor in the decision not to promote her to Acting CMD,” and that “but for” a motive to discriminate . . . she would have been promoted” (emphasis added). Raytheon argues that without this instruction, the jury were ill-equipped to weigh the factors involved in the promotion decision if they were persuaded that some of its reasons were legitimate and some were discriminatory. Lipchitz contends that Raytheon was not entitled to this instruction because it is only applicab

WILLIAM EDWARD VAUGHN, Plaintiff v. CVS REVCO D.S., INC., Defendant No. COA00-159 (Filed 3 July 2001) Pensions and Retirement— anticipatory breach of contract— unfair and deceptive trade practices — Employment Retirement Income Security Act The trial court erred by concluding that plaintiffs claims for anticipatory breach of contract and unfair and deceptive trade practices, arising out of defendant’s alleged failure to honor its purported agreement with plaintiff establishing 15 February 1972 as the date of hire for purposes of determining plaintiff’s pension benefits, are preempted by the Employment Retirement Income Security Act (ERISA) under U.S.C. §§ 1001-1461 and thus subject to dismissal for lack of jurisdiction, because: (1) plaintiff’s claims do not make reference tó an ERISA plan and are based on state law; (2) a finding of preemption is not necessary to protect the objectives of ERISA; (3) plaintiff’s state law claims do not fall within any of the three categories of state laws that Congress intended ERISA to preempt; and (4) plaintiff’s claims are not against defendant’s employee benefits plan, but are instead against defendant for its anticipated failure to abide by its promise to provide pension benefits based on an agreed upon date of hire which does not concern the substance of the pension plan or the plan’s regulation. Appeal by plaintiff from order entered 5 November 1999 by Judge J.B. Allen, Jr. in Orange County Superior Court. Heard in the Court of Appeals 26 February 2001. Haywood, Denny & Miller, L.L.P., by Michael W. Patrick, for plaintiff-appellant. Yates, McLamb & Weyher, L.L.P, by Barry S. Cobb, for defendant-appellee. CAMPBELL, Judge. Plaintiff appeals the trial court’s determination that his claims are preempted by the Employment Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 (ERISA), and, thus, subject to dismissal for lack of jurisdiction. On 9 June 1999, plaintiff filed an action against CVS Reveo D.S., Inc. (defendant), successor in interest to Reveo D.S., Inc. (Reveo), alleging anticipatory breach of contract and unfair and deceptive trade practices. Plaintiffs complaint alleged that he began employment with Reveo on 15 February 1972. Plaintiff later operated his own business, Vaughn Independent Pharmacy, until in or around August 1995, at which time his pharmacy was purchased by Reveo. Plaintiff further alleged that an agent of Reveo orally contracted with plaintiff for a position of employment as a salaried pharmacist at Revco’s Carrboro location. In evidence of this alleged oral contract, plaintiff received written confirmation by letter dated 5 June 1995, stating “you will retain your tenure showing a date of hire of February 15, 1972,” and “[a]ll benefits will be applicable per your tenure.” Defendant subsequently acquired Reveo, and plaintiff retained his employment with defendant. Plaintiff alleged that agents of defendant have expressly stated on numerous occasions that upon retirement plaintiff’s pension benefits will be calculated as if he were hired in or about August 1995, although the contract provides for a date of hire of 15 February 1972. Plaintiff alleged that these statements constituted an anticipatory breach of contract, and that defendant’s conduct constituted unfair and deceptive trade practices. Defendant answered plaintiff’s complaint and moved to dismiss plaintiff’s claims, arguing that they are preempted by ERISA. The trial court agreed and entered an order dismissing plaintiff’s claims for lack of jurisdiction over the subject matter. Plaintiff argues the trial court erred in its conclusion that his claims are preempted by ERISA. We agree, and reverse the order of the trial court. ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C.A. § 1144(a) (1999). The text of ERISA’s preemption provision is “clearly expansive.” New York Blue Cross v. Travelers Ins., 514 U.S. 645, 655, 131 L. Ed. 2d 695, 705 (1995), However, the United States Supreme Court has recognized that the term “relate to” cannot be “taken to extend to the furthest stretch of its indeterminancy,” or else “for all practical purposes pre-emption would never run its course.” Id. Likewise, the United States Supreme Court has cautioned that “[s]ome state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ ” an ERISA plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 77 L. Ed. 2d 490, 503 n. 21 (1983). In Shaw, the United States Supreme Court explained that “[a] law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it [1] has a connection with or [2] reference to such a plan.” Id. at 96-97, 77 L. Ed. 2d at 501. Under the latter inquiry, where a State’s law acts immediately and exclusively upon ERISA plans, as in Mackey v. Lanier Collections Agency, 486 U.S. 825, 100 L. Ed. 2d 836 (1988) (holding that ERISA preempts a state law specifically exempting ERISA plans from an otherwise generally applicable garnishment provision), or where the existence of an ERISA plan is essential to the law’s operation, as in Ingersoll-Rand v. McClendon, 498 U.S. 133, 112 L. Ed. 2d 474 (1990) (holding that ERISA preempts a common law cause of action for wrongful discharge premised on the existence of an ERISA plan), the law impermissibly “refers to” an employment benefit plan, resulting in preemption. Cal. Div. of Lab. Stds. v. Dillingham, 519 U.S. 316, 324-25, 136 L. Ed. 2d 791, 799 (1997). A law that does not refer to ERISA plans may still be preempted if it has an impermissible connection with ERISA plans. To determine whether a state law has the forbidden connection with ERISA plans, the United States Supreme Court in Travelers adopted a pragmatic approach, “go[ing] beyond the unhelpful text [of § 1144(a)] and the frustrating difficulty of defining its key term [“relates to”], and looking] instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive [preemption].” Travelers, 514 U.S. at 656, 131 L. Ed. 2d at 705. ERISA was enacted to “protect.. . the interests of participants in employee benefit plans and their beneficiaries ... by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.” 29 U.S.C.A. § 1001(b) (1999). In passing ERISA’s preemption provision, Congress intended to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government..., [and to prevent] the potential for conflict in substantive law... requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. Travelers, 514 U.S. at 656-57, 131 L. Ed. 2d at 706 (quoting Ingersoll-Rand v. McClendon, 498 U.S. at 142, 112 L. Ed. 2d at 486 (1990)). “The basic thrust of the preemption clause, then, was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” Id. “[I]n light of the objectives of ERISA and its preemption clause, Congress intended ERISA to preempt at least three categories of state laws that can be said to have a connection with an ERISA plan.” Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1468 (4th Cir. 1996). “First, Congress intended ERISA to preempt state laws that ‘mandate!] employment benefit structures or their administration.’ ” Id. (quoting Travelers, 514 U.S. at 658, 131 L. Ed. 2d at 707). For example, the Court in Shaw held that ERISA preempted a New York statute which prohibited employers from structuring benefit plans in a manner that discriminated on the basis of pregnancy, as well as a statute that required employers to pay employees specific benefits. Shaw, 463 U.S. 85, 77 L. Ed. 2d 490. Without preemption, such laws would subject benefit plans to conflicting directives from one state to the next. Id. “Second, Congress intended to preempt state laws that bind employers or plan administrators to particular choices or preclude uniform administrative practice, thereby functioning as a regulation of an ERISA plan itself.” Coyne & Delany Co., 98 F.3d at 1468. “Accordingly, the Court in Travelers held that ERISA did not preempt New York’s statute imposing surcharges on patients covered by certain insurers because the statute merely had an ‘indirect economic influence’ on a plan’s shopping choices but did not bind a plan to any particular choice.” Id. Third, Congress intended to preempt “state laws providing alternate enforcement mechanisms” for employees to obtain ERISA plan benefits. Travelers, 514 U.S. at 658, 131 L. Ed. 2d at 707. In considering whether a particular state law claim falls within this category, it is important to determine whether the claim is “aimed at obtaining ERISA benefits.” Coyne & Delany Co., 98 F.3d at 1471. Specifically, in Coyne & Delany Co., the Fourth Circuit emphasized that the plaintiff’s claims were not preempted by ERISA because if the plaintiff succeeded on its claims, the defendants would be liable in their individual capacities, not as an administrator or fiduciary of an ERISA plan, and the plaintiff would not be entitled to ERISA plan benefits. See also Smith v. Cohen Ben. Group, Inc., 