Wrongful Termination Cases

SMITH v GOODWILL INDUSTRIES OF WEST MICHIGAN, INC Docket No. 218795. Submitted November 8, 2000, at Grand Rapids. Decided December 1, 2000, at 9:15 A.M. Tamera Smith brought an action in the Muskegon Circuit Court against Goodwill Industries of West Michigan, Inc., alleging discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., and violation of the federal Family and Medical Leave Act (fmla), 29 USC 2601 et seq. The action was based on the plaintiff’s dismissal from employment when she returned to work following a maternity leave taken pursuant to the fmla. The defendant alleged that the plaintiff’s position had been eliminated under a corporate restructuring plan. The court, James M. Graves, Jr., J., granted summary disposition in favor of the defendant. The plaintiff appealed. The Court of Appeals held: 1. The court properly applied the burden-shifting analysis first established in McDonnell Douglas Corp v Green, 411 US 792 (1973), in granting summary disposition of the claim alleging violation of the fmla. The plaintiff established a prima facie case of a violation of the fmla, the defendant then met its burden of demonstrating that there was a nondiscriminatory reason for its actions, and the plaintiff then failed to meet her burden of establishing a genuine issue of material fact regarding whether the defendant’s stated reason for eliminating the plaintiff’s position was unworthy of belief. The defendant raised the issue whether the plaintiff would have been entitled to her position had she not taken the leave and, consequently, the question of intent was relevant, and the McDonnell Douglas analysis was appropriately applied. 2. The court erred in requiring the plaintiff to establish a prima facie case of gender discrimination by showing that she was replaced by a person who was not a member of her protected class. The court erred in granting summary disposition of this claim without considering the plaintiff’s argument that the defendant acted discriminatorily by treating her different from a similarly situated male employee. However, reversal is not required because the plaintiff failed to establish that she was treated different from a similarly situated male employee. 3. The plaintiff failed to meet her burden with regard to her pregnancy discrimination claim that was based on disparate treatment. The plaintiff failed to show that the defendant had a discriminatory intent and therefore failed to establish a prima facie case. Affirmed. 1. Motions and Orders — Summary Disposition — Family and Medical Leave Act. The burden-shifting analysis applicable in some employment discrimination actions that was established in McDonnell Douglas Gorp v Green, 411 US 792 (1973), applies in cases involving alleged violations of the Family and Medical Leave Act; in the summary disposition context, the plaintiff employee must raise a genuine issue of material fact with regard to each element of the prima facie case; once that has been accomplished the burden shifts to the defendant employer to offer a legitimate nondiscriminatory reason for its employment decision; if the defendant produces such a legitimate nondiscriminatory reason, the burden reverts to the plaintiff to show that there is a genuine dispute of material fact regarding whether the defendant’s proffered reason for the challenged action is pretextual or unworthy of belief (29 USC 2601 et seq.). 2. Motions and Orders — Summary Disposition — Family and Medical Leave Act. The question of intent may become relevant once one of the parties to an action alleging a violation of the Family and Medical Leave Act raises the issue whether a right, benefit, or position is one to which the plaintiff employee would have been entitled had the plaintiff not taken the leave or whether the defendant employer has taken adverse action against the plaintiff for having exercised a right under the act; in a summary disposition context, once the question of intent is relevant, application of the burden-shifting analysis established in McDonnell Douglas Corp v Green, 411 US 792 (1973), is appropriate (29 USC 2601 et seq.). 3. Civil Rights — Employment Discrimination — Gender Discrimination. A female employee who brings an action under the Civil Rights Act alleging that her employer acted discriminatorily by treating her different from a similarly situated male employee must establish a prima facie case by showing that she was a member of a protected class, that she was subject to an adverse employment action, that she was qualified for the position, and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 4. Civil Eights — Employment Discrimination — Pregnancy. A plaintiff in an action under the Civil Rights Act alleging employment discrimination attributable to the plaintiff’s pregnancy and basing the claim on a “disparate treatment” theory must establish a prima facie case by showing the defendant had a discriminatory motive (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Warner Norcross & Judd LLP (by Paul T. Sorensen and Daniel P. Ettingef), for the defendant. Before: Neff, P.J., and Murphy and Griffin, JJ. Per Curiam. Plaintiff appeals as of right from the circuit court’s grant of summary disposition in favor of defendant. We affirm. Plaintiff was hired by defendant in December 1993 as director of placement services. In that position, plaintiff was responsible for managing defendant’s “community placement program,” which locates employment for disabled persons. On December 8, 1995, plaintiff took a maternity leave pursuant to the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. When plaintiff returned to work as scheduled on March 11, 1996, her supervisor, Dan Christensen, informed her that her position had been eliminated under a corporate restructuring plan, and that, consequently, she was dismissed from employment. According to Richard Carlson, defendant’s president, defendant began considering a reorganization of its management staff in 1994 because of changes mandated by welfare reform, school-to-work legislation, and the federal Job Training Partnership Act, PL 97-300, 96 Stat 1322, especially under directives of the Michigan Jobs Commission. The restructuring plan would streamline defendant’s management structure to reflect an integrated service delivery system, rather than the previous categorical program model. The plan eliminated the positions of director of placement, assessment counselor, director of assessment, and work activities program