Wrongful Termination Cases

Charles Edward Crocker & another vs. Townsend Oil Company, Incorporated, & others. Essex. September 4, 2012. December 17, 2012. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Wage Act. Practice, Civil, Statute of limitations. Limitations, Statute of. Employment, Severance agreement. Contract, Employment, Release from liability. Release. This court concluded that employees’ claims for unpaid overtime compensation, although barred by the two-year statute of limitations under G. L. c. 151, § 20A, could nevertheless be asserted under the Wage Act, G. L. c. 149, §§ 148 and 150, limited, however, to recovery of uncompensated time worked at the regular rate, subject to the three-year statute of limitations under the Wage Act. [5-7] In a civil action brought in Superior Court in which the plaintiff home heating oil delivery truck drivers contended that they were owed compensation based on their proper classification as the defendant’s employees, under the Wage Act, G. L. c. 149, §§ 148 and 150, rather than as independent contractors, the statute of limitations was not tolled by operation of the discovery rule, where, given the express restrictions and requirements contained in the contract carrier agreements between the parties, the plaintiffs were possessed of all facts necessary to conclude that they might qualify as employees [7-8]; or by fraudulent concealment, where the facts surrounding the nature of the employment relationship were known to all parties at all relevant times [8-10]; further, the continuing violation doctrine did not extend to the plaintiffs’ claims, and accordingly, recovery was limited to those damages that occurred within the three-year period prior to the filing of the complaint [10-12]. This court concluded that a settlement or contract termination agreement by an employee that includes a general release purporting to release all possible existing claims will be enforceable as to the statutorily provided rights and remedies conferred by the Wage Act, G. L. c. 149, §§ 148 and 150, only if so stated in clear and unmistakable terms, i.e., the release must be plainly worded and understandable to the average individual and specifically refer to the rights and claims under the Wage Act that the employee is waiving. [12-15] Civil action commenced in the Superior Court Department on December 18, 2009. The case was heard by Howard J. Whitehead, J., on a motion for summary judgment; a motion to vacate entry of summary judgment was heard by David A. Lowy, J.; motions to amend the complaint and for summary judgment were heard by Howard J. Whitehead, J.; and the matter was reported by Timothy Q. Feeley, J., to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Valeriano Diviacchi for the plaintiffs. Kurt B. Fliegauf for the defendants. Joseph Barrasso. Mark Townsend and Jim Townsend. Cordy, J. In this case, we consider an employment dispute arising under G. L. c. 149, §§ 148 and 150 (Wage Act), between the defendant, Townsend Oil Company, Incorporated (Townsend), a home heating oil company, and the plaintiffs, Charles Edward Crocker (Crocker) and Joseph Barrasso (Barrasso), two former delivery truck drivers. The plaintiffs contend that they are owed compensation (including overtime pay) based on their proper classification as “employees” (rather than independent contractors) under the Wage Act. Townsend responds that the plaintiffs’ claims are barred by the statute of limitations and, alternatively, that a general release contained in contract termination agreements entered into by the parties nevertheless defeats the plaintiffs’ Wage Act claims. A Superior Court judge stayed the proceedings and reported the statute of limitations and general release issues that had previously been the subject of rulings in that court to the Appeals Court pursuant to Mass. R. Civ. R. 64, as amended, 423 Mass. 1410 (1996). We transferred the case to this court on our own motion. We conclude that the statute of limitations applicable to the Wage Act claims does not bar the plaintiffs from recovering compensation earned for the hours they worked, including the overtime hours they worked but for which they were not paid, only during the three years preceding the filing of suit. Because the claims are not completely barred, we also reach the more substantive question, whether a general release contained in a termination agreement operates to release an employee’s Wage Act claims. In light of the important public policy considerations underlying the Wage Act, we conclude that although claims arising thereunder may be released retrospectively as part of a settlement agreement, such a release is valid only if it is voluntary and knowing, and, more specifically, absent express language that Wage Act claims are being released, a general release is ineffective to waive them. 1. Background. Townsend is a Massachusetts corporation in the business of delivering home heating oil to customers throughout northeastern Massachusetts. It employs drivers to operate the company’s delivery trucks; these drivers are paid by the hour and receive overtime pay when applicable. In addition, Townsend also hires independent contractors to work as delivery drivers. These drivers are paid based on the amount of oil they deliver to customers and do not receive an hourly wage or overtime pay from Townsend. The independent contractors are required to purchase and maintain their own delivery trucks at their own expense, but those trucks must bear Townsend’s insignia. All drivers, whether employees or independent contractors, deliver oil to Townsend customers according to Townsend’s delivery schedule and at prices set by Townsend. The plaintiffs were putatively hired by Townsend as independent contractor delivery drivers. Crocker was hired in 1999; Barrasso was hired in 2002. The plaintiffs each signed a contract carrier agreement with Townsend that established the terms of their relationships. Those agreements essentially required the plaintiffs to work full time delivering oil for Townsend and also contained noncompete clauses preventing the plaintiffs from delivering oil for other companies. The agreements were later amended when Barrasso and Crocker each incorporated their respective delivery businesses; the new agreements were between Townsend and the plaintiffs’ separate corporate identities rather than the plaintiffs in their individual capacities. In January, 2007, Townsend sought to terminate Barrasso’s agreement, and the parties ultimately signed a contract carrier termination agreement that included reciprocal general releases of claims. In April, 2007, Crocker signed a substantially identical termination agreement. The plaintiffs each received payments of several thousand dollars in exchange for signing the agreements. The plaintiffs both claim that at no point during negotiation or signing of the termination agreement were they aware that they might be considered employees entitled to Wage Act rights. The plaintiffs filed their complaint on December 18, 2009, on learning of a similarly situated delivery truck driver who had recovered against Townsend under the Wage Act. See Amero vs. Townsend Oil Co., Essex Superior Court, No. ESCV2007-01080 (Dec. 3, 2008). The plaintiffs’ counsel moved to withdraw shortly thereafter. During this same period, Townsend filed a motion for summary judgment that was allowed (summary judgment judge). The plaintiffs subsequently retained new counsel and moved to vacate the entry of summary judgment. A second judge allowed the motion to vacate, concluding that the language of the Wage Act barring special contracts from exempting employers from its requirements invalidated the general releases as they related to the plaintiffs’ Wage Act claims. Thereafter, the plaintiffs moved to amend the complaint to assert new claims against Townsend for violations of the Americans with Disabilities Act (42 U.S.C. §§ 12131 et seq. [2006]). Townsend opposed the motion and filed a second motion for summary judgment arguing that the lawsuit was time barred. The motions were heard by the summary judgment judge, who denied the plaintiffs’ motion to amend based on futility, but allowed in part Townsend’s motion for summary judgment on the ground that any claim relating to conduct that occurred more than three years prior to the filing of the suit was time barred. 2. Discussion. The respective decisions that (1) the statute of limitations bars the plaintiffs’ recovery except insofar as it relates to compensation earned (including compensation for overtime hours worked) but not paid during the three years preceding the filing of suit and (2) the general release failed to release the plaintiff’s Wage Act claims due to the broad scope of § 148 are legal conclusions that we review de novo. See Rit-ter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). a. Statute of limitations. Assuming that the plaintiffs were at all times operating as Townsend’s employees, a matter not contested for purposes of the present appeal, we turn to the first of the two reported issues. Specifically, we consider whether the motion judge correctly concluded that the statute of limitations bars the plaintiffs’ Wage Act claims except as they relate to compensation earned but not paid during the three years preceding the filing of the suit. To answer this question, we must address three subissues: (1) whether an employee is entitled to maintain an action for unpaid overtime under the Wage Act (governed by a three-year statute of limitations), rather than under the overtime provisions of G. L. c. 151, § 1A (governed by a two-year statute of limitations); (2) whether the statute of limitations was tolled by operation of the discovery rule or fraudulent concealment; and (3) whether, where there are Wage Act violations within the statute of limitations period, the plaintiffs can recover for Wage Act violations occurring outside the limitations period on a theory of continuing violation. We consider each issue in turn. General Laws c. 151, § 1A, sets forth the statutory requirements for overtime pay, including the right of an employee to receive compensation at a rate not less than one and one-half times his regular rate for work in excess of forty hours per work week. General Laws c. 151, § 20A, provides that a cause of action for the nonpayment of overtime (as required by § 1A) must be brought within two years of the date it accrues. The summary judgment judge, however, concluded that the plaintiffs could nevertheless recover for unpaid wages and overtime under the Wage Act, which requires employers to make timely payment of wages to employees and has a three-year statute of limitations. Thus, his decision suggests that the plaintiffs may recover unpaid overtime under either G. L. c. 151, § 1A, or the Wage Act. Townsend argues that allowing the plaintiffs to assert claims for unpaid overtime under the Wage Act has the practical effect of obviating the Legislature’s determination that a shorter limitations period should apply for unpaid overtime claims under G. L. c. 151, § 1A. In support of this argument, Townsend cites Mogilevsky v. Bally Total Fitness Corp., 263 F. Supp. 2d 164 (D. Mass. 2003), in which a Federal District Court judge concluded that a plaintiff (who brought his claim beyond the two-year statute) could recover for any unpaid overtime, but only at the standard rate, not the overtime rate, because to decide otherwise “would essentially eviscerate the distinction between the two-year statute of limitations for the failure to pay overtime hours at the overtime rate, [G. L.] c. 151, § 20A, and the three-year statute of limitations for the failure to pay wages altogether, [G. L.] c. 149, § 150.” Id. at 169-170. We agree with the reasoning in Mogilevsky v. Bally Total Fitness Corp., supra, that an employee whose claim for unpaid overtime is barred by the two-year statute of limitations may nevertheless assert a claim for unpaid wages under the Wage Act. However, in such instance, recovery is limited to uncompensated time worked at the regular rate. That is, if the two-year statute of limitations has elapsed, the employee is not entitled to the premium overtime rate under G. L. c. 151, § 1A. This holding strikes a balance between the Legislature’s intent behind the Wage Act that employees receive timely payment of wages, American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959), and the Legislature’s intent to draw a nominal distinction between overtime wages and regular wages by establishing different statute of limitations periods. Mogilevsky v. Bally Total Fitness Corp., supra. As it pertains to the present dispute, although the plaintiffs’ overtime claims brought under G. L. c. 151, § 1A, are barred by the two-year statute of limitations, the plaintiffs may still recover for unpaid overtime work at the regular rate under the Wage Act, subject to the three-year statute of limitations. Next, we consider whether the three-year statute of limitations period was tolled either by the discovery rule or by reason of fraudulent concealment. We conclude that despite their characterization as independent contractors in the contractor carrier agreements that they (and their corporate entities) signed with Townsend, the plaintiffs were aware of all of the operative facts necessary to support their later claim that they were in fact Townsend’s employees. Similarly, because Townsend did not fraudulently conceal the plaintiffs’ status as employees, the statute of limitations was not tolled. Under the discovery rule, limitations periods in Massachusetts run from the time a plaintiff discovers, or reasonably should have discovered, the underlying harm (here, the plaintiffs’ mis-classification as independent contractors) for which relief is sought. Passatempo v. McMenimen, 461 Mass. 279, 293-294 (2012), quoting Koe v. Mercer, 450 Mass. 97, 101 (2007). Under the Wage Act, a person (like each of the plaintiffs) who performs services for another is presumed to be an employee unless: “(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and (2) the service is performed outside the usual course of the business of the employer; and, (3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” G. L. c. 149, § 148B. Here, based on the express restrictions and requirements contained in the contract carrier agreements, the plaintiffs were possessed of all facts necessary to reach the conclusion that they might qualify as employees. As such, the discovery rule did not operate to toll their Wage Act claims. Alternatively, the plaintiffs argue that Townsend fraudulently concealed their status as employees in order to avoid paying them wages due to them under the Wage Act and that Townsend’s alleged fraudulent concealment tolls the statute of limitations. We disagree. “[W]hen a defendant fraudulently conceals a cause of action from the knowledge of a plaintiff, the statute of limitations is tolled under G. L. c. 260, § 12, for the period prior to the plaintiffs’ discovery of the cause of action.” Salvas v. WalMart Stores, Inc., 452 Mass. 337, 375 (2008), quoting Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 519 (1997) {Demoulas).