Wrongful Termination Cases

LAMEZ WILLIAMS, Plaintiff v. AMERICAN EAGLE AIRLINES, INC., Defendant No. COA10-267 (Filed 7 December 2010) 1. Appeal and Error — preservation of issues — failure to argue Issues related to the trial court’s rulings that were not specifically addressed in Defendant’s brief or for which no reason or argument were made were deemed abandoned under N.C. R. App. P. 28(b)(6). 2. Jurisdiction— subject matter jurisdiction — breach of employment contract — tortious interference with contract— Railway Labor Act The trial court lacked subject matter jurisdiction over plaintiff’s claims for breach of employment contract and tortious interference with contract because those claims were preempted by the Railway Labor Act. Appeal by Defendant from orders entered 3 June and 5 November 2009, by Judge Allen Baddour in Durham County Superior Court. Heard in the Court of Appeals 16 September 2010. Ross S. Sohm and Bartina L. Edwards, for plaintiff-appellee. Ogletree, Deakins, Nash, Smoak & Stewart, P.G., by Thomas A. Farr and Phillip J. Strach, for defendant-appellant. JACKSON, Judge. American Eagle Airlines, Inc. (“Defendant”) appeals from orders entered on 3 June and 5 November 2009 denying Defendant’s motion for judgment notwithstanding the verdict (“JNOV”) and alternative motion for new trial made after entry of judgment upon a jury verdict in favor of Lamez Williams (“plaintiff’) in the amount of $232,000.00. For the reasons stated herein, we vacate the judgment of the trial court and remand. Defendant is a Delaware corporation engaged in the business of commercial aviation, conducting business in North Carolina, and employing more than 13,000 employees. Plaintiff was employed by Defendant as a fleet service clerk at Raleigh-Durham Airport on a part-time basis, working approximately twenty hours per week, beginning 13 December 2004 and ending with her termination on 23 April 2007. Plaintiffs duties as a fleet service clerk included marshaling planes into the gate area, pushing planes away from the gate, collecting luggage from the ticketing area, loading and unloading luggage, cleaning the interiors of planes, and loading and unloading the galley areas with refreshments. The terms and conditions of plaintiffs employment with Defendant as a fleet service clerk were governed by a collective bargaining agreement (“CBA”) between Defendant and the Transport Worker’s Union of America, AFL-CIO (“Union”). Plaintiff was a member of the Union and had served as a shop steward. The CBA states in its preamble that it is “made and entered in accordance with the provisions of the Railway Labor Act. . . .” The Railway Labor Act (“RLA”) is codified at Title 45, Chapter 8 of the United States Code. See 45 U.S.C. § 151 (2006) (providing that “[t]his Act may be cited as the ‘Railway Labor Act.’ ”). The CBA further provides that Defendant recognizes the Union “as the sole bargaining agent for all Fleet Service employees employed by [Defendant]” and that, “in their behalf[,]” the Union has the authority “to negotiate and conclude an Agreement with [Defendant] with respect to rates of pay, rules and working conditions for all employees covered under this agreement. . . .” Article 9 of the CBA addresses matters related to the seniority rights of fleet service clerks and consists of paragraphs labeled A through M. Paragraph H addresses factors which have a negative impact upon seniority status. In relevant part, it provides that, “ [resignation, discharge for just cause, or failure to accept recall from layoff will result in forfeiture of seniority and all rights thereto.” (emphasis added). Article 12 of the CBA addresses matters related to the probationary period for fleet service clerks. Specifically, paragraph A of Article 12 states that “[n]ew employees will be considered on probation for the first six (6) months of active service.” Paragraph A further specifies that, during the probationary period, “[probationary employees may be disciplined or discharged without recourse to the grievance and arbitration provisions . . . .” The grievance and arbitration provisions referred to in paragraph A of Article 12 are set forth in Articles 21 and 22 of the CBA, respectively. Article 21 of the CBA establishes the grievance procedure for fleet service clerks. Paragraph A of Article 21 establishes a grievance procedure for employees who believe that they have been “unjustly dealt with or that any provisions of [the] agreement [have] not been properly applied or interpreted . . . .” The grievance procedure set forth in Article 21 provides for the presentation and possible resolution of an employee grievance beginning with the employee’s supervisor. If the decision of the supervisor is not satisfactory, the employee may appeal the supervisor’s decision to the Regional Vice President