Wrongful Termination Cases

CHARLOTTE McLAIN, Plaintiff v. TACO BELL CORP., TAYLOR FOODS, INC., THOMAS ORR and MICHELLE RAYNOR, Defendants No. COA98-750-2 (Filed 4 April 2000) 1. Evidence— spoliation — destruction or non-production— adverse inference In a case where plaintiff-employee placed numerous entries in a company logbook during the course of her employment concerning the sexual harassment of plaintiff by two co-workers, a partial new trial must be granted on the issue of defendant Taylor Foods’ ratification of the conduct of defendant Raynor in committing a battery upon plaintiff since the trial court erred in failing to give a requested jury instruction concerning the alleged destruction or non-production of corporate records by defendant Taylor Foods, which would have allowed the jury to determine that spoliation of evidence gives rise to an adverse inference. 2. Judgments— default — pretrial motion — no prejudicial error The trial court did not commit prejudicial error in failing to grant plaintiff-employee’s pretrial motion for default judgment against a non-answering individual defendant, against whom default had been entered, in light of the interrelationship of plaintiff’s claim against the individual defendant with those against corporate defendants Taylor Foods and Taco Bell, and the requirement of a verdict against either of the individual defendants as an element of plaintiff’s claims against the corporate defendants. Appeal by plaintiff from judgment entered 6 May 1997 by Judge Ernest B. Fullwood in Onslow County Superior Court. Originally heard in the Court of Appeals 29 March 1999. An opinion was filed by this Court 18 January 2000. Defendants’ Petition for Rehearing was granted 7 March 2000 and heard without oral argument. The present opinion supersedes the 18 January 2000 opinion. Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Harold L. Kennedy III, Harvey L. Kennedy and Annie Brown Kennedy, for plaintiff-appellant. Hunton and Williams, by A. Todd Brown and Matthew R McGuire, for defendant-appellee Taco Bell Corporation. Poyner and Spruill, L.L.P., by Cecil W. Harrison, Jr. and Susanna K. Gibbons, for defendant-appellee Taylor Foods, Inc. JOHN, Judge. Plaintiff contends the trial court erred, inter alia, in failing to charge the jury on the alleged destruction or non-production of evidence by defendant Taylor Foods, Inc. (Taylor Foods). We hold that, under the circumstances sub judice, the lack of such instruction constituted reversible error entitling plaintiff to a partial new trial. Relevant facts and procedural information include the following: On 24 February 1995, plaintiff Charlotte McLain instituted claims against 1) defendants Thomas Orr (Orr) and Michelle Raynor (Raynor) for battery and intentional infliction of emotional distress based upon alleged sexual harassment, 2) defendants Taco Bell Corporation (Taco Bell) ¿nd Taylor Foods for wrongful discharge, negligent hiring and/or retention of Orr and ratification of Orr’s and Raynor’s alleged intentional misconduct, and 3) defendant Taco Bell for negligent supervision of its alleged agent, Taylor Foods. The case was tried before a jury during the 7 April 1997 Civil Session of Onslow County Superior Court. Evidence at trial tended to show the following: On 25 April 1994, plaintiff began work as assistant manager in a Jacksonville, North Carolina, Taco Bell restaurant (the restaurant) owned and operated by Taylor Foods pursuant to a franchise agreement with Taco Bell. As a manager, plaintiff was required to make daily entries in a three-ring binder with looseleaf paper referred to as the manager’s logbook (the logbook). The logbook was kept locked in the restaurant office and reviewed only by managers and Matt Clark (Clark), Taylor Foods’ district manager. Plaintiff understood from Clark that entries were mandatory so as to enable managers to record and be aware of customer complaints, crew situations and concerns arising during each shift, as well as to keep Clark and the other managers in communication with each other. Plaintiff testified that Orr, the unit manager, informed her that he and Clark regarded reading the logbook as an “everyday occasion.” At trial, plaintiff related that approximately one week following commencement of her employment, Orr and Raynor, the first assistant manager, began to make sexually suggestive statements and physical advances towards plaintiff in the restaurant. Other witnesses related similar accounts of sexual misconduct by Orr and Raynor directed towards themselves or others. Plaintiff testified she immediately began leaving notes in the manager’s logbook, seeking to speak with Clark about the actions of Orr and Raynor, and that she continued to do so throughout her employment, expressly raising the issue of sexual harassment in subsequent entries. According to plaintiff, Clark never contacted her concerning the entries, although he had informed her he reviewed the logbook “on a daily basis” and she had observed Clark reading the logbook on at least one occasion. Plaintiff further testified that following repeated instances of sexually suggestive statements by both Orr and Raynor and sexually explicit touching by Orr, the latter cornered plaintiff in the restaurant stockroom in early June 1994. Orr thereupon physically assaulted plaintiff, dropped his trousers while saying he wanted to have sexual relations with her and, upon her refusal, began masturbating, ultimately ejaculating upon plaintiffs clothing. Clark discharged plaintiff the next day on grounds she had violated numerous work regulations. Plaintiff contacted Clark’s superior, Ronnie Matthews (Matthews), vice president of operations at Taylor Foods, asserting she had not been treated fairly and accusing Orr and Raynor of sexual misconduct. Matthews met with plaintiff and Clark 8 June 1994 to discuss plaintiff’s complaints. In the presence of plaintiff and Clark, Matthews interviewed Taylor Foods employees Susan Lacy (Lacy), Deborah Rush (Rush) and Rick Morgan (Morgan), each of whom described similar incidents of sexual misconduct by Orr and Raynor. Clark related he interviewed Gina Berkner (Berkner), a current manager, who informed Clark and testified during trial that she had heard Orr and Raynor making sexually suggestive comments to other employees. On 9 June 1994, Clark terminated Orr and Raynor based in part upon the alleged sexual misconduct, and plaintiff was reinstated to her position as assistant manager. Plaintiff resigned shortly after her reinstatement. The jury returned a verdict in favor of Taylor Foods, Taco Bell and Orr, but found for plaintiff against Raynor. Judgment was entered 6 May 1997, awarding plaintiff $15,000.00. Plaintiff appeals. Only defendants Taylor Foods and Taco Bell (defendants) have responded to plaintiff’s appeal. Plaintiff contends the trial court erred in refusing to give the following requested jury instruction: I instruct you that evidence has been presented in this case which tends to show that the Defendant, Taylor Foods, Inc. either destroyed or failed to produce corporate records in its exclusive possession requested by the plaintiff in this case. If you determine this to be the case, then those [sic] would be a presumption or adverse inference against the Defendant, Taylor Foods, Inc. that the evidence withheld would have injured the Defendants, Taylor Foods, Inc.’s defense in this case. If you find that Taylor Foods, Inc. destroyed or failed to produce said corporate records, there would be a strong presumption that Taylor Foods, Inc. is liable for the intentional acts of Thomas Orr and Michelle Raynor. Plaintiff argues the trial court’s failure to instruct the jury substantially as requested constituted reversible error. Upon examination of the record and review of the applicable law, we agree. Pursuant to N.C.G.S. 1A-1, Rule 51 (1990), the trial court is “required to instruct a jury on the law arising from the evidence presented,” Lusk v. Case, 94 N.C. App. 215, 216, 379 S.E.2d 651, 652 (1989). Further, when a request is made for a specific instruction, correct in itself and supported by evidence, the trial court, while not obliged to adopt the precise language of the prayer, is nevertheless required to give the instruction, in substance at least, and unless this is done, either in direct response to the prayer or otherwise in some portion of the charge, the failure will constitute reversible error. Calhoun v. Highway Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935). Pertinent to the issue sub judice, our Supreme Court in Yarborough v. Hughes, 139 N.C. 199, 51 S.E. 904 (1905), stated the rule as follows: where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control... there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case. Id. at 208-09, 51 S.E. at 907-08. The foregoing refers to the well-established principle of “spoliation of evidence,” Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 60, at 194 (5th ed. 1998) [hereinafter Brandis and Broun on North Carolina Evidence], similar to the “rule applie[d] to the failure to call an available witness with peculiar knowledge of the fact to be established,” Yarborough, 139 N.C. at 209, 51 S.E. at 908. Application of the principle presents “a significant fact for the consideration of the jury,” id. at 210, 51 S.E. at 908, and allows strong “circumstantial prooff],” id. (citing Black v. Wright, 31 N.C. 447, 451-52 (1849)), against a party which withholds evidence in its possession because of the “supposed knowledge that the truth would have operated against [it],” id. Accordingly, “[i]f a man by his own tortious act withholds evidence by which the nature of his case would be manifested, every presumption to his disadvantage will be adopted, for where a party has the means in his power of rebutting and explaining the evidence adduced against him, if it does not tend to the truth, the omission to do so furnishes a strong inference against him.” Id. at 209, 51 S.E. at 908 (quoting Broom Legal Maxims 938 (8th Am. Ed.)); see also Rhode Island Hospital Trust National Bank v. Eastern General Contractors, Inc., 674 A.2d 1227, 1234 (R.I. 1996) (“[u]nder the doctrine omnia praesumuntur contra spoliatiorem, ‘all things are presumed against a despoiler’ ”). Notwithstanding use of the term “presumption” in Yarborough, “[i]t is doubtful if [the principle] was ever intended to mean anything except that an inference might be drawn against the spoliator.” Brandis and Broun on North Carolina Evidence § 60, at 194; see also Beers v. Bayliner Marine Corporation, 675 A.2d 829, 832 (Conn. 1996) (“rule of the majority of the jurisdictions that have addressed the issue in a civil context ... is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it”). However, the inference does not supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced. Doty v. Wheeler, 182 A. 468, 471 (Conn. 1936) (citations omitted). “Destruction of potentially relevant evidence obviously occurs along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality.” Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988). Although destruction of evidence in bad faith “or in anticipation of trial may strengthen the spoliation inference, such a showing is not essential to permitting the inference.” Rhode Island Hospital, 674 A.2d at 1234 (citations omitted); see Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (adverse inference proper where plaintiffs, although not acting in bad faith, permanently destroyed relevant evidence during investigative efforts), scad Henderson v. Hoke, 21 N.C. 119, 146 (1835) (“[i]t is sufficient if [the evidence] be suppressed, without regard to the intent of that act”); see also Hamann v. Ridge Tool Co., 539 N.W.2d 753, 756-57 (Mich. Ct. App. 1995) (“[w]hether the evidence was destroyed or lost accidentally or in bad faith is irrelevant, because the opposing party suffered the same prejudice”). However, “[i]f the evidence alleged to be withheld or destroyed is shown to be . . . equally accessible to both parties,” Gudger v. Hensley, 82 N.C. 482, 486 (1880), or “there is a fair, frank and satisfactory explanation,” Yarborough, 139 N.C. at 211, 51 S.E. at 908, for nonproduction, the principle is inapplicable and no inference arises, see id. (“ [i]t may be that the defendants will be able to show that, after due and diligent search prosecuted in good faith, they are unable to produce [the evidence] or they may in some other manner explain away any inference to be drawn from the failure” to produce the evidence). On the other hand, if... no satisfactory explanation is forthcoming, the maxim of the law will apply, and the jury must pass upon the case, aided by the [inference], giving to it such force and effect as they may think it should have under all of the facts and circumstances. Id. (citations omitted). Nonetheless, even though the adverse inference may be drawn, it is permissive, not mandatory. If, for example, the factfinder believes that the documents were destroyed accidentally or for an innocent reason, then the factfinder is free to reject the inference. Blinzler v. Marriott International, Inc., 81 F.3d 1148, 1159 (1st Cir. 1996). Bearing the foregoing in mind, we turn to an examination of the instant record. Evidence at trial concerning the logbook tended to show that plaintiff had placed numerous entries therein during the course of her employment requesting to speak with Clark. Significantly, according not only to plaintiffs testimony but also that of Lacy, examination of the logbook three days prior to the 8 June 1994 investigation revealed nineteen such entries. Moreover, on the date of the investigation, plaintiff, Lacy, Rush and Morgan each related to Matthews and Clark, as representatives of Taylor Foods, instances of sexual misconduct by both Orr and Raynor towards themselves and/or other employees. Matthews thereupon directed Clark to retrieve from the restaurant any materials pertinent to the allegations of sexual harassment. While at the restaurant, Clark also interviewed Berkner who reported observing both Orr and Raynor make sexual statements and advances towards other employees. Clark returned to the investigation site approximately one to two hours later with various materials, including the logbook. Plaintiff and Lacy viewed the logbook at that time and discovered that no entries by plaintiff requesting to speak with Clark were to be found. Plaintiff and Lacy informed Matthews they had counted nineteen such entries three days earlier, all directed to Clark and requesting to speak with him, some expressing concern over sexual harassment by Orr and Raynor. Lacy as well as plaintiff further described the logbook as two to three inches thick and containing between one and two hundred pages when they had examined it, whereas it was barely one-half inch thick and held approximately fifty pages when delivered to Matthews by Clark. Clark denied having removed any pages prior to returning to the investigation site. Plaintiff also testified she reviewed the logbook during pre-trial discovery and found it contained only twenty to twenty-five pages at that time and was missing documents she had seen 8 June 1994, the date of the investigation. Clark explained that, following 8 June 1994, he had “removed everything [from the logbook] that [he] felt was pertinent to Mr. Orr and Ms. Raynor’s termination and... put those in his file,” and “threw everything else away,” including “a lot” of plaintiffs and other managers’ notes. It is thus undisputed that Clark became aware of plaintiff’s sexual harassment allegations 8 June 1994 upon hearing her statement as well as those of Rush, Morgan and Berkner. In addition, prior to going to the restaurant during the investigation, Clark also was aware of plaintiff’s assertion that she had made numerous logbook entries which might be of significance in supporting her allegations. It is also noteworthy that Clark conceded he personally had destroyed a portion of the contents, although he denied any “pertinent” material was missing. As described in the testimony of plaintiff and Lacy, the logbook entries allegedly lost or destroyed by Clark would have been relevant to the allegations of plaintiff against Taylor Foods. Offered into evidence in the format described by plaintiff and Lacy, the logbook would have established that Clark was on notice of sexual harassment of plaintiff by Orr and failed to act upon such knowledge, thereby defeating defendants’ contention they lacked knowledge of plaintiff’s complaints or of Orr’s actions. Without doubt under such circumstances, were the jury to find that Clark, whether in bad faith or not, misplaced, suppressed or destroyed the logbook pages described in the testimony of plaintiff and Lacy, such determination reasonably would permit the jury to infer, “giving to [the inference] such force and effect as they may think it should have under all of the facts and circumstances,” Yarborough, 139 N.C. at 211, 51 S.E. at 908, that “the document[s], if produced, would probably militate against,” id. at 210, 51 S.E. at 908, Taylor Foods. As one court has observed, [t]he proponent of a “missing document” inference need not offer direct evidence of a coverup to set the stage for the adverse inference. Circumstantial evidence will suffice. Blinzler, 81 F.3d at 1159. The evidence sub judice, both direct and circumstantial, tended to show suppression and destruction by Taylor Foods of documents capable of “rebutting and explaining the evidence adduced against [it],” Yarborough, 139 N.C. at 209, 51 S.E. at 908, without a “fair, frank and satisfactory explanation,” id. at 211, 51 S.E. at 908, sufficient to preclude instruction on the adverse inference. Accordingly, the trial court committed reversible error in failing, upon plaintiff’s tender of “a specific instruction... supported by evidence,” Calhoun, 208 N.C. at 426, 181 S.E. at 272, “to give the instruction, in substance at least,” id., and, as in Yarborough, “there must be a new trial,” Yarborough, 139 N.C. at 211, 51 S.E. at 908. Notwithstanding, defendants interject that Taylor Foods “produced all documents from the manager’s logbook that were in its possession when litigation was initiated,” and that it was not on notice the destroyed documents were relevant prior to institution of the suit. The former assertion is in no way dispositive of the issue in question. As to the latter contention, we believe the evidence that Clark, as representative of Taylor Foods, was “aware of circumstances that [we]re likely to give rise to future litigation,” Blinzler, 81 F.3d at 1158-59, on 8 June 1994 and also that the logbook was relevant to plaintiff’s allegations and needed to be preserved, was sufficient to allow the jury’s consideration of the adverse inference. First, it appears defendants correctly argue that in order to qualify for the adverse inference, the party requesting it must ordinarily show that the “spoliator was on notice of the claim or potential claim at the time of the destruction.” Robert L. Tucker, The Flexible Doctrine of Spoliation of Evidence: Cause of Action, Defense, Evidentiary Presumption, and Discovery Sanction, 27 U. Tol. L. Rev. 67, 79 (1995). While notice of the importance of certain documents may ordinarily be derived from institution of suit, see Yarborough, 139 N.C. at 208, 51 S.E. at 907 (“complaint itself was sufficient notice to the defendants of

ANTHONY SIMMONS, Plaintiff-Appellant v. CHEMOL CORPORATION, Defendant-Appellee No. COA99-385-2 (Filed 4 April 2000) 1. Employer and Employee— wrongful discharge — welder— respiratory irritation The trial court did not err by granting summary judgment for defendant on a wrongful discharge claim where plaintiff, a welder, alleged that his rhinitis, an inflammation of the nasal membrane, rendered him handicapped and that his discharge violated public policy. Plaintiffs medical records establish that his condition is temporary; a discussion of reasonable accommodation is irrelevant under the Equal Employment Practices Act, on which plaintiffs claim is based; plaintiff received evaluation scores below an acceptable level for quality of work, technical application, reliability, and punctuality; and both his supervisor and plant manager thought that plaintiffs respiratory problems had been resolved well before his termination. 2. Emotional Distress— intentional and negligent — employment termination The trial court did not err by granting summary judgment for defendant on claims for intentional and negligent infliction of emotional distress arising from an employment termination. Appeal by plaintiff from order entered 10 February 1999 and filed 11 February 1999 by Judge Russell G. Walker, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 10 January 2000. Gray, Newell & Johnson, L.L.P., by Angela Newell Gray, for plaintiff-appellant. Pinto Coates Kyre & Brown, PLLC, by Martha P Brown, for defendant-appellee. WALKER, Judge. On 15 May 1998, plaintiff filed this action alleging wrongful discharge in violation of public policy pursuant to N.C. Gen. Stat. § 143-422.2, along with a claim for negligent and intentional infliction of emotional distress. Defendant answered and moved to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on 18 June 1998, which the trial court denied on 13 August 1998. On 15 January 1999, defendant moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, which the trial court granted on 10 February 1999. Plaintiff began his employment with defendant as a general welder on or about 22 July 1996. Approximately six months later, plaintiff began suffering from a respiratory condition subsequently diagnosed as “rhinitis,” an allergic reaction characterized by the inflammation of the nasal membrane. See Kenneth G. Trestman, M.D., and Carey Howes, Medical Editor, Allergies, in Attorneys’ Textbook of Medicine par. 65.41 (3d ed. 1998). Plaintiff claims he had difficulty breathing while performing his duties at work and that the quality of his work and his attendance record suffered due to his condition. Further, he requested that defendant provide breathing masks, ceiling fans and other breathing aids that would accommodate his breathing problems; however, these