director, which were geared to specific programs, and created a new community services manager position to oversee all community services operations. The community services manager assumed, in part, the directors’ responsibilities. Diana Briggs, defendant’s assessment counselor, was notified in late September 1995 that she would be dismissed as a result of corporate restructuring. According to Christensen’s affidavit, the management restructuring plan was incorporated into defendant’s October 1995 proposed budget and was approved by defendant’s board of directors in February 1996. Lynne Spencer subsequently was hired as the community services manager. Richard Tejchma, the director of assessment, whose position was eliminated, was assigned a position as director of vocational evaluations. In October 1997, plaintiff filed the instant action against defendant. In count I of her complaint, plaintiff alleged that defendant discriminated against her on the basis of her gender and her pregnancy in violation of the Civil Rights Act (cra). In count II, plaintiff alleged that defendant violated the fmla by dismissing her because of her decision to take maternity leave. The trial court granted summary disposition in favor of defendant on both counts pursuant to MCR 2.116(0X10). i Plaintiff first argues that the trial court improperly granted summary disposition of her fmla claim. We disagree. We review the trial court’s grant of summary disposition de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). Subsection 2614(a)(1) of the fmla, 29 USC 2614(a)(1), provides: (a) Eestoration to position (1) In general Except as provided in subsection (b) of this section, any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave— (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. Plaintiff argues that summary disposition was improper because defendant conceded that plaintiff had established a prima facie case of a violation of fmla § 2614. Thus, plaintiff contends that a jury should have decided whether defendant’s stated reasons for terminating plaintiff’s employment were legitimate and unrelated to plaintiff’s decision to take maternity leave pursuant to the fmla. We found no Michigan case addressing the issue raised by plaintiff under the fmla. However, review by this Court of the federal law regarding this federal statute is proper. See Markis v Grosse Pointe Park, 180 Mich App 545, 553; 448 NW2d 352 (1989). In Morgan v Hilti, Inc, 108 F3d 1319 (CA 10, 1997), the Tenth Circuit Court of Appeals explained the proper analytical framework for addressing alleged violations of the fmla. The court noted that the “burden-shifting analysis” first established in McDonnell Douglas Corp v Green, 411 US 792, 802-804; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is applicable to cases involving alleged violations of the fmla. Morgan, supra at 1322-1323. Accordingly, the Morgan court stated: In the summary judgment context, a plaintiff initially must raise a genuine issue of material fact on each element of the prima facie case. After establishment of a prima facie case, the burden shifts to the employer to offer a legitimate nondiscriminatory reason for its employment decision. If the employer comes forward with a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff to show that “there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pretextual — i.e., unworthy of belief.” [Id. at 1323, quoting Randle v City of Aurora, 69 F3d 441, 451 (CA 10, 1995) (citations omitted).] Applying the McDonnell Douglas analysis in the present case, it is clear that plaintiff established a prima facie case of a violation of fmla § 2614. It is uncontested that plaintiff took maternity leave pursuant to the fmla and was dismissed by defendant before returning from that leave. The burden then shifted to defendant to demonstrate that there was a nondiscriminatory reason for its actions. Morgan, supra at 1323. Defendant presented evidence of its adoption of a management restructuring plan under which plaintiffs position as director of placement and two other management positions were eliminated. Following this evidence, the burden reverted to plaintiff to establish a genuine issue of material fact regarding whether defendant’s stated reason for eliminating her position was “unworthy of belief.” Id. Plaintiff failed to carry this burden, and therefore summary disposition in favor of defendant was properly granted. Plaintiff claims that she was dismissed “as a result of her requesting and taking a medical leave.” However, plaintiff presented no evidence to contradict the affidavit of defendant’s human resources director, Vicky Hilliard, stating that from 1993 through 1998, seven of defendant’s employees took maternity leaves, and none of those employees were dismissed by defendant. Also, plaintiff offered no evidence to contradict Hilliard’s statement that from 1992 through 1998, “there have been ninety . . . employees who have taken fmla leaves” and “[n]one of these employees have lost their positions because of their leaves of absence.” Plaintiff offered no evidence to contradict Christensen’s statements that the corporate restructuring plan that resulted in the elimination of plaintiff’s position was proposed in October 1995, approximately two months before plaintiff requested maternity leave pursuant to the fmla. Furthermore, plaintiff admitted during her deposition that she had no evidence to contradict defendant’s assertion that her position was eliminated as part of the management restructuring plan, rather than in response to her decision to take maternity leave. Plaintiff’s theory that defendant dismissed her because she was on leave was based on conjecture. Thus, the lower court correctly concluded that plaintiff failed to show that genuine issues of material fact existed regarding whether defendant’s claim that plaintiff’s position was eliminated as part of a management restructuring plan was “unworthy of belief.” Id. Plaintiff argues that the McDonnell Douglas analysis is inapplicable in this case because plaintiff’s claim is based on a “failure to restore” theory pursuant to FMLA § 2614, and therefore, defendant’s intent in terminating her employment was irrelevant. Plaintiff’s argument appears to be based on Peters v Community Action Committee, Inc of Chambers-Tallapoosa-Coosa, 977 F Supp 1428 (MD Ala, 1997). In Peters, the plaintiff claimed that her employer “reassigned [her] from one position to another and [ ] ultimately constructively discharged” her for exercising