of Field Service. If the decision of the Regional Vice President of Field Service is not satisfactory, that decision “may be appealed to the American Eagle Airlines, Inc. Board of Adjustment as provided for in Article 22 of [the] agreement.. . .” Article 22 of the CBA establishes the Boards of Adjustment. Paragraph C of Article 22 establishes two types of boards of adjustment — a System Board and an Area Board — each having jurisdiction over particular types of matters. System Boards are granted jurisdiction “over disputes between, the Company and the Union or any employee governed by this Agreement growing out of grievances involving interpretations or applications of this Agreement.” Area Boards, on the other hand, are granted jurisdiction “over disputes between the Company and the Union involving discharge or discipline.” The boards of adjustment established by Article 22 of the CBA are for the purpose of conducting the arbitration system referred to in Article 12 of the CBA. Appeals related to discipline or discharge only can be resolved by majority vote of an Area Board. In the event a Board deadlocks, the final decision is made by a panel of three arbitrators consisting of a Company member of the Board, a Union member of the Board, and a jointly selected neutral arbitrator. On or about 27 August 2006, plaintiff injured her left shoulder while she was unloading luggage from a plane. Plaintiff reported the injury; then she sought and received medical treatment. On 1 September 2006, plaintiff’s doctor wrote a letter stating that plaintiff would be unable to return to work until 18 September 2006. On 5 September 2006, plaintiff signed two forms prepared by Defendant in connection with her work-related injury. The first form, entitled “Injured Employee Roles and Responsibilities,” set forth the ways in which plaintiff was required to cooperate in the claims process during the time she was being treated for her injury. The second form, entitled “Injured Employee Information Letter,” set forth twenty-three points of information for an injured employee, including the following relevant provisions: 18. Transitional Duty: You must notify your supervisor as soon as your doctor determines you can return to work. Both you and the company benefit when you return to work, even if your physical capabilities prevent you from performing your regular job. In most cases, Transitional Duty is available in your department. . . . Refusal of a Transitional Duty assignment may result in cancellation of state benefits, where applicable by state workers’ compensation law. 21. Fraud and Abuse: . . . Workers’ compensation fraud includes the following: • Working at another job, or performing tasks inconsistent with medical claims, while receiving workers’ compensation benefits Workers’ Compensation fraud is a violation of American Eagle’s Rules of Conduct #34, and any employee found to have engaged in such conduct will be subject to termination .... (original emphasis removed). Rule of Conduct #34 (“Rule 34”), referenced in the Injured Employee Information Letter, states that “Dishonesty of any kind in relations with the Company, such as . . . misrepresentation in obtaining employee benefits or privileges will be grounds for dismissal. . . .” (emphasis added). On 7 September 2006, plaintiff’s doctor completed a form indicating that plaintiff could return to work on 18 September 2006, subject to lifting restrictions to remain in effect through 21 September 2006. Plaintiff returned to work sometime after 21 September 2006 and reinjured herself. After plaintiff reinjured her shoulder, her treating physicians prescribed that she not return to work until 1 November 2006. On 7 November 2006, plaintiff’s doctor wrote a letter extending the time for plaintiff to remain out of work through 1 January 2007, with surgery scheduled for 13 December 2006 related to a disc herniation at the level of C5-6. At the time plaintiff had sustained the original injury to her shoulder on 27 August 2006, she also was employed on a full-time basis in an administrative capacity at Duke University (“Duke”). Following her injury, plaintiff advised Defendant’s human resources department that she still was working at Duke. Defendant did not object to the fact that plaintiff continued to work at Duke because the work restrictions placed upon plaintiff in September 2006 were compatible with her administrative duties at Duke. Plaintiff stopped working at her job at Duke at the time of her surgery in December 2006 but returned to work at that job at the end of January 2007. Plaintiff did not, however, return to work with Defendant or contact Defendant following her surgery. On or about 21 March 2007, Defendant received a letter from plaintiff’s doctor stating that she was able to return to work with restrictions, including