851 F. Supp. 210, 214 (M.D.N.C.1993). In contrast to the three categories of state laws that Congress intended ERISA to preempt, “Congress did not intend to preempt ‘traditional state-based laws of general applicability [that do not] implicate the relations among the traditional ERISA plan entities . . . Coyne & Delany Co., 98 F.3d at 1469 (quoting Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir. 1996). In the instant case, plaintiff alleged (1) a common law claim of anticipatory breach of contract, and (2) a statutory claim of unfair and deceptive trade practices. The factual basis for both of plaintiffs claims is that defendant does not intend to honor its agreement with plaintiff that allegedly established 15 February 1972 as the date of hire for purposes of determining plaintiff’s pension benefits. In light of the principles already discussed, we now consider whether plaintiff’s claims “relate to” an ERISA plan. At the outset, we hold that plaintiff’s claims do not make “reference to” an ERISA plan, and, thus, are not preempted on that basis. To be preempted for making “reference to” an ERISA plan, a law must specifically refer to ERISA plans, See Mackey, 486 U.S. 825, 100 L. Ed. 2d 836; District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 121 L. Ed. 2d 513 (1992), or the cause of action must be dependent on the existence of an ERISA plan. See Ingersoll-Rand, 498 U.S. 133, 112 L. Ed. 2d 474. In the instant case, plaintiff’s claims are based on state law that applies in a variety of contexts and does not specifically refer to ERISA plans, and plaintiff’s claims are not dependent on the existence of an ERISA plan. Therefore, we must consider whether plaintiff’s claims have an impermissible “connection with” ERISA plans. We start by emphasizing that allowing plaintiff’s claims to go forward in state court would not in any way undermine the objectives of the ERISA statute. Hearing plaintiff’s claims in state court in no way threatens ERISA’s objective to “protect . . . the interests of participants in employee benefit plans and their beneficiaries ... by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans and by providing appropriate remedies, sanctions, and ready access to Federal courts.” 29 U.S.C.A. § 1001(b). Further, allowing plaintiff’s claims to survive in state court does not interfere with the purposes of ERISA’s preemption provision. Plaintiff’s claims will not subject plans and plan sponsors to “conflicting directives among States or between States and the Federal Government. . . .” Travelers, 514 U.S. at 656, 131 L. Ed. 2d at 706 (quoting Ingersoll-Rand, 498 U.S. at 142, 112 L. Ed. 2d at 474). Nor do they create “the potential for conflict in substantive law . . . requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction.” Id. Plaintiffs state law claims simply do not threaten Congress’ goal of “the nationally uniform administration of employee benefit plans.” Id. at 657, 131 L. Ed. 2d at 706. Therefore, a finding of preemption in this case is not necessary to protect the objectives of ERISA. Further, we do not feel that plaintiffs state law claims fall within any of the three categories of state laws Congress intended ERISA to preempt. First, plaintiffs state law claims do not “mandate [] employee benefit structures or their administration.” Id. at 658, 131 L. Ed. 2d at 707. The state law claims at issue here do not attempt to require an employee benefit plan with particular terms, or to regulate the types of benefits a plan may provide. They do not create reporting, disclosure, or funding requirements, nor do they define fiduciary duties or address faulty plan administration. See Coyne & Delany Co., 98 F.3d at 1471. Plaintiffs claims simply seek to enforce, or secure compensation for the breach of, an alleged agreement as to the date of hire for purposes of determining plaintiffs pension benefits. Second, plaintiffs claims do not seek to bind a plan administrator to particular choices or preclude uniform administrative practice, thereby functioning as a regulation of an ERISA plan. Plaintiffs claims are not aimed at the administrator of defendant’s employee benefits plan. Instead, plaintiff is suing defendant in its individual corporate capacity for its alleged anticipated refusal to adhere to the agreement entered into between it and plaintiff concerning plaintiff’s date of hire for pension purposes. Plaintiff’s claims do not attempt to regulate the employee benefit plan itself, but merely seek to establish the length of service plaintiff will be credited with upon retirement. Third, plaintiff’s state law claims cannot be considered an “alternate