* In such instances, the statute of limitations begins to run when the plaintiff has actual knowledge of the wrong giving rise to his cause of action. Demoulas, supra. Furthermore, “[ajbsent a fiduciary or other special duty . . . active fraud is ordinarily required to prove fraudulent concealment.” Salvas v. Wal-Mart Stores, Inc., supra at 375-376. There are no facts alleged to support the plaintiffs’ contention that Townsend actively concealed or misrepresented any of the circumstances regarding the plaintiffs’ employment. Townsend’s attempt to exercise a higher level of control in some areas of the relationship (e.g., the delivery schedules), while eschewing similar control where it would be less financially expedient (e.g., the plaintiffs were required to provide and maintain a working delivery truck), is not itself evidence of misrepresentation or concealment. Townsend’s behavior in this regard is ambivalent at best. On the one hand, it might suggest that Townsend itself was unaware that plaintiffs might actually qualify as employees. On the other hand, assuming Townsend knew that the plaintiffs might misunderstand their employment status, Townsend in no way attempted to conceal from the plaintiffs the requisite information from which they might conclude they were in fact employees. The facts surrounding the nature of the employment relationship were known to all parties at all relevant times. See Stetson v. French, 321 Mass. 195, 198 (1947) (“cause of action is not concealed from one who has knowledge of the facts that create it”). See also Lynch v. Signal Fin. Co., 367 Mass. 503, 507-508 (1975); Brackett v. Perry, 201 Mass. 502, 505 (1909). Accordingly, the statute of limitations did not toll due to fraudulent concealment pursuant to G. L. c. 260, § 12. Contrast Manufacturers’ Nat’l Bank v. Perry, 144 Mass. 313, 314 (1887) (defendant through his agent actively concealed bank’s overpayment on check); First Mass. Turnpike Corp. v. Field, 3 Mass. 201, 207-208 (1807) (in contract to build road for plaintiffs, defendants concealed unsound foundation and poor quality of work and materials). Our conclusion that the statute of limitations was not tolled brings us to the final subissue, whether the plaintiffs’ damages are limited to those arising from Townsend’s tortious failure to pay wages accruing within the three-year period immediately prior to the filing of the complaint. We conclude that they are so limited. We begin with the following general proposition concerning damages occurring outside an applicable statute of limitations period: “The plaintiff who suffers damage down to the date of the commencement of the action may recover for all damage incurred within the applicable period of the statute of limitations, but if the [tort] has perdured for a period longer than the allowable period for bringing an action, the plaintiff is barred from recovering damages for the time antedating the allowable period, though his action is not barred. The continuing nature of the wrong keeps alive the right to bring the action, but damages are recoverable only for that period within which the statute otherwise permits the commencement of an action” (emphasis added). J.R. Nolan & B. Henry, Civil Practice § 15.6, at 358 (3d ed. 2004), and cases cited. By contrast, in certain discrimination cases arising under G. L. c. 151B, § 4, we have held that the continuing violation doctrine permits plaintiffs to recover for damages occurring outside the limitations period as long as “there is a discrete violation within the [statute of] limitations period to anchor the earlier claims.” Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 532 (2001). “This exception recognizes that some claims of discrimination involve a series of related events that have to be viewed in their totality in order to assess adequately their discriminatory nature and impact.” Id. at 531. In such instances, unless a complainant reasonably should have been aware of the discriminatory employment actions, a complaint is considered to be timely filed even though “some, or a large portion, of the discriminatory conduct may have taken place more than six months prior to the complaint.” Id. at 532. However, in Silvestris v. Tantasqua Regional Sch. Dist., 446 Mass. 756, 769 (2006), we specifically declined to extend the continuing violat

SHANNON FATTA v. M & M PROPERTIES MANAGEMENT, INC. COA12-694 Filed 4 December 2012 1. Pretrial Proceedings — motion to strike — motion for sanctions The trial court did not err in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by granting defendant’s motion to strike and motion for sanctions against plaintiff. The trial court entered detailed and thorough findings of fact regarding the allegations made by plaintiff against defendant and against the trial judge, the facts as entered by the trial court were supported by the record, and the conclusions of law were fully supported by the findings of fact. 2. Pretrial Proceedings — motion for sanctions — improper purpose The trial court did not err in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by granting sanctions against plaintiff pursuant to Rule 11(a). There was sufficient evidence to support the trial court’s determination that plaintiff’s motion for sanctions was filed for an improper purpose. 3. Pretrial Proceedings — Rule 11 sanction — gatekeeper provision — no abuse of discretion The trial court did not abuse its discretion in an action relating to the Retaliatory Employee Discrimination Act and wrongful termination by entering the Rule 11 sanction of a “gatekeeper” provision against plaintiff. The trial court’s order explained the court’s reasons for entering the sanctions against plaintiff, the gatekeeper provision was narrowly tailored and limited in scope, and plaintiff was provided an opportunity to be heard and had notice that the trial court intended to impose a gatekeeper provision. Appeal by plaintiff from orders entered 4 January 2012 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 23 October 2012. Shannon Fatta pro se plaintiff-appellant. Fisher & Phillips, LLP, by Mason G. Alexander, for defendantappellee. BRYANT, Judge. Where the trial court did not err by granting defendant’s Rule 12(f) motion to strike and Rule 11 motion for sanctions against plaintiff, we affirm the orders of the trial court. Facts and Procedural History The case before us originates from an action commenced on 6 July 2010 by plaintiff Shannon Fatta against defendant M & M Properties Management, Inc. alleging several causes of action relating to the Retaliatory Employee Discrimination Act, and wrongful termination. On 10 March 2011, the trial court entered summary judgment in favor of defendant and dismissed plaintiff’s claims with prejudice. Thereafter, plaintiff filed a motion to reconsider and amend summary judgment pursuant to Rule 59(e) of the North Carolina Rules of Civil Procedure which was denied on 18 April 2011 following a hearing. On 20 April 2011, plaintiff appealed to our Court, and we affirmed the trial court’s summary judgment order in Fatta v. M & M Properties Management, Inc., ___ N.C. App. _, 727 S.E.2d 595 (2012) (“Fatta I”). On 13 July 2011, three months after plaintiff noted an appeal in this matter to our Court, plaintiff filed a motion for sanctions pursuant to Rules 11, 26(g), and 37(d) of the North Carolina Rules of Civil procedure against defendant and defendant’s counsel, Margaret M. Kingston (“Kingston”) of Fisher & Phillips LLP and a motion for relief from the 10 March 2011 summary judgment order entered in favor of defendant pursuant to Rules 60(b)(1), 60(b)(3), and 60(b)(6) (“Motion for Sanctions; Motion for Relief from Judgment”). Plaintiff alleged numerous discovery violations and other misconduct by defendant and Kingston. Plaintiff filed an amended “Motion for Sanctions; Motion for Relief from Judgment” on 26 September 2011. On 12 August 2011, defendant filed a motion to strike plaintiff’s “Motion for Sanctions; Motion for Relief from Judgment” and a motion for sanctions against plaintiff. Following a hearing held on 14 October 2011, the trial court made numerous findings of fact including the following: Plaintiff has attempted to create a discovery dispute. Plaintiff’s arguments about discovery violations are improper and lacking in a factual basis. The parties engaged in extensive discovery in this case, including correspondence between the parties about the adequacy of objections made to certain discovery responses. Plaintiff never filed a motion to compel or any other discovery motion. He raised his discovery arguments for the first time in his “Motion for Sanctions; Motion for Relief from Judgment”, after summary judgment was granted and his claims were dismissed. This Court does not have jurisdiction to review a potential discovery dispute between the parties. The Court entered an Order granting summary judgment to Defendant and dismissing Plaintiff’s claims in their entirety on March 10, 2011. Plaintiff has appealed that decision to the North Carolina Court of Appeals. Although Plaintiff’s discovery challenges are not proper, this Court will briefly address Plaintiff’s arguments that the discovery violations amounted to fraud under Rule 60. The Court finds no factual support for Plaintiff’s claim of discovery violations or misconduct regarding this allegation. In bringing these challenges at this late date and without legal or factual support, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. Also, Plaintiffs discovery allegations are frivolous and insufficient as a matter of law and should be stricken from the record pursuant to Rule 12(f) of the North Carolina Rules of Civil Procedure. The Court finds that these allegations are frivolous. Plaintiff has no facts or evidence to support these allegations. Plaintiff has no legal authority to support these allegations. Plaintiff relies upon his own affidavit, which contains conclusory and factually inaccurate assertions about the parties’ arguments at the summary judgment hearing and the undersigned’s decision following the hearing. Plaintiff made the unsupported assertion that two of Defendant’s summary judgment affiants, Jenny Meyer and Glenn McFarland, misrepresented facts in their affidavits in an effort to mislead the Court. The Court finds that this is an outrageous assertion without any facts in support. In addition, the Court finds that Ms. Meyer and Mr. McFarland have submitted additional affidavits under oath attesting to the accuracy of their prior affidavits. Plaintiff also made the unsupported assertion that Defendant and counsel for Defendant intentionally misrepresented facts and case law on his claims and committed fraud on the court. The Court finds no legal or factual basis for Plaintiffs allegations of fraud and Rule 11 violations in connection with this Court’s summary judgment ruling and subsequent ruling on Plaintiff’s Rule 59 motion. The Court finds that these are outrageous allegations by Plaintiff. In raising these allegations in Plaintiff’s Motion, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. The undersigned presided over the pretrial conference, the summary judgment hearing, the hearing on Plaintiff’s Rule 59 motion, and the hearing on Defendant’s Motion to Strike and Motion for Sanctions in this matter. The undersigned has observed the conduct of the parties and reviewed the documents filed and submitted to the Court by the parties. Plaintiff’s suggestion that the undersigned was part of a fraudulent scheme with counsel for Defendant is outrageous. The Court finds that Plaintiff has filed and pursued his “Motion for Sanctions; Motion for Relief from Judgment” alleging fraud and Rule 11 violations against Defendant and counsel for Defendant without any factual or legal support. The Court finds Plaintiff’s Motion and the manner in which Plaintiff pursued his Motion has been intended to harass counsel for Defendant and to needlessly increase the cost of this litigation for Defendant.. . . The Court finds that Plaintiff has made some very serious allegations against Defendant and counsel for Defendant, and that these allegations of fraud and misconduct are not supported by any facts or law. Due to Plaintiff’s pursuit of this frivolous Motion, this Court finds that the sanction of a gatekeeper provision is necessary and appropriate. The Court finds that Plaintiff has exhibited conduct in this matter showing such a disregard for the rules of law and procedure which, if he were licensed as an attorney, would require and demand reporting him to the North Carolina State Bar questioning his fitness to practice. The Court finds that Plaintiffs baseless allegations, Motion, and materials in support of the Motion were filed and pursued for the improper purpose of harassing the opposing party and opposing party’s counsel, and costing the opposing party unnecessary time and expense in responding to these allegations and'filings. This Court has the inherent power to impose such special limitations as are reasonably necessary for the proper administration of justice, including the authority to regulate and discipline persons who appear before the Court to prevent impropriety and to provide an appropriate remedy to meet the circumstances of the case. The nature of Plaintiff’s conduct and the extraordinary circumstances of this matter require that the Court place special limitations on Plaintiff’s access to the Iredell County Superior Court and enter a gatekeeper order. The trial court then made the following pertinent conclusions of law: The Court lacks jurisdiction to hear a discovery dispute but has considered Plaintiff’s discovery allegations in connection with his Rule 60 allegations of fraud and Rule 11 allegations against Defendant and [Kingston]. The Court concludes that Plaintiff has shown no discovery violations. The Court further concludes that Plaintiff’s discovery allegations are frivolous and lacking in any factual and legal support. The Court concludes that Plaintiff has shown no Rule 11 violation, misrepresentation, or other alleged misconduct amounting to fraud or fraud on the Court by Defendant or [Kingston], The Court further concludes that there is no factual or legal support for any of the fraud, Rule 11, or other misconduct allegations against Defendant and [Kingston] and these allegations are frivolous. The Court concludes that Plaintiff’s “Motion for Sanctions;, Motion for Relief from Judgment” is frivolous and insufficient as a matter of law and should be stricken pursuant to Rule 12 of the North Carolina Rules of Civil Procedure. The Motion is not well grounded in fact or law and appears to have been filed in order to harass Defendant and [Kingston] and to needlessly increase the costs of this litigation. In signing and filing this Motion, Plaintiff has violated Rule 11[.] The Court concludes that, due to the very serious nature of the allegations in Plaintiffs Motion and which are unsupported by any facts or law, the sanction of a gatekeeper provision and the sanction of reasonable attorneys’ fees and costs incurred by Defendant in defending Plaintiff’s Motion are necessary and appropriate. Accordingly, in a 4 January 2012 order, the trial court granted defendant’s motion to strike and motion for sanctions against plaintiff. The trial court also entered a gatekeeping order and awarded attorney’s fees and costs to defendant. From these orders, plaintiff appeals. Plaintiff presents the following issues on appeal: (I) whether the trial court erred by allowing defendant’s motion to strike and motion for sanctions against plaintiff where the motion was improper pursuant to N.C. Gen. Stat. § 1A-1, Rule 7(b)(1); (II) whether the trial court erred by granting sanctions against plaintiff pursuant to N.C. Gen. Stat. § 1A-1, Rule 11(a); and, (III) whether the trial court abused its discretion by entering the sanction of a gatekeeper provision. / In his first argument, plaintiff contends the trial court erred by granting defendant’s motion to strike and motion for sanctions against plaintiff where defendant’s motions violated N.C.S.S. § 1A-1, Rule 7(b)(1). N.C.G.S. § 1A-1, Rule 7(b)(1) (2011) states the following: An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state with particularity the grounds therefor; and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. Id. (emphasis added). The comments to Rule 7(b)(1) states: The 2000 amendment conforms the North Carolina rule to federal Rule 7(b). The federal courts do not apply the particularity requirement as a procedural technicality to deny otherwise meritorious motions. Rather, the federal courts apply the rule to protect parties from prejudice, to assure that opposing parties can comprehend the basis for the motion and have a fair opportunity to respond. Id. cmt. Rule 11(a) of the North Carolina Rules of Civil Procedure reads that [t]he signature of . . . [a] party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. N.C.G.S. § 1A-1, Rule 11(a) (2011). Rule 12(f) states that “[u]pon motion made by a party . . . the judge may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.” N.C.G.S. § 1A-1, Rule 12© (2011). Here, defendant’s motion to strike and motion for sanctions against plaintiff stated the following: Plaintiff’s most recent Motions (“Motion for Sanctions; Motion for Relief from Judgment”) are frivolous and insufficient as a matter of law. The Motions are not well grounded in fact or law. Also, Plaintiff’s intent in filing these Motions is to harass counsel for Defendant and