no bending, no twisting, and no lifting over five pounds. Then, on 5 April 2007, plaintiff’s doctor followed up with another letter stating that plaintiff was unable to return to work until after an appointment scheduled for 14 June 2007. After receiving two letters from plaintiff’s doctor, which seemed to contradict each other, Defendant’s manager for worker’s compensation claims became suspicious of plaintiff’s actions. On 12 April 2007, as part of an investigation, Defendant’s worker’s compensation manager called plaintiff’s work number at Duke to determine whether plaintiff had returned to work there. When the worker’s compensation manager called, plaintiff answered, “This is Lamez.” The 12 April 2007 phone call established that plaintiff had returned to her job at Duke while continuing to receive worker’s compensation benefits from Defendant based upon the representation contained in the letter from plaintiff’s doctor dated 5 April 2007 that plaintiff was “advised ... not to return to work until after her [14 June 2007] appointment[.]” On 23 April 2007, Defendant terminated plaintiff’s employment with Defendant based upon the ground that plaintiff had committed worker’s compensation fraud in violation of Rule 34. Plaintiff did not avail herself of the grievance or arbitration procedures contained in the CBA, see supra; therefore, an Area Board was never constituted to review the merits of Defendant’s decision to terminate plaintiff. Rather, on 19 September 2007, plaintiff filed a complaint with the Employment Discrimination Bureau of the North Carolina Department of Labor (“NCDOL”), alleging that Defendant had violated the North Carolina Retaliatory Employment Discrimination Act (“REDA”) by terminating plaintiff’s employment in retaliation for plaintiff’s pursuit of a worker’s compensation claim. By letter dated 14 January 2008, NCDOL determined that there was insufficient evidence to substantiate plaintiff’s claim and notified plaintiff of the time within which plaintiff was required to act should she decide to pursue the matter further. On 11 April 2008, plaintiff filed suit against Defendant and asserted the following claims: (1) wrongful termination in violation of REDA; (2) wrongful discharge from employment in violation of North Carolina public policy; (3) breach of employee contract; (4) tortious interference with contract of employment; and (5) intentional infliction of emotional distress or alternatively, negligent infliction of emotional distress. On 18 April 2008, plaintiff amended her complaint, adding a sixth claim for “vicarious liability,” related to the conduct of a manager for Defendant alleged to have acted as Defendant’s agent in relation to the claims asserted by plaintiff. On 16 June 2008, Defendant filed an answer, denying the material allegations of plaintiff’s complaint and asserting multiple affirmative defenses. A jury trial commenced on 3 March 2009. On 9 March 2009, the trial court granted Defendant’s motion for a directed verdict with respect to plaintiff’s claims for wrongful discharge in violation of public policy, intentional infliction of emotional distress, and negligent infliction of emotional distress. On 10 March 2009, the jury found in favor of plaintiff with respect to her claims for breach of the agreement and tortious interference with contract, awarding her damages in the amount of $232,000.00. However, the jury returned a verdict in favor of Defendant with respect to plaintiff’s REDA claim. A judgment consistent with the jury’s verdict was entered by the trial court on 14 September 2009. Following entry of judgment, Defendant filed a motion for JNOV, or in the alternative, for a new trial. The trial court entered an order on 5 November 2009 denying both motions. On 18 November 2009, Defendant gave its notice of appeal, enumerating ten rulings by the trial court from which appeal is taken. On appeal, however, the arguments presented in Defendant’s brief are limited to the trial court’s denial of its motion for JNOV and, in the alternative, for new trial. Accordingly, issues related to the trial court’s rulings that are not specifically addressed in Defendant’s brief or for which no reason or argument has been made, are deemed to be abandoned. See N.C. R. App. P. 28(b)(6) (2009). On appeal, Defendant argues that plaintiff’s claims for breach of employee contract and for tortious interference with contract are preempted by the RLA and, therefore, the trial court lacked subject matter jurisdiction over those claims, thereby rendering the judgment entered on the jury’s verdict a legal nullity. We agree. “Whether a trial court has subject-matter jurisdiction is a question of law, which is reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). Subject matter jurisdiction properly is determined by “the state of affairs existing at the time it is invoked.” In re Peoples, 296 N.C. 109, 144, 250 S.E.2d 890, 910 (1978) (citations omitted), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979). It is a time-honored principle that “proceedings of a court without jurisdiction over the subject matter are a nul.lity and its judgment [is] without effect either on the person or property.” Hart v. Motors., 244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956) (citations omitted). The United States Supreme Court has held that, when an employee’s claim is “firmly rooted in a breach of [a collective bargaining agreement]” and asserts no rights independent of that agreement, such claim is preempted by the RLA. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 257-58, 129 L. Ed. 2d 203, 214 (1994). See also Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 323, 32 L. Ed. 2d 95, 99 (1972) (noting a prior Supreme Court decision that held, “before a state court action could be maintained for breach of such a contract, the employee must first ‘attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.’”) (quoting Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 13 L. Ed. 2d 580, 583 (1965) (emphasis in original)). In the case sub judice, the third claim for relief set forth in plaintiff’s complaint, entitled “BREACH OF EMPLOYEE CONTRACT,” is firmly rooted in, and asserts no rights independent of the CBA and, therefore, is preempted by the RLA. Hawaiian Airlines, 512 U.S. at 257-58, 129 L. Ed. 2d at 214. The claim for breach of the employee contract pleaded in plaintiff’s complaint alleges that, “by terminating Plaintiff from her position without just cause,. . . Defendant breached its contract with the Union and the Plaintiff.” (Original underline replaced with italics). As is evidenced on the face of the complaint, the basis of plaintiff’s claim for breach is Defendant’s alleged lack of just cause to terminate plaintiff’s employment. An obligation of just cause as a condition precedent to the termination of employment could arise only out of the CBA. See Bowen v. United States Postal Service, 459 U.S. 212, 220, 74 L. Ed. 2d 402, 411 (1983) (recognizing that “a collective-bargaining agreement is much more than traditional common-law employment terminable at will. Rather, it is an agreement creating relationships and interests under the federal common law of labor policy.”). Therefore, it is axiomatic that plaintiff’s claim for breach of employment contract, premised upon a lack of just cause, is firmly rooted in and asserts no rights independent of the CBA, and the claim is preempted by the RLA. Hawaiian Airlines, 512 U.S. at 257-58, 129 L. Ed. 2d at 214. Plaintiff argues that her claim for breach of employee contract is not premised solely upon the CBA. According to plaintiff, Rule 34 created additional contractual obligations between Defendant and plaintiff that were violated upon Defendant’s termination of plaintiff’s employment. However, during oral argument counsel for plaintiff conceded that the agreement at issue with respect to the claim of breach was the CBA. The apparent contradiction in plaintiff’s argument notwithstanding, plaintiff’s argument that Rule 34 created contractual obligations between plaintiff and Defendant lacks merit for two reasons. First, it is a well-established principle of federal labor law that individual employees within a bargaining unit may not negotiate their own employment contract with their employer. See, e.g., J. I. Case Co. v. National Lab. Rel. Bd., 321 U.S. 332, 337-39, 88 L. Ed. 762, 767-69 (1944). Second, the CBA, by its terms, explicitly recognizes the Union as the solé bargaining agent for all Fleet Service employees employed by Defendant, with the exclusive power to negotiate and conclude an agreement with Defendant “with respect to rates of pay, rules and working conditions for all employees covered under this agreement....” (emphasis added). Therefore, in view of established legal precedent as well as the express language of the CBA itself, Rule 34 could not create any contractual rights or obligations between plaintiff and Defendant. Because plaintiffs breach of contract claim was preempted by the RLA, and because “the jurisdiction of a court depends upon the state of affairs existing at the time it is invoked,” In re Peoples, 296 N.C. at 144, 250 S.E.2d at 910, the trial court lacked subject matter jurisdiction over plaintiff’s claim for breach of the CBA and the judgment on this claim cannot stand. As our State Supreme Court has said, “proceedings of a court without jurisdiction over the subject matter are a nullity and its judgment [is] without effect either on the person or property.” Hart, 244 N.C. at 90, 92 S.E.2d at 678. Similarly, plaintiff’s claim for tortious interference with contract of employment also is preempted. To establish a claim for tortious interference with contract, a plaintiff must show: (1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the Defendant knows of the contract; (3) the Defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff. Gupton v. Son-Lan Development Co., Inc., 205 N.C. App. 133, 142, 695 S.E.2d 763, 770 (2010) (quoting Sellers v.