her rights under the fmla. Id. at 1432. The court stated: To the extent that the sole question presented by the parties in an fmla case is whether an employee has received her entitlements under the fmla — for example, a 12-week leave or reinstatement — the employer’s intent may be immaterial. . . . However, once one of the parties raises the issue of whether a right, benefit, or position is one to which the employee would have been entitled had the employee not taken the leave or whether the employer has taken adverse action against the employee for having exercised an fmla right, the question of intent, may become relevant. [Id. at 1433.] The court found that because the plaintiff had alleged that the employer’s actions were discriminatory and retaliatory, she had “framed her claims as turning on her employer’s intent,” and the McDonnell Douglas analysis was applicable. Id. at 1433. Plaintiff in the present case contends that her claim relates solely to defendant’s failure to reinstate her after her leave as required under the fmla. Thus, plaintiff argues that under the holding of Peters, the McDonnell Douglas analysis is inapplicable and defendant’s reasons for failing to reinstate plaintiff should not have been considered by the trial court. We disagree. Defendant raised the issue whether plaintiff would have been entitled to her position had she not taken the leave, and, consequently, the question of intent is relevant, and the McDonnell Douglas analysis applies. Id. Further, in count H of her complaint, plaintiff alleged that “[defendant violated [the fmla] by terminating the Plaintiff, in whole or in part, as a result of her requesting and taking medical leave.” Thus, plaintiff’s claim was not merely that defendant failed to reinstate her as required by the fmla, but also that defendant had “taken adverse action against [her] for having exercised an FMLA right.” Id. During the hearing regarding the motion for summary disposition, plaintiff claimed that defendant dismissed her because “she was off pregnant.” Thus, because plaintiff framed her argument in terms of defendant’s intent with regard to the termination of her employment, the McDonnell Douglas analysis was appropriately applied by the trial court. The court properly granted defendant’s motion for summary disposition of plaintiff’s claim under the fmla. n Plaintiff next argues that her gender discrimination claim was improperly dismissed. We disagree. In count I of her complaint, plaintiff alleged that she was treated differently by defendant because of her gender, in violation of § 202 of the CRA, MCL 37.2202; MSA 3.548(202). In Feick v Monroe Co, 229 Mich App 335, 338; 582 NW2d 207 (1998), this Court stated: Absent direct evidence of discrimination, a plaintiff may establish a prima facie case of employment discrimination by showing (1) that the plaintiff was a member of a protected class, (2) that an adverse employment action was taken against the plaintiff, (3) that the plaintiff was qualified for the position, and (4) that the plaintiff was replaced by one who was not a member of the protected class. The Feick test was applied by the trial court in the present case. The court found that because “it is uncontroverted that the female plaintiff in this action was replaced by a woman, plaintiff has failed to create a material issue of fact as to the 4th element of the prima facie case.” On appeal, plaintiff claims that the trial court erred in requiring plaintiff to show that she was replaced by a person who is not a member of her protected class in order to establish a prima facie case of gender discrimination. We agree. Plaintiff conceded that she was “replaced” by a woman after being dismissed by defendant. If plaintiff’s only argument had been that she was replaced for discriminatory reasons, the trial court’s application of the test in Feick would have been appropriate. However, plaintiff did not present a “discriminatory replacement” argument. Instead, plaintiff argued that defendant acted discriminatorily by treating her differently than a similarly situated male employee. Therefore, the trial court erred in granting summary disposition of plaintiffs gender discrimination claim in favor of defendant without considering plaintiffs argument based on a “similarly situated” theory. However, this Court will not reverse when the trial court reaches the correct result regardless of the reasoning employed. Zimmerman v Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997). Because plaintiff failed to establish that she was treated differently than a similarly situated male employee, summary disposition was properly granted in favor of defendant. Given plaintiffs argument that she was treated differently than a similarly situated male employee, Town v Michigan Bell Telephone Co, 455 Mich 688, 695; 568 NW2d 64 (1997) (opinion by Brickley, J.), articulates the appropriate test for establishment of a prima facie case of gender discrimination: The modified McDonnell Douglas prima facie approach requires an employee to show that the employee was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. Plaintiff claims that Richard Tejchma was a similarly situated male employee who was unaffected by defendant’s adverse conduct. Tejchma began working for defendant as an industrial subcontract supervisor in approximately 1975. He has a bachelor’s degree in sociology. After working for defendant for approximately three years, Tejchma received his certification as a rehabilitation counselor, and defendant employed him as a vocational evaluator. Tejchma testified that as a vocational evaluator, he provided diagnostic aptitude testing and vocational testing to evaluate individuals with handicaps and develop rehabilitation plans for training or community employment. Tejchma testified that he was still working for defendant as a vocational evaluator, although the title of his position has changed several times over the years. As previously noted, Tejchma’s position of director of assessment was eliminated along with plaintiff’s position of director of