to cause needless increase in the cost of litigation. In signing and filing these Motions, Plaintiff has violated Rule 11 of the North Carolina Rules of Civil Procedure. In addition, Plaintiff’s Motions contain irrelevant and outrageous assertions that should be stricken pursuant to Rule 12© of the North Carolina Rules of Civil Procedure. Plaintiff argues that defendant’s motion “does not point to what is frivolous or what is insufficient as a matter of law[,]” “does not provide how Plaintiff filing for sanctions or relief from judgment constitutes harassment or other improper purposes[,]” and that “[t]here is no indication of what is irrelevant, what is outrageous, or why something is even considered outrageous.” While we disagree with plaintiff’s characterizations, we note that our task is to review the trial court’s decision to grant or deny a motion to strike and motion for sanctions. (Rule 12© motions are reviewed for abuse of discretion. See Reese v. Brooklyn Vill, LLC,_N.C. App._,_, 707 S.E.2d 249, 260 (2011); Rule 11(a) motions are reviewed de novo. “The appropriateness of a particular sanction is reviewed for abuse of discretion.” Bledsoe v. Johnson, 357 N.C. 133, 138, 579 S.E.2d 379, 381-82 (2003) (citation omitted)). Defendant’s motion for sanctions cited Rule 11 and specified that plaintiff’s motion for sanctions was “frivolous and insufficient as a matter of law.” In its consideration of the allegations, the trial court found that plaintiff had “attempted to create a discovery dispute” and that plaintiff brought his “challenges at this late date and without legal or factual support.” The trial court found that plaintiff had relied on his own affidavit “which contains conclusory and factually inaccurate assertions” surrounding the summary judgment hearing at which the trial judge (the Honorable Christopher M. Collier) had presided. Based upon the motions and other evidence of record, the trial court concluded that plaintiff’s improper purpose in filing these motions was to harass the opposing party and its counsel, and to cause the opposing party unnecessary time and expense in responding to plaintiff’s allegations, a needless increase in the cost of litigation. Defendant’s motion to strike cited Rule 12© and specified that plaintiff’s motions “contained] irrelevant and outrageous assertions[.]” The trial court found that plaintiff’s allegations were “baseless” and concluded that plaintiff’s conduct demonstrated a “disregard for the rules of law and procedure[.]” In addition, defendant’s motion for sanctions and motion to strike specifically stated the relief requested: “[t]hat the Court strike from the record Plaintiff’s ‘Motion for Sanctions; Motion for Relief from Judgment’ ”; “[t]hat the Court enter • an Order determining that Plaintiff’s Motions are not well grounded in law or in fact and are intended to harass Defendant and counsel for Defendant;” and “[t]hat Defendant recover all costs and reasonable attorneys’ fees incurred in the defense of Plaintiff’s frivolous Motions[.]” See Lane v. Winn-Dixie Charlotte, Inc., 169 N.C. App. 180, 609 S.E.2d 456 (2005) (holding that the defendant’s Rule 12(b)(4) and 12(b)(5) motion to dismiss was stated with sufficient particularly as to the grounds alleged and sufficiently set forth the relief sought, as required by Rule 7(b)(1)). The trial court entered detailed and thorough findings of fact regarding the very serious and troubling allegations made by plaintiff against defendant and against the trial judge. The facts as entered by the trial court are supported by the record. Further, the conclusions of law are fully supported by the findings of fact. Accordingly, we hold that the trial court did not err in granting defendant’s motions. Plaintiff’s argument is overruled. II Next, plaintiff argues that the trial court erred in granting sanctions against plaintiff pursuant to Rule 11(a). “This Court exercises de novo review of the question of whether to impose Rule 11 sanctions.” Dodd v. Steele, 114 N.C. App. 632, 635, 442 S.E.2d 363, 365 (1994). “There are three parts to a Rule 11 analysis: (1) factual sufficiency, (2) legal sufficiency, and (3) improper purpose. A violation of any one of these requirements mandates the imposition of sanctions under Rule 11.” Battle v. Sabates, 198 N.C. App. 407, 425, 681 S.E.2d 788, 800 (2009) (citation omitted) (emphasis added). “When reviewing the decision of a trial court to impose sanctions under Rule 11, an appellate court must determine whether the findings of fact of the trial court are supported by sufficient evidence, whether the conclusions of law are supported by the findings of fact, and whether the conclusions of law support the judgment.” Johns v. Johns, 195 N.C. App. 201, 206, 672 S.E.2d 34, 38 (2009) (citation omitted). Because we hold that the record supports that plaintiff violated the improper purpose prong, we find it unnecessary to address the other prongs. See Brown v. Hurley, 124 N.C. App. 377, 382, 477 S.E.2d 234, 238 (1996) (“Even if a complaint is well-grounded in fact and in law, it may nonetheless violate the improper purpose prong of Rule 11.”). Under Rule 11, an objective standard is used to determine whether a paper has been interposed for an improper purpose, with the burden on the movant to prove such improper purpose. Because an objective standard is employed, an improper purpose may be inferred from the alleged offender’s objective behavior. In assessing that behavior, we look at the totality of the circumstances. Johns, 195 N.C. at 212, 672 S.E.2d at 42 (citations and quotations omitted). “An improper purpose is ‘any purpose other than one to vindicate rights ... or to put claims of right to a proper test.” Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2

Public Officers and Employees - Elected Officials - Removal from Office - Delegate's Conviction and Waiver of Appeal Rights Triggers Automatic Removal Under Article XV, sec. 2 of the Maryland Constitution Despite Circuit Court's Subsequent Revision of Sen

Police Department of Boston vs. Jill Kavaleski. Suffolk. February 7, 2012. November 6, 2012. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Police, Hiring. Public Employment, Police, Psychiatric examination. Civil Service, Police, Decision of Civil Service Commission, Findings by commission. Administrative Law, Evidence, Findings, Hearing. Discussion of the standard of review applicable to a decision of the Civil Service Commission regarding a public employer’s decision to bypass a candidate for hiring. [688-689] In a proceeding before the Civil Service Commission (commission) challenging the decision of a police department (department) to bypass a candidate for employment as a police officer based on the candidate’s interviews with psychiatrists, the commission erred in considering expert testimony from a different commission proceeding, where the commission did not alert the department that it would be looking to the testimony in that other proceeding and considering it as evidence in the present case, thus depriving the department of an opportunity to contest and respond to that evidence; however, the department was not prejudiced by the commission’s reliance on the testimony from the other proceeding, where there was other substantial and reliable evidence in the record, independent of the testimony from the other proceeding, to support the commission’s decision in the present case. [689-695] Civil action commenced in the Superior Court Department on November 23, 2009. The case was heard by Frank M. Gaziano, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Michael S. Rabieh for the defendant. Nicole I. Taub for the plaintiff. Duffly, J. Since 2005, Jill Kavaleski has sought employment as a police officer with the Boston police department (department). The department has, on three occasions, extended conditional offers of appointment to Kavaleski, each of which was contingent upon her successful completion of a psychological screening process. On each occasion, department psychiatrists found Kavaleski psychologically unqualified for the job, and the department “bypassed” her for appointment as a police officer. See G. L. c. 31, § 27. This case arises from the third such bypass, which Kavaleski appealed to the Civil Service Commission (commission). See G. L. c. 31, § 2 (b). After an evidentiary hearing, the commission concluded that the department had failed to meet its burden of establishing a reasonable justification for bypassing Kavaleski, and ordered that her name be restored to the department’s list of individuals certified for appointment. The department filed an appeal in the Superior Court, see G. L. c. 31, § 44, arguing that, in reaching its decision, the commission had erroneously relied on expert testimony from an unrelated proceeding. A Superior Court judge ruled that the commission had erred and vacated the commission’s order. We granted Kavaleski’s application for direct appellate review. We agree that the commission erred in the manner in which it considered expert testimony from another proceeding. Because the commission’s decision was supported by substantial evidence independent of this extraneous evidence, however, we conclude that the error did not prejudice the department. Accordingly, we reverse the Superior Court judge’s order. Background. Kavaleski is a lifelong resident of Boston. She has received two graduate degrees from a local university, and has for many years been employed by the city of Boston’s veterans’ services department. She has never been diagnosed as having, and has never received treatment for, any psychiatric or psychological disorder or condition. In 2002, Kavaleski applied to be a police officer in New York. She passed that State’s civil service examination, a background investigation, and psychological screening, and was offered a position with the New York City police department. She declined that offer. In 2005, she applied for a position as a police officer with the department. As is required of all applicants, Kavaleski completed the department’s lengthy application packet, which requires extensive disclosures about many aspects of an applicant’s life. She also submitted the required letters of reference, cooperated with a background investigation, and took a civil service examination administered by the Commonwealth’s human resources division (HRD). Kavaleski passed the examination, and according to the commission, her references were “of the highest order.” The commission summarized Kavaleski’s references as describing “a dedicated and passionate person committed to public or community service, who exercises responsibility, good judgment and common sense in the completion of her tasks.” In 2006, Kavaleski twice received a conditional offer of appointment from the department, but on each occasion was “bypassed” after being deemed psychologically unqualified by department psychiatrists. In early 2007, the department extended a third conditional offer of appointment to Kavaleski. The sole condition of the third offer was, again, that Kavaleski successfully complete the department’s psychological screening process. The department’s psychological screening process has three “phases.” In “Phase I,” candidates for employment must take two standardized tests: the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Personality Assessment Inventory (PAI). In “Phase II,” candidates meet with one of the department’s psychiatrists for a thirty-minute clinical interview (first-level interview). Before the interview, the psychiatrist reviews the candidate’s MMPI-2 and PAI test results as well as material from the department’s background investigation, the candidate’s medical history, and information provided by the candidate in a biographical questionnaire. During the interview, the psychiatrist conducts a “mental status examination,” explores any areas of concern raised by the testing and biographical data, and evaluates possible areas of “psychological vulnerability as it pertains to the essential functions of the police officer position. ” If this process raises no “suitability issues,” the psychiatrist will report to the department in writing that the candidate is psychologically suitable for appointment as a police officer. If the psychiatrist identifies areas requiring further inquiry, he or she will prepare a written report outlining the specific concerns and refer the candidate to “Phase IH” of the screening process, a “second opinion psychiatric interview” (second-level interview). A different psychiatrist conducts the second-level interview. The second psychiatrist reviews the report from the first-level interview, as well as the test results and background material reviewed initially by the first psychiatrist. The second psychiatrist then conducts an “in-depth clinical interview” and makes a final written recommendation to the department regarding any “psychological/behavioral issues that would interfere with the applicant’s performance of the essential job functions” of being a police officer. The entire screening process operates in accordance with rules promulgated by HRD. Those rules define the medical standards that a municipal police officer in the Commonwealth must meet, and sort disqualifying medical or psychiatric conditions into two categories. A “Category A” condition is one “that would preclude an individual from performing the essential job functions of a municipal police officer or present a significant risk to the safety and health of that individual or others.” A “Category B” condition is one that, “based on its severity or degree, may or may not preclude an individual from performing the essential job functions of a municipal police officer, or present a significant risk to the safety and health of that individual or others.” As noted, at the time of her appeal, Kavaleski had undergone the department’s psychological screening process three times, and had completed the MMPI-2 and PAI during each round of screening. Both tests were scored automatically, using Kavales-ki’s responses to create a computer-generated report of her psychological “profile.” According to the MMPI-2 reports from Kavaleski’s first two rounds of testing, she produced “invalid” profiles because her responses were “too defensive to permit an adequate assessment of her psychological adjustment.” In both rounds of screening, the first and second psychiatrists who evaluated Kavaleski after reviewing these “invalid” profiles reported that Kavaleski was defensive, guarded, or “interpersonally stiff.” The psychiatrists also took note of Kavaleski’s appearance, describing her as thin, with hair that was “messy” or “unkempt.” In the third round of testing, Kavaleski’s responses produced a “valid” MMPI-2 profile. The computer-generated profile indicated that Kavaleski had “[ijndorsed” certain test questions, known as “critical items,” in the areas of acute anxiety, somatic symptoms, anxiety and tension, and deviant beliefs. A similar computer-generated report based on Kavaleski’s responses to the PAI noted that Kavaleski presented a “[l]ow risk” in the “[pjsychological rating risk factor” category, and that she had indorsed critical items relating to drug problems, anxiety, persecution, and aggressive attitude. Dr. Marcia Scott, who had interviewed Kavaleski in a previous round of screening, conducted Kavaleski’s first-level interview on March 20, 2007. Scott reported that Kavaleski was “less guarded” than she had been in previous interviews, and was “able to respond appropriately to relevant personal questions.” Scott also made various observations about Kavaleski’s weight and appearance, noting Kavaleski’s “almost cache[c]tic body” and “messy” hair. Scott concluded her report by stating that Kavaleski “is a steady controlled person but has very limited self-awareness, little understanding of her motivations or emotional limitations and inflexible approaches to both internal and external stresses.” Scott stated that Kavaleski’s “capacity to evaluate situations and make effective judgments” would impair her ability to work as a police officer, and referred Kavaleski for a second-level interview with Dr. Julia M. Reade. Reade, who conducted each of Kavaleski’s three second-level interviews, met with Kavaleski approximately three months later, on June 30, 2007. She described Kavaleski as “thin, but not unhealthy looking,” and again noted that “her hair was messy.” Reade stated that she had reviewed materials from Kavaleski’s two previous rounds of psychological screening, and included in her report the critical items that Kavaleski had indorsed during the latest round of MMPI-2 and PAI testing. Reade described Kavaleski’s demeanor during the interview as “impassive” and concluded her report as follows: “In summary, despite her continued effort to be more open and flexible, Ms. Kavaleski continues to present as a psychologically inflexible, interpersonally stiff woman whose extreme defensiveness limits her capacity to reflect on her own decision-making, responses, actions or impact on others. Her concrete cognitive style is equally limiting and is likely related to what appears to be a charactero-logic rigidity. These limitations would interfere with Ms. Kavaleski’s ability to manage the duties of a Boston [p]olice officer.” Based on Reade’s report, the department notified HRD that it intended to bypass Kavaleski because she had failed to meet the psychological criteria for employment as a police officer. HRD accepted the department’s stated reasons, and on August 31, 2007, Kavaleski appealed to the commission pursuant to G. L. c. 31, § 2(b). A hearing was held before the commission on April 3, 2008, at which Kavaleski represented herself. The commission accepted numerous exhibits in evidence and heard testimony from Reade and Kavaleski. By a divided vote, the commission ruled that the department had not met its burden of establishing a reasonable justification for bypassing Kavaleski. The commission noted that a disqualifying psychiatric condition has not “been found to exist in [Kavaleski], nor has the [department] specifically asserted any such condition.” The commission ordered the department to place Kavaleski’s name “at the top of the eligibility list for original appointment to the position of [pjolice [o]fficer ... so that she shall receive at least one opportunity for consideration from the next certification for appointment as a [department] police officer.” The commission also ordered that, should the department choose to require Kavaleski to submit to further psychological screening, it must use psychiatrists other than those who had previously been involved in screening or evaluating her. In reaching its decision, the commission quoted several written findings of fact that it had made in deciding the case of Roberts vs. Boston Police Dep’t, Civil Serv. Comm’n, No. G1-06-321 (Sept. 25, 2008) (Roberts). Like the present case, Roberts involved a psychological bypass by the department based on the candidate’s interviews with Scott and Reade. The candidate in that case had called psychologists Dr. Mark S. Schaeffer and Dr. James C. Beck to testify as expert witnesses, and the Roberts commission quoted extensively from their testimony in its written decision. Schaeffer testified in Roberts that interpreting MMPI-2 and PAI results “fall[s] within the professional discipline of psychology, as opposed to medicine and psychiatry.” In discussing the psychiatrists’ evaluations of Kavaleski in the present case, the commission quoted Schaeffer’s testimony from Roberts as well as the Roberts commission’s finding in that case that “all the expert witnesses who testified in [Roberts] agree that a qualified psychologist is the recommended professional with the necessary expertise to which a psychiatrist generally defers when it comes to the subject of psychological testing” (emphasis in original). The commission then noted that none of the psychiatrists involved in interviewing Kavaleski had consulted a specially-trained psychologist to interpret her test results. Based in part on these findings, the commission determined that Reade’s conclusions about Kavaleski’s psychological fitness for employment as a police officer were not credible. The department filed an appeal in the Superior Court, pursuant to G. L. c. 31, § 44, arguing that the commission had improperly relied on Roberts. Concluding that the commission had erroneously relied on testimony introduced in the Roberts case in reaching its decision in the present case, a Superior Court judge allowed the department’s motion for judgment on the pleadings and vacated the commission’s decision. Standard of review. When a candidate for appointment appeals from a bypass, the commission’s role is not to determine whether that candidate should have been bypassed. Rather, the commission determines, “on the basis of the evidence before it, whether the appointing authority [has] sustained its burden of proving, by a preponderance of the evidence, that there was reasonable justification” for the decision to bypass the candidate. Brackett v. Civil Serv. Comm’n, 447 Mass. 233, 241 (2006), citing G. L. c. 31, § 2 (b). “Reasonable justification in this context means ‘done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.’ ” Brackett v. Civil Serv. Comm’n, supra, quoting Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 482 (1928). In determining whether the department has shown a reasonable justification for a bypass, the commission’s primary concern is to ensure that the department’s action comports with “[b]asic merit principles,” as defined in G. L. c. 31, § 1. See Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001). The commission “finds the facts afresh” in conducting this inquiry and is not limited to the evidence that was before the department. Beverly v. Civil Serv. Comm’n, 78 Mass. App. Ct. 182, 187 (2010). Pursuant to G. L. c. 31, § 44, we review the commission’s decision to determine whether it was in conformity with the standards set forth in G. L. c. 30A, § 14 (7). See Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, supra at 263. We may set aside or modify the commission’s decision if we conclude that “the substantial rights of any party may have been prejudiced” by a decision that is based on an error of law, unsupported by substantial evidence, or otherwise not in accordance with the law. G. L. c. 30A, § 14 (7). Because it is the department that appealed from the commission’s decision, the department bears the burden of establishing that the decision is invalid. Brackett v. Civil Service Comm’n, supra at 242. That is a “heavy burden,” Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, supra at 263-264, since we give “due weight to the experience, technical competence, and specialized knowledge” of the commission in deciding these matters. G. L. c. 30A, § 14 (7). “This standard of review is highly deferential to the agency on questions of fact and reasonable inferences drawn therefrom.” Brackett v. Civil Service Comm’n, supra, quoting Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). Discussion. The department advances two related arguments to support its claim that the commission’s decision should be reversed. As stated, it contends that the commission erred as a matter of law in relying on testimony from Roberts to attack Reade’s credibility. As a corollary, the department maintains that there was no properly admitted expert evidence to contradict Reade’s testimony and that, therefore, the commission erred in substituting its own assessment of Kavaleski’s psychological fitness for employment as a police officer. We agree that the commission should not have considered the expert testimony that was introduced in Roberts, but not for the reasons advanced by the department. In addition, we conclude that the commission was entitled to discredit Reade’s testimony without hearing testimony from an opposing expert. General Laws c. 30A, which governs proceedings before the commission, sets forth the extent to which an agency may rely on, and take notice of, materials other than those supplied by the parties. General Laws c. 30A, § 11 (4), provides, in relevant part: “All evidence, including any records, investigation reports, and documents in the possession of the agency of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record in the proceeding, and no other factual information or evidence shall be considered . . . .” A related provision, G. L. c. 30A, § 11 (5), authorizes agencies to “take notice of any fact which may be judicially noticed by the courts,” as well as any “general, technical or scientific facts within their specialized knowledge.” However, “[pjarties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed.” Id. See Assessors of Boston v. Ogden Suffolk Downs, Inc., 398 Mass. 604, 605-606 (1986). The critical component of these statutory provisions is that parties be afforded notice of and an opportunity to respond to the evidence on which an agency relies in rendering a decision. See, e.g., Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 782 (2008) (agency erred in relying on psychiatric manual where petitioner not notified or afforded opportunity to refute that evidence); New York Cent. R.R. v. Department of Pub. Works, 354 Mass. 332, 336 (1968) (facts not properly before department where petitioner did not have opportunity to conte

CUDDINGTON v UNITED HEALTH SERVICES, INC Docket No. 303249. Submitted March 15, 2012, at Detroit. Decided October 25, 2012, at 9:10 a.m. Raymond Cuddington filed an action against United Health Services, Inc., in the Tuscola Circuit Court, seeking damages under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 etseq., for retaliatory discharge. Plaintiff was employed by defendant as a delivery technician and was involved in a car accident while working on the job. Plaintiff declined medical help at the scene of the accident, but developed shoulder and neck pain during the night. Plaintiff’s wife contacted defendant the following morning, stating that plaintiff would not be at work because of soreness from the accident. Plaintiff was told to report to work or he would be fired because he did not report his absence before the start of his shift. Plaintiff refused, stating that he wanted to see his doctor, and was informed that he had been terminated from his job when he reported for work two days later. Plaintiff filed a claim for workers’ compensation benefits and subsequently commenced this retaliatory-discharge claim under MCL 418.301(13). The court, Patrick Reed Joslyn, J., granted defendant’s motion for summary disposition, finding that there was no evidence that plaintiff was fired in retaliation for his workers’ compensation claim. Plaintiff appealed. The Court of Appeals held: 1. The primary goal of the WDCA is to promptly deliver benefits to employees injured in the scope of their employment. Filing a petition for workers’ compensation benefits is not a prerequisite to all retaliatory-discharge claims. Rather, under MCL 418.301(13), a claim of retaliatory discharge may he established if an employer terminates or otherwise discriminates against an employee in retaliation (1) for filing a complaint under the WDCA, (2) for instituting or causing a proceeding to be instituted under the WDCA, or (3) because the employee exercises a right afforded by the WDCA. 2. An injured employee, under MCL 418.315(1), has the right to seek needed, reasonable medical services and medicines for work-related injuries. The phrase “medical services” encompasses medical consultation, evaluation, and treatment. Determining whether an employee needed medical services following a workplace injury necessitates a fact-intensive reasonableness inquiry that focuses on the totality of the circumstances surrounding the employee, the workplace, the nature of the injury, and the injury’s adverse effect on the employee’s overall health and well-being. 3. A prima facie case of retaliation is established under the WDCA if an employee who suffered a work-related injury presents evidence (1) that the employee asserted a right to obtain necessary medical services or actually exercised that right, (2) that the employer knew that the employee engaged in this protected conduct, (3) that the employer took an employment action that was adverse to the employee, and (4) that the adverse employment action and the employee’s assertion or exercise of a right afforded under MCL 418.315(1) were causally connected. Direct evidence of retaliation is evidence that if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions. When a plaintiff asserting a claim for retaliatory discharge under MCL 418.301(13) establishes a prima facie case of retaliation with circumstantial evidence, the burden of proof shifts to the defendant to articulate a legitimate, nonretaliatory reason for its adverse employment action. If the defendant produces a legitimate, nondiscriminatory reason for its action, the plaintiff must then demonstrate that the evidence in the case, when construed in the plaintiffs favor, is sufficient to permit a reasonable trier of fact to conclude that retaliation was a motivating factor for the adverse action taken toward the plaintiff. A plaintiff can establish that the employer’s proffered reasons for the adverse employment action were pretextual by demonstrating that the reasons (1) had no basis in fact, (2) were not the actual factors motivating the decision, or (3) were insufficient to justify the decision. 4. Plaintiff presented prima facie evidence of causation because defendant knew of his work-related injury and that plaintiff exercised a right afforded under the WDCA when he sought medical attention for his injuries rather than reporting for work. Defendant rebutted plaintiff’s prima facie proofs with evidence that it had terminated his employment because he called in his absence two minutes after his shift commenced. The trial court erred by holding that summary disposition was appropriate on the basis of plaintiffs failure to prove that he was terminated in retaliation for filing a petition for workers’ compensation benefits. Rather, the trial court should have determined if a genuine issue of fact existed regarding whether defendant fired plaintiff because he had exercised the right to seek medical services for his work-related injury, as allowed under MCL 418.315(1). 5. In accordance with Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 645-646 (1987), and Griffey v Prestige Stamping, Inc 189 Mich App 665,667-669 (1991), which addressed claims of retaliation for anticipated filings of workers’ compensation benefits, a cause of action for retaliatory discharge cannot be based on the anticipated exercise of a right afforded under the WDCA. An employee who brings a claim under MCL 418.301(13) premised on the exercise of a right afforded by the WDCA must demonstrate that he or she first exercised such a right before the employer terminated or otherwise discriminated against the employee in response to that conduct. Plaintiff did not allege that he was terminated in retaliation for an anticipated claim, however, but alleged that his termination was for exercising a right afforded under the WDCA. Order vacated and case remanded for further proceedings. 1. Workers' Compensation - Retaliatory Discharge - Workers’ Disability Compensation Act — Exercise of Right — Seeking Medical Services. Filing a petition for workers’ compensation benefits is not a prerequisite to all retaliatory-discharge claims; under MCL 418.301(13), a claim of retaliatory discharge may be established if an employer terminates or otherwise discriminates against an employee in retaliation (1) for filing a complaint under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., (2) for instituting or causing a proceeding to be instituted under the WDCA, or (3) because the employee exercises a right afforded by the WDCA; an injured employee who brings a claim under MCL 418.301(13) premised on the exercise of a right afforded by the WDCA must demonstrate that he or she first exercised such a right before the employer terminated or otherwise discriminated against the employee in response to that conduct; under MCL 418.315(1), an employee has the right to seek needed and reasonable medical services and medicines for work-related injuries; medical services encompasses medical consultation, evaluation, and treatment; determining whether an employee needed medical services following a workplace injury necessitates a fact-intensive reasonableness inquiry that focuses on the totality of the circumstances surrounding the employee, the workplace, the nature of the injury, and the injury’s adverse effect on the employee’s overall health and well-being. 