Wrongful Termination Cases

Tracy Thurdin vs. SEI Boston, LLC. Suffolk. May 5, 2008. October 24, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, II. Constitutional Law, Sex discrimination. Anti-Discrimination Law, Employment, Sex. Employment, Discrimination. Discussion of G. L. c. 93, § 102 (a), one of the provisions of the Massachusetts Equal Rights Act. [439-440] Discussion of G. L. c. 151B and the administrative and judicial avenues for redress of employment discrimination in violation of the statute. [440-443] A Superior Court judge erred in dismissing a civil action alleging gender and pregnancy discrimination against the plaintiff’s employer, where although the employer, which had fewer than six employees, was not amenable to suit under G. L. c. 151B, the plaintiff could nonetheless assert a claim under the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 102 (a), a result confirmed by the plain language of the two statutes and case law [443-448], as well as the legislative intent evident from the history of MERA [448-452], Botsford, J., concurring, with whom Marshall, C.J., and Greaney, J., joined. Cordy, J., dissenting, with whom Cowin, J., joined. A Superior Court judge erred in dismissing a civil action alleging gender and pregnancy discrimination under the Massachusetts Equal Rights Act, G. L. c. 93, § 102, against the plaintiff’s employer (which, having fewer than six employees, was not amenable to suit under G. L. c. 151B), where the phrase “make and enforce contracts” in G. L. c. 93, § 102, was not limited to the hiring phase of employment, but rather covered discriminatory treatment during the course of employment. [452-455] Botsford, J., concurring, with whom Marshall, C.J., and Greaney, J., joined. Cordy, J., dissenting, with whom Cowin, J., joined. Civil action commenced in the Superior Court Department on March 8, 2006. A motion to dismiss was heard by John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Daniel W. Rice for the plaintiff. Joseph S. Berman (Kenneth J. Rodriguez with him) for the defendant. The following submitted briefs for amici curiae: James S. Weliky for Massachusetts Employment Lawyers’ Association & others. Jo Ann Shotwell Kaplan & Martin Newhouse for New England Legal Foundation & others. Patricia A. Washienko & Anne Josephson for Union of Minority Neighborhoods & others. Ireland, J. We transferred this case from the Appeals Court on our own motion to consider whether an employee who is unable to pursue an employment discrimination claim against her former employer pursuant to G. L. c. 151B, because the employer had fewer than six employees, may instead assert a claim under G. L. c. 93, § 102, one of the provisions of the Massachusetts Equal Rights Act (MERA). A Superior Court judge entered an order granting the defendant’s motion to dismiss the plaintiffs complaint charging the defendant with sex discrimination pursuant to MERA. Because we conclude that an employee may assert a sex discrimination claim under MERA where an employer is not within the ambit of G. L. c. 151B, we vacate the order and judgment dismissing the complaint and remand the case for further proceedings. Facts and procedure. We set forth the facts, taking as true all the allegations in the plaintiffs complaint and drawing all inferences in her favor. Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). On February 15, 2005, the defendant, which provides information technology services to businesses, offered the plaintiff a position as an onsite information technology consultant. The plaintiff began working on March 15, 2005, reporting to the defendant’s managing principal, Vicki Hudson. On April 11, the plaintiff told Hudson that she was pregnant and had a due date of June 27. The plaintiff alleges that she could perform all of the essential functions of her job, including onsite consulting. The next day, Hudson told the plaintiff that she had spoken to Daniel Pierce, the owner of Systems Evolution, Inc., in Mason, Ohio. Hudson stated that she and Pierce were upset that the plaintiff was pregnant and requested that the plaintiff voluntarily take an unpaid leave of absence. The plaintiff refused. Hudson told the plaintiff that she had acted unethically by failing to reveal, during her job interview, that she was pregnant. Hudson stated that the defendant could not place the plaintiff onsite with clients due to her pregnancy and that it would be very costly to have the plaintiff “on the bench” during the term of her pregnancy and while on maternity leave. Hudson went on to say that the plaintiff was unfairly burdening the defendant with her pregnancy because the defendant is a small company trying to develop new business in the Boston area. The plaintiff asked Hudson to view the plaintiff’s situation from her perspective, to which Hudson remarked that it was “not [her] problem.” After this conversation, the plaintiff telephoned her attorney, a friend, and her husband, and relayed that she believed she was being discriminated against due to her pregnancy. Another employee overheard these calls and reported them to Hudson. Hudson ordered the plaintiff to leave the office and to “have a conversation with [herself] in the mirror and come back tomorrow with a better attitude.” By a letter dated April 20, 2005, but not given to the plaintiff until April 22, the defendant placed the plaintiff on unpaid administrative leave