requests were disregarded. Plaintiff also claims he was required to work in a chemical tank without adequate ventilation, was not allowed time off for medical treatment for his condition, and was given a poor evaluation for attendance although the absences were verified by his doctors. As a result, plaintiff contends he suffered chronic headaches, fatigue, financial problems and “significantly exacerbated breathing problems” due to defendant’s behavior. Plaintiff argues that the trial court erred in granting summary judgment to defendant on his claim of wrongful discharge. Specifically, plaintiff produced a sufficient forecast of evidence that his respiratory condition rendered him handicapped as defined in N.C. Gen. Stat. § 168A-3(4)(a) (1998 Cum. Supp.). Additionally, defendant terminated his employment because of his condition, thus violating the public policy set out in N.C. Gen. Stat. § 143-422.2 (1999). Plaintiff also claims that defendant’s indifference and failure to provide reasonable accommodations so he could perform his job constitutes intentional and negligent infliction of emotional distress. Defendant contends that plaintiff’s respiratory condition is not a handicap protected under N.C. Gen. Stat. § 143-422.2. Specifically, plaintiff’s rhinitis is a temporary condition that did not substantially limit plaintiff’s ability to breathe or work. Additionally, defendant contends that plaintiff was terminated for poor performance in his employment. In support of its motion for summary judgment, defendant submitted the affidavits of maintenance supervisor Gary Keegan and plant manager Spencer F. Foster, a job performance evaluation of plaintiff, and other documents from plaintiffs employment file. These show that: (1) On 30 May 1997, plaintiff was reprimanded by Keegan for plaintiffs excessive personal phone calls during working hours; (2) On 5 June 1997, plaintiff was counseled for his failure to work required overtime; (3) On 29 August 1997, plaintiff was again reprimanded for personal phone calls during working hours and was informed that any further violation of this policy would result in his suspension or possible termination; and (4) Plaintiffs 4 September 1997 performance evaluation resulted in an overall score below the acceptable standard. Defendant claims that plaintiffs poor quality, of work, lack of progress, and failure to meet minimum quality standards within his department were the reasons for his termination on 16 September 1997. Summary judgment should be granted only “if 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. Gen. Stat. § 1A-1 Rule 56(c) (1999). The party moving for summary judgment bears the burden of establishing the lack of any triable issue and may meet this burden by (1) proving that an essential element of the opposing party’s claim is nonexistent; (2) showing through discovery that the opposing party cannot produce evidence to support an essential element; or (3) showing that the opposing party cannot surmount an affirmative defense. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). In North Carolina, absent an employment contract for a definite period of time, “both employer and employee are generally free to terminate their association at any time and without reason.” Gravitte v. Mitsubishi Semiconductor America, 109 N.C. App. 466, 472, 428 S.E.2d 254, 258, disc. review denied, 334 N.C. 163, 432 S.E.2d 360 (1993). An exception to the employment-at-will doctrine exists when an employee is discharged in contravention of public policy. Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). “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.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). The Equal Employment Practices Act of North Carolina (the Employment Act) provides in pertinent part: It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of. .. handicap. .. . N.C. Gen. Stat. § 143-422.2 (1999). The Employment Act does not define “handicap” and thus we turn to other North Carolina statutes relating to the same subject matter to determine legislative intent. McCullough v. Branch Banking & Trust Co., Inc., 136 N.C. App. 340, -S.E.2d-(2000). The North Carolina Handicapped Persons Protection Act (NCHPPA), N.C. Gen. Stat. § 168A-1 et seq., defines a “handicapped person” as: any person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. N.C. Gen. Stat. § 168A-3(4)(a) (1998 Cum. Supp.). Effective 1 October 1999, the NCHPPA was re-titled the North Carolina Persons with Disabilities Protection Act and amended such that “person with a disability” is generally substituted for “handicapped person” throughout the chapter. However, since plaintiff’s claim was filed before the amendment took effect, the terminology of the NCHPPA will be used. “Physical or mental impairment” is defined in part as “any physiological disorder or abnormal condition, . . .caused by. . . illness, affecting one or more of the following body systems: [. . .] respiratory. . . .” N.C. Gen. Stat. § 168A-3(4)(a)(i). “Major life activities” includes “breathing.” N.C. Gen. Stat. § 168A-3(4)(b). “Any disorder, condition or disfigurement which is temporary in nature leaving no residual impairment” is specifically excluded from the meaning of “physical or mental impairment.” N.C. Gen. Stat. § 168A-3 (4) (a) (iii) (C). Medical records of the plaintiff dated 21 November 1997 state: [Plaintiff] [q]uit vaccine around September [1997] when [he] lost [his] job. [He] had been welding inside “tanks” with fume exposure irritating to [his] nose. [He] is still welding now but outdoors and [he] says the sniffing has stopped. [His] chest feels fine and [he] feels well. Impression: Allergic and irritant rhinitis, now improved. Another medical record dated 12 March 1997 states in part: “He has a lot of sniffing, he is irritated, but I think his infection is over....” Affording plaintiff the required inferences, Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (all inferences drawn in favor of non-movant in deciding motion for summary judgment), plaintiff’s medical records establish that his condition is temporary and therefore excluded from the statutory definition of “physical impairment.” Furthermore, plaintiff is unable to establish that he was “handicapped” under elements (ii) or (iii) of section 168A-3(4). Plaintiff also argues that he is a “qualified handicapped person” as defined by N.C. Gen. Stat. § 168A-3(9). However, since one’s status as a “qualified handicapped person” must be “preceded by a determination that one is a ‘handicapped person,’ ” plaintiff is not “a qualified handicapped person” either. Gravitte, 109 N.C. App. at 470, 428 S.E.2d at 257. Additionally, plaintiff’s concern with the defendant’s alleged failure to provide reasonable accommodations to the plaintiff is misplaced. Had plaintiff filed a claim under N.C. Gen. Stat. § 168A-11, which provides a civil cause of action under the NCHPPA, such a discussion may have been appropriate. However, since plaintiff’s claim is based on wrongful discharge in violation of public policy under N.C. Gen. Stat. § 143-422.2, a discussion of reasonable accommodations under N.C. Gen. Stat. § 168A-3(9) and (10) is irrelevant. Plaintiff also contends that he was terminated because of his respiratory condition resulting from his employment. In support of his contention, plaintiff cites his performance evaluation which states that at times his work was excellent and “the only area in which he received less than satisfactory was in attendance.” Plaintiff also states that “his supervisor” told him he was being terminated due to his respiratory condition. However, the affidavit of plaintiffs supervisor, Gary Keegan, states in part: 3. Mr. Simmons was terminated from his employment on September 16, 1997 for poor job performance. Mr. Simmons’ continued lack of progress in being able to tackle projects, learn basic mechanical repair, refusal to work required overtime and failure to meet minimum quality standards within the department led to his dismissal. The day before his termination, Mr. Simmons left work and refused to work overtime to complete a mechanical repair which he had started. The “Supervisor Summary” section of the plaintiff’s 4 September 1997 performance evaluation states: Anthony’s overall work and attendance record needs improvement. At times, Anthony can be an excellent employee and team player, and at other times he will fall short of acceptable standards. Increased consistency of excellent work and a better attendance record can bring Anthony into the acceptable range. Plaintiff received below acceptable standard scores for his quality of work, technical application, and reliability and punctuality. The evaluation noted “numerous absences” and “numerous lateness [sic].” Additionally, the report stated “Anthony is very apprehensive about working on weekends and late during the week. These areas need work.” Plaintiff was terminated approximately eight months after he first complained of experiencing breathing problems. Both Keegan’s and Foster’s affidavits state that they thought plaintiff’s respiratory problems had completely resolved well before his termination. In sum, defendant has established that plaintiff is unable to prove that he is handicapped and that he was terminated based upon the alleged handicap. These being essential elements of his claim, summary judgment for defendant on the claim for wrongful discharge was proper. Plaintiff also argues that the trial court erred in granting summary judgment to defendant on his claims for intentional and negligent infliction of emotional distress. In an action for intentional infliction of emotional distress, the essential elements are “(1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quoting Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)). An action for negligent infliction of emotional distress requires a showing that defendant negligently engaged in conduct, which was reasonably foreseeable to cause, and did in fact cause, plaintiff to suffer severe emotional distress. Fields v. Dery, 131 N.C. App. 525, 526, 509 S.E.2d 790, 791 (1998), disc. review denied, 350 N.C. 308,-S.E.2d-(1999). Whether or not conduct constitutes extreme and outrageous behavior is initially a question of law for the court. Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App. 579, 586, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). To establish the essential element of extreme and outrageous conduct, the conduct must go beyond all possible bounds of decency and “be regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats, . ...” Id. Viewing the evidence in the light most favorable to the non-moving party, the plaintiff is unable to establish a showing of extreme and outrageous conduct on the part of defendant. Furthermore, plaintiff’s forecast of evidence fails to support a claim of negligent infliction of emotional distress. Accordingly, the trial court did not err in granting summary judgment to defendant on the claims of intentional and negligent infliction of emotional distress. Affirmed. Chief Judge EAGLES and Judge WYNN concur.