Robert D. Herrick vs. Essex Regional Retirement Board & another. No. 09-P-1351. Essex. April 13, 2010. September 10, 2010. Present: Kantrowitz, McHugh, & Fecteau, JJ. Retirement. Municipal Corporations, Retirement board. Public Employment, Retirement benefits, Forfeiture of retirement benefits. Administrative Law, Agency’s interpretation of statute. Statute, Construction. Words, “Removal,” “Discharge.” Discussion of the standard of review of an administrative agency’s decision involving interpretation of a statute. [647-648] A Superior Court judge, in reversing a decision of the Contributory Retirement Appeal Board denying the plaintiff employee’s application for a superannuation retirement allowance, correctly concluded that under G. L. c. 32, § 10(1), the qualifying phrase “without moral turpitude” did not apply to the circumstances of the plaintiff’s application, where that phrase applied only to employees removed or discharged from employment [648-652]; moreover, the judge correctly concluded that the plaintiff’s resignation, seen as occurring under the threat of removal, did not amount to constructive removal within the meaning of the words “removed or discharged” in the statute [652-653]; finally, the judge correctly concluded that forfeiture of the plaintiff’s pension was not required under G. L. c. 32, § 15(4), where there was no connection shown directly linking the plaintiff’s public position and the offense of which he was convicted [653-655], Civil action commenced in the Superior Court Department on March 24, 2005. The case was heard by Maureen B. Hogan, J., on motions for judgment on the pleadings. Christopher T. Casey for Essex Regional Retirement Board. H. Ernest Stone for the plaintiff. The Contributory Retirement Appeal Board is a nominal party; it has not participated in this appeal. This matter has been the subject of a prior appeal. See Herrick v. Essex Regional Retirement Bd., 68 Mass. App. Ct. 187 (2007). Fecteau, J. The Essex Regional Retirement Board (ERRB) appeals from a Superior Court judgment that reversed the denial of Robert D. Herrick’s application for a superannuation retirement. ERRB denied Herrick’s application on the ground that he had forfeited his right to a pension due to “moral turpitude” as provided in G. L. c. 32, § 10(1). A magistrate in the Division of Administrative Law Appeals (DALA) upheld that decision. The Contributory Retirement Appeal Board (CRAB) affirmed in a divided decision, the majority stating that “the behavior attendant to Herrick’s resignation was moral turpitude,” and finding that the phrase “without moral turpitude” could not have been intended by the Legislature to be confined to “removed or discharged” employees. On cross motions for judgment on the pleadings, a Superior Court judge reversed on the ground that CRAB (and the other entities before it) had committed an error of law in their interpretation of c. 32, § 10(1). The judge also disagreed with the alternative ground argued by ERRB that Herrick’s pension was forfeited by operation of G. L. c. 32, § 15(4). Notwithstanding that this contention was raised for the first time in Superior Court, the judge considered it, nonetheless, for the sake of completeness. Because we agree that the statute in question does not permit the forfeiture of Herrick’s pension, the denial of his application for superannuation retirement benefits was error and must be reversed. Thus, we affirm the judgment. Background. Briefly, at the time of his retirement, Herrick worked as a maintenance mechanic and custodian for the Wen-ham Housing Authority (Authority), and through that employment (and prior employment with the town of Hamilton) was a member of ERRB. On May 1, 2003, Herrick was charged with sexually assaulting his daughter. That same day he resigned his position with the Authority and, on May 6, 2003, submitted an application for voluntary superannuation retirement pursuant to G. L. c. 32, § 5. On May 15, 2003, he pleaded guilty to two counts of indecent assault and battery on a child and was sentenced to two and one-half years in jail, eighteen months of which to serve. On June 27, 2003, ERRB denied Herrick’s application for retirement benefits. Herrick appealed from that decision. A hearing was conducted by a DALA magistrate on July 1, 2004, resulting in a decision affirming ERRB’s decision. Herrick then appealed from that decision to CRAB, which affirmed the denial of Herrick’s pension