because of her pregnancy. The plaintiff did not return to work. Prior to receiving the letter, the plaintiff filed a charge of discrimination against the defendant with the Equal Employment Opportunity Commission (EEOC) and with the Massachusetts Commission Against Discrimination (MCAD), thus pursuing administrative remedies under Federal and State law pursuant to Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2000) (Title VII), and G. L. c. 151B. The plaintiff’s complaint appears to have been closed by the EEOC for lack of jurisdiction after the defendant contended that it had only three employees. In March, 2006, the plaintiff filed a complaint in the Superior Court alleging gender and pregnancy discrimination under MERA. After answering the complaint, the defendant filed a motion to dismiss or, in the alternative, a motion for judgment on the pleadings. The judge found that it is undisputed that the defendant employed less than six people. He concluded that G. L. c. 15IB is the exclusive remedy in employment discrimination cases and that, as evidenced by the statute’s definition of “employer,” the Legislature intended that discrimination claims would not lie against employers having fewer than six employees. The judge also concluded that, in any event, the plaintiff did not have an alternative remedy under MERA because the statute’s phrase “make and enforce contracts” applies only to claims of discrimination during the hiring process. To support his conclusion, the judge relied on the United States Supreme Court’s interpretation of comparable language that existed in 42 U.S.C. § 1981, at the time of its decision in Patterson v. McLean Credit Union, 491 U.S. 164, 176-177 (1989), abrogated by the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071. A judgment entered dismissing the plaintiff’s complaint. The plaintiff appealed. Statutory scheme. We begin with an overview of the pertinent provisions of the relevant statutes. MERA. General Laws c. 93, § 102 (a), inserted by St. 1989, c. 332, provides, in pertinent part: “All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other” (emphasis supplied). The language of § 102 (a) drew on language in 42 U.S.C. §§ 1981 and 1982 (2000), as they existed at the time, but expanded the category of those covered, as §§ 1981 and 1982 cover only race. See Johnson, The 1989 Massachusetts “Equal Rights Law”: A Short History, 34 B.B.J. 17, 18 (1990) (Johnson) (MERA added sex and religion to language fashioned from §§ 1981 and 1982). The statute was proposed in anticipation of the United States Supreme Court’s Patterson decision. Id. at 17. General Laws c. 93, § 103, inserted by St. 1990, c. 156, extended the rights afforded under § 102 to persons with a handicap or over forty years of age, as defined in G. L. c. 15IB, § 1 (8), (17), and requires a “reasonable accommodation” concerning those rights. General Laws c. 15IB. General Laws c. 151B is an antidis-crimination statute originally enacted in 1946. St. 1946, c. 368, § 4. General Laws c. 151B, § 4 (1), (1A), (IB), and (3), as amended through St. 2004, c. 355, § 1, forbids discrimination in employment on the basis of race, color, religious creed, national origin, sex, sexual orientation, genetic information, ancestry, age, or handicap. For purposes of the statute, “employer” is defined to expressly exclude “any employer with fewer than six persons in his employ.” G. L. c. 151B, § 1 (5). The Massachusetts Commission Against Discrimination (MCAD) is the administrative agency that enforces the statute. G. L. c. 15IB, §§ 1 (7), 3, 5. General Laws c. 15IB, § 9, first par., provides that the statute “shall be construed liberally for the accomplishment of its purposes.” It states that “any law inconsistent with any provision of this chapter shall not apply, but nothing contained in this chapter shall be deemed to repeal any provision of any other law of the commonwealth relating to discrimination” (emphasis added). Section 9, second and third pars., also states that ninety days (but not later than three years) after filing a complaint with the MCAD, a plaintiff may choose to bring an action for damages (actual and punitive) in the Superior Court, Probate and Family Court, or Housing Court. Thus the statute provides an aggrieved party with “two largely independent avenues for redress of violations of [G. L. c. 15IB], one through the MCAD (G. L. c. 151B, §§ 5-6), and the other in the courts (G. L. c. 151B, § 9).” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 565, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College), quoting Brunson v. Wall, 405 Mass. 446, 452 (1989). However, the judicial remedy is available only after a party has first filed a complaint with the MCAD, and while administrative procedures are pending pursuant to G. L. c. 151B, §§ 4 and 5, that procedure is exclusive. G. L. c. 151B, § 9, as amended through St. 2002, c. 223, § 2. Moreover, if G. L. c. 151B is available, an aggrieved employee may not bring a claim under another statute in the first instance. Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994) (Charland) (where G. L. c. 151B applies, it is exclusive remedy for employment discrimination). Furthermore, “the primary purpose of an administrative proceeding before the MCAD is to vindicate the public’s interest in reducing discrimination in the workplace.” Stonehill College, supra at 563. During the administrative process, the commission, not the complainant, prosecutes the claim, and “the commission is empowered to fashion equitable remedies designed chiefly to protect and promote the broader public interest in eradicating systemic discrimination” (emphasis added). Id. If the complainant chooses the judicial route to recover damages for his or her individual discrimination, the MCAD takes no further action. Id. Rather, the case is considered no longer “pending” pursuant to G. L. c. 151B, §§ 4, 5, and 9. Charland, supra at 585. Discussion. 1. In his written decision granting the defendant’s motion to dismiss, the judge stated: “[I]t is apparent that [the Legislature] contemplated the precise issue currently before this Court. [It] considered and resolved [in the negative] the question of whether the antidiscrimination statute allows for a cause of action in pregnancy-related discrimination cases involving employers with [six] or fewer employees. . . . [Its] intent is demonstrated in the definition of an employer provided in [G. L.] c. 151B. Employees of such smaller companies are not within the scope of the statute’s intended protections . . . [and] given the explicit text they enacted [it] must have believed that the benefits to smaller businesses outweighed all other considerations.” In support of this conclusion, the judge stated that in the case of sexual harassment, the Legislature enacted G. L. c. 214, § 1C, to cover employees working for small firms. He concluded that because the Legislature did not enact a statute to cover pregnancy-related discrimination for employees of small firms, it was evidence that the Legislature intended G. L. c. 15IB to be the exclusive remedy for such discrimination. The defendant argues that the judge’s interpretation of the statute is correct because G. L. c. 151B’s definition of “employer” is plain and unambiguous, and because there was a footnote in the bill proposed in 1946 stating that the Legislature deliberately excluded small businesses from the scope of the statute. See note 7, supra. The defendant further contends that this position is bolstered by G. L. c. 149, § 105D, which provides, in certain circumstances, maternity leave for female employees, and for the restoration of their job (or similar position) and protection of, inter alla, seniority and level of pay. The statute states that an employer “shall be defined as in [G. L. c. 151B, § 1 (5)].” Although the defendant does not argue that maternity leave is at issue here, it argues that this statute is evidence that small employers were exempted deliberately from pregnancy discrimination. We disagree. Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent. See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986), and cases cited. Moreover, we construe civil rights statutes liberally, giving effect to every provision to produce a consistent body of law. See, e.g., Green v. Wyman-Gordon Co., 422 Mass. 551, 554 (1996); Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985), citing 3 C. Sands, Sutherland Statutory Construction § 72.05, at 392 (4th ed. 1974) (civil rights statutes are remedial and entitled to liberal construction). “The mle for the construction of remedial statutes is that cases within the reason, though not within the letter, of a statute shall be embraced by its provisions . . . .” Batchelder v. Allied Stores Corp., supra, quoting 2A C. Sands, Sutherland Statutory Construction § 54.04, at 570 (4th ed. 1974). We also assume the Legislature is aware of existing statutes when it enacts subsequent ones. Green v. Wyman-Gordon Co., supra. Furthermore, where there is an express exception in a statute, it comprises the only limit on the operation of the statute and no others will be implied. General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 805-806 (1999), quoting District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 633 (1985). Here, there is nothing in the plain language of § 102 of MERA that excludes small employers from its application. It expressly states, in pertinent part, that “[a]ll persons” shall have a right to “make and enforce contracts” without regard to sex. Moreover, there is nothing in the plain language of G. L. c. 15 IB stating that, where it does not apply, aggrieved parties are excluded from using other statutes to vindicate their right to be free from employment discrimination. Rather, the statute expressly states that “nothing contained in this chapter shall be deemed to repeal any provision of any other law of this commonwealth relating to discrimination,” unless it is inconsistent with G. L. c. 15IB (emphasis added). G. L. c. 15IB, § 9, first par. The statute’s phrase “nothing contained in this chapter” would include the definition of “employer” in G. L. c. 15IB, § 1 (5), because § 9 allows no exception, reflecting a determination by the Legislature that antidiscrimination statutes should be applied as written. See General Elec. Co. v. Department of Envtl. Protection, supra. In addition, there is nothing “inconsistent” between the two statutes because they do not cover the same employers and provide different remedies. We also do not agree with the defendant that our Charland decision supports its interpretation of G. L. c. 15IB. In Char-land, the plaintiff failed to file a timely complaint with the MCAD and filed suit in the Superior Court under MERA. The court’s conclusion that G. L. c. 151B is