SCHELL v BAKER FURNITURE COMPANY COLLINS v BAKER FURNITURE COMPANY Docket Nos. 113598, 113599. Decided March 16, 2000. On applications by the defendant for leave to appeal, the Supreme Court, in lieu of granting leave, affirmed the judgment of the Court of Appeals. Ronda Schell brought an action in the Kent Circuit Court against Baker Furniture Company, her former employer, alleging harassment by a fellow employee and wrongful discharge. Sandra Collins also brought an action against Baker Furniture, her employer, in the Kent Circuit Court, alleging similar harassment. Each case was assigned to a different judge, and each proceeded through discovery and pretrial motions. The plaintiffs were deposed, motions for summary disposition were argued and decided, and scheduling conferences were held. In Collins, the circuit court conducted a settlement conference, and, when agreement was not reached, a trial date was set. A settlement conference took place in Schell, and a trial was scheduled. Before either trial, Dennis C. Kolenda, Chief Judge of the court, notified the parties that additional settlement conferences would occur. The same attorney represented both plaintiffs. He arranged with defense counsel to conduct both conferences on the same date. Although plaintiffs’ counsel appeared, neither plaintiff appeared personally. Because they failed to appear, the chief judge dismissed the cases. The Court of Appeals, Markey, P.J., and Griffin and Whitbeck, JJ., consolidated the cases and reversed the dismissals, noting that no court rule specifically authorizes settlement weeks; the cases were advancing normally, had been the subject of prior settlement conferences, and had not been plagued by the plaintiffs avoiding conferences or ignoring orders of the court; the analogous dismissal sanction for discovery violations, MCR 2.313(B)(2)(c), is to be applied only in extreme cases; MCR 2.401(G) provides that failure to appear is grounds for dismissal under MCR 2.504(B), and the latter rule is phrased in terms of a party’s motion to dismiss, not a judge ordering dismissal sua sponte; and the mediation results should have remained confidential under MCR 2.403(N)(4) and should not have played a role in the decisions whether to dismiss or whether to reinstate. The Court of Appeals also questioned the authority of the chief judge to enter the dismissal orders in cases that were properly assigned to other judges. 232 Mich App 470 (1998) (Docket Nos. 194794, 194795). The defendant seeks leave to appeal. In a unanimous opinion per curiam, the Supreme Court held: The decision whether to dismiss these cases should have been made by the assigned judges rather than the chief judge. Accordingly, the orders of dismissal must be set aside. 1. A chief judge has the specific authority and responsibility to act in accordance with each separate provision of MCR 8.110. In promulgating the rule, however, it was also intended that a chief judge have the authority to employ creative and energetic means to improve the delivery of justice to the citizens who come before the court. The opinion of the Court of Appeals reflects the assumption that a chief judge is unable to take measures not specifically authorized by the court rule. However, chief judges are invested with the authority to take measures not prohibited by the letter or spirit of the court rules. The Chief Judge of the Kent Circuit Court had authority to announce a “settlement week,” during which an intense effort would be made to resolve as many of the court’s pending cases as possible. The chief judge likewise had authority to summon attorneys and litigants to conferences to be held for that purpose, and to require personal attendance by individual litigants and by persons with authority to settle cases on behalf of corporate litigants. 2. Pursuant to MCR 8.111, these cases were originally and properly assigned to judges of the circuit court. In the absence of a proper reassignment order under MCR 8.111, the cases remained assigned to the circuit judges to whom they were first assigned. The chief judge should not have entered dispositive orders in these cases. Substantive or dispositive rulings in individual cases are not exercises of administrative authority. Further, adherence to the approach set forth in MCR 8.111 enhances personal judicial accountability and assures litigants that rulings are made by a judge who is familiar with the substance and circumstances of each case. Affirmed. Harold S. Sawyer for the plaintiffs-appellees. Warner, Norcross & Judd, L.L.P. (by Paul T. Sorensen and Brian J. Mastemalc), for the defendant-appellant. Per Curiam. The plaintiffs sued the defendant employer, alleging sexual harassment in the workplace. However, the circuit court dismissed the cases because the plaintiffs failed to appear personally at a settlement conference. The Court of Appeals reversed the dismissals, and remanded the cases for further proceedings. For the reasons stated below, we affirm the judgment of the Court of Appeals. i Plaintiff Ronda Schell was an employee of defendant Baker Furniture Company. She explains that she worked primarily “in its so-called ‘rubbing’ department where final finishing of furniture is done.” Plaintiff Sandra Collins also worked at Baker Furniture; she states that she was “employed in various production work capacities.” In March 1994, Ms. Schell sued Baker Furniture, alleging that she had been harassed by a fellow employee who was “constantly, without either invitation or provocation, addressing the plaintiff by profane and abusive names and descriptions in the feminine gender to an extent that repeatedly reduced the plaintiff to tears and extreme emotional disturbance.” She further alleged that her requests for help from the employer resulted in her being wrongfully discharged. Her complaint sought monetary damages, presumably reflecting lost wages and other harm. Two weeks after Ms. Schell filed her complaint, Ms. Collins sued Baker Furniture. Ms. Collins alleged that she “was constantly addressed by obscene names and adjectives to the point of being reduced to tears and near hysteria.” She too sought monetary damages. The plaintiffs were represented by the same attorney, but the suits were assigned to different judges of the Kent Circuit Court. Each case proceeded through discovery and pretrial motion practice: The plaintiffs were deposed; motions for summary disposition were argued and decided; scheduling conferences were held. In Collins, the circuit court conducted a settlement conference in June 1995. Agreement was not reached, however, so the court set an April 1996 trial date. Such a settlement conference took place in July 1995 in Schell, with the court scheduling a June 1996 trial. In January 1996, the chief judge of the Kent Circuit Court sent out notices regarding a “settlement week conference.” The parties were told in Schell that a ninety-minute conference would occur on the afternoon of Monday, March 11, 1996. A similar conference would take place in Collins on the morning of Tuesday, March 12, 1996. Each notice stated these conditions: 1. Counsel and/or the parties shall be prepared to negotiate in good faith effort to reach a fair and reasonable settlement. 2. Clients and persons with authority to settle shall be present at the settlement conference. 3. The parties shall submit a joint settlement conference statement (see attached form), setting forth both the undisputed and disputed facts and issues of the case. The joint settlement conference statements shall be filed with the Court Administrator’s office by February 26, 1996. In addition, the parties shall submit a copy of the mediation summary and evaluation under MCR 2.403 at the same time and place as the joint settlement conference statement, if mediation has been held. 4. Failure to prepare for, attend, or meaningfully participate in this settlement conference may result in the imposition of sanctions. 5. The parties and counsel shall advise the Assignment Clerk’s office of any attorneys of record whose names do not appear on this order. 6. Settlement conferences shall not be adjourned except for good cause and only by the Chief Judge. 7. Trial date presently scheduled remains on. The attorney representing the plaintiffs arranged with the attorney for Baker Furniture to conduct both conferences on Monday, March 11, 1996. On that date, Baker Furniture’s attorney was present, along with two representatives of the client, one of whom had traveled from Wisconsin. However, plaintiffs’ counsel was alone—neither plaintiff appeared personally at the hearing. Because the plaintiffs failed to appear, the chief judge dismissed the two cases. The orders cited MCR 2.401(G), set forth below: (G) Failure to Attend; Default; Dismissal. (1) Failure of a party or the party’s attorney to attend a scheduled conference, as directed by the court, constitutes a default to which MCR 2.603 is applicable or grounds for dismissal under MCR 2.504(B).[] (2) The court shall excuse the failure of a party or the party’s attorney to attend a conference, and enter an order other than one of default or dismissal, if the court finds that (a) entry of an order of default or dismissal would cause manifest injustice; or (b) the failure to attend was not due to the culpable negligence of the party or the attorney. The court may condition the order on the payment by the offending party or attorney of reasonable expenses as provided in MCR 2.313(B)(2). Each plaintiff filed a motion to set aside the dismissal and reinstate the case. At the joint hearing, plaintiffs’ counsel attempted to explain why they had been absent. The account was not entirely consistent, and was contradicted in some respects by the attorney for Baker Furniture. However, the basic situation was captured in the chief judge’s written opinion: Plaintiffs’ counsel acknowledges that both of his clients knew that a conference was scheduled, when and where it was, and its purpose. While the conference in Ms. Collins’s case had been advanced one day by agreement of the attorneys, it is conceded that Ms. Collins knew of the new date and time. Neither plaintiff appeared because their counsel took it upon himself to countermand the Court’s notices. Because of other proceedings in these cases, namely: motions, which he thought might affect the settlement conferences, plaintiffs were told by their counsel not to appear unless they heard otherwise from him. Unfortunately for them, by the time counsel concluded that the other proceedings would not forestall the settlement conferences, he was unable to reach his clients. The chief judge denied the motion, saying that it would be “unprincipled” to set aside the dismissals. He explained that litigants are bound by actions of their attorneys—“otherwise, evasion of rulings and rules would be rampant.” The chief judge found culpable negligence on the part of counsel, MCR 2.401(G)(2)(b), and said that there was no injustice in light of the low mediation evaluation. Finally, the chief judge wrote of the value of the “settlement week” process, and the importance of maintaining its integrity: This year’s Settlement Week was equally successful [as a 1994 settlement week], resulting 55% of the cases summoned [sic], including several which would have taken 6-8 weeks to try and which settled for very large sums of money. Not dealing sternly with plaintiffs’ failures to appear would undermine the effectiveness of an extremely useful tool for preserving access to the courts. It is not merely a matter of expediting settlements or docket control. Good docket management and settlements open up time for those cases which need it. Both plaintiffs appealed. The Court of Appeals consolidated the cases and reversed the dismissals. 