Mary Kellie Beaupre vs. Cliff Smith & Associates & another. No. 98-P-100. Middlesex. May 5, 2000. November 16, 2000. Present: Kass, Laurence, & Duefly, JJ. Employment, Discrimination, Sexual harassment. Anti-Discrimination Law, Termination of employment, Sex, Burden of proof, Individual liability, Damages. Practice, Civil, Challenge of jurors, Judicial discretion, Directed verdict, Instructions to jury. Witness, Expert. Damages, Under anti-discrimination law. Defendants in a civil action did not preserve for appellate review any issue regarding their peremptory challenges. [482-483] Defendants in a civil action did not demonstrate that the trial judge’s decision mid-trial to allow the plaintiff’s treating physician to testify as an expert constituted an abuse of discretion, or, in any event, that any prejudice resulted from the judge’s ruling. [483-488] Evidence at the trial of a claim for sex discrimination in employment in violatian of G. L. c. 151B, § 4, was more than sufficient to meet the plaintiff’s burden of establishing “quid pro quo” and “hostile work environment” sexual harassment, and there was no error in the judge’s submitting the case to the jury or denying the defendants’ motions for judgment notwithstanding the verdict. [488-489] There was no merit to a claim that there is a presumption in the law favoring an accused harasser in a case involving a former consensual sexual relationship between the accuser and the accused. [489] A claim of sex discrimination in employment was not barred by the six-month statute of limitations set forth in G. L. c. 15IB, § 5 [489-490], and the judge properly allowed evidence of related conduct falling outside the six-month period on a theory of a continuing violation [490], A corporation’s president and controlling shareholder was correctly held personally liable, along with the corporation, for his sexual harassment of an employee of the corporation, where there was sufficient evidence of his conduct coercing the plaintiff into submitting to his sexual demands and using his authority over the corporation to create a hostile environment to warrant the jury’s verdicts; further, the individual defendant had ample notice of the specific allegations against him. [490-496] The awards of damages in a claim of sex discrimination in employment, consisting of lost front pay and lost back pay, were neither speculative nor excessive [496-497], and the punitive damages award was not, on the record, excessive [497-498]. Civil action commenced in the Superior Court Department on April 16, 1993. The case was tried before Herman J. Smith, Jr., J. Raymond J. Reed for Cliff Smith & Associates. Paul M. Stein for Clifford F. Smith. Laura R. Studen (John G. DiPiano with her) for the plaintiff. Clifford E Smith, individually. Laurence, J. The defendants, Cliff Smith & Associates (CSA) and Clifford F. Smith (CSA’s president and controlling shareholder), appeal from verdicts and damage awards by a Superior Court jury in favor of a former employee, the plaintiff, Mary Kellie Beaupre. The plaintiff had commenced suit in April, 1993, on a complaint alleging that her discharge from CSA in September, 1992, was motivated by unlawful sex discrimination in violation of G. L. c. 151B, § 4, in the form of sexual harassment of both the “quid pro quo” and “hostile work environment” varieties (see G. L. c. 151B, § 1[18]; Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 677 [1993]; Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-66 [1986]). The defendants assign several errors on appeal: the judge’s supposed limitation of their peremptory jury challenges; the judge’s allowance at trial of previously undisclosed expert opinion testimony by the plaintiff’s treating psychiatrist; the judge’s denial of their motions for directed verdict and judgment notwithstanding the verdict (challenging the sufficiency of the plaintiff’s sexual harassment case); the verdict of individual liability against Smith; and the excessiveness of the damage awards generally, and the award of punitive damages against Smith individually in particular. We affirm. 1. Peremptory challenges. The defendants assert that they were erroneously deprived of four peremptory challenges during jury empanelment. The record, however, does not support their contention. Indeed, they did not properly preserve the issue for appeal. The record reflects no statement or action by the judge regarding the number of challenges each party was allowed, nor the judge’s rejection of any attempted exercise of additional challenges by the defendants, nor any defense objection to any aspect of the jury selection process. For all we know from the record, had either of the defendants v/ished to challenge additional jurors peremptorily, the judge would have allowed it. Their appellate claim that any further challenges by them would have been futile is entirely speculative. That they essayed no such additional challenges more likely shows that they in fact had none. The record reveals that both CSA and Smith informed the judge that they were content with the jury. Nothing on the record suggests any error or abuse with respect to the “trial judge[‘s] . . . large degree of discretion in the jury selection process.” Commonwealth v. Benjamin, 430 Mass. 673, 675 (2000). Moreover, “the denial of the correct number of peremptory challenges [does not] constitute^ by itself ground for reversal . . . .” Andras v. Marcyoniak, 13 Mass. App. Ct. 1043, 1043 (1982). Neither CSA nor Smith has shown, as they must even if an error in this regard occurred, that “the ruling affected the jury’s verdict in some material way.” Id. at 1044. The lack of the requisite prejudice is seen in the failure of CSA and Smith to demonstrate that either defendant “was required to accept one or more jurors whom he wished to challenge . . . .” Ibid., quoting from Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex. 1965). 2. Expert testimony. The defendants point out that the plaintiff’s treating psychiatrist, Dr. Compaine, was not designated an expert during discovery or at any other time prior to trial. In the parties’ joint pretrial memorandum, the plaintiff affirmatively represented that she had no expert witnesses. On the seventh day of trial, however, the judge allowed the plaintiff to question Dr. Compaine both as an expert and as her treating physician, over the defendants’ objection that the plaintiff had not previously identified him as an expert. Dr. Compaine went on to testify not only to his diagnosis and treatment of the emotional and physical problems that the plaintiff had presented in the wake of her leaving CSA, but also to the general characteristics displayed by persons in abusive relationships, including lack of free will. He opined, based on what the plaintiff had told him and the symptoms she manifested, that she appeared to lack free will in the context of an abusive relationship. This, the defendants contend on appeal, constituted