the “exclusive remedy” for employment discrimination because “it is unlikely . . . the Legislature intended to create a parallel and competing alternative to dealing with the problem of employment discrimination,” was expressly qualified by the words “where applicable.” Char-land, supra at 584, 586. The Charland court discussed Melley v. Gillette Corp., 397 Mass. 1004 (1986), and Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 541-542 (1987), where G. L. c. 151B did apply, and where the Appeals Court concluded that it would not, respectively, create a new common-law cause of action or permit an action under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H and 111, in lieu of G. L. c. 151B. See Charland, supra at 585-586. However, Charland did not state that there were no alternative remedies where G. L. c. 151B did not apply. Rather, it quoted this portion of the Mouradian case: “There may be a case in which the termination of an at-will employee could give rise to a tenable complaint seeking relief under G. L. c. 12, §§ 11H and 111.” Id. at 586, quoting Moura-dian v. General Elec. Co., supra at 543. The Charland court went on to state that its decision was in keeping with its decisions (predating MERA) in O’Connell v. Chasdi, 400 Mass. 686 (1987), and Comey v. Hill, 387 Mass. 11 (1982). Charland, supra. The court stated that the O’Connell case held that the exclusivity provisions of G. L. c. 15IB “do not preclude an independent claim of a violation of an employee’s equal protection rights under art. 1 of the Declaration of Rights.” Charland, supra. The court also stated that the Comey case held that an employee could maintain a tort claim based on common-law principles that existed prior to the adoption of G. L. c. 151B. Id. Thus, we do not read Charland to stand for the proposition that G. L. c. 15IB is the exclusive remedy for all employment discrimination claims. Cases subsequent to MERA’s enactment support our reading of Charland. In Agin v. Federal White Cement, Inc., 417 Mass. 669, 670 (1994), the court was faced with a reported question similar to the one here, where an employee filed an age discrimination complaint pursuant to § 103 of MERA, and remanded the case because there had been no finding whether G. L. c. 151B applied to the employer. Id. at 672-673. However, the court did not state that if G. L. c. 15IB was not available, the plaintiff could not use MERA. In addition, this court has stated in two other cases that if G. L. c. 151B is not available for an employee alleging sexual harassment, the sexual harassment statute, G. L. c. 214, § 1C, is available as an alternative. Compare Guzman v. Lowinger, 422 Mass. 570, 572 (1996) (G. L. c. 151B unavailable), with Green v. Wyman-Gordon Co., 422 Mass. 551, 554-555 (1996) (G. L. c. 151B available). In Guzman v. Lowinger, supra,

MARK HUEBNER, Plaintiff v. TRIANGLE RESEARCH COLLABORATIVE, a North Carolina Corporation, and THADDEUS K. SZOSTAK, Defendants No. COA08-70 (Filed 21 October 2008) Appeal and Error— notice of appeal — tolling of time requirement — actual notice of judgment Plaintiff could not use Appellate Rule 3(c) to toll the time for filing his notice of appeal based on lack of service where he had actual notice of entry of the judgment. The language of a Rule 60(b) motion, filed almost three years before plaintiffs notice of appeal, indicated actual notice of the underlying order and judgment, and that motion was denied approximately two years and nine months before notice of appeal. Appeal by plaintiff from an order and judgment entered 12 August 2004 by Judge Donald W. Stephens in Durham County Superior Court. Heard in the Court of. Appeals 23 September 2008. McDaniel & Anderson, L.L.P., by John M. Kirby, for plaintiff - appellant. Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for defendant-appellees. PER CURIAM. Mark Huebner (“plaintiff’) appeals from an order dismissing his complaint involuntarily and from a judgment in favor of Triangle Research Collaborative and Thaddeus K Szostak (“defendants”). For the reasons stated below, we dismiss this appeal. I. Background On 12 July 2002, plaintiff filed a complaint against defendants seeking: (1) unpaid wages, liquidated damages, and attorney’s fees pursuant to North Carolina’s Wage and Hour Act (N.C. Gen. Stat. §§ 95-25.1 to 95-25.25); and (2) an injunction, reinstatement to employment, and compensation for lost wages, benefits and other economic losses pursuant to North Carolina’s Retaliatory Employment Discrimination Act (N.C. Gen. Stat. §§ 95-240 to 95-245). On 16 September 2002, defendants filed an answer and counterclaim alleging that plaintiff had breached the confidentiality agreement contained in his employment contract. On 4 October 2002, Jeffrey L. Starkweather filed a notice of appearance on plaintiffs behalf, and Elizabeth P. McLaughlin filed a motion to withdraw as plaintiffs counsel. The trial court allowed Ms. McLaughlin’s motion to withdraw on 24 April 2003. On 16 May 2003, defendants filed a motion to continue and a motion for partial summary judgment. On 20 May 2003, the trial court entered an order continuing the trial; the court administrator rescheduled trial for 11 August 2003; and defendants’ counsel and Mr. Starkweather agreed to extend the deadline for mediation until 21 July 2003. On 21 May 2003, defendants served Mr. Starkweather with notice that their motion for partial summary