232 Mich App 470; 591 NW2d 349 (1998). In its opinion, the Court of Appeals noted that MCR 2.401(F) and 2.401(G) give the court discretion to dismiss a case when a plaintiff fails to appear for a settlement conference, but the Court concluded: Dismissal is the harshest sanction that the court may impose on a plaintiff. Even though the court rules permit the imposition of this sanction in appropriate circumstances, we do not believe that it is either mandated or warranted in the cases at bar. [232 Mich App 475 (emphasis in original).] The Court of Appeals offered several bases for its decision. First, no court rule specifically authorizes settlement weeks. 232 Mich App 475-476. Second, these cases were advancing normally, had been the subject of prior settlement conferences, and had not been plagued by the plaintiffs avoiding conferences or ignoring orders of the court. 232 Mich App 476. Third, the analogous dismissal sanction for discovery violations, MCR 2.313(B)(2)(c), is to be applied “only in extreme cases.” 232 Mich App 477. Fourth, MCR 2.401(G) provides that failure to appear is “grounds for dismissal under MCR 2.504(B),” and the latter rule is phrased in terms of a party’s motion to dismiss, not a judge ordering dismissal sua sponte. 232 Mich App 478-479. The Court of Appeals made two additional points. It said that the mediation results should have remained confidential under MCR 2.403(N)(4) and should not have played a role in the decisions whether to dismiss or whether to reinstate. 232 Mich App 479-480. The Court of Appeals also questioned the authority of the chief judge to enter the dismissal orders in cases that were properly assigned to other judges. 232 Mich App 480-481. The defendant has applied to this Court for leave to appeal. n The Court of Appeals indicated that there is no court rule authorizing “settlement week conferences.” It is true that no rule uses that phrase, but such a conference is certainly authorized by rule. MCR 2.401(A) provides: Time; Discretion of Court. At any time after the commencement of the action, on its own initiative or the request of a party, the court may direct that the attorneys for the parties appear for a conference. The court shall give reasonable notice of the scheduling of a conference. More than one conference may be held in an action. Moreover, “the possibility of settlement” and “other matters that may aid in the disposition of the action” are expressly listed as suitable subjects for discussion at a pretrial conference. MCR 2.401(C)(1)(g), (Í). MCR 2.401(A) speaks of a conference to be attended by “the attorneys for the parties.” Further, MCR 2.401(F) allows the court to direct that the parties also attend. Thus, the circuit court had the authority to call the settlement conference and to require that the parties attend. m While the court (i.e., the assigned judge) had the authority to direct the settlement conference, this case presents the question whether the chief judge had authority to issue such a directive for cases pending before other judges of the court. The authority of a chief judge is set forth in MCR 8.110, which this Court adopted in 1985 and refined in a series of amendments. Subrule (C) concerns the duties and powers of a chief judge. In pertinent part, it provides: (1) A chief judge shall act in conformity with the Michigan Court Rules, administrative orders of the Supreme Court, and local court rules, and should freely solicit the advice and suggestions of the other judges of his or her bench and geographic jurisdiction. . . . (2) As the presiding officer of the court, a chief judge shall: (a) call and preside over meetings of the court; (b) appoint committees of the court; (c) initiate policies concerning the court’s internal operations and its position on external matters affecting the court; (d) meet regularly with all chief judges whose courts are wholly or partially within the same county; (e) represent the court in its relations with the Supreme Court, other courts, other agencies of government, the bar, the general public, and the news media, and in ceremonial functions; and (f) counsel and assist other judges in the performance of their responsibilities. (3) As director of the administration of the court, a chief judge shall have administrative superintending power and control over the judges of the court and all court personnel with authority and responsibility to: (a) supervise caseload management and monitor disposition of the judicial work of the court; (b) direct the apportionment and assignment of the business of the court, subject to the provisions of MCR 8.111;[] (c) determine the hours of the court and the judges; coordinate and determine the number of judges and court personnel required to be present at any one time to perform necessary judicial administrative work of the court, and require their presence to perform that work; (d) supervise the performance of all court personnel, with authority to hire, discipline, or discharge such personnel, with the exception of a judge’s secretary and law clerk, if any; (e) coordinate judicial and personnel vacations and absences, subject to the provisions of subrule (D);[] (f) supervise court finances, including financial planning, the preparation and presentation of budgets, and financial reporting; (g) request assignments of visiting judges and direct the assignment of matters to the visiting judges; (h) effect compliance by the court with all applicable court rules and provisions of the law; and (i) perform any act or duty or enter any order necessarily incidental to carrying out the purposes of this rule. The provisions of MCR 8.110(C) are set forth at length because they represent an instance in which the whole exceeds the sum of the parts. A chief judge has the specific authority and responsibility to act in accordance with each separate provision of the rule. In promulgating the rule, however, we also intended that a chief judge have the authority to employ creative and energetic means to improve the delivery of justice to the citizens who come before the court. The opinion of the Court of Appeals reflects the assumption that a chief judge is unable to take measures not specifically authorized by the court rule. 232 Mich App 475-476. We instead have invested chief judges with the authority to take measures not prohibited by the letter or spirit of the court rules. For these reasons, the chief judge of the Kent Circuit Court had authority to announce a “settlement week,” during which an intense effort would be made to resolve as many of the circuit’s pending cases as possible. The chief judge likewise had authority to summon attorneys and litigants to conferences to be held for that purpose, and to require personal attendance by individual litigants and by persons with authority to settle cases on behalf of corporate litigants. MCR 8.110(C)(3)(a)-(b), (i). IV The next question is whether the chief judge had the authority to enter dispositive orders in these cases, which had been assigned to other judges of the circuit. Again we turn to the court rules, in this instance MCR 8.111. The relevant portions are these: (B) Assignment. All cases must be assigned by lot, unless a different system has been adopted by local court administrative order under the provisions of subrule 8.112.[] Assignment will occur at the time the case is filed or before a contested hearing or uncontested dispositional hearing in the case, as the chief judge directs. Civil actions must be assigned within appropriate categories determined by the chief judge. The chief judge may receive fewer assignments in order to perform the duties of chief judge. (C) Reassignment. If a judge is disqualified or for other good cause cannot undertake an assigned case, the chief judge may reassign it to another judge by a written order stating the reason. To the extent feasible, the alternate judge should be selected by lot. The chief judge shall file the order with the trial court clerk and have the clerk notify the attorneys of record. The chief judge may also designate a judge to act temporarily until a case is

Ronald Bellin vs. Frederick J. Kelley, Jr., & others. No. 97-P-2151. Middlesex. June 4, 1999. February 18, 2000. Present: Greenberg, Gillerman, & Rapoza, JJ. Further appellate review granted, 431 Mass. 1104 (2000). Criminal Offender Record Information. Labor, Polygraph test, Discharge. Statute, Construction. Section 2.04(5)(a) of 803 Code Mass. Regs., promulgated by the criminal history systems board and authorizing in certain circumstances the distribution of criminal offender record information (CORI) to any member of the public, contravenes the provisions set forth in G. L. c. 6, § 172, restricting the dissemination of CORI, and exceeds the legislative grant of authority to the board; the regulation was invalid. [577-578] Where issues of material fact remained with respect to a claim under G. L. c. 6, § 177, for wrongful dissemination of criminal offender record information, the claim was remanded for further proceedings in the Superior Court. [578-579] In a civil case, there was no evidence that an employer’s receipt of wrongfully disseminated criminal offender record information regarding an employee constituted a violation of G. L. c. 6, § 172, and summary judgment was correctly entered in favor of the employer on that claim and related tort claims. [579-580] An employer properly, under the holding of Barker v. Lawrence, 379 Mass. 322 (1979), could require or request that an employee suspected of a crime in connection with his employment take a polygraph examination administered by law enforcement officials conducting an investigation of the criminal activity, and such a request or requirement was not a violation of G. L. c. 149, § 19B(2); summary judgment was properly entered in favor of the employer on tort claims based on such an asserted violation. [580-582] Greenberg, J., dissenting. Civil action commenced in the Superior Court Department on June 28, 1995. The case was heard by Isaac Borenstein, J., on motions for summary judgment. Ira H. Zaleznik for the plaintiff. David D. DeVeau for town of Hopedale & another. George L. Dresser (Nadia R. Totino Beard with him) for Frederick J. Kelley, Jr., & another. Thomas F. Reilly, Attorney