prejudicial surprise. We are not unsympathetic to the defendants’ indignation at the plaintiff’s cavalier violation of the procedural rules with respect to her expert. The defendants’ appeal nonetheless falters in not coming to grips with either the applicable standards of review or their failure to discharge the basic obligation of litigants seeking appellate relief to make and preserve proper objections at trial. The extensive discretion of trial judges with respect to both the process of discovery and the admission of evidence, particularly expert testimony, and the great deference appellate courts accord the rulings of trial judges in these areas are too well established to require citation. The defendants have not demonstrated that the judge’s decision to allow Dr. Compaine to testify as an expert in mid-trial constituted an abuse of that broad discretion; or that, even if the judge erred in his exercise of discretion in these matters, prejudicial error ensued. See Commonwealth v. Francis, 390 Mass. 89, 99 & n.6 (1983); Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985); Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987). The defendants have cited to, and we know of, no case in which a trial judge’s discretionary admission (or exclusion) of belatedly offered and previously unidentified expert testimony has been reversed by our appellate courts, notwithstanding any violation of discovery obligations or pretrial orders. Moreover, it is clear that they knew well prior to trial that Dr. Compaine would be the plaintiff’s key witness. They had subpoenaed all his treatment notes and they had deposed him, thereby having had the opportunity to obtain the substance of his testimony. We conclude that “[ajbsent here [was] the sort of unfair surprise which [the discovery rules] spekQ to prevent.” Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 351 (1995). Further subversive of their claim of unfair surprise or prejudice are the facts that the defendants (a) did not request a continuance, thereby indicating that there was nothing further to investigate regarding Dr. Compaine, that they were prepared to cross-examine him, and that their own expert was ready to counter opinions favorable to the plaintiff’s case, see Giannaros v. M.S. Walker, Inc., 16 Mass. App. Ct. 902, 902 (1983); Resendes v. Boston Edison Co., 38 Mass. App. Ct. at 350-351 (failure of defendant to seek continuance when plaintiff’s late-identified expert allowed to testify cuts against claim of abuse of discretion and prejudice); cf. Commonwealth v. Gordon, 422 Mass. 816, 836 (1996), quoting from Commonwealth v. McGann, 20 Mass. App. Ct. 59, 66 (1985) (when “surprise” evidence surfaces at trial in violation of discovery obligations, “the preferred course of action is ... a provision of additional time . . . .”); (b) did not seek a voir dire on or challenge Dr. Compaine’s qualifications to provide expert testimony (and have likewise not challenged the judge’s implicit discretionary finding that Dr. Compaine was so qualified, a finding amply supported by his resume and experience, see Commonwealth v. Boyd, 367 Mass. 169, 182 [1975], and cases cited); (c) did not state any specific objection to the content of the opinions Dr. Compaine expressed or to his testifying as both the treating physician and an expert (indeed, defense counsel conceded that a treating physician may render an expert opinion so long as he is qualified to do so and there is a proper foundation for the opinion); and (d) did at no time articulate any objection to Dr. Compaine’s testimony beyond the lack of prior notification. Assuming, arguendo, that Dr. Compaine should not have been allowed to testify as an expert, the defendants have not demonstrated any consequent prejudice. Their ability to cross-examine him thoroughly was not discernibly hindered. In particular, they effectively used his treatment notes and admissions to emphasize for the jury that he had no personal knowledge of the events at CSA that the plaintiff reported to him and that he based his opinions on the information supplied by the plaintiff. They responded to every significant aspect of Compaine’s testimony through their own expert, Dr. Gutheil, who had personally interviewed both the plaintiff and Smith. Gutheil not only contradicted Compaine’s opinion that the plaintiff presented the clinical picture of someone in an abusive relationship who had lost her free will, but further opined (well beyond the testimony of Compaine, see note 12, supra) that the facts of the case were “most consistent with a broken-up office romance . . . rather than a gender-based sexual harassment scenario” (an opinion not challenged by the plaintiff). There was also no undue emphasis by plaintiff’s counsel in closing argument on Dr. Compaine’s testimony. The judge’s charge on the subject of expert testimony was additionally counteractive of any residue of prejudice. In sum, we discern neither abuse of discretion nor improper prejudice to the defendants by virtue of the judge’s allowance of the plaintiffs expert testimony. See Eagan v. Marr Scaffolding Co., 14 Mass. App. Ct. 1036, 1036 (1982) (“[i]t was within the discretion of the trial judge to permit substitute expert witnesses to testify on the plaintiffs behalf even though supplementation of [discovery] . . . did not occur until shortly before and during trial, where [the] defendant long had notice of the substance of the testimony expected, where [the] defendant had an opportunity to — and did — depose each witness . . . , and where no bad faith was shown on the part of the plaintiff’). Cf. Resendes v. Boston Edison Co., 38 Mass. App. Ct. at 350-351, and cases cited. 