judgment would be heard on 17 July 2003. Neither plaintiff nor Mr. Starkweather appeared for a scheduled 14 July 2003 mediation, and on 23 July 2003, defendants filed a motion for sanctions. On that same date, plaintiff filed a notice of voluntary dismissal without prejudice pursuant to N.C.R. Civ. P. 41. In response, on 30 July 2003, defendants filed a motion to dismiss plaintiff’s complaint involuntarily. In support, defendant Triangle Research Collaborative asserted it had a pending compulsory counterclaim that it had not dismissed, and therefore, plaintiffs notice of yoluntary dismissal was ineffectual as it amounted to a failure to prosecute the action. Although Judge Stafford Bullock heard defendants’ motion to dismiss on 22 August 2003, he did not enter a ruling upon the motion. In a letter dated 12 May 2004, the court notified the parties that the case was set for trial on 28 June 2004. A notation on the letter indicated that-copies were sent to Ms. McLaughlin (plaintiff’s former counsel) and to Mr. Starkweather (plaintiff’s counsel at that time). Neither Mr. Starkweather nor plaintiff attended the 28 June 2004 hearing. During the hearing, Judge Donald Stephens stated that “[w]e’ve left messages with Jeffrey Starkweather’s office all morning and notified his office that this matter would be called this afternoon. He is not here. We’re proceeding without him. He certainly had notice from the printed calendar.” Judge Stephens further noted that Judge Bullock had signed an order on 28 June 2004 relinquishing jurisdiction over the motions which Judge Bullock had heard on 22 August 2003. After hearing defendants’ motion to dismiss, Judge Stephens allowed the defendant’s motion in open court. Defendants then presented evidence as to their counterclaim, and Judge Stephens found that plaintiff had violated the confidentiality terms of the parties’ employment contract. After permanently enjoining plaintiff from disclosing certain confidential information, Judge Stephens awarded $3,000.00 in attorney’s fees to defendants. On 28 June 2004, Judge Stephens signed one copy of an order dismissing plaintiff’s complaint; this order was entered on 12 August 2004. On 6 July 2004, he signed a duplicate copy of the same order which was entered on 29 October 2004. In a judgment signed on 6 July 2004 and entered on 19 October 2004, Judge Stephens ruled in defendants’ favor on the counterclaim. This copy also has a handwritten notation stating “Duplicate Copy Entered 12 Aug 04[.]” Judge Stephens signed a second copy of the same judgment on 12 August 2004, nunc pro tunc, 28 June 2004; however, the filing date for the second copy is unclear as the file stamp on the document provided in the record is illegible. This copy also contains a handwritten notation stating that “copies [were] mailed to atty” on 18 August 2004. In correspondence dated 17 September 2004 and file-stamped 22 September 2004, plaintiff informed Court Administrator Kathy Shuart that he was terminating the services of Mr. Starkweather. On 27 October 2004, attorney Michael A. Jones filed a motion on plaintiff’s behalf pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 60(b) (2007). The Rule 60(b) motion sought relief from the “Order Dismissing Plaintiff’s Complaint Involuntarilyf,]” filed on 12 August 2004 and from the “Findings of Fact, Conclusions of Law, and Judgment on Counterclaimf,]” filed on 12 August 2004. This language exactly tracked the labels in Judge Stephens’ order and judgment. Following a November 2004 hearing on the Rule 60(b) motion, Judge Anthony M. Brannon entered an order denying said motion on 2 December 2004. On 11 September 2007, plaintiff gave notice of appeal from the order and judgment “filed on or about August 12, 2004” by Judge Stephens, which was approximately three years subsequent to the filing of his Rule 60(b) motion and approximately two years and nine months after entry of the order denying said motion. In the notice of appeal, plaintiff asserted that the order and judgment had “never been served as required by Rule 58.” On 27 March 2008, defendants filed a motion to dismiss plaintiff’s appeal asserting that the notice of appeal was untimely. Plaintiff contends that he was never served with Judge Stephens’ order and judgment in accordance with Rule 58 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 58 (2007). Defendants do not contest plaintiffs assertion, and the record before us.does not show that defendants ever served plaintiff with Judge Stephens’ underlying judgment and order in accordance with Rule 58. II. Analysis Plaintiff argues that defendants’ failure to serve him with Judge Stephens’ order and judgment in accordance with Rule 58 triggered Rule 3(c) of the North Carolina Rules of Appellate Procedure which tolled the time for the filing of his notice of appeal, consequently rendering his notice of appeal timely. N.C.R. App. P. 3(c). Appellate Rule 3(c) states: In civil actions ... a party must file and serve a notice of appeal . . . within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 . . . or . . . within 30 days after service upon the party of a copy of the judgment if service was not made within that three-day periodf.] N.C.R. App. P. 3(c). In other words, the operation of Appellate Rule 3(c) is directly tied to Rule 58, which governs entry of judgment. “[T]he purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered.” Durling