General, Pamela L. Hunt, & Peter T. Wechsler, Assistant Attorneys General, for the Attorney General, amicus curiae, submitted a brief. Kelley Consultants, Inc.; the town of Hopedale; and Wayne J. Minichielli. Gillerman, J. The plaintiff was employed by the defendant Kelley Consultants, Inc. (company), a private collection agency whose business included collecting delinquent excise taxes for cities and towns. The defendant Frederick J. Kelley, Jr. (Kelley), was the president and treasurer of the company. There had been a theft of cash at the company’s premises, and the plaintiff was suspected of being the thief. The defendant Wayne Minichielli, a Hopedale police officer investigating the theft, obtained the plaintiff’s criminal offender record information (CORI) and gave Kelley that information after the plaintiff told Minichielli that he would not take a polygraph test. Kelley then threatened the plaintiff with the loss of his position unless he took the test, and the plaintiff finally agreed. Kelley learned the test results from Minichielli and discharged the plaintiff. No criminal charges were ever brought against the plaintiff for the theft. The plaintiff brought suit, asserting claims against the company and Kelley for wrongful termination of employment, for violation of G. L. c. 149, § 19B(2) (set out in note 11, infra), for wrongfully subjecting him to a lie detector test, and for violation of the Massachusetts Civil Rights Act, G. L. c. 12, § 11I. He also brought claims under G. L. c. 6, § 177, against the company, Kelley, Minichielli, and the town of Hopedale alleging the wrongful dissemination of the plaintiff’s CORI in violation of G. L. c. 6, § 172; a claim against Minichielli for tortious interference with the employment relationship; claims against Minichielli and Hopedale for invasion of privacy and civil rights violations (G. L. c. 12, § 11I); and a claim against the town under G. L. c. 258, § 2. Defendants Hopedale and Minichielli and the defendant company and Kelley filed motions for summary judgment, Mass.R.Civ.P. 56, 365 Mass. 924 (1974). Both motions were allowed, and the plaintiff has appealed. We state the material facts in more detail. During the weekend of August 1, 1992, Kelley’s office at Evergreen Avenue in Hopedale was broken into, and about $7,000 in cash was stolen. On August 3, 1992, Minichielli, a police detective employed by the town, was dispatched to conduct an investigation. A preliminary check for fingerprints and other evidence of the crime yielded nothing significant. Minichielli suspected that it was an inside job because the intruder seemed to know where the money was. He asked Kelley for a list of employees and ran a background check on all of them. He discovered that the plaintiff had a prior criminal record. On September 23, 1992, Minichielli met with Kelley and disclosed this information. Kelley told Minichielli that he was concerned about the plaintiff’s possible involvement in the break-in because he was late for work on the morning after the break-in and appeared to be very nervous. On September 28, 1992, Minichielli contacted the plaintiff and asked him to come to the police station. At the interview, Minichielli read the plaintiff his Miranda rights and told him that he was a prime suspect in the investigation. In response, the plaintiff denied any involvement in the break-in and theft. Several days later, Minichielli asked the plaintiff to take a lie detector test. He told the plaintiff that if he did not take the test “he [Minichielli] was going to tell. . . Kelley that [the plaintiff] had a record and [the plaintiff] would be fired.” The plaintiff refused to take the test. Later, the plaintiff and Kelley talked. Kelley told the plaintiff (according to the plaintiff’s deposition testimony) that because the plaintiff had “refused to take a lie detector test” and since he “had a record,” the plaintiff was “through” unless he took the lie detector test. The plaintiff then agreed to take the test — an agreement he would not have made (we infer favorably to the plaintiff) unless faced with the sanction of loss of his job if he refused. The plaintiff took the test, which was administered at the State police barracks in Southborough. He did poorly when asked key questions concerning his whereabouts on the date of the break-in. The plaintiff was fired shortly after Kelley learned that the results of the test were unfavorable. The police investigation ended without anyone being charged with the theft. 1. The CORI Act claim against all defendants. General Laws c. 6, § 172 (as amended through St. 1990, c. 319, §§ 7-12), of the CORI Act, see note 2, supra, permits the dissemination of criminal record information “only to (a) criminal justice agencies; (b) such other agencies and individuals required to have access to such information by statute . . . ; and (c) any other agencies and individuals where it has been determined [by the criminal history systems board (board), see c. 6, § 168,] that the public interest in disseminating such information to these parties clearly outweighs the interest in security and privacy.” Access under clause (a) is limited to “that necessary for the actual performance of the criminal justice duties of criminal justice agencies . . .”; access under clause (b) is limited to “that necessary for the actual performance of the statutory duties of agencies and individuals . . .”; and access under clause (c) is limited to “that necessary for the actual performance of the actions or duties sustaining the public interest.....” Further as to clause (c), the board may act only upon the favorable vote of a two-thirds majority of the members present and voting determining and certifying that “the public interest in disseminating such information to such party clearly outweighs the interest in security and privacy.” In sum, the focus of clauses (a), (b), and (c) is to limit and tightly control the persons and agencies to whom CORI may be made available. Plainly excluded from these three approved groups is the undifferentiated public. The underlying legislative purpose is to protect the privacy and security of those whose criminal record may no longer be relevant to current decisions regarding such persons. Thus G. L. c. 6, § 171, first par. (as inserted by St. 1972, c. 805, § 1), provides, inter aha, that the board shall promulgate regulations “(c) assuring the security of criminal offender record information from unauthorized disclosures at all levels of operation.” The second paragraph of § 171 provides: “The board shall cause to be initiated for employees of all agencies that maintain, receive, or are eligible to maintain or receive criminal offender record information a continuing educational program in the proper use and control of such information.” See Commonwealth v. Vickey, 381 Mass. 762, 765 (1980) (§ 171 reveals “the legislative purpose to protect individuals from unnecessary and overbroad dissemination of criminal record information”). Minichielli does not attempt to justify his dissemination of the plaintiff’s CORI to Kelley under the provisions of § 172. Rather, he relies on the provisions of a regulation of the board, 803 Code Mass. Regs. § 2.04(5) (1995), which is captioned, “Authorization for Public Dissemination of CORI” (emphasis supplied). Subparagraph (a) provides: “A criminal justice agency with official responsibility for a pending criminal investigation or prosecution may disseminate CORI that is specifically related to and contemporaneous with an investigation or prosecution.” The plaintiff responds that the regulation was in excess of the authority granted by the Legislature.’ General Laws c. 6, § 168, third par. (as appearing in St. 1979, c. 702, § 2) — cited by the board as authority for the promulgation of the regulation — gives the board the authority to “promulgate regulations regarding the collection, storage, access, dissemination, content, organization, and use of criminal offender record information” (emphasis supplied). However, the authority granted to the board under § 168 may not be exercised in a manner that conflicts with the intent of the Legislature as expressed in § 172. Section 172, as we have seen, provides for carefully restricted groups of persons and agencies to whom CORI may be released. In addition to that limitation, § 172 makes it clear that each disclosure by an agency is important. Thus, the fourth paragraph of § 172 requires each agency to maintain “a listing of the agencies or individuals to which it has released or communicated such information”’(emphasis supplied). These listings are subject to periodic review by the board to determine whether there has been a violation of law. There is no showing in this case that Kelley’s name was added to the list maintained by the Hopedale police department. Further still, the sixth paragraph of § 172 provides that “any person” may request conviction data, but each such request must be made to the board for approval. There is no showing in this case that such a request, if made by Minichielli individually, was approved by the board. Section 2.04(5)(a) of 803 Code Mass. Regs., on the other hand, provides for the dissemination of CORI without limitation except only that the CORI dissemination must be “specifically related to and contemporaneous with an investigation or prosecution.” The effect is to authorize the distribution of CORI to any member of the public so long as the CORI dissemination is connected to an ongoing investigation. This broad grant of authority to each criminal justice agency simply and completely undoes the carefully drafted limitations imposed by the provisions of § 172 regarding authorized recipients of CORI. The consequence must be that the regulation exceeds the legislative grant of authority to the board and is invalid. See Simon v. State Examiners of Electricians, 395 Mass. 238, 249 (1985) (“The duty of this court is to interpret the statute according to the intent of the Legislature and common sense. We are not simply to provide our imprimatur for regulations that the examiners might be able to defend on an excessively broad reading of the statute”). Here the regulation of the board “is not supported by the language of the statute, the context from which it arose, . . . or the legislative policy on which the statute is based.” Ibid. We must measure Minichielli’s conduct, then, against the standard of c. 6, § 172, not 803 Code Mass. Regs. § 2.04(5)(a). On that basis, Minichielli’s distribution of the plaintiff’s CORI to Kelley did not fall within the protection of clauses (a), (b), or (c), of c. 6, § 172. It does not follow, however, that Minichielli is necessarily liable to the plaintiff under G. L. c. 6, § 177 (see note 4, supra). General Laws c. 258, § 10(a) (inserted by St. 1978, c. 512, § 15), provides that no claim based on an act or omission of a public employee may be maintained when the employee exercised “due care” in the execution of any regulation of a public employer (i.e., here, the board) whether or not the regulation is valid. That is to say, there can be no “willful violation” of § 172 (the prerequisite of an action for damages under § 177) by Minichielli if he was acting with due care under 803 Code Mass. Regs. § 2.04(5)(a), which was not an invalid regulation when he acted. Whether Minichielli acted with due care in making CORI available to Kelley is a question of fact that must be resolved at trial, see Doe v. Blandford, 402 Mass. 831, 836 (1988), and this claim must be remanded to the Superior Court. Further, as to the plaintiff’s CORI Act claim under § 177 against Kelley and the company, the plaintiff argues that Kelley had no right to use the plaintiff’s CORI in discharging him. Bynes v. School Comm. of Boston, 411 Mass. 264, 270-271 (1991), precludes recovery by the plaintiff. In Bynes the court held that to prove a violation of G. L. c. 6, § 172, the plaintiff must show that the individual or agency receiving CORI was “in violation of the statute and at fault,” id. at 271. There is no evidence in this case (just as there was none in Bynes) that Kelley or the company, in receiving plaintiff’s CORI information, violated the CORI Act and was at fault in doing so. See ibid. Whether Kelley’s use of the plaintiff’s CORI violates other legal constraints is discussed infra. 