enforcement mechanism” for obtaining plan benefits. Travelers, 514 U.S at 658, 131 L. Ed. 2d at 707. Should plaintiff prevail on the damages portion of his claim, his recovery would be limited to damages against the defendant itself, and he would not be entitled to recover ERISA plan benefits. Although plaintiff does, in the alternative, seek to enjoin defendant from denying that plaintiff’s date of hire for pension purposes is 15 February 1972, we hold that the connection between such an injunction and defendant’s employee benefits plan is likewise too minimal to bring plaintiffs claims within ERISA’s preemption provision. See Smith, 851 F. Supp. at 214. We believe that plaintiffs claims are traditional state-based claims of general applicability that do not implicate the relations among the traditional ERISA plan entities. Plaintiffs causes of action function irrespective of the existence of an ERISA plan. Defendant’s liability is not premised on conditions in or a construction of defendant’s employee benefits plan. The existence of an employee benefit plan is not a factor critical to establishing liability because the same causes of action would exist if an employee benefit plan were not in existence or was merely a fraudulent scheme. See Smith, 851 F. Supp. at 213. For the foregoing reasons, we hold that plaintiff’s claims do not have the forbidden “connection with” an ERISA plan that would bring them within ERISA’s preemption provision. Defendant argues that the instant case is controlled by the decision in Middleton v. Russell Group, Ltd., 126 N.C. App. 1, 483 S.E.2d 727, disc. review denied, 346 N.C. 548, 488 S.E.2d 805 (1997), where this Court held that several of the plaintiff’s state law claims were preempted by ERISA. In Middleton, the defendant-employer hired the plaintiff as an advertising consultant and agreed to enroll the plaintiff and his family in its employee health insurance plan, which was administered by Life of Georgia (LOG). Approximately one month after the defendant-employer terminated the plaintiff’s employment, the plaintiff’s wife was injured when a brick wall fell on her. After admitting the plaintiff’s wife for medical treatment, the hospital called LOG to verify health insurance coverage. LOG referred the hospital to the defendant-employer which informed the hospital that the plaintiff’s wife was not covered. It was later discovered that the share of the plaintiff’s health insurance premium had never been deducted from his paycheck, nor had he paid the premium share directly to the company. A letter was prepared notifying the plaintiff that he was entitled to continuation coverage under the health insurance plan pursuant to the Consolidated Omnibus Reconciliation Act, 29 U.S.C. §§ 1161-67 (COBRA). This letter was never mailed because the president of the defendant-employer determined that if the plaintiff had not paid his share of the premiums, he never had health insurance coverage, and, thus, the defendant-employer was not obligated to provide continuation coverage under COBRA. The plaintiff filed suit against the defendant-employer and LOG asserting claims for: (1) breach of contract; (2) failure to provide benefits under ERISA; (3) injunctive relief to provide COBRA benefits; (4) constructive fraud; (5) negligent misrepresentation; and (6) unfair and deceptive trade practices. After the defendants failed in their attempt to remove the case to federal court, the trial court granted defendants’ motion for summary judgment on all state law claims except negligent misrepresentation. This Court affirmed based on case law that has consistently found state law claims which involve redress for mishandling benefit claims or other maladministration of employee benefit plans to be preempted. Defendant contends that plaintiff’s claims in the instant case axe likewise preempted. We disagree. The instant case is factually distinguishable from Middleton, in that here plaintiff’s claims are premised upon an alleged anticipated breach of a promise that pension benefits will be determined based upon a certain date of hire, whereas, the state law claims held to be preempted in Middleton were premised on the plaintiff’s health insurance benefits claim being mishandled. Further, our analysis of ERISA preemption law leads us to the conclusion that plaintiff’s claims in the instant case are not preempted, and we so hold. In conclusion, we reiterate that plaintiff’s claims are not against defendant’s employee benefits plan. Rather, they are against the defendant for its anticipated failure to abide by its promise to provide pension benefits based on an agreed upon date of hire. These claims neither concern the substance of the pension plan nor the plan’s regulation. The plan is only incidentally or tangentially involved. Since plaintiff’s claims are only tangential to the plan, his claims are not preempted by ERISA. See Welsh v. Northern Telecom, Inc., 85 N.C. App. 281, 354 S.E.2d 746, disc. review denied, 320 N.C. 638, 360 S.E.2d 107 (1987). Based on the foregoing, we hold that plaintiff’s claims are not preempted by ERISA. Reversed and remanded. Chief Judge EAGLES and Judge HUNTER concur.