3. Denial of directed verdict motion. Under the standard of review applicable to the denial of the defendants’ motion for a directed verdict on the G. L. c. 15 IB claim, the defendants’ contention that the evidence did not establish actionable sexual harassment fails. The plaintiffs testimony (see note 4, supra), if believed by the jury, would be more than sufficient to meet her burden of establishing both sets of circumstances constituting what are commonly known as “quid pro quo” and “hostile work environment” sexual harassment (see G. L. c. 151B, § l[18][a], [b]), namely that (a) Smith’s sexual advances and other sexual conduct directed at the plaintiff were unwelcome, cf. Gnerre v. Massachusetts Commn. Against Discrimination, 402 Mass. 502, 507 (1988); and (b) the advances either conditioned some aspect of employment or were sufficiently pervasive that they “ha[d] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 15IB, § 1(18)(6). See Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 678-679 (1993). The defendants, who did not request that the special questions submitted to the jury provide that the jury specify the theory of sexual harassment supporting any verdict, may not now be heard to argue, as they do, that it is impossible to tell on which theory the jury based their verdict. See Mass.R.Civ.P. 49(a), 365 Mass. 813 (1974); Hawco v. Massachusetts Bay Transp. Authy., 398 Mass. 1006, 1006 (1986); Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 530 (1992). There being adequate evidence to support a verdict on both theories, the judge did not err in sending the case to the jury and in not overturning the jury’s verdicts. Also unavailing is the defendants’ suggestion that the judge erred in not instructing the jury (as they requested) that a special presumption favoring accused harassers applies to sexual harassment cases involving coworkers who once shared a consensual sexual relationship. Such a presumption finds no support in the law of this Commonwealth. We are not obligated to follow the Federal courts’ interpretations of related, but distinguishable, portions of Title VII which suggest such a presumption — see, e.g., College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 163-164 (1987); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 289 (1997); Bain v. Springfield, 424 Mass. 758, 765 n.4 (1997); Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 153 (D. Mass. 1996) — and none of the cases cited by the defendants involved the relevant provisions of chapter 151B. Finally, the defendants contend that the plaintiff’s January 29, 1993, complaint with the MCAD was filed over six months after the ugly July 27, 1992, incident between the plaintiff and Smith (see G. L. c. 151B, § 5, creating a six-month statute of limitations), and that the judge consequently erred in not instructing the jury to ignore that outside-the-statute incident, which they assert was unduly “played up” in the plaintiff’s closing argument. The evidence (of Smith’s constant sexual harassment of the plaintiff during August and into October, 1992, and his offers during that same time period of restoration of employment perquisites and of reemployment explicitly conditioned upon resumption of a sexual relationship, see note 4, supra) eliminated any statute of limitations problem by providing sufficient independent bases for the jury’s verdicts. The judge also acted within his discretion in allowing the admission of evidence of related conduct falling outside of the six-month period on a “continuing violation” theory, which he implicitly did in denying the defendants’ directed verdict motion that was in part premised on the irrelevance of the July 27, 1992, flare-up. See, e.g., Lynn Teachers Union, Local 1037 v. Massachusetts Commn. Against Discrimination, 406 Mass. 515, 520-523 (1990); In re C.F. Smith & Assocs., Inc., 235 B.R. 153, 164 (Bankr. D. Mass. 1999). 4. Smith’s individual liability. The defendants argue that no Massachusetts appellate decision has recognized personal liability of individual employees under G. L. c. 15IB; that the “trend of authority” in other states and under analogous Federal law is to construe sexual harassment statutes so as “to limit liability to an ‘employer’ ”; that in any event Smith himself could only be held personally liable in this case for “aiding and abetting” CSA under G. L. c. 151B, § 4(5), but he was never charged individually or as an aider or abettor in the MCAD charge or the Superior Court complaint; and that such liability would be legally impossible since the only sexually harassing conduct alleged was his own, i.e., “there was no one else whom he could have aided and abetted.” These arguments all fail, for several reasons. First, G. L. c. 15 IB does not limit the categories of persons who may be individually liable. To the contrary, the plain language of the statute provides on its face for individual personal liability in several sections, unlike the cognate provisions of other jurisdictions (including Federal), which are more or less ambiguous on the issue. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992) (“[W]hen a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished”). The MCAD, whose interpretations of G. L. c. 151B we are to accord deference, College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 166, has long recognized and imposed individual liability under the statute, including in situations similar to this one. Highly pertinent in this regard are the mandate of G. L. c. 151B, § 9, that the provisions of the chapter must be construed liberally for the accomplishment of its purposes — one of which was to discourage and penalize discriminatory conduct, including sexual harassment, by individuals — and the explicitly declared policy of the Commonwealth that all persons have the. right to be free from sexual harassment. G. L. c. 214, § 1C. Given these authorities, we have no hesitation in stating that our law clearly rejects the defendants’ contention that Smith cannot be held individually liable under c. 15 IB for his active sexual harassment of the plaintiff. Contrary to the defendants’ assertion, Smith was from the outset named as an individual defendant and alleged to have had personal responsibility for the plaintiff’s claimed sexual harassment and consequent injuries, in both the MCAD charge and the Superior Court complaint. He had ample notice of the specific allegations made against him personally by the plaintiff. See Brunson v. Wall, 405 Mass. 446, 451 (1989); Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996); Chatman v. Gentle Dental Center of Waltham, 973 F. Supp. 228, 235 (D. Mass. 1997) (together emphasizing the importance under c. 15 IB of sufficient notice being provided in the MCAD filing of the charges being made and of the parties deemed responsible, so as to allow both the opportunity to attempt early conciliation and a fair oppor

Workers' compensation—Although death benefits may be granted or denied based on dependent status as defined in R.C. 4123.59, the denial or grant of benefits is not appealable unless it concerns the causal connection between injury, disease, or death and employment—R.C. 4123.60 dependency issues are not appealable under R.C. 4123.512—Decedent's estate can be entitled to R.C. 4123.60 compensation that accrued but was not paid to the decedent.