v. King, 146 N.C. App. 483, 494, 554 S.E.2d 1, 7 (2001) (citations omitted). The relevant part of Rule 58 states: Subject to the provisions of Rule 54(b), a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. If service is by mail, three days shall be added to the time periods prescribed by Rule 50(b), Rule 52(b), and Rule 59. All time periods within which a party may further act pursuant to Rule 50(b), Rule 52(b), or Rule 59 shall be tolled for the duration of any period of noncompliance with this service requirement, provided however that no time period under Rule 50(b), Rule 52(b) or Rule 59 shall be tolled longer than 90 days from the date the judgment is entered. N.C.R. Civ. P. 58. In other words, like Appellate Rule 3(c), Rule 58 has its own tolling provision, which expands the time in which a party can bring certain post-trial motions when the judgment is not properly served in accordance with Rule 58. Id. However, Rule 58 explicitly caps the tolling of time for bringing these motions at ninety days from entry of judgment. Id. In addition, under Rule 58, the issue of whether service of the judgment is proper does not affect whether judgment was entered. Durling, 146 N.C. App. at 493, 554 S.E.2d at 7. Plaintiff argues that Rule 3(c)’s language establishes that the time for filing notice of appeal is tolled until a party is properly served with the judgment pursuant to Rule 58 regardless of the amount of time that passes between entry of judgment and the filing of the notice of appeal. Plaintiff further contends that this Court’s opinion in Davis v. Kelly, 147 N.C. App. 102, 554 S.E.2d 402 (2001), conclusively establishes that this is true even if: (1) the time and entry of judgment is easily identifiable; (2) an appellant has actual notice of entry of judgment; and (3) an appellant has actual notice of the content of the judgment. Plaintiff also claims that Davis holds that an appellant does not waive the benefit of Rule 3(c)’s tolling provision by improperly filing a notice of appeal without first objecting to improper service of the judgment. In sum, plaintiff argues that Davis conclusively establishes that his notice of appeal was timely. For the reasons discussed below, we reject plaintiff’s arguments. In Davis, judgment was entered against the defendant on 24 August 2000, and the defendant was served with the judgment on 1 September 2000. Id. at 105, 554 S.E.2d at 404. On 20 September 2000, the defendant served a proper notice of appeal on the plaintiff but filed the notice of appeal in the wrong court. Id. The defendant corrected the mistake on 10 October 2000; however, the plaintiff filed a motion to dismiss alleging that the 10 October notice of appeal was untimely because it was filed outside the thirty day period mandated by Appellate Rule 3(c). Id. The Court rejected the plaintiff’s argument, noting that the “plaintiff [had] not fully complied] with the service requirements of Rule 58 ... until 26 October 2000” because he had not filed a certificate of service as required by N.C. Gen. Stat. § 1A-1, Rule 5(d) until that date. Id. The Court concluded that “[t]he running of the time for filing and serving a notice of appeal was tolled pursuant to N.C.R. App. P. 3 until plaintiff’s compliance [with Rule 58], and defendant’s notice of appeal is, therefore, timely.” Id. Contrary to plaintiff’s assertions, we do not read Davis as conclusively resolving the issues of actual notice and waiver. While it appears that similar to plaintiff here, the defendant in Davis had actual notice of entry of judgment and the judgment’s content, the Court did not discuss the issue of actual notice. In addition, while the defendant in Davis had filed a notice of appeal without objecting to the improper proof of service, the Court also did not discuss or address waiver. Furthermore, unlike in the instant case, the defendant in Davis actually filed and served a proper notice of appeal (albeit in the wrong court), that would have been timely without the benefit of Appellate Rule 3(c)’s tolling provision. Even more importantly, in Davis, the defendant corrected his filing mistake approximately forty days after receiving service of the judgment and twenty days after filing the notice of appeal in the wrong court. Here, plaintiff did not file his notice of appeal until almost three years after he filed his Rule 60(b) motion and approximately two years and nine months after the entry of the order, denying said motion. Based on the lack of discussion of actual notice and waiver in Davis and the critical factual distinctions between that case and the instant one, we do not believe that Davis forecloses dismissal of an appeal based on waiver due to an appellant’s extended delay in filing the notice of appeal where the record clearly indicates that an appellant has actual notice of the entry of judgment and its content. Furthermore, we do not believe the purposes of Rule 58 are served by allowing a party with actual notice to file a notice of appeal and allege timeliness based on lack of proper service when almost three years had passed since the party had filed its Rule 60(b) motion and the entry of an order denying it. Hence, we conclude that because: (1) the language of plaintiff’s Rule 60(b) motion demonstrates that he had actual notice of the time and entry of Judge Stephens’ order and judgment as well as their content; (2) almost three years had passed between the time plaintiff respectively filed his Rule 60(b) motion and his notice of appeal; and (3) approximately two years and nine months had passed between the entry of the order denying the Rule 60(b) motion and the filing of the notice of appeal, plaintiff cannot now utilize Appellate Rule 3(c) to toll the time for filing his notice of appeal. Thus, plaintiff has waived the benefit of Rule 3(c) by failing to take timely action with regard to his notice of appeal. Without the benefit of the tolling provision, plaintiff’s notice of appeal is untimely. “Failure to give timely notice of appeal in compliance with . . . Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and -an untimely attempt to appeal must be dismissed.”' Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983) (citations omitted). Plaintiff asks us to “exercise [our] discretion ... to accept this case under [our] powers of certiorari” in the event that we “ha[ve] any substantial question about the timeliness of this appeal[.]” N.C.R. App. P. 21(a)(1) permits this Court to issue a writ of certiorari to allow us to review a trial court’s judgments and orders “when the right to prosecute an appeal has been lost by failure to take timely action[.]” However, N.C.R. App. P. 21(c) provides that a party’s “petition [for writ of certiorari] shall be filed without unreasonable delay[.]” Under the facts here, we conclude that defendant’s request for certiorari has not been filed without unreasonable delay. Consequently, we decline to exercise our discretionary powers pursuant to Appellate Rule 21 to review plaintiff’s appeal. Accordingly, we allow defendants’ motion to dismiss plaintiff’s appeal. Appeal dismissed. Panel consisting of Judges HUNTER, ELMORE, and GEER.

School Committee of Lowell vs. Vong Oung & others. No. 07-P-184. Middlesex. December 5, 2007. - September 25, 2008. Present: Celinas, Smith, & Sikora, JJ. School and School Committee, Termination of employment, Arbitration. Arbitration, School committee, Authority of arbitrator, Arbitrable question. Public Policy. Discussion of the standard of review applicable in an action to review an arbitration award. [703-704] An arbitrator possessed authority under G. L. c. 71, § 42, to review, for substantive and procedural errors, a school superintendent’s dismissal of three teachers for inadequate fluency in English, and also possessed authority to reinstate the teachers if the school committee failed to meet its burden of proof. [704-705] This court concluded that, absent a showing of fraud, an arbitrator’s decision to exclude from evidence in an arbitration hearing certain test results was beyond judicial review, where the arbitrator had rational reasons for excluding the results. [705-707] This court declined to resolve the validity of three grounds of an arbitration award that arguably trespassed into considerations of public policy, where those grounds were gratuitous to the award. [707-708] Civil action commenced in the Superior Court Department on April 7, 2006. The case was heard by Christine M. McEvoy, J. James P. Hall for the plaintiff. James L. Messenger for the defendants. Christopher DeMayo & Jeffrey S. Strom, for Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association & others, amici curiae, submitted a brief. Vandy Duch and Pedro Espada. Justice Celinas participated in the deliberation on this case prior to his retirement. Sikora, J. In October of 2003 the superintendent of the Low: ell public schools terminated three teachers for “failure to demonstrate fluency in English.” None of the teachers had been bom in the United States: Vong Oung and Vandy Duch grew up in Cambodia, and Pedro Espada in Puerto Rico. The School Committee of Lowell (Committee) now appeals from the judgment of the Superior Court confirming the arbitration award reinstating all three teachers with full back pay and related benefits. We affirm. 1. Background. By a referendum vote in 2002, the Massachusetts electorate approved the general elimination of bilingual education in Massachusetts public schools. General Laws c. 71 A, inserted by St. 2002, c. 386, § 1, implements the referendum: it mandates that “all children shall be placed in English language classrooms,” c. 71 A, § 4, conducted by teachers “fluent and literate in English,” c. 71A, § 2(b). The pertinent Department of Education (DOE) regulations require school district superintendents to “provide annually to the [DOE] a written assurance that teachers of English language classrooms ... are literate and fluent in English.” 603 Code Mass. Regs. § 14.05(1) (2003). A teacher’s fluency is to be “determined through one or more of the following methods: (a) classroom observation and assessment by the teacher’s supervisor, principal, or superintendent; or (b) an interview and assessment by the teacher’s supervisor, principal, or superintendent; or (c) the teacher’s demonstration of fluency in English through a test accepted by the Commissioner of Education; or (d) another method determined by the superintendent and accepted by the Commissioner.” 