Susan Muzzy vs. Cahillane Motors, Inc. Hampshire. April 5, 2001. June 27, 2001. Present: Marshall, C.J., Grbanhy, Spina, Cowin, Sosman, & Cordy, JJ. Practice, Civil, Instructions to jury, Failure to make objection. Employment, Sexual harassment. Waiver. Discussion of the legal framework supporting the “reasonable person standard” jury instruction to be given by the judge in sexual harassment cases. [411-414] In an action against an employer by a former employee, alleging that she had been subjected to a sexually hostile work environment in violation of G. L. c. 151B, § 4 (16A), the judge’s “reasonable person standard" instructions to the jury adequately conveyed the elements of the claim, were straightforward and logically presented, and were not made unduly confusing by additional context contained in the instructions [414-417], and the instructions did not give rise to any prejudice, bias, or unfairness [417]. Civil action commenced in the Superior Court Department on May 28, 1997. A motion for partial summary judgment was heard by Judd J. Carhart, J., and a claim for sexual harassment was tried before C. Brian McDonald, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Carol Clarke for the plaintiff. Carol Booth for the defendant. Jennifer L. Levi, Karen L. Loewy, & Andrea C. Kramer, for Gay & Lesbian Advocates & Defenders & another, amici curiae, submitted a brief. Cordy, J. Susan Muzzy brought an action against her former employer, Cahillane Motors, Inc. (Cahillane), alleging that she was wrongfully terminated and subjected to a sexually hostile work environment in violation of G. L. c. 151B, § 4 (16A). Partial summary judgment was granted for Cahillane on the wrongful termination claim, and the case proceeded to trial before a jury on the sexual harassment claim. After an eight-day trial, the jury found in favor of Cahillane, and the judgment was appealed. We transferred the case to this court on our own motion to consider Muzzy’s claim that the “reasonable person standard” jury instruction given by the trial judge on the sexual harassment claim was erroneous, prejudicial, and confusing. Specifically, Muzzy, a lesbian, complains that the judge erred in instructing the jury to evaluate her sexual harassment claim from the view of an “objectively reasonable woman of lesbian orientation,” and that this error caused such prejudice and confusion among the jurors that a new trial is required. While we find that the plaintiff, having agreed to the language now challenged, waived the principal objections to the instruction that she now raises on appeal, we take this occasion to provide further guidance on instructions in sexual harassment cases. Factual background. In brief, the facts adduced at trial are these. In August, 1995, Muzzy went to work in Cahillane’s sales, finance, and insurance department. The manager of the department was Deborah Cahillane. Both the plaintiff and the manager were lesbians. Shortly after her employment began, Muzzy claimed that she became the target of a constant barrage of verbal and physical conduct of a sexual nature perpetrated by her manager, which included inappropriate physical touching, degrading sexual conversation and comments, and unwelcome invitations and advances imbued with sexual overtones. According to Muzzy’s testimony, this conduct took place both during and after the working day. Eventually, after thirteen months, she felt she could no longer work at the dealership and did not return. In contrast to the plaintiff’s testimony, Deborah Cahillane testified that she and Muzzy had a brief romance outside of the workplace, and to the extent there was physical contact or verbal communication between them it was by mutual consent, never complained of, and not sexual harassment. In the course of the trial, it was clearly and explicitly presented to the jury that both Muzzy and the manager about whom she was complaining were lesbians. Indeed, prior to trial the parties had alerted the court to this feature of the case and requested a voir dire of prospective jurors to screen out those who might harbor prejudices that would affect their