2. The polygraph test. The plaintiff claims that he was wrongly coerced by Kelley and the company to take a lie detector test which was administered by the Massachusetts State Police. At issue is G. L. c. 149, § 19B(2), which we set forth in the margin. The judge concluded that there was no violation of § 19B(2), and we agree. In Baker v. Lawrence, 379 Mass. 322 (1979), a case involving an investigation by the head of a police department into a theft from a store alleged to have been committed by police officers in the course of their duties, the court discussed and analyzed § 19B in some detail. We follow that analysis. The first sentence of § 19B(2) forbids all employers, public and private, to impose polygraph tests on their employees, or to request their employees to undergo such tests. The second sentence creates an exception to the first sentence. “The situation plainly within the exception is one where a law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is permitted, i.e., not forbidden, to administer a polygraph test to that employee. If, then, the employee refuses or indicates hesitance to submit to the test at the agency’s request, the employer (relieved of the prohibition of the first sentence of § 19B [now § 19B(2), see note 12, supra]) may request that the employee do so, with implied job sanctions if the employee finally declines.” Baker v. Lawrence, 379 Mass. at 327. See Local 346, Intl. Bhd. of Police Officers v. Labor Relations Commn., 391 Mass. 429, 440-442 (1984) (union’s acquiescence to police department’s demand for submission of its employees to lie detector test is not required under § 19B, citing Baker v. Lawrence, supra). The plaintiff would distinguish Baker: he argues that it applies only to an employee who is under investigation for having committed a crime “while on the job.” We see no basis for imposing this limitation on Baker. Baker itself eschewed such a limitation. See id. at 327 n.8: “We have dealt here with the core meaning of the excepting language of § 19B [i.e., investigation of criminal acts alleged to have been committed by employees in connection with the duties of employment]. We are not called on to explicate any possible ampler meaning.” Plainly, there must be a sufficient nexus between the crime under investigation and the suspect’s employment so that pressure by the employer on the employee to take the test may be correctly seen, not as an act of a vigilante, but as a reasonable effort by the employer to maintain an honest work force and a working environment secure against criminal incursions. See Baker v. Lawrence, 379 Mass. at 329 n.11 (the legislative intent was “to balance the privacy interests of employees against the legitimate needs of certain criminal investigations”). In Baker, the crime (theft of property from a store) was allegedly committed in the course of performing the employees’ duties; here, the suspected crime was a robbery, allegedly by an off-duty employee, of company assets on the company’s premises. The victim in Baker was a third party; the victim in this case was the company itself. As we see it, the case for applying the § 19B(2) exception is at least as compelling as it was in Baker. We conclude that neither Kelley nor the company violated G. L. c. 149, § 19B(2). The plaintiff’s claim against Kelley and the company for an unlawful termination of his at-will employment thus also fails, as does his claim for a violation of civil rights. We sum up the results of the plaintiff’s appeal. There having been no violation of G. L. c. 6, § 172, or of G. L. c. 149, § 19B(2), by Kelley or the company, the ordér granting summary judgment for those defendants is affirmed. That portion of the order granting summary judgment to Minichielli and the town on the claim for violation of G. L. c. 6, § 172 (count IV), is reversed, and that claim will be remanded for further proceedings. Because G. L. c. 258, § 1(c), prohibits the claim against the town for invasion of privacy, the entry of summary judgment for the town on that claim may stand. Because the ruling that there was no violation of G. L. c. 6, § 172, was the sole basis for the grant of summary judgment to Minichielli and the town on the claim for violation of the Civil Rights Act, G. L. c. 12, § 11I (count VII), and to Minichielli on the claims for tortious interference with the employment relation (count V) and invasion of privacy (count VI) and because the other issues raised by the defendants have not been ruled on below, the order insofar as it grants summary judgment on those claims is reversed, and the claims will be remanded to the Superior Court for further proceedings. Therefore, the judgment insofar as it dismisses the claims against Minichielli and the town of Hopedale in count IV for violation of G. L. c. 6, § 172, dismisses the claim against Minichielli in count VI, and dismisses counts V, VII, and VIII is reversed. The judgment insofar as it dismisses the claims against Kelley and Kelley Consultants, Inc., and the claim against the town of Hopedale in count VI for invasion of privacy is affirmed. So ordered. General Laws c. 6, §§ 167-178B (the CORI Act), and the regulations promulgated thereunder, regulate the collection and dissemination of an individual’s criminal re

DAVID A. ANDERSON, Ancillary Administrator of the Estate of GARY R. ANDERSON, Plaintiff v. DEMOLITION DYNAMICS, INC., Defendant No. COA98-1350 (Filed 16 February 2000) Employer and Employee— employment by defendant — genuine issue of material fact Although defendant contends decedent was barred from bringing this wrongful death action because the exclusive remedy would be under the Workers’ Compensation Act since decedent was a joint employee of defendant and Griffin Wrecking, the trial court erred by granting defendant’s motion for summary judgment because there is a genuine issue of material fact under the “special employer” test concerning whether decedent was an employee of defendant based on: (1) whether there existed a contract for hire between defendant and decedent; and (2) the nature of defendant’s right to control the detail of decedent’s work. Appeal by plaintiff from judgment entered 2 July 1998 by Judge W. Erwin Spainhour in Guilford County Superior Court. Heard in the Court of Appeals 19 August 1999. Twiggs, Abrams, Strickland & Trehy, P.A., by ' Douglas B. Abrams, and Iraelson, Salsbury, Clements & Beckman, by Stewart M. Salsbury and Leslie Hayes Russo, for plaintiff-appellant. Smith, Helms, Mulliss & Moore, L.L.P., by Jon Berkelhammer, Andrew S. Chamberlin, and Manning A. Connors, III, for defendant-appellee. JOHN, Judge. Plaintiff David A. Anderson, ancillary administrator of the estate of Gary R. Anderson (decedent), appeals the trial court’s grant of defendant Demolition Dynamics, Inc.’s motion for summary judgment. For the reasons stated below, we reverse and remand to the trial court for further proceedings. Pertinent facts and procedural history include the following: Plaintiff initiated the instant wrongful death suit 22 August 1996. Decedent died 19 August 1995 as a result of injuries suffered when he fell from an abandoned conveyor structure in a quarry. At the time, decedent and several employees of defendant were preparing the structure for demolition by means of explosives. In his complaint, plaintiff alleged, inter alia, that defendant, through its agents and employees, [negligently and wantonly undermined the structural integrity of the conveyor system while Plaintiff’s decedent Gary R. Anderson was working on the bridge conveyor frame, and that such negligence was the proximate cause of decedent’s death. Included in defendant’s answer was the defense that [a]t the time of the incident that forms the subject matter of Plaintiff’s complaint, [decedent] was in the employ of [defendant] and was covered by the provisions of the North Carolina Workers’ Compensation Act, which provides the sole and exclusive remedy to Plaintiff. On the basis of the foregoing, defendant subsequently moved to dismiss for lack of subject matter jurisdiction, or alternatively for summary judgment. Following a hearing, the trial court entered summary judgment in favor of defendant 2 July 1998. Plaintiff timely appealed. The Workers’ Compensation Act (the Act), N.C.G.S. § 97-10.1 (1991), provides: If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death. In addition, this Court has stated that an employee’s remedies are exclusive as against the employer where the injury is caused by an accident arising out of and in the course of employment. Thus, the exclusivity provision of the Act precludes a claim for ordinary negligence, even when the employer’s conduct constitutes willful or wanton negligence. Wake County Hosp. Sys. v. Safety Nat. Casualty Corp., 127 N.C. App. 33, 40, 487 S.E.2d 789, 793, disc. review denied, 347 N.C. 410, 494 S.E.2d 600 (1997) (citation omitted). Summary judgment is appropriately 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(c) (1990). A summary judgment movant bears the burden of showing either that (1) an essential element of the non-movant’s claim is nonexistent; (2) the non-movant is unable to produce evidence which supports an essential element of its claim; or, (3) the non-movant cannot overcome affirmative defenses raised in contravention of its claims. Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev’d on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In ruling on such motion, the trial court must view all evidence in the light most favorable to the non-movant, accepting the latter’s asserted facts as true, and drawing all reasonable inferences in its favor. Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 583, 448 S.E.2d 280, 281 (1994). Plaintiff contends the record reflects a genuine factual issue as to whether decedent was an employee of defendant. We agree. It is undisputed that decedent was employed by a separate but related company, D.H. Griffin Wrecking Company (Griffin Wrecking). D.H. Griffin, Sr., (Mr. Griffin), his son, and Steve Pettigrew (Pettigrew), a former co-worker of decedent, formed defendant company to provide Griffin Wrecking with explosive demolition capabilities. The two companies often worked together on demolition projects, and decedent likewise was regularly involved with such projects. Defendant maintains decedent, at the time of his death, was an employee of both Griffin Wrecking and defendant and that plaintiff’s claim alleging negligence by defendant is barred by the exclusivity provisions of the Act. However, plaintiff contends decedent was solely an employee of Griffin Wrecking and that plaintiff’s wrongful death action against defendant may therefore proceed. [Situations may exist under which an employee may properly be considered to be in the joint employment of two employers so that both become jointly responsible to pay compensation if the employee is injured by accident arising out of and in the course of such employment. Collins v. Edwards, 21 N.C. App. 455, 458, 204 S.E.2d 873, 876, cert. denied, 285 N.C. 589, 206 S.E.2d 862 (1974). Our courts utilize the following three-prong “special employer” test to determine whether an employee may be deemed to have joint employers for purposes of the Act. See id. at 459, 204 S.E.2d at 876. When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if: (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for worker’s compensation. 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 67 (1999) [hereinafter Larson], cited with approval in Collins, 21 N.C. App. at 459, 204 S.E.2d at 876. Continuance of the “general” employment is presumed, and the party asserting otherwise must make a “clear demonstration that a new... employer [was] substituted for the old.” Larson § 67.02, quoted, in Collins, 21 N.C. App. at 460, 204 S.E.2d at 877. Accordingly, in order to prevail on its summary judgment motion, defendant was required to show, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350, that it was an employer of decedent, i.e., that: (1) decedent made a contract for hire with defendant; (2) the work being done at the time of the accident was the work of defendant; and, (3) defendant had the right to control the detail of decedent’s work, see Collins, 21 N.C. App. at 459, 204 S.E.2d at 876. For purposes of our ruling herein, we assume arguendo that the second prong of the special employer test has been met. However, we conclude the record reveals genuine issues of material fact as to the remaining prongs. Employee is defined in the Act as every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written.... N.C.G.S. § 97-2(2) (Supp. 1998). As this Court has previously noted, [b]ecause of this statutory requirement that the employment be under an “appointment or contract of hire,” . . . the first question which must be answered in determining whether a lent employee has entered into an employment relationship with a special employer for [purposes of the Act] is: Did he make a contract of hire with the special employer? If this question cannot be answered “yes,” the investigation is closed .... Collins, 21 N.C. App. at 459, 204 S.E.2d at 876-77. The contract requirement is crucial because the employee loses certain rights along with those gained when striking up a new employment relation. Most important of all, he or she loses the right to sue the special employer at common law for negligence; and . . . the courts have usually been vigilant in insisting upon a showing of a deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit. Larson § 67.01[2]. In the case sub judice, defendant makes no argument nor does the record reflect that decedent entered into a written employment contract with defendant. Nonetheless, defendant asserts decedent “expressly accepted . . . employment” by defendant for the quarry demolition job which resulted in decedent’s death. Defendant points to evidence that decedent, after being contacted by Pettigrew, sought permission from Mr. Griffin to work at the site and maintains that by coming to the site, decedent “accepted that assignment.” These actions standing alone do not conclusively satisfy the contract for employment prong of the special employer test. Moreover, additional evidence was presented through the deposition testimony of Mr. Griffin, Pettigrew, and decedent’s widow tending to show the following: (1) Decedent was paid by and insured through Griffin Wrecking, although defendant reimbursed Griffin Wrecking for forty percent of decedent’s salary; (2) Defendant neither paid payroll taxes on behalf of decedent nor claimed him as an employee for insurance purposes; (3) Decedent represented to third parties that he was an employee of Griffin Wrecking; (4) Decedent drove a Griffin Wrecking truck and used tools and safety equipment provided by Griffin Wrecking; however, at the demolition site the explosives were provided by defendant; (5) Mr. Griffin gave decedent his assignments and decedent sought Mr. Griffin’s permission to work on jobs with defendant; and, (6) Griffin Wrecking was the general contractor at the demolition site and defendant a subcontractor, indicating decedent might have been present as a representative of either Griffin Wrecking or defendant. Most notable among the foregoing is evidence concerning how decedent himself viewed his employment status, because an employment “relationship could not [have] arise [n] without his express or implied consent.” Collins, 21 N.C. App. at 460, 204 S.E.2d at 877. Although defendant presented evidence indicating decedent had obtained licenses and permits pertaining to explosives using defendant’s name, such evidence is at least counterbalanced by the following exchange during the deposition of decedent’s widow. Q: At all times that you talked to [decedent], did he tell you and others that he was employed by [Griffin Wrecking]? A: Yes. Q: Did you talk to [decedent] about who he believed he was employed by? A: Yes, sir. Q: What did he tell you? A: D.H. Griffin Wrecking Company. Q: Did [decedent] in your presence ever tell other people by whom he was employed? A: Yes, sir. Q: And what did he say? A: D.H. Griffin Wrecking Company. Q: Had he ever told you that he was employed by [defendant]? A: No, sir. Consideration of all the above evidence in the light most favorable to plaintiff, Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, raises at a minimum a genuine factual issue as to the first prong of the special employer test, i.e., whether there was an employment contract between defendant and decedent. The third prong, control of the detail of the work, may be the most significant. See Hayes v. Elon College, 224 N.C. 11, 15, 29 S.E.2d 137, 140 (1944) (“[t]he vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details”). We therefore examine the record regarding whether decedent accepted control and direction from defendant. Taking the evidence presented in the light most favorable to plaintiff, Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, we note that although Pettigrew, supervisor of the demolition project, directed decedent regarding what needed to be done, no evidence was presented that the latter was told how to do the specific tasks assigned, see Collins, 21 N.C. App. at 461, 204 S.E.2d at 877-78 (merely telling plaintiff track driver where to make delivery and furnishing directions did not rise to level of supervision and control necessary to establish employment relationship); cf. Brown v. Friday Services, Inc., 119 N.C. App. 753, 760, 460 S.E.2d 356, 360-61 (decedent accepted assignment from general employer to work with special employer and “performed the work at the direction and under the supervision of” special employer who “controlled the details of decedent’s work”; decedent therefore qualified as employee of special employer), disc. review denied, 342 N.C. 191, 463 S.E.2d 234 (1995). In his deposition, Pettigrew stated decedent was an explosive demolition expert who was “instructed to complete the final wiring and placement of charges at the quarry floor” and who “was in charge of the bottom charges” while Pettigrew was “in charge of the horizontals.” Deposition testimony of Mr. Griffin also tended to show decedent was in charge of part of the demolition: Q: Who does the analysis of where to do the cuts [on the structure to be demolished]? A: On that particular job, I would imagine it would have been [decedent]. It’d either have been [decedent] or [Pettigrew], I really don’t know, one of the two would have been in charge. Mr. Griffin continued by noting that he “thought [decedent] was gonna do it on this one” and that decedent “did, when he was on jobs for [Pettigrew], do it all.” Finally, Chris Jones (Jones), a co-worker present at the scene, was asked in his deposition, “did you understand that [Pettigrew] was in charge of bringing the structure down?” Jones responded, “yes, I was — I listened to both, I mean [decedent]— him and — him and [decedent] are more or less equals, I would say.” Testimony of Pettigrew, Mr. Griffin and Jones therefore reflects that decedent, an expert, was “in charge” of at least part of the demolition and not subject to Pettigrew’s control over how the bottom charges were to be wired or other details of his work. Taken in the light most favorable to plaintiff, Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, such evidence hardly amounts to such supervision and control over [decedent’s] activities as to justify implying therefrom that [decedent]... was thereby consenting to enter into some type of special employment relationship, Collins, 21 N.C. App. at 461, 204 S.E.2d at 878, with defendant. In short, defendant at best has shown a genuine issue of material fact as to the third prong of the special employer test, defendant’s control over the details of decedent’s work. To summarize, given the evidence presented to the trial court by both parties as to whether there existed a contract for hire between defendant and decedent and as to the nature of defendant’s right to control the detail of decedent’s work, see id. at 459, 201 S.E.2d at 876, we conclude defendant failed to meet its summary judgment burden, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350, of showing decedent was a joint employee of defendant and Griffin Wrecking, and thereby failed to establish that plaintiff’s claim was barred by the affirmative defense, see id., of the exclusivity provisions of the Act. Accordingly, the trial court’s grant of defendant’s motion for summary judgment must be reversed. Reversed. Judges LEWIS and EDMUNDS concur. . This treatise has recently been restructured and most sections renumbered. Previous cases of this Court therefore cite to § 48, which has now been renumbered § 67.