2. Workers’ Compensation — Retaliatory Discharge — Seeking Medical Services — Prima Facie Evidence — Shifting of the Burden of Proof. A prima facie case of retaliation for the exercise of the right to seek reasonable and necessary services is established under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., if an employee who suffered a work-related injury presents evidence (1) that the employee asserted the right or actually exercised that right, (2) that the employer knew that the employee engaged in this protected conduct, (3) that the employer took an employment action that was adverse to the employee, and (4) that the adverse employment action and the employee’s assertion or exercise of the right, which is afforded under MCL 418.315(1), were causally connected; direct evidence of retaliation is evidence that, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions; when a plaintiff asserting a claim for retaliatory discharge under MCL 418.301(13) establishes a prima facie case of retaliation with circumstantial evidence, the burden of proof shifts to the defendant to articulate a legitimate, nonretaliatory reason for its adverse employment action; if the defendant produces a legitimate, nondiscriminatory reason for its action, the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiffs favor, is sufficient to permit a reasonable trier of fact to conclude that retaliation was a motivating factor for the adverse action taken toward the plaintiff; a plaintiff can establish that the employer’s proffered reasons for the adverse employment action were pretextual by demonstrating that the reasons (1) had no basis in fact, (2) were not the actual factors motivating the decision, or (3) were insufficient to justify the decision. Hurlburt, Tsiros, & Allweil, PC. (by Mandel I. All-weil), for Raymond Cuddington. Stephens & Moore, P.C. (by Phoebe J. Moore), for United Health Services, Inc. Before: BORRELLO, EJ., and BECKERING and GLEICHER, JJ. FER CURIAM. In this wrongful termination action, plaintiff, Raymond Cuddington, appeals as of right the trial court’s order granting the motion of defendant, United Health Services, Inc. (UHS), for summary disposition pursuant to MCR 2.116(C)(8) and (10). For the reasons set forth in this opinion, we vacate the trial court’s order and remand for further proceedings. I. FACTS AND PROCEDURAL HISTORY UHS employed plaintiff for 12 years as a delivery technician. Plaintiffs job duties required him to transport and assemble medical equipment weighing up to 150 pounds. Plaintiff completed his last delivery for defendant on January 7, 2009. On his way back to the UHS office that evening, the van plaintiff was driving slipped on the icy road and collided with another vehicle. Plaintiff called Robert Daniels, president of UHS, and reported the incident. Robert and his wife, Rebecca Daniels, also an officer of the company, arrived at the accident scene and found plaintiff sitting in an ambulance. Plaintiff had “a fat lip and a bruised cheek from hitting the mirror” but elected not to go to the hospital. During the night, however, he developed pain in his shoulder and neck area. The next morning, plaintiff experienced difficulty getting out of bed and sought medical attention. Plaintiff testified at an unemployment compensation hearing that his wife called UHS at 9:00 a.m. and informed a secretary that he was unable to work because of soreness from the accident. According to plaintiff, Robert called a few minutes later and asked plaintiff why he was not at work. Plaintiff informed Robert that he “was very sore from the accident.” Robert advised plaintiff that he needed to see a doctor. Rebecca took the phone and, as recounted by plaintiff, expressed the following: “[Y]ou ain’t hurt, if you were hurt you would have went in the ambulance to the hospital last night. If you don’t come into work, you are blanking- -blanking fired.” Robert described the same conversation as follows: “My wife got on the phone and basically told him to get his butt to work or he was not going to be employed, because he didn’t call in before his shift.” Plaintiff declined to come in, insisting that he was very sore and wanted to see his doctor. That same morning, plaintiff went to the office of Richard Hall, D.O., his personal physician. While a nurse was taking plaintiffs blood pressure, another nurse announced that Dr. Hall had been called to Saginaw for an emergency. Plaintiff requested that Dr. Hall’s office contact UHS to verify the visit. Although he had not yet been examined by Dr. Hall, plaintiff reported for work on January 9, 2009. Robert informed him that he was “done” and needed to leave his keys and gas card at the office. Robert and Rebecca disputed plaintiffs version of events. Robert averred that plaintiff failed to call in before his shift and that plaintiff was terminated after admitting that he did not have a “doctor’s slip in accordance with the Employee Manual.” Rebecca claimed that she had terminated plaintiff because he did not show up for work, had not called, and “was insubordinate in regards to reporting to work.” Plaintiff filed a claim for workers’ compensation benefits and subsequently commenced this action for retaliatory discharge pursuant to MCL 418.301(13), a provision of the Worker’s Disability Compensation Act (“WDCA” or the “Act”), MCL 418.101 et seq. Plaintiff alleged that he had exercised a right protected under the Act by seeking medical treatment for a work-related injury and that defendant violated the Act when it terminated him in retaliation for exercising that right. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that plaintiff could not establish a viable cause of action under the WDCA because he did not petition for workers’ compensation benefits until after he was terminated. Defendant argued that plaintiff could not sustain a WDCA claim based merely on an intent to claim workers’ compensation benefits. The trial court granted defendant’s motion, finding “no indication here that Plaintiff was fired in retaliation for his worker’s compensation claim. Plaintiff did not even file his claim until after he had been terminated.” II. STANDARD OF REVIEW We review de novo a trial court’s decision on a motion for summary disposition to determine whether the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The trial court did not indicate whether it granted defendant’s motion pursuant to MCR 2.116(C)(8) or (10); however, because the trial court considered documentary evidence beyond the pleadings, we construe the motion as having been granted pursuant to MCR 2.116(C)(10). Krass v Tri-Co Security, Inc, 233 Mich App 661, 664-665; 593 NW2d 578 (1999). In reviewing a motion brought under MCR 2.116(C)(10), we review the evidence submitted by the parties in a light most favorable to the nonmoving party to determine whether there is a genuine issue regarding any material fact. Maiden, 461 Mich at 120. “A genuine issue of material fact exists when the record leaves open an issue on which reasonable minds could differ.” Bennett v Detroit Police Chief, 274 Mich App 307, 317; 732 NW2d 164 (2006). This case requires that we construe the applicable provisions of the WDCA. Issues of statutory construction involve questions of law that we review de novo. Klooster v City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011). “The primary goal of statutory interpretation is to give effect to the Legislature’s intent, focusing first on the statute’s plain language.” Id. at 296. “[U]nless explicitly defined in a statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used.” Yudashkin v Holden, 247 Mich App 642, 650; 637 NW2d 257 (2001) (quotation marks and citation omitted). III. ANALYSIS Plaintiff contends that by alleging that defendant terminated his employment because he exercised a right afforded him under the WDCA — the right to seek medical services for a work-related injury — he pleaded a cognizable retaliation claim under MCL 418.301(13). The evidence supports that plaintiff was terminated after suffering a work-related injury and expressing a need for medical services. We hold that pursuant to the WDCA, plaintiff had a right to seek medical consultation concerning his employment-related injury. Because MCL 418.301(13) contemplates that an employee may pursue a retaliation claim arising from the exercise of this right, the trial court improperly granted summary disposition to defendant. Whether retaliation actually played a role in defendant’s decision to terminate plaintiffs employment presents a factual question subject to further development on remand, in accordance with this opinion. A. RETALIATORY DISCHARGE UNDER THE WDCA The primary goal of the WDCA is to “promptly deliver benefits to employees injured in the scope of their employment.” Dunbar v Mental Health Dep’t, 197 Mich App 1, 6; 495 NW2d 152 (1992). Initially, the Act did not contain a retaliatory-discharge cause of action. Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 645; 413 NW2d 79 (1987). In 1981 PA 200, the Legislature codified a cause of action for retaliatory discharge by amending the WDCA and adding MCL 418.301(11), which was later reclassified as MCL 418.301(13). Wilson, 162 Mich App at 645; 2011 PA 266. MCL 418.301(13) now provides: A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act. [Emphasis added]. The plain language of MCL 418.301(13) establishes that a petition for workers’ compensation benefits is not a condition precedent to all retaliatory-discharge claims. Rather, the statute creates a cause of action when an employer terminates or otherwise discriminates against an employee in retaliation (1) for filing a complaint under the WDCA, (2) for instituting or causing a proceeding to be instituted under the WDCA, or (3) “because of the exercise by the employee ... of a right afforded by this act.” By including within the prohibitions set forth in MCL 418.301(13) that an employer may not retaliate against an employee who has exercised a protected right, the Legislature recognized that an employer could circumvent the goals of the WDCA by firing an injured employee before the employee had any opportunity to formally initiate workers’ compensation proceedings. Had the statute failed to include the final alternative clause, the result would be “a foot race, with the winner being determined by the event to first occur - either the firing of the employee or the filing of a claim with the Workers’ Compensation Board.” Bullard v Alcan Aluminum Corp, 113 Fed Appx 684, 690 (CA 6, 2004) (quotation marks and citation omitted). B. MEDICAL SERVICES AS A RIGHT UNDER THE WDCA Having determined that an employee may have a cause of action based on the exercise of a right, we now turn to whether the Act affords employees a right to seek medical services for work-related injuries. The WDCA does not expressly define the term “right” for purposes of the Act, and this Court has not previously defined the term in this context. In another context, this Court has defined the word to mean “ ‘[something that is due to a person ... [a] power, privilege, or immunity secured to a person by law.’ ” Risko v Grand Haven Charter Twp Zoning Bd of Appeals, 284 Mich App 453, 460; 773 NW2d 730 (2009), quoting Black’s Law Dictionary (8th ed). A review of MCL 418.315(1) reveals that the WDCA affords injured employees the right to seek reasonable medical services and medicines for work-related injuries. Specifically, MCL 418.315(1) provides in relevant part: The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed. [Emphasis added.] Our Supreme Court has not

MONTY S. POARCH, Petitioner v. N.C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, N.C. HIGHWAY PATROL, Respondent No. COA11-1501 (Filed 16 October 2012) 1. Public Officers and Employees — employment termination— North Carolina Highway Patrol — just cause The trial court did not err in an employment termination case by determining that petitioner’s employment with the North Carolina Highway Patrol was terminated for just cause where petitioner engaged in the alleged conduct constituting unacceptable personal conduct and where other Patrol officers had been terminated for similar misconduct. 2. Public Officers and Employees — employment termination— arbitrary and capricious — unacceptable personal conduct — just cause The trial court did not err as a matter of law in an employment termination case by failing to address and correctly decide petitioner’s claim of arbitrary and capricious personnel actions. As petitioner committed the alleged acts of misconduct, the misconduct qualified as unacceptable personal conduct, and the misconduct amounted to just cause for termination, it followed that petitioner’s termination was not arbitrary or capricious. 3. Public Officers and Employees — employment termination— findings of fact — supported by the evidence The trial court did not err in an employment termination case by failing to credit petitioner with undisputed facts warranting relief and by adopting erroneous findings of fact that were not supported by substantial evidence. The contested findings of fact were supported by the evidence. 4. Public Officers and Employees — State Personnel Act— employment termination — adequate compensation The trial court did not err in an employment termination case by finding that respondent North Carolina Highway Patrol’s actions cured a violation of the State Personnel Act and that granting petitioner back pay for the violation was adequate compensation. 5. Public Officers and Employees — employment termination— just and equitable remedy The trial court did not err in an employment termination case by failing to award a just and equitable remedy as the trial court did not err in the trial itself. Appeal by petitioner from order entered 20 April 2011 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 16 August 2012. The McGuinness Law Firm, by J. Michael McGuinness, for petitioner appellant. Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for respondent appellee. Richard C. Hendrix and Richard E. Mulvaney for the North Carolina Troopers Association and the National Troopers Coalition, amicus curiae. McCullough, judge. Monty S. Poarch (“petitioner”) appeals the superior court’s decision to affirm his dismissal from the North Carolina Highway Patrol (the “Patrol”), a division of the North Carolina Department of Crime Control and Public Safety (“respondent”). For the following reasons, we affirm. I. Background Petitioner was terminated from employment as a State Trooper in September 2003 for unacceptable personal conduct for allegedly violating the Patrol’s policies prohibiting unbecoming conduct, nonconformance to laws, and neglect of duty. At the time of his dismissal, petitioner had been employed by the Patrol as a State Trooper for over 18 years, of which 16 years were spent in Alexander County. Petitioner’s termination arose as a result of a complaint filed 7 October 2002 by Ms. Donna Lynne Kirby (“Ms. Kirby”). In the complaint, Ms. Kirby alleged that petitioner unlawfully stopped her the morning of 22 September 2002 because she was ending their extramarital affair. In response to Ms. Kirby’s complaint, the Patrol’s Director of Internal Affairs, Captain C. E. Moody (“Capt. Moody”), initiated an internal investigation and assigned First Sergeant Ken Castelloe, now Captain Castelloe (“Capt. Castelloe”), to conduct the investigation. Capt. Castelloe conducted interviews of Ms. Kirby and petitioner as part of the investigation. During Ms. Kirby’s interview on 29 October 2002, Ms. Kirby described the alleged unlawful stop and further alleged that she and petitioner had engaged in an on-again, off-again extramarital affair spanning fifteen (15) years. Ms. Kirby alleged that during the affair she had sex with petitioner on numerous occasions while petitioner was on duty, including in every patrol vehicle petitioner was issued during their relationship and in the Alexander County Highway Patrol Office. Ms. Kirby also alleged that she traveled to various locations where petitioner was assigned to work in order to spend nights with him. Petitioner contested the allegations in his interview on 15 November 2002. Petitioner denied unlawfully stopping Ms. Kirby on 22 September 2002 and refuted the extent of their sexual relationship. However, petitioner admitted having an on-again, off-again extramarital affair and to having sexual relations with Ms. Kirby in his patrol car, behind his patrol car, and in the Alexander County Highway Patrol office. Petitioner was never asked whether the sexual relations occurred while he was on duty, and petitioner further asserts that the sexual relationship occurred off duty. But, in each instance petitioner was in uniform. Capt. Castelloe submitted the results of his investigation on 20 January 2003. After reviewing the investigation, Capt. Moody recommended by memorandum dated 28 July 2003 that petitioner’s employment be terminated for unacceptable personal conduct. Major Munday, Director of Professional Standards, disagreed with Capt. Moody’s dismissal recommendation and instead recommended that petitioner receive a ten-day suspension without pay. Major Munday’s recommendation was forwarded to Colonel Holden (“Col. Holden”). Col. Holden considered a ten-day suspension without pay to be inappropriate and directed Capt. Moody to conduct a pre-dismissal conference. Petitioner was notified of the pre-dismissal conference on 4 August 2003. The pre-dismissal conference was held 11 August 2003. Following the pre-dismissal conference, petitioner submitted a letter to Col. Holden on 14 August 2003 requesting a meeting and received a reply by email the following day informing him that Col. Holden could not meet with him. However, after reviewing the transcript of the pre-dismissal conference, Col. Holden ordered a followup interview with petitioner to address concerns raised by the pre-dismissal conference. Capt. Castelloe conducted the follow-up interview on 3 September 2003. On 4 September 2003, Col. Holden issued a memorandum to Major Munday instructing him to dismiss petitioner and prepared the Personnel Charge Sheets upon which petitioner was dismissed. Petitioner appealed the decision internally. On 9 October 2003, the Employee Advisory Committee recommended the decision to terminate petitioner be reversed and that petitioner be reinstated with back pay and be given a ten-day suspension without pay. On 23 October 2003, Secretary Beatty declined the recommendation of the Employee Advisory Committee and affirmed petitioner’s termination from the Patrol. Petitioner timely filed a Petition for Contested Case Hearing with the Office of Administrative Hearings on 5 November 2003. Petitioner alleged that he was discharged without just cause, his discharge constituted disparate treatment, and false and misleading information was included in his personnel file in violation of N.C. Gen. Stat. § 126-25 (2003). A Contested Case Hearing began 19 March 2007 and concluded 22 March 2007, Administrative Law Judge Melissa Lassiter (the “ALJ”) presiding. On 17 September 2007, the ALJ issued her Decision finding that petitioner had engaged in unacceptable personal conduct, but that respondent lacked just cause to terminate petitioner due to disparate treatment. As a result, the ALJ recommended that petitioner’s termination from employment be reversed and that petitioner be reinstated and disciplined at a level less than dismissal. The State Personnel Commission (the “SPC”) considered the matter at its 13 December 2007 meeting and issued its Final Agency Decision on 7 February 2008. The SPC rejected the decision of the ALJ and affirmed petitioner’s termination. Petitioner filed a petition for review in Wake County Superior Court on 5 March 2008. On 20 April 2011, the superior court judge issued an Order adopting the findings of fact and conclusions of law of the SPC’s Final Agency Decision with several additional conclusions of law. Petitioner now appeals from the superior court’s Order. II. Analysis • On appeal, petitioner raises the following issues: Whether the trial court erred in: (1) determining there was just cause for termination of petitioner’s employment; (2) failing to address and correctly decide petitioner’s claim of arbitrary and capricious personnel actions; (3) failing to credit petitioner with undisputed facts and adopting erroneous findings of fact; (4) finding that a violation of the State Personnel Act (the “SPA”) was subsequently cured and petitioner was only entitled to limited back pay for the violation; and (6) failing to impose a just and equitable remedy. Standard of Review “When reviewing a superior court order concerning an agency decision, we examine the order for errors of law.” Warren v. Dep’t of Crime Control & Pub. Safety,_N.C. App._,_, 726 S.E.2d 920, 922 (2012) (citing ACT-UP Triangle v. Comm’n for Health Servs. of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)). “The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” ACT-UP, 345 N.C. at 706, 483 S.E.2d at 392 (internal quotation marks and citation omitted). In reviewing a final decision in a contested case in which an administrative law judge made a decision ... and the agency does not adopt the administrative law judge’s decision, the [superior] court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency’s final decision. The court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record. N.C. Gen. Stat. § 150B-51(c) (2003). Just Cause for Termination Petitioner first contends that the superior court erred in determining that his employment was terminated for just cause. We disagree. The SPA requires that just cause exist for the termination of a career State employee, such as petitioner. N.C. Gen. Stat. § 126-35. Under the North Carolina Administrative Code (the “Administrative Code”), there are two bases for termination of employees for just cause under N.C. Gen. Stat. § 126-35, unsatisfactory job performance and unacceptable personal conduct. 25 NCAC lJ.0604(b). In the present case, we address unacceptable personal conduct. Our recent decision in Warren,_N.C. App._, 726 S.E.2d 920, requires a three-prong inquiry to determine whether just cause exists to terminate a career state employee for unacceptable personal conduct. The proper analytical approach is to first determine whether the employee engaged in the conduct the employer alleges. The second inquiry is whether the employee’s conduct falls within one of the categories of unacceptable personal conduct provided by the Administrative Code. Unacceptable personal conduct does not necessarily establish just cause for all types of discipline. If the employee’s act qualifies as a type of unacceptable conduct, the tribunal proceeds to the third inquiry: whether that misconduct amounted to just cause for the disciplinary action taken. Just cause must be determined based “upon an examination of the facts and circumstances of each individual case.” Id. at_, 726 S.E.2d at 925 (quoting N. C. Dep’t of Env’t and Natural Res. v. Carroll, 358 N.C. 649, 669, 599 S.E.2d 888, 900 (2004)). We address each of these inquiries in order. As to the first inquiry, whether petitioner engaged in the alleged conduct, the Patrol alleged that petitioner engaged in a long-term extramarital affair and that, over the years, petitioner had sexual relations with Ms. Kirby in his assigned Patrol cars and in the Alexander County Highway Patrol Office while on duty. Although petitioner denied that his relationship with Ms. Kirby was a long-term extramarital affair, petitioner admitted to having an on-again, off-again extramarital affair with Ms. Kirby and admitted to specific instances of sexual relations with Ms. Kirby, including sex in a Patrol car, sex behind a Patrol car, and sex in a Patrol office. The only dispute as to the alleged misconduct is whether the misconduct occurred when petitioner was on duty or off duty. Petitioner strongly contends that he was never on duty when he had sexual relations with Ms. Kirby. This contention is based on the Patrol’s use of radio codes to check in for duty. On the other hand, respondent has presented evidence that a Patrol officer is “considered to be on duty when wearing the uniform . . . .’’N.C. Highway Patrol Policy Manual, Directive P.l. Further, Capt. Castelloe testified that he understands the Patrol’s policy to be that a Patrol officer is on duty when in uniform and using Patrol facilities because the Patrol officer is representing the Patrol. After reviewing the record, we find the distinction between on duty and off duty based on the Patrol’s radio codes to be of little significance in this case where petitioner was in uniform and the use of patrol facilities is so intertwined with the acts of misconduct. Furthermore, we find respondent’s argument persuasive that if any member of the public would have witnessed petitioner’s misconduct, where petitioner was in uniform and using patrol facilities, they would assume that petitioner was on duty to the detriment of the Patrol’s reputation. Thus, in concluding the first inquiry, petitioner engaged in the alleged acts. In regard to the second inquiry, whether petitioner’s conduct falls within one of the categories of unacceptable personal conduct provided in the Administrative Code, unacceptable personal conduct is defined to include “conduct unbecoming a state employee that is detrimental to state service[.]” 25 NCAC 1J.0614(i)(5). In this case, we agree with the unchallenged findings of the ALJ, SPC, and superior court that petitioner’s conduct is clearly conduct unbecoming of a state employee that is detrimental to state service. Here, “[p]etitioner failed to conduct himself in a manner to reflect most favorably on the Highway Patrol, and in keeping with the high standards of professional law enforcement, and was a discredit to himself and the Patrol.” The determinative third inquiry in this case is “whether [petitioner’s] misconduct amounted to just cause for the disciplinary action taken.” Warren, _N.C. App. at_, 726 S.E.2d at 925. In Warren, this Court noted that this inquiry accommodates the Supreme Court’s flexibility and fairness requirements announced in Carroll through a balancing of the equities. Id. (referencing Carroll, 358 N.C. at 669, 599 S.E.2d at 900 (“Just cause, like justice itself, is not susceptible of precise definition. It is a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case.”) (internal quotation marks omitted). Here, petitioner argues that his misconduct did not amount to just cause for termination as a result of the Patrol’s selective enforcement of personnel policies and disparate treatment in discipline. We disagree. Petitioner cites various examples of misconduct by Patrol officers for which the Patrol officers were disciplined at levels less than termination. In doing so, petitioner argues that principles of commensurate discipline must be applied in this case. After reviewing the record, we acknowledge and find it inexplicable that some Patrol officers were not terminated for similar misconduct, and in some instances more egregious, than that of petitioner. However, we will not shackle the Patrol to the worst personnel decisions that they have made. A complete review of the record reveals that officers were terminated for misconduct similar to that of petitioner based on complaints filed around the time the complaint against petitioner was filed. We find it particularly relevant that Patrol Officer Silance was dismissed for an ongoing extramarital affair while on duty based on a complaint filed 30 August 2002, less than two months prior to the complaint filed against petitioner. Furthermore, numerous complaints were filed within the year following the complaint against petitioner that resulted in dismissal or resignation or retirement in lieu of an investigation or dismissal for sexual misconduct similar to that of petitioner. Therefore, the superior court did not err in affirming petitioner’s termination for just cause where the superior court properly addressed petitioner’s arguments of selective enforcement of personnel policies and disparate treatment in discipline as part of the just cause analysis by adopting the SPC’s finding that “[Respondent failed to fire a few Troopers whose conduct was egregious enough to warrant dismissal. [But] [t]he preponderance of the evidence, demonstrates . . . that the Highway Patrol has . . . dismissed Troopers for engaging in on-duty sex.” Petitioner additionally argues that the Patrol’s non-compliance with its own agency rules constitutes a lack of just cause and governmental arbitrariness such that petitioner’s termination cannot stand. While petitioner is correct that the respondent must follow its own rules, see U.S. v. Heffner, 420 F.2d 809, 811 (4th Cir. 1969) (“An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down.”), petitioner has failed to identify the rules that were not followed. Instead, petitioner, without providing evidence, makes seven general assertions that the Patrol’s personnel rules were not followed. Because petitioner has failed to argue which rules were not followed, we do not address the argument. For the reasons discussed, the superior court did not err in finding that just cause existed to support petitioner’s termination from the Patrol where petitioner engaged in the alleged conduct constituting unacceptable personal conduct and where other Patrol officers have been terminated for similar misconduct. Arbitrary and Capricious Personnel Actions Petitioner also contends that the superior court erred as a matter of law in failing to address and correctly decide his claim of arbitrary and capricious personnel actions. We disagree. After determining that petitioner committed the alleged acts of misconduct, that the misconduct qualifies as unacceptable personal conduct, and that the misconduct amounted to just cause for termination, it follows that petitioner’s termination was not arbitrary or capricious. Further, we find that the SPC’s Conclusions of Law 12 and 16, adopted by the superior court, specifically address petitioner’s claim of arbitrary and capricious personnel actions. These conclusions state: 12. In this case, the preponderance of the evidence established that the punishment imposed was within the range of punishment imposed in other cases involving similar conduct. Additionally, the conduct of Petitioner, a sworn law enforcement officer, was particularly egregious such that any reasonable officer could expect to be dismissed. Accordingly, Respondent did not act arbitrarily or capriciously when it dismissed Petitioner. 16. While there might have been mistakes made during the internal process within the a