ability to decide fairly a case involving such issues. Apparently, during the empanelling the judge questioned each juror individually regarding his or her attitudes and prejudices concerning homosexuals and lesbians and both parties were content with the jury as selected. Legal framework — sexual harassment. General Laws c. 151B, § 4 (16A), makes it unlawful “[f]or any employer, personally or through its agents, to sexually harass any employee.” The term “sexual harassment” is defined in G. L. c. 151B, § 1 (18), as: “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment.” We have held that this definition encompasses a claim for sexual harassment brought by an individual claiming harassment by a member of the same gender. See Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997). To establish her claim based on work environment (§ 1 [18] [b]), the plaintiff was required to demonstrate that she worked in a sexually hostile environment that unreasonably interfered with her work performance. To sustain that burden, she needed to establish that the conduct alleged was sufficiently severe and pervasive to interfere with a reasonable person’s work performance. This “objective” reasonable person standard has been interpreted to mean that the evidence of sexual harassment is to be considered from the “view of a reasonable person in the plaintiff’s position.” Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 677-678 n.3 (1993), quoting Gnerre v. Massachusetts Comm’n Against Discrimination, 402 Mass. 502, 507 (1988). Similarly, the United States Supreme Court, in analyzing the reasonable person standard in a same sex hostile work environment case, has held that the standard under Federal antidiscrimination law is that of “a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’ ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998), quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The Supreme Court went on to explain in Oncale v. Sundowner Offshore Servs., Inc., supra at 81-82, that: “In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” We are in accord both with the standard and the reasoning enunciated by the Oncale Court. The language, “a reasonable person in the plaintiff’s position, considering all the circumstances,” is a sufficient and appropriate instruction for a trial judge to give on the “reasonable person” standard. If given, counsel is free to point out and argue to the jury the plaintiff’s position and the relevant circumstances in the particulars of the case being tried. It is generally understood that endowing the “reasonable person” with attributes of the plaintiff (in the context of a jury instruction) is a measure that is designed to work to the plaintiff’s advantage and against the prospect of “ingrained notions of reasonable behavior fashioned by the offenders.” Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991), quoting Lipsett v. University of P.R., 864 F.2d 881, 898 (1st Cir. 1988). However, whether a trial judge in his instructions to the jury should move beyond the Oncale articulation of the standard to add further context, as it did in this case, is a matter of some experiment and debate. There is a balancing of benefits and risks that must be undertaken when the reasonable person instruction is given further specific context: The inclusion of some of the plaintiff’s attributes may make more certain that a jury consider whether the conduct would be offensive to a reasonable person in the plaintiff’s position, not just to a generic reasonable person, and may help ensure that the jury view the conduct from the plaintiff’s perspective; on the other hand, providing further context of this type may perpetuate negative stereotypes or insert into the case prejudicial or inflammatory material that has no relevance to the plaintiff’s experience of harassment in the matter being tried. If a judge chooses to refine the Oncale instruction by adding one or more of the attributes of the plaintiff as context, the judge should do so with the following admonitions in mind: (1) any further refinement to the standard must not reduce it to a subjective standard; (2) the judge’s instruction should not include any characteristics of the plaintiff that are not relevant to the claim; and (3) the judge should give serious consideration to a plaintiff’s objection to an instruction that references particulars of the plaintiff’s race, gender, sex, ethnicity, or sexual orientation. Jury instructions in the present case. The parties agreed, prior to the charge, that the judge should instruct the jury that they were to use the standard of an objectively reasonable person in