application, in a two-to-one decision. Herrick then sought timely judicial review in Superior Court, where both parties filed motions for judgment on the pleadings. Discussion. This case presents an issue of statutory construction. The standards of law applicable to the issue before us were recently summarized in Tabroff v. Contributory Retirement Appeal Bd.., 69 Mass. App. Ct. 131, 133-134 (2007), quoting from Retirement Bd. of Taunton v. Contributory Retirement Appeal Bd., 56 Mass. App. Ct. 914, 915 (2002) (citation omitted): “Massachusetts courts give great deference to decisions of administrative agencies. An administrative agency’s interpretation of a statute has long been relied on by Massachusetts courts ‘because of the agency’s experience, technical competence, and specialized knowledge.’ ” See Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 211 (1995), quoting from Celia, Administrative Law & Practice § 747 (1986) (“A State administrative agency in Massachusetts has considerable leeway in interpreting a statute it is charged with enforcing”). While the court recognizes that reasonable interpretations of statutes by agencies are entitled to deference, “[a]n erroneous interpretation of a statute by an administrative agency is not entitled to deference.” Woods v. Executive Office of Communities & Dev., 411 Mass. 599, 606 (1992). “Deference is not abdication. It does not permit a detectable ‘error of law’ by the agency.” Anheuser-Busch, Inc. v. Alcoholic Bevs. Control Commn., 75 Mass. App. Ct. 203, 209 (2009), quoting from Heineken U.S.A., Inc. v. Alcoholic Bevs. Control Commn., 62 Mass. App. Ct. 567, 572 (2004). “If an agency interpretation were to collide with the plain meaning of a statute, the agency view would have to give way.” Anheuser-Busch, supra at 209. “We should not disturb an administrative agency’s decision unless we determine ‘that the substantial rights of any party have been prejudiced’ based on one of the reasons set forth in G. L. c. 30A, § 14(7). The deference normally accorded to an administrative agency’s decision is no longer appropriate when that agency commits an error of law, G. L. c. 30A, § 14(7)(c), or its decision is unsupported by substantial evidence, G. L. c. 30A, § 14(7)(e).” Tabroff, supra at 134 (footnote omitted). G. L. c. 32, § 10(1). We turn first to the scope of the statute’s qualifying phrase “without moral turpitude.” Herrick contends that it applies only to the situation where a member of a public retirement system is “removed or discharged.” The basis on which ERRB denied Herrick’s pension application, a determination with which CRAB agreed, is that the phrase “without moral turpitude” modifies all applications for retirement, including those submitted after a member resigns. In a comprehensive and well-reasoned decision, the Superior Court judge disagreed with this interpretation, applying general principles of statutory construction and grammatical rules; she concluded that the qualifier “without moral turpitude” applied only to those removed or discharged from employment, not to all other antecedent phrases in the statute. As expressed in Collatos v. Boston Retirement Bd., 396 Mass. 684, 686 (1986) (citations omitted), “[a] statute designed to enforce the law by punishing offenders, rather than simply by enforcing restitution to those damaged, is in the nature of a penal statute. Forfeiture of property ... is punitive.” “Penal statutes must be construed strictly ‘and not extended by equity, or by the probable or supposed intention of the legislature as derived from doubtful words; but that in order to charge a party with a penalty, he must be brought within its operation, as manifested by express words or necessary implication.’ ” Id. at 686-687, quoting from Libby v. New York, N.H. & H.R.R., 273 Mass. 522, 525-526 (1930). “We examine the statute, therefore, particularly mindful that its words are not to be stretched to accomplish a result not expressed.” Collates, supra at 687. “A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.” Sullivan v. Brookline, 435 Mass. 353, 360 (2001). Agency expertise or policy preference cannot alter the plain meaning of unambiguous statutory language. See especially M.H. Gordon & Son, Inc. v. Alcoholic Bevs. Control Commn., 371 Mass. 584, 588-590 (1976) (courts cannot acquiesce in expedient enlargement of administrative authority or jurisdiction unsupported by statutory terms). See also Commonwealth v. Vickey, 381 Mass. 762, 767 (1980) (“a basic tenet of statutory construction is to give the words their plain meaning in light of the aim of the Legislature, and when the statute appears not to provide for an eventuality, there is no justification for judicial legislation”). “[W]hen the meaning of a statute is at issue, the initial inquiry focuses on the actual language of that statute. ‘Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent.’ ” Martha’s Vineyard Land Bank Commn. v. Board of Assessors of W. Tisbury, 62 Mass. App. Ct. 25, 27 (2004), quoting from Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 285 (1996). “A statute is plain and unambiguous if ‘virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or far-fetched, or unusual, or unlikely.’ ” Martha’s Vineyard, supra at 28 n.4, quoting from New England Med. Center, Inc. v. Commissioner of Rev., 381 Mass. 748, 750 (1980). “A fundamental and well-established principle of statutory interpretation ‘is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.’ ” Fleet Natl. Bank v. Commissioner of Rev., 448 Mass. 441, 448 (2007), quoting from Hanlon v. Rollins, 286 Mass. 444, 447 (1934). See Sullivan, supra. Turning, then, to the words of the statute, as the judge observed: “[t]he ‘rule of the last antecedent’ holds that, unless there is something in the subject matter, dominant purpose, or language of the statute that requires a different interpretation, ‘qualifying phrases are to be applied to the words or phrase immediately preceding and are not to be construed as extending to others more remote.’ Russell v. Boston Wyman, Inc., 410 Mass. 1005, 1006-1007 (1991), quoting [from] United States v. Ven-Fuel, Inc., 758 F.2d 741, 751 [(1st Cir. 1985)]. ... ‘It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation. . . . According to (this rule) of constmction a proviso or an exception is also presumed to be confined to the last antecedent.’ Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231 (1982) (citations omitted).” Thus, since the antecedent phrases of the statute are separated from the qualifier by commas, the qualifier applies only to the immediate antecedent within the same phrase that was not separated from “without moral turpitude” by a comma. The logic of her interpretation becomes apparent when the use of the phrase “without moral turpitude” is examined in connection with the two means, provided by § 10(1), under which a member may be qualified to retire: (1) “after completing twenty or more years of creditable service,” and (2) “having attained age fifty-five.” In relation to the former, the situation when a member’s “office or position is abolished” is immediately antecedent to the phrase “without moral turpitude,” but abolishment of position is clearly unrelated to moral turpitude. This conclusion is compelled when compared to the latter “age fifty-five” retirement, since the phrase “removed or discharged from his office or position without moral turpitude on his part,” is followed by the phrase “or any such member whose office or position is abolished,” a situation that does not require that it be “without moral turpitude,” as such condition is not included. See note 2, supra. Similarly, the judge’s interpretation that the phrase “without moral turpitude” relates only to “removed or discharged” is supported by her comparison of § 10(1) with § 10(2)(¿ti/2). As she points out, the latter section, which pertains to an application for retirement benefits from a member who resigns after ten years of service, does not contain the phrase “without moral turpitude.” That “without moral turpitude” was intended to modify only “removed or discharged” is also evident from G. L. c. 32, § 10(2)(a), inserted by St. 2002, c. 184, § 46, which states that “[t]he retirement board shall require the employer of any employee applying for a termination retirement allowance to certify in writing, under the pains and penalties of perjury, that one of the following circumstances applies: (1) that the employee has failed of nomination or re-election, (2) that the employee has failed of reappointment, (3) that the employee’s office or position has been abolished, or (4) that the employee has been removed or discharged from his position without moral turpitude on his part.” The Superior Court judge’s decision cited, and was consistent with, the only authority on point, two opinions from the Attorney General which recognized that retirement under the threat of removal is not the equivalent of removal or discharge under c. 32, § 10(1) or § 10(2). See Opinion of the Attorney General, Rep. A.G., Pub. Doc. No. 12, at 134-135 (1963); Opinion of the Attorney General, Rep. A.G., Pub. Doc. No. 12, at 172-174 (1977). Moreover, such an interpretation is consistent with a view supported by decisions of both the Supreme Judicial Court and this court, albeit in dicta. See Massachusetts Bay Transp. Authy. v. Massachusetts Bay Transp. Authy. Retirement Bd., 397 Mass. 734, 739 (1986) (“there are laws of the Commonwealth which preclude the payment of retirement benefits to certain public employees who are discharged or convicted for misconduct in office. See G. L. c. 32, § 10[1] [1984 