Maria Lahbibi Ryan vs. Holie Donut, Inc. No. 11-P-1403. Suffolk. March 8, 2012. - October 15, 2012. Present: Katzmann, Sikora, & Agnes, JJ. Practice, Civil, Motion to dismiss. Employment, Retaliation, Sexual harassment, Termination. Anti-Discrimination Law, Sex, Termination of employment. Administrative Law, Exhaustion of remedies. Massachusetts Commission Against Discrimination. Superior Court, Jurisdiction. In a civil action brought by a plaintiff against her employer alleging common-law wrongful termination in violation of a public policy supporting the report of unlawful conduct to law enforcement authorities (here, that she had been sexually assaulted on multiple occasions by a customer of her employer who was an on-duty police officer), the Superior Court judge properly granted the employer’s motion to dismiss, where the claim alleged, in substance, retaliation for the plaintiff’s opposition to her employer’s tolerance of a sexually hostile work environment, within the operation of G. L. c. 151B, § 4(16A), and therefore fell within the statutory jurisdiction of the Massachusetts Commission Against Discrimination, to which the plaintiff had failed to submit an administrative complaint within 300 days of her termination, as required by G. L. c. 151B, § 5. [635-641] Civil action commenced in the Superior Court Department on September 2, 2010. A motion to dismiss was heard by Geraldine S. Hines, J. Michael A. West for the plaintiff. Nancy A. Serventi for the defendant. Sikora, J. By a single-count complaint for damages, Maria Lahbibi Ryan alleged that the defendant, Holie Donut, Inc. (Ho-lie Donut), had fired her because she had complained to Holie Donut and to law enforcement authorities about a pattern of sexual harassment committed at her workplace by a local police officer. She claimed that the retaliatory discharge violated public policy supporting the report of unlawful conduct to authorities and constituted tortious wrongful termination. She appeals from a judgment of dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). A judge of the Superior Court concluded that, in substance, Ryan’s complaint alleged a claim of employer retaliation for her opposition to Holie Donut’s tolerance of a sexually hostile work environment, as prohibited by the antidiscrimination statute, G. L. c. 151B, § 4(4) (forbidding retaliation) and 4(16A) (forbidding sexually hostile work environment). The judge reasoned that the genuine character of the claim had required submission of an administrative complaint to the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the alleged misconduct as a statutory prerequisite for pursuit of any subsequent remedies, and that omission of the mandatory administrative complaint compelled dismissal of Ryan’s common-law action. For the following reasons, we affirm the judgment of dismissal. Background. Because we are reviewing a dismissal pursuant to Mass.R.Civ.R 12(b)(6), we credit hypothetically the allegations of the complaint. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 415 (1988). In 2003, Ryan began employment with Holie Donut, the holder of a Dunkin’ Donuts franchise shop in the city of Chelsea. During the course of her work at the shop, Chelsea police Officer Michael Morabito became a regular customer. The shop was located at 478 Broadway; Officer Mora-bito’s station house was located at 500 Broadway. When he patronized the store, Morabito was in uniform and on duty. According to the complaint, in 2006 Morabito began a course of conduct in which he (1) made sexually suggestive comments to Ryan, (2) made them in the presence of customers and other employees, (3) made sexual propositions to her, (4) made “sexually intimidating” comments to her, and (5) on one or more occasions “touch[ed] and sexually assaulted] ” her. The management and ownership of Holie Donut were aware of this behavior. Nonetheless, they did not report his conduct to any authorities and did not bar or limit his access to the shop. In early September of 2007, Ryan informed Holie Donut that she intended to report Morabito’s conduct to law enforcement authorities. The management discouraged that course and indicated that any “legal steps” would create “problems” for Holie Donut and Ryan. Also during the first half of that month, Morabito and at least one other police officer discouraged Ryan from taking any action. Ryan nevertheless “initiated steps to report the conduct” and “steps to protect herself” (unspecified in the complaint). Holie Donut then discharged her. Ryan brought the present common-law action for wrongful termination on September 2, 2010, almost three years later. Ho-lie Donut moved successfully for dismissal upon the ground that Ryan had failed to submit a prerequisite timely administrative complaint. This appeal ensued. Analysis. 1. Standard of review. Review of the allowance of a rule 12(b)(6) motion proceeds de nova. See Harhen v. Brown, 431 Mass. 838, 845 (2000); Housman v. LBM Financial, LLC, 80 Mass. App. Ct. 213, 216 (2011). To assess the legal sufficiency of the complaint, we take as true all factual allegations and any reasonable inferences from those allegations. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011); Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). The factual allegations, as a matter of both plausibility and law, must support an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Finally, the presence of allegations or information constituting a conclusive affirmative defense can spell the demise of a complaint. See, e.g., Bagley v. Moxley, 407 Mass. 633, 637-638 (1990) (application of issue preclusion); Daniel v. Contributory Retirement Appeal Bd., 418 Mass. 721, 722 (1994) (failure to exhaust administrative remedies); Babco Indus., Inc. v. New England Merchants Natl. Bank, 6 Mass. App. Ct. 929, 929 (1978) (applicability of statute of limitations). 2. Common-law claim of wrongful termination. Ryan characterizes her cause of action not as a specific allegation of discrimination, but rather as a generic claim of wrongful discharge beyond the coverage of the antidiscrimination provisions of G. L. c. 151B, § 4(4) and 4(16A). She describes Holie Donut’s dismissal of her as “retaliation for reporting a crime to law enforcement authorities, consisting of an assault to her person, perpetrated by an on-duty, uniformed and armed police officer while in an ‘off limits to the public’ area at the plaintiff’s place of employment.” To the same effect, she argues that “[germinating an employee for reporting a crime is not a practice that is expressly forbidden by any section of [G. L.] c. 151B. Such a termination is a common law tort, without a remedy articulated in [c.] 151B.” That view would place her dismissal within the tort of wrongful termination of an at-will employee. Even if “the employer does not gain a financial advantage, an at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.” DeRose v. Putnam Mgmt. Co., 398 Mass. 205, 210 (1986) (recognizing claim under Massachusetts common law). The public policy must be well defined, important, and preferably embodied in a textual law source. See Mello v. Stop & Shop Cos., 402 Mass. 555, 561 n.7 (1988); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472-476 (1992). A public policy violation arises, at the least, from a termination punishing an employee’s assertion of a legally guaranteed right, compliance with a legal requirement, or refusal to commit prohibited conduct. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). See also Hobson v. McLean Hosp. Corp., 402 Mass. at 416-417 (allegations of discharge for enforcing municipal and State law standards of patient supervision constitute claim); Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (wrongful termination can arise from circumstances in which company discharges employee for cooperation with customs officers’ investigation of employer even though employee had no legal duty to cooperate); Shea v. Emmanuel College, 425 Mass. 761, 762-763 (1997) (discharge of employee for reporting criminal wrongdoing within organization to superiors within organization would constitute actionable violation of public policy). In short, Ryan insists that the thrust of her complaint is not her discharge for reporting an experience of discriminatory sexual harassment in the workplace, but instead her discharge for reporting criminal activity (assaultive touching on one or more occasions) by an on-duty police officer to law enforcement officials; and that such a distinctive allegation falls outside the operation of G. L. c. 151B. We respect the contention that disclosure of misconduct, especially by on-duty law enforcement officers, serves a public purpose. However, two considerations defeat that argument in this instance: a realistic assessment of the complaint and the full reach of c. 15IB. 3. Allegations of the complaint. A full and balanced view of the complaint reveals a story of sexual harassment. The alleged events extended in a pattern for a year or more. They were predominantly verbal and open. “[0]ne or more” acts consisted of “touching and sexually assaulting” Ryan. The complaint does not elaborate upon the details of any physical contact or relate any contemporaneous report of it to law enforcement. It does state that at least one other police officer witnessed or knew about the misconduct, and that Holie Donut management witnessed or knew of the train of events. In full perspective, the assault by offensive touching would constitute the gravest element of a larger pattern of actionable sexual harassment. 4. Exclusivity of the remedies ofG. L. c. 151B. Section 4(16A) of G. L. c. 151B, inserted by St. 1986, c. 588, § 3, prohibits “an employer, personally or through its agents, to sexually harass any employee.” At least since 2002, the MCAD, in its Sexual Harassment in the Workplace Guidelines § III(C) (2002), has advised that “[a]n employer may ... be liable for the sexual harassment of its employees by certain non-employees, such as customers . . . when the employer knew or should have known about the conduct and failed to take prompt, effective and reasonable remedial action. . . . The greater the employer’s ability to control the non-employee’s conduct, the more likely it will be found liable for that person’s unlawful harassment.” In Modern Continental/Obayashi v. Massachusetts Commn. Against Discrimination, 445 Mass. 96, 105 (2005), the court expressly adopted that standard: “An employer who passively tolerates the creation of a hostile working environment implicitly ratifies the perpetrator’s misconduct and thereby encourages the perpetrator to persist in such misconduct. . . . Moreover acquiescence on the part of the employer effectively communicates to the victim of harassment that her employer does not care about the hostile environment in which she must work .... [A]n employer who is not part of the solution inevitably becomes part of the problem.” See Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 603-608 (2006) (public employer’s tolerance of employees’ homophobic abuse of coworker creates actionable hostile work environment). If an employer’s inaction in the face of sexual harassment and assault of an employee by a customer falls within the operation of § 4(16A), then all the more so would the employer’s attempt to suppress the employee’s efforts for a remedy. Under this standard, the allegations of Ryan’s complaint fall within the operation of § 4(16A). Section 5 of G. L. c. 15 IB authorizes complaints to the MCAD for remedies of compensatory damages, civil fines, and restraining orders. The complainant must file within 300 days of the alleged act of discrimination. Ibid. Section 9 of c. 15IB, as amended by St. 2002, c. 223, § 2, provides that the administrative proceeding “shall, while pending, be exclusive.” That section provides also that a claimant “may, at the expiration of ninety days after the filing of a complaint with the [MCAD], or sooner if a commissioner assents in writing,” bring a civil action for damages and injunctive relief in the appropriate Superior, Probate and Family, or Housing Court, and incur dismissal of the administrative complaint. In other words, the statute suspends, but does not extinguish, a claimant’s other causes of action. Decisions examining the relationship of the G. L. c. 15IB administrative complaint to common-law claims and other statutory causes of action involving discrimination have stated that commencement of a timely administrative complaint must precede any such common-law claim created after enactment of the statutory remedies now appearing in §§ 5 and 9. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994); Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985) (specifically observing that statutory rights and remedies predated recognition of common-law tort of wrongful discharge in Massachusetts). Occasional language has described the exclusivity and required exhaustion of the c. 15 IB administrative complaint process more categorically. See Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 430 (1987) (“In the absence of a timely complaint to the MCAD, there may be no resort to the courts”); Cherella v. Phoenix Technologies, Ltd., 32 Mass. App. Ct. 919, 919 (1992) (“Resort to the courts is not available for a complaint of discrimination within the jurisdiction of the MCAD unless the person claiming to have been the object of unlawful discrimination first makes a timely complaint to that agency”). Multiple reasons favor a required first resort to the administrative system afforded by G. L. c. 15IB. It furnishes a comprehensive remedial process designed to resolve claims of discrimination with fairness and efficiency for both the complainant and the respondent. Its administrative attributes include a reasonably prompt time limit (300 days) promoting notice to the respondent and the preservation of evidence by all parties, a neutral investigation and probable cause determination, and conciliation services, pursuant to § 5; compensatory damages, civil fines, restraining orders, and the award of reasonable attorney’s fees to deserving claimants, pursuant to § 9; and the cumulative institutional judgment of a specialized agency accustomed to distinguishing meritorious from unmeritorious grievances. See Charland v. Muzi Motors, Inc., supra at 583; Melley v. Gillette Corp., supra at 512-513; Windross v. Village Automotive Group, Inc., 71 Mass. App. Ct. 861, 863-864 (2008) (purpose of mandatory submission to MCAD process “is twofold: [1] to provide the MCAD with an opportunity to investigate and conciliate the claim of discrimination; and [2] to provide notice to the defendant of potential liability”). Those benefits of a calibrated legislative scheme offer distinct advantages against traditional litigation in trial courts of general jurisdiction upon multiple variant theories of statutory and common-law wrongdoing. Therefore, as a jurisdictional prerequisite, the complaint must pass first through the MCAD portal for the potential advantages of timeliness, efficiency, expertise, and negotiation. The statute maintains access to judicial review in the Superior Court under the standards of the Administrative Procedure Act, G. L. c. 30A, § 14(7), and, as noted, the option of withdrawal from the administrative process after ninety days for direct access to the courts. 5. Present circumstances. The allegations of Ryan’s complaint charge Holie Donut management not only with tolerance of a customer’s continuing sexual harassment of its employee, but also with deterrence of her efforts to seek help, and finally with retaliatory discharge of her for those eventual efforts. We acknowledge the peculiar circumstance alleged in this case: that the perpetrating customer was a member of the local police force often in the company of a second officer, and that one or more members of the police department may have inhibited management’s willingness to assist its employee. However, that circumstance would not relieve management of the duty to do so. A retail shop in the shadow of a police station does not possess an exemption from the duty of a reasonable effort to safeguard the security and dignity of its employees from sexual harassment by a police officer. As discussed at oral argument, an abuse of official authority would more properly intensify the employer’s duty to act. Because Ryan’s grievance fell within the statutory jurisdictian of the MCAD, she should have submitted an administrative complaint to the agency within 300 days of her retaliatory discharge, and not commenced a common-law action in the Superior Court almost three years later. She was not entitled to bypass the mandatory and preferred procedure. The omission creates a conclusive affirmative defense requiring dismissal. Judgment affirmed. The complaint does not identify the “authorities" to whom Ryan reported or complained. Other documents in the appellate record recite, without objection by either party, (1) that the Chelsea police department conducted an internal investigation, “sustained” Ryan’s complaint, and imposed unspecified discipline upon Officer Morabito; and (2) that Ryan received compensation of $8,121.62 for lost wages under the terms of the statute providing compensation to victims of violent crimes, G. L. c. 258C, administered by the Attorney General. The court surveyed comparable Federal case law and prescribed as a standard of liability the test whether the employer reasonably knew of the harassment and whether it made reasonable efforts to remedy it, whether completely successful or not. Modern Continental/Obayashi v. Massachusetts Comm. Against Discrimination, 445 Mass. at 108-109. In that instance, employees of a subcontractor harassed a female carpenter employed by Modem Continental/Obayashi, the construction general contractor. Modern Continental took reasonable steps, but not completely effective ones, to end the harassment. The court found its efforts reasonable and reversed the administrative decision of the MCAD imposing liability. Id. at 118. The same clause of § 9 adds that “the final determination on the merits shall exclude any other civil action, based on the same grievance of the individual concerned.” In 1965, the Legislature first broadly prohibited “discrimination in employment because of sex” by addition of “sex” as a forbidden basis for disparate “conditions ... of employment.” St. 1965, c. 379, § 4. The formal recognition of tortious wrongful discharge occurred in DeRose v. Putnam Mgmt. Co., 398 Mass. at 210, in 1986. As the court observed in Melley v. Gillette, 19 Mass. App. Ct. at 512, these features resemble the benefits attributed to the exhaustion of administrative remedies and promoted by the legislative requirement of a ninety-day interval at the agency. This category of customer would not fit comfortably within the employer’s range of “control,” but it would demand the employer’s reasonable effort to protect its worker and to fulfil the law. “Few institutions depend as heavily on integrity and credibility for the effective performance of their duties as do police departments.” Local 346, Intl. Bd. of Police Officers v. Labor Relations Commn., 391 Mass. 429, 439 (1984). As recounted above, see note 1, supra, the record indicates that the department investigated and sustained Ryan’s complaint and imposed discipline. The motion judge properly relied upon Melley v. Gillette Corp., 19 Mass. App. Ct. at 512-513, another instance in which a plaintiff omitted the administrative process and filed an action for wrongful discharge in the Su