the plaintiff’s position, that is a lesbian woman. At a precharge conference before the close of the trial, the judge inquired of counsel as to their views on what he ought to instruct with respect to the “reasonable person standard”: The judge: “What are the characteristics of the objectively reasonable person? Is it a woman? Is it a lesbian woman? What is the standard?” Counsel for the defendant: “I believe it is a reasonable person in the plaintiff’s position which would indicate that it is a lesbian woman.” Counsel for the plaintiff: “I believe that’s correct, Your Honor.” The judge: “That’s my reaction. I wanted to hear your comment, if you had any objection. I think it’s not stepping over the line to subjective evaluation, it’s an objective fact of her position. All right. I’ll make sure that it is clear to the jury.” The next morning, before closing arguments, there was discussion prompted by the plaintiff’s counsel with regard to other aspects of the judge’s proposed charge. However, no objection was voiced with regard to the prior day’s agreement on the reasonable person instruction. After the plaintiff’s closing argument and in light of a comment the plaintiff’s counsel had made, there was another conference between counsel and the judge, this time specifically regarding the “reasonable person standard.” Again, no objection was voiced by the plaintiff’s counsel with respect to the agreed-on language. Thereafter, with all parties in agreement, the judge charged the jury, in pertinent part, as follows: “When you’re determining whether or not the conduct described by [the plaintiff] was severe or pervasive in creating a hostile work environment, you must consider the conduct in the light of the objectively reasonable person in the plaintiff’s position, in this instance, a woman whose sexual orientation is lesbian.” “When I told you that you must consider whether the sexual advances or sexual conduct was unwelcome, I told you to consider the plaintiff’s subjective view of the conduct. Now, when you’re considering whether the conduct was severe or pervasive, you are to consider not the plaintiff’s subjective view but what’s called the objective view, the view of an objectively reasonable person, an objectively reasonable woman of lesbian orientation.” Following the charge, at a sidebar conference, one of the plaintiff’s counsel told the judge that she had “an objection to the lesbian standard that we’re using.” Counsel stated that she did not feel it was an appropriate standard, that it should have been “a reasonable person standard.” She articulated the basis of her objection as follows: “I’ve looked at a couple of jurors when you read those instructions, and there was a bit of confusion as to . . . what that meant, you know, that they’re supposed to decide as a reasonable person in like circumstances and that those like circumstances are as a lesbian woman.” Counsel did not cite bias or the potential prejudicial effect of the instruction as a basis for her objection at the time, but now does so extensively in her brief on appeal. In response to the plaintiff’s objection, the judge stated that there had been agreement to the instruction the previous day, that he thought it was an appropriate instruction, and that he was not prepared to change it at that point. The jury then proceeded to their deliberations. No questions were asked by the jury with regard to the judge’s instruction on this issue. Waiver. Rule 51 (b) of the Massachusetts Rules of Civil Procedure, 365 Mass. 816 (1974), provides, in pertinent part: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” The plaintiff argues that she adequately preserved her assignments of error with regard to the reasonable person instruction by objecting to it after the judge concluded his charge to the jury and before the jury retired. On appeal, she contends that the instruction was erroneous as matter of law, was prejudicial, and created confusion resulting in an unfair trial. We disagree that she adequately preserved her objections based on prejudice and error of law. It is axiomatic that “[a] party may not state one ground when objecting to an instruction to the jury and attempt to rely on a different ground for the objection on appeal.” 