ed.]”); Brown v. Taunton, 16 Mass. App. Ct. 614, 619 n.6 (1983) (“[w]e note . . . that the ‘moral turpitude’ provisions of G. L. c. 32, § 10(1), do not apply since the plaintiff was not ‘removed or discharged from his office’ ”). Threatened removal. ERRB contends additionally that Herrick’s pension can be forfeited because his resignation, seen as occurring under threat of removal, amounts to constructive removal. Technically, this misapplies the concept of constructive discharge to the facts of this case since Herrick’s motivation to leave his employ was not due to actions of the employer. GTE Prod. Corp. v. Stewart, 421 Mass. 22, 34-35 (1995). More broadly, however, ERRB seeks to extend the meaning of “removed or discharged” to be able to reach members who retire under a cloud, in the face of possible or likely removal or discharge for reasons of criminal prosecution for offenses of moral turpitude. Addressing a similar question, the Attorney General opined “that the term ‘removal or discharge’ is not so broad that it sweeps within the ambit of G. L. c. 32, § 10(2)(c), a resignation arguably tendered to forestall removal. It is a basic maxim of statutory construction that the words of a statute are to be read in accordance with their common and approved usage and are not to be stretched beyond their fair meaning in order to rationalize a particular result. The words ‘removal’ and ‘discharge’ connote an affirmative act by one’s employer and have a common usage significantly different from the word ‘resignation,’ which implies an act by the employee. Indeed the difference between the terms is apparent in the terms of G. L. c. 32, § 10, in which the words ‘removal or discharge’ and ‘resigns’ are repeatedly used to describe different situations. Since words used in different portions of a statute are ordinarily given the same meaning throughout, it would be an anomaly of statutory construction to extend the scope of G. L. c. 32, § 10(2)(c), to include resignations as well as removals, when they are made distinct by the immediately preceding language of § 10.” Opinion of the Attorney General, Rep. A.G., Pub. Doc. No. 12, at 173-174 (1977) (citations omitted). The same rationale can be applied to § 10(1). To hold otherwise, and to permit “removed or discharged” to be stretched to accommodate the kind of “constructive” removal suggested by ERRB, would permit it to inquire into, evaluate, and weigh reasons that motivated the retirement of a member. Such an interpretation would invite decisions based not upon an identifiable record of proceedings that lead an employer to an objectively discernible removal of its employee, but instead upon subjective criteria that are prone to a range of ills that objective criteria are designed to prevent. As suggested by the judge, ERRB’s reliance on DeLeire v. Contributory Retirement Appeal Bd., 34 Mass. App. Ct. 1 (1993), is misplaced. There, the member was suspended from his position and sentenced to prison prior to his attempted resignation. Accordingly, the position was considered vacant by operation of G. L. c. 279, § 30, and such “removal” or “discharge” was plainly with “moral turpitude.” Here, however, Herrick, resigned and applied for retirement prior to his conviction. Moreover, significant to the holding in DeLeire, but distinguishable from the case at bar, was the operation of G. L. c. 268A, § 25, which precludes payment of retirement benefits to certain suspended employees, and the court’s holding that the letter of resignation submitted in that case was not sufficient to end the employee’s suspension. G. L. c. 32, § 15(4). ERRB also argues that forfeiture of Herrick’s pension is required pursuant to the provision of G. L. c. 32, § 15(4), which prohibits a member, “after final conviction of a criminal offense involving violation of the laws applicable to his office or position,” from receiving a pension. Herrick contends that his conviction was for an offense that did not apply to his position. In consideration of the cases that have interpreted § 15(4), we decide that this subsection does not apply to the circumstances of the instant case. Similar to c. 32, § 10(1), § 15(4) has been held as penal in nature, thus strictly construed. Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 3 n.3 (1996). In Gaffney, supra at 4-5, the court stated that “[t]he substantive touchstone intended by the General Court [when it enacted G. L. c. 32, § 15(4),] is criminal activity connected with the office or position. Yet it is also apparent that the General Court did not intend pension forfeiture to follow as a sequelae of any and all criminal convictions. Only those violations related to the member’s official capacity were targeted. Looking to the facts of each case for a direct link between the criminal offense and the member’s office o