Ronald A. Mitchell vs. TAC Technical Services, Inc., & others. No. 98-P-343. Middlesex. May 16, 2000. September 14, 2000. Present: Rapoza, Smith, & Gillerman, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Age. Occupational Safety and Health Administration. Practice, Civil, Summary judgment. Words, “Public policy exception,” “At-will employee.” In an employment discrimination action, the judge properly granted summary judgment in favor of the employer on the plaintiff’s age discrimination claim, where the plaintiff failed to produce evidence sufficient to establish a prima facie case, or to file an affidavit, pursuant to Mass.R.Civ.P. 56(f), that would have provided a basis for a continuance in order to conduct discovery to obtain such evidence. [92-93] In a civil action in which an at-will employee claimed that he was wrongfully terminated in retaliation for asking to examine the material safety data sheet for a hazardous chemical present in his workplace, no considerations of public policy, as evidenced by the Occupational Health and Safety Act of 1970 and its corresponding regulations, rose to the level of importance required to justify an exception to the general rule regarding termination of at-will employees; summary judgment was properly granted in favor of the employer. [95] Civil action commenced in the Superior Court Department on July 9, 1996. The case was heard by Regina L. Quinlan, J., on motions for summary judgment. Paul A. Manoff for the plaintiff. Michael P. Boudett for Polaroid Corporation & another. Amy M. Soisson for TAC Technical Services, Inc. Polaroid Corporation and David Chenard. Gillerman, J. Claiming that his employment was terminated on account of his age (count I) and that the termination was in violation of public policy and therefore wrongful (count II), the plaintiff brought this action against his employer, TAC Technical Services, Inc. (TAC); Polaroid Corporation (Polaroid), his workplace; and David Chenard, his supervisor at Polaroid. A judge of the Superior Court allowed the defendants’ motions for summary judgment. We affirm. We state the material facts, as developed in the plaintiff’s deposition and his two affidavits, in the light most favorable to the plaintiff. The plaintiff, a mold mechanic, began working as an at-will employee at Polaroid on or about April 24, 1995. The plaintiff’s job involved the use of isopropanol 99, a cleaning substance used to wipe molds. According to the plaintiff, his first supervisor, Robert Roussos, on several occasions told him that he was happy with the plaintiff’s job performance as a mold mechanic. A week or two after beginning his work at Polaroid, the plaintiff found that fumes from the isopropanol “irritated” him, and he asked Roussos for a material safety data sheet (MSDS) at that time. The plaintiff wanted to assess the “hazardous nature” of the isopropanol. Roussos said he would try to locate one. The plaintiff made the same request on a “number of occasions” thereafter. The plaintiff makes no mention in his affidavit of any additional events during the succeeding months of May and June. On Thursday, July 6, 1995, the plaintiff again asked Roussos for an MSDS on isopropanol. Roussos said he wanted to see the MSDS also; he intended to complain about the fumes as well. Later that day the plaintiff repeated his request in front of the defendant Chenard, the plaintiff’s second supervisor. Chenard was annoyed and interrogated the plaintiff in a hostile manner. Later, Chenard gave the plaintiff the wrong MSDS. The plaintiff discovered the mistake, and Chenard told the plaintiff to look for the MSDS himself. The plaintiff was unable to find it. Chenard said he would get the MSDS directly from the manufacturer. The MSDS arrived from the manufacturer very shortly thereafter and was given to the plaintiff. At about 11 a.m. on July 6 or July 7 (the record is unclear), the plaintiff left work because he “didn’t feel well.” He did not return to work the following Monday “[b]ecause the hazard still existed and I was sick when I left [work].” On the following Monday, July 10, he learned that he had been terminated either late Friday or on Monday. On July 10 or 11, he filed a “health complaint” with the Occupational Safety and Health Administration (OSHA), and met with that agency on July ll. In his affidavit dated May 8, 1997, filed in these proceedings, the plaintiff stated, “I need to conduct discovery in this matter in order to demonstrate inter alla, the age of the person that replaced me, when the actual decision was made to discharge me, who made such decision, what statements were made about such decision, what documents are in existence relative to such decision, what conversations . . . Chenard had with Roussos about my performance, etc. I need to take the depositions of . . . Chenard and Roussos.” It appears from the record before us that the plaintiff did not conduct any such discovery or take any such depositions. Discussion. The first stage of the established three-stage analysis under the Massachusetts antidiscrimination statute, G. L. c. 15IB, puts the burden on the plaintiff to establish a prima facie case of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000). In an age discrimination case, this requires the plaintiff to establish that he was (i) over forty; (ii) doing his job acceptably; (iii) fired; and (iv) replaced by a younger person. Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 n.4 (1996). The plaintiff appears to have satisfied the first three conditions, but not the fourth. As noted above, the plaintiff acknowledged that he required discovery in order to establish “the age of the person that replaced” him. The plaintiff attempted no such discovery, and he filed no affidavit pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), that could provide a basis for a continuance in order to take the needed depositions. In these circumstances the failure to file the rule 56(f) affidavit was “fatal.” See Baker v. Monga, 32 Mass. App. Ct. 450, 453 (1992). The fourth condition not having been fulfilled, the plaintiff did not survive stage one of his discrimination claim. There was no error in dismissing count I. Count II — the alleged public policy exception to the rule governing at-will employees — presents a quite different question. We start with the fact that the public policy exception to the general rule — that an at-will employee may be terminated with or without cause — is quite narrow. Merola v. Exergen Corp., 423 Mass. 461, 464 (1996). See King v. Driscoll, 418 Mass. 576, 582-583 (1994), describing instances where the exception is available, and concluding “[t]his court consistently has interpreted the public policy exception narrowly, reasoning that to do otherwise would ‘convert the general rule . . . into a rule that requires just cause to terminate an at-will employee.’ ” Ibid., quoting from Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989). The plaintiff points to the Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651 et seq. (1994) (act), as evidence of a strong Federal policy of providing a safe workplace to employees. For that reason, the argument continues, the act provides the basis for applying the public policy exception to the Massachusetts common law regarding at-will employment. More particularly, the plaintiff points to 29 C.F.R. § 1977.12(a) (1999), which discusses § 11(c) of the act. Section 11(c) of the act protects employees, inter alla, from discrimination, or discharge, occurring because of the exercise “of any right afforded by this Act.” See 29 C.F.R. § 1977.3(d). Section 1977.12(a) continues: “Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (section 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation.” Subsection (b)(1) of 29 C.F.R. § 1977.12 continues the discussion of § 11(c) of the act: “On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.” (Emphases added.) See Marshall v. Daniel Constr. Co., 563 F.2d 707, 716 (5th Cir. 1977) (“[w]hen adopting OSHA, Congress deliberately sought to achieve job safety while maintaining proper employer-employee relations”). One further regulation bears on this discussion. 29 C.F.R. § 1910.1200(g)(8) (1999) provides that employers “shall maintain in the workplace copies of the required material safety data sheets for each hazardous chemical, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).” We consider these regulations in the context of the facts alleged by the plaintiff. After his initial request, within a week or two after his arrival, to see the MSDS for isopropanol, he subsequently made several additional requests. Then, on July 6 or 7, after some difficulty, the plaintiff obtained a copy of the MSDS, and on that same day he left work because he was not feeling well. He did not return to work. On the following Monday he learned that he had been terminated. Thereupon he filed a complaint with OSHA, and met with OSHA officials on Tuesday, July 11. On these facts the plaintiff’s claim is quite narrow. He says in his brief, “Plaintiff is not claiming that he was discharged in retaliation for going to OSHA, only that he was discharged in retaliation for asking to see the MSDS sheet. Since he had a legal right to see the sheet, and since his request to see the sheet was a good faith attempt to resolve matters, prior to going to OSHA, it makes no sense to hold that his discharge was merely an internal matter.” The plaintiff offers 29 C.F.R. § 1977.12(a), quoted above, in support of this proposition. Without doubt 29 C.F.R. § 1910.1200(g)(8), quoted above, imposes on Polaroid the obligation to make the sheets “readily accessible” to its employees and, by implication, there is the corresponding “right” of an employee to see the sheets. It is a different matter to argue that the employee’s “right” to see the sheets is of sufficient public importance to require a modification of the rules governing employees at will. To put the matter in terms of 29 C.F.R. § 1977.12(b)(1): Polaroid’s obligation to make the sheets accessible to its employees did not create a corresponding right “afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. . . . [Consequently,] an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.” The employee’s remedy is to request an inspection of the workplace pursuant to section 8(f) of the act. Taking the case most favorably to the plaintiff, as we must, we do not think that the plaintiff’s “right” to examine the sheets as a result of his apprehension of “potential unsafe conditions at the workplace” so clearly created a “right afforded by the act” that the courts of this Commonwealth are bound to recognize that “right” as “a source of well-defined public policy sufficient to modify the general at-will employment rule,” Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474 (1992) (Massachusetts regulation regarding the responsibilities of a registered nurse is an insufficient source of public policy to modify the general at-will employment rule), nor does it “rise to the level of importance required to justify an exception to the general rule regarding termination of employees at will.” King v. Driscoll, 418 Mass. at 584. Judgment affirmed. The complaint alleges that TAC is an employment agency, that Polaroid was a client and agent of TAC, and that the plaintiff was employed by TAC. In his deposition the plaintiff testified that Roussos then told him, “He’s going to get rid of you.” (The statement apparently was intended to refer to Chenard.) If not otherwise admissible, the hearsay statement, being merely Roussos’s personal opinion as to how others at Polaroid would be expected to act, does not fall within the exception described in Ruszcyk, v. Secretary of Pub. Safety, 401 Mass. 418, 420, 423 (1988) (a statement by an employee “concerning a matter within the scope of his . . . employment”). The plaintiff did not obtain an affidavit from Roussos, nor did he take Roussos’s deposition. Hearsay in an affidavit is “unacceptable to defeat summary judgment,” Madsen v. Erwin, 395 Mass. 715, 721 (1985), and the reasoning underlying that rule —• the desirability of avoiding a futile trial for lack of competent evidence — is equally applicable to the hearsay testimony in a deposition. See Flesner v. Technical Communications Corp., 410 Mass. 805, 817 (1991). While the record is unclear exactly when the plaintiff was terminated, there does not appear to be anything in the record to suggest that the termination occurred after Polaroid became aware that the plaintiff had filed a complaint with OSHA. The plaintiff’s brief to this court reiterates that the plaintiff had “hoped” that through discovery he would show that a younger man replaced him.