9A C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2554 (1995). The only objection adequately preserved was the one articulated at the time of the objection, and that was the possibility of juror confusion based on counsel’s observation of the jurors’ faces during the charge. We have reviewed the instructions in their entirety and find that they adequately conveyed the elements of the claim, were straightforward, logically presented, and were not made unduly confusing by the additional context contained in the reasonable person instruction. Our view with respect to the plaintiff’s waiver of her other objections is further strengthened by the conduct of the parties culminating in the judge’s decision to give the instruction in question. It is rare that a case comes before us where one party objects after the charge to the precise language to which he or she has agreed at the precharge conference. Having agreed to the instruction at that charge conference, having failed to object to it at two subsequent opportunities the next day, having waited until the arguments (which were premised on that agreed-on instruction) concluded, and having based her objection solely on counsel’s general sense from viewing the jurors’ faces that there might be confusion, we deem the plaintiff s present objections (that the contextualized instruction was both erroneous and prejudicial) as having been waived. Moreover, we find the plaintiffs allegations in her brief that the instruction was “highly charged,” improperly “shifted the focus onto the Plaintiffs status as a lesbian,” and introduced the plaintiff’s sexuality to and thereby “tainted the jury,” as being without basis in the trial of this case. The record before us makes clear that this case was all about the alleged sexual interaction of two lesbian women. The jury heard several days of testimony, including extensive testimony from the plaintiff, about the fact that both she and Deborah Cahillane were lesbians, and about sexually explicit conversations between them regarding lesbian kissing, lesbian dating, and lesbian sex toys. In these circumstances, we are not persuaded that the reference to a “lesbian woman” in the judge’s instruction gave rise to any prejudice, bias, or unfairness. Even if the instruction were erroneous, we cannot say that it affected the essential fairness of the trial or would have changed the outcome. Judgment affirmed. We acknowledge the brief filed jointly by the Gay and Lesbian Advocates and Defenders and the Women’s Bar Association of Massachusetts as amici curiae. “To constitute actionable harassment, the claimed conduct must be both objectively and subjectively offensive.” Messina v. Araserve, Inc., 906 F. Supp. 34, 36 (D. Mass. 1995), citing Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 678 (1993). In the present case, we are concerned only with the objective requirement of the claim. Muzzy also needed to demonstrate that the conduct in question was subjectively offensive to her, but she does not challenge the instruction on that issue. See Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 962 n.3 (8th Cir. 1993) (noting that in hostile environment litigation under Title VII of the Civil Right Act of 1964 appropriate standard is that of reasonable woman in similar circumstances); Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (holding “reasonable woman” standard should apply to determine whether alleged conduct was severe or pervasive because sex-blind reasonable person standard tends to be male biased and systematically ignores experiences of women); Messina v. Araserve, Inc., supra at 37 (whether comments and gestures were pervasive enough to affect work performance of “reasonable homosexual man” is a question for the factfinder); Harris v. International Paper Co., 765 F. Supp. 1509, 1515-1516 (D. Me.), vacated in part, 765 F. Supp. 1529 (D. Me. 1991) (in case alleging racial harassment, “reasonable black person” standard should apply in assessing unwelcomeness and pervasiveness of conduct and speech because of different social experience of white Americans and black Americans). But see Richardson v. New York State Dep’t of Correctional Serv., 180 F.3d 426, 436 n.3 (2d Cir. 1999) (“we reject the view of those courts that look to the perspective of the particular ethnic or gender group, e.g., a ‘reasonable African American’ or a ‘reasonable Jew’ ”); DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 594 (5th Cir.), cert. denied, 516 U.S. 974 (1995) (“The test is an objective one, not a standard of offense to a ‘reasonable woman’ ”). See also Bernstein, Treating Sexual Harassment with Respect, 111 Harv. L. Rev. 445, 467 (1997) (commenting on disagreement over meaning of reasonable person standard). It is because the risks of such a particularized instruction harms plaintiffs, not defendants, that a plaintiff’s objection should be given significant weight. The plaintiff in her written requests for jury instructions had requested that the judge instruct the jury to use a “reasonable woman standard.”