Michael S. O’Brien vs. Massachusetts Institute of Technology & others. No. 11-P-45. September 25, 2012. Handicapped Persons. Anti-Discrimination Law, Handicap, Termination of employment. Employment, Discrimination, Termination, Retaliation. A Superior Court judge awarded summary judgment in favor of Michael S. O’Brien’s former employer, the Massachusetts Institute of Technology (MIT), on his handicap discrimination and retaliation claims. The judge ruled that O’Brien’s claims failed because he had no reasonable expectation of establishing essential elements of his case. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). On count 1 (handicap discrimination), the judge ruled that O’Brien could not establish that he is a handicapped person within the meaning of G. L. c. 15 IB (the statute), and that even if he could establish his handicapped status, he would not be able to meet his burden of showing that the reasons given for his discharge were a pretext. On count 2 (retaliation), the judge found that O’Brien could not establish that he experienced adverse employment actions prior to his discharge, and that the discharge itself was too remote from the protected activity (a complaint to the United States Department of Labor) to establish a causal connection. Jack R. Stark and Donald J. O’Mara. O’Brien appeals, claiming that he presented sufficient evidence to send his case to a jury. With respect to O’Brien’s discrimination and retaliation claims against MIT, and viewing the record in the light most favorable to O’Brien, see Lyons v. Nutt, 436 Mass. 244, 245 (2002), we agree. This is not to say that MIT in fact discriminated or retaliated against O’Brien. That is a question for the jury on which we express no opinion. We hold only that the evidence is sufficient to raise genuine issues of material fact that preclude the award of summary judgment on counts 1 and 2. 1. Background. O’Brien worked at MIT’s central utility plant (CUP) as a second-class engineer for approximately ten years, starting in 1997. Given the nature of the GUP’s operations, engineers are expected to work overtime. Throughout his employment, O’Brien suffered from pain in his back and legs. He underwent two surgeries: in 2003, he had surgery on both legs, and in November, 2004, he had spinal surgery. Neither surgery was successful, and O’Brien continued to experience pain. In February, 2005, after his second surgery, O’Brien provided MIT with a letter from his surgeon explaining that because of continued pain, O’Brien’s ability to work overtime was limited. O’Brien subsequently tried repeatedly to obtain sick leave under the Family and Medical Leave Act (FMLA) and an accommodation that would excuse him from working overtime. These requests were accompanied by doctors’ notes stating, inter alla, that O’Brien had chronic leg pain “that disrupts his sleep”; that he “likely [would] miss work 1-2 days per month”; that he had a neurological condition made worse by working long hours and that it was “important for his long term health that he not be required to work overtime”; and that he had lower extremity neuropathic pain, spinal stenosis, and lumbar radiculopathy, with “[bjuming pain [in] both lower legs that worsens after prolonged standing hence limiting time on feet.” MIT rejected each request, generally stating that the medical documentation submitted “did not describe circumstances that would entitle [him] to leave under FMLA,” and requesting that he submit additional forms and documentation. In September, 2006, while O’Brien’s request that he not work overtime was pending, one of his supervisors, Jack Stark, commented to another manager that he could not wait until the day he could fire O’Brien. In November, 2006, after O’Brien’s request for an accommodation was formally denied, he filed a complaint with the United States Department of Labor (department). On April 11, 2007, as a result of negotiations with the department, MIT provisionally approved FMLA leave “due to a serious medical condition.” In December, 2006, while O’Brien’s complaint with the department was pending, another supervisor, Donald O’Mara, sent an internal electronic mail message (e-mail) strongly opposing an accommodation for O’Brien on the ground that it would set a precedent. The e-mail stated, “I have no interest whatever in accommodating [O’Brien] at all.” As we have noted, O’Brien first informed MIT that his medical condition affected his ability to work overtime in the beginning of 2005. Prior to that time, during his first eight years of employment, the only disciplinary action involving O’Brien was a single warning he received in January, 2002, for improperly closing a damper. However, following his first request to be excused from working overtime until his employment was terminated in September, 2007, O’Brien received a number of verbal and written warnings and was suspended for a variety of infractions, including insubordination, failing to complete assignments, leaving his post without proper coverage, and abuse of MIT’s sick leave policy. A fellow worker, John Spinosa, submitted an affidavit stating that O’Mara and Stark “appeared to have two different sets of standards for performance in the CUP. One set of standards for . . . O’Brien and the other set of standards ... for the rest of the workforce,” and that he had “personally observed much of this discriminatory treatment.” As to the termination of O’Brien’s employment, there is no dispute as to the following. On September 8, 2007, O’Brien was assigned to work a twelve-hour shift, from 6:00 a.m. to 6:00 p.m. At some point in the early afternoon, he was asked to start CUP chiller number one. During the “slow-roll” start-up process, O’Brien left the CUP to retrieve his truck in a nearby lot, bringing it back to the parking lot next to the CUP. He then washed the truck and a kayak attached to the truck’s roof, drove the truck to a parking garage, and returned to the CUP. At the end of his shift, O’Brien left for a scheduled two-week vacation. Upon his return, O’Brien was informed by letter that his employment was terminated for “unacceptable” conduct in connection with having abandoned his post and for other disciplinary concerns. Spinosa’s affidavit stated that it was common practice to leave the chiller during the slow-roll process because the equipment did not need constant monitoring at that point, and that he was not aware of any discipline imposed on any other engineer for that behavior during his twenty-five years at CUP. 2. Discussion. a. Count 1 — handicap discrimination, i. Handicap status. To establish that he is handicapped within the meaning of G. L. c. 15IB, O’Brien must show that (1) his “condition, actual or perceived, constitutes a mental or physical ‘impairment’[;]... [2] the life activity curtailed constitutes a ‘major’ life activity as defined in G. L. c. 151B, § 1(20), and its accompanying regulations^] . . . and [3] ‘the impairment substantially limit[s] the major life activity’ ” (citations omitted). New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 (2003). There is sufficient evidence on each prong to preclude summary judgment. First, there clearly is evidence that O’Brien’s chronic pain constitutes a physical impairment. Second, there is evidence in the record demonstrating that this impairment limits at least two major life activities, sleep and work. Third, a jury could conclude that these major life activities are substantially limited by O’Brien’s impairment. The question whether an impairment substantially limits an individual’s ability to sleep as compared to the ability of the average person in the general population “requires an individual, case-by-case assessment.” Shedlock v. Department of Correction, 442 Mass. 844, 852 (2004). In his deposition, O’Brien testified that there were weeks when he would sleep only “one or two hours a night, three or four hours a night for a week or two . . . depending] on how many days in a row [he] had to work, what shifts [he] had to work.” He would sometimes go for days with only four hours of broken sleep. Also, O’Brien’s doctor noted that O’Brien “continues to have leg pain that disrupts his sleep” and he “will likely have exacerbations that require missing work intermittently.” If the jury were to credit this evidence, they could conclude that O’Brien’s ability to sleep is substantially limited in comparison to the average person. See ibid. A limitation on work is “substantially limiting]” for purposes of G. L. c. 151B when the impairment “prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 639 (2004). Given the evidence in the record, and the broad range of jobs in the Commonwealth that require overtime, the question whether O’Brien is substantially limited in his ability to work is, again, one for the jury.»» ii. Pretext. Next, we consider whether MIT has proffered legitimate nondiscriminatory reasons for terminating O’Brien, and, if so, whether O’Brien could meet his burden of establishing that the reasons given were a pretext. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997). It may, in fact, be true that O’Brien was terminated for leaving his post during the slow roll of chiller number one. Here, however, there is direct evidence of serious resistance by MIT to O’Brien’s request to be excused from working overtime due to his medical condition, and to his applications for leave under the FMLA and for reasonable accommodation. O’Mara’s internal e-mail and Stark’s comment about wanting to fire O’Brien raise a jury question whether MIT’s proffered reason is in fact why O’Brien was terminated or whether, instead, it is a pretext, and O’Brien was terminated either because of his handicap or in retaliation for engaging in protected conduct, namely, filing a complaint with the department. Seth Stoffregen for the plaintiff. Scott A. Roberts for the defendants. Evidence in the summary judgment record would also support a finding that, beginning about the time he first sought accommodation due to his medical condition, O’Brien was singled out for disciplinary action. In addition to O’Brien’s deposition testimony, the Spinosa affidavit avers that there was one set of rules for O’Brien and another set of rules for everyone else. b. Count 2 — retaliation. This claim is premised on the treatment O’Brien received after he filed his complaint with the department. He alleges that harassment by his supervisors, resulting in numerous verbal and written warnings, as well as his termination in September, 2007, were “adverse action[s]” entitling him to recovery. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004), quoting from Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) (retaliation claim requires plaintiff to show that “he engaged in protected conduct, that he suffered some adverse action, and that ‘a causal connection existed between the protected conduct and the adverse action’ ”). There is no question that O’Brien’s filing of the department complaint constituted protected conduct. Because a reasonable juror could conclude that the verbal and written warnings, as well as O’Brien’s termination, were all “adverse actions” that, if shown to have been retaliatory, would entitle him to recover under the statute, MIT is not entitled to summary judgment. Under the retaliation provision of the statute, “adverse actions consist of a defendant’s action ‘to discharge, expel or otherwise discriminate against’ the plaintiff.” Mole v. University of Mass., supra at 592 n.14. Any such action that “materially disadvantage^] ” a plaintiff is an adverse employment action for purposes of a retaliation claim. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-708 (2011). Here, the less serious infractions ultimately were included among the reasons for imposition of the sanction of termination (see note 4, supra) and, therefore, could be construed as having materially disadvantaged O’Brien. See Nye v. Roberts, 145 Fed. Appx. 1, 6 (4th Cir. 2005). 3. Conclusion. The judgment is reversed as to counts one and two against MIT. In all other respects, the judgment is affirmed. So ordered. We affirm the grant of summary judgment on O’Brien’s additional claim of tortious interference against Stark and O’Mara. As the motion judge found, this claim fails because they were supervisory employees whose actions were governed by a collective bargaining agreement (CBA), and the claim is therefore preempted by the Federal Labor Management Relations Act. See 29 U.S.C. §§ 141 et seq. (1994); Magerer v. John Sexton & Co., 912 F.2d 525, 530-531 (1st Cir. 1990). To the extent O’Brien argues that the claim is not preempted because his allegations of improper motive and means (discriminatory and retaliatory animus) involve actions outside the CBA, the argument is not sufficiently developed, and we do not reach it. The frequency of reprimands escalated in August, 2007, when O’Mara reprimanded O’Brien three times in as many weeks, for infractions ranging from failing to wear his fire retardant suit to leaving the CUP without informing O’Mara. The letter of termination set forth a history of prior disciplinary actions and noted that O’Brien had been “counseled” on three occasions during the preceding month of August for improper conduct. (See note 3, supra.) O’Brien’s union pursued a grievance challenging the termination under the CBA. The matter proceeded to arbitration, and the arbitrator upheld O’Brien’s termination. We review an order granting summary judgment de nova to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). MIT did not argue, and the motion judge did not reach the question, whether O’Brien could make out the second element of his prima facie case, establishing that he is a qualified handicapped person. See, e.g., Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822 & n.11 (1997). We do not address the question. We observe that some Federal courts have found that, as a matter of law, inability to work more than a forty-hour week is not a “substantial limitation” on the ability to work for purposes of the Americans with Disabilities Act (ADA). See Boitnott v. Corning, Inc., 669 F.3d 172 (4th Cir. 2012). However, these cases were decided under a construction of the ADA’s “substantial limitation” language that was subsequently rejected by Congress in the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). In any event, G. L. c. 151B, not the ADA, applies in this case. See, e.g., Dahill v. Police Dept. of Boston, 434 Mass. 233, 240-243 (2001). With respect to the major life activities of thinking and concentrating, O’Brien stated in his affidavit, “I’ve endured numerous days and countless nights of private torture and tears and my ability to concentrate is often impacted.” In light of our conclusions about sleep and work, we need not decide if this is sufficient to raise a genuine issue of material fact whether these major life activities are substantially impaired. Should the evidence at trial be sufficient to support such a conclusion, the judge will be free to instruct the jury on the point.