603 Code Mass. Regs. § 14.05(3) (2003). The DOE’s March 27, 2003, written memorandum (“DOE guidelines”) to all school superintendents states that “/a] test is needed only in cases where the teacher’s English fluency is not apparent through classroom observation and assessment or interview and assessment” (emphasis in original). If a teacher fails to demonstrate fluency through assessments by classroom observation or interview, the DOE recommends the administration of the American Council on the Teaching of Foreign Languages (ACTFL) Oral Proficiency Interview (OPI) for assessment of the teacher’s language skills. The DOE guidelines state also that, in the event that a school district chooses to employ an assessment tool other than the OPI, it should contact the DOE to ascertain whether the alternative would be “accepted by the Commissioner.” The Committee’s certification of its teachers deviated from the DOE regulations and guidelines in several particulars: (1) it bypassed the processes of assessment by classroom observation or by interview; (2) it allowed a teacher to demonstrate fluency by means of a passing score on the so-called SPEAK test without administration of the OPI and without approval of the SPEAK test by the DOE; and (3) it presumed that all native English speakers who “were educated in English in mainland US schools for at least [four] years during their K-12 education” were fluent in English and thus exempt from assessment. Prior to the three teachers’ termination in 2003, representatives of the Lowell school district had evaluated them on multiple occasions and had awarded them satisfactory ratings in every category, including the use of appropriate instruction and questioning techniques, proper monitoring of students’ understanding of the curriculum, and clear communication of learning goals. In the fall of 2003, the Committee determined that the teachers were not exempt from the fluency assessment. The teachers took the SPEAK test but did not achieve passing scores. They then took the OPI test. Oung and Duch each failed it three times, and Espada failed it twice. The superintendent determined that she could not attest to the teachers’ fluency in English as required by the DOE regulations, and in October, 2003, she terminated their employment. At the time, all three had the status of professional teachers and the coverage of a collective bargaining agreement. General Laws c. 71, § 42, as appearing in St. 1993, c. 71, § 44, does not permit termination of a teacher with professional status “except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or . . . other just cause.” The statute confers upon a dismissed teacher the right to “seek review of a dismissal decision ... by filing a petition for arbitration with the commissioner.” Ibid. At the arbitration proceeding, the school committee has the burden to show cause for termination. Ibid. If the arbitrator finds that “the dismissal was improper,” he or she “may award back pay, benefits, reinstatement, and any other appropriate non-financial relief or any combination thereof.” Ibid. The superintendent terminated all three teachers pursuant to G. L. c. 71, § 42, for “other just cause.” The teachers invoked arbitration. The arbitrator instructed the Committee that the admission of the OPI score reports into evidence without affording the teachers an opportunity to cross-examine the OPI graders would violate the teachers’ procedural rights of meaningful cross-examination. The Committee obtained subpoenae from the Superior Court ordering Language Testing International (LTI), the company administering the OPI test, “immediately [to] produce the names and addresses of all raters and graders for the various OPI tests of” the teachers; “to produce audio tapes of the . . . OPI tests”; and “to send a representative who is a nationally recognized expert in the use and administration of the OPI tests to be a witness [at] the arbitration hearing.” The graders, who lived over one hundred miles from Lowell, did not comply with the Committee’s request to testify at the arbitration hearing. The arbitrator found that the graders’ “qualifications and training in OPI test administration and rating ha[d] a profound impact on the reliability of the OPI test results” and on the ultimate determination of the teachers’ inadequate fluency in English. He ruled that the audio recordings of the teachers’ OPI tests and the expert testimony of an LTI employee, who admittedly had not administered the test, would violate the teachers’ right to cross-examine adverse witnesses. He therefore excluded the OPI scores. He excluded the OPI scores also on the ground that the Committee had failed to evaluate the teachers’ fluency by classroom observation or interview before administering the OPI, as the DOE guidelines required. The arbitrator admitted in evidence the results of the SPEAK test because the Committee produced its graders for cross-examination. He found that the Committee had made no attempt to have the SPEAK test accepted by the DOE as a valid assessment tool. Despite the Committee’s failure to meet this threshold requirement, he addressed the results of the test. He found that the Committee had failed to show that the SPEAK test results adequately reflected the teachers’ fluency, because the graders and the Committee had failed to follow proper procedures in the administration of the test and in the evaluation of its results. The exclusion of the OPI scores caused the Committee’s failure to carry its burden of proof of the teacher’s lack of fluency in English and therefore of their disqualification by just cause within the meaning of G. L. c. 71, § 42. As an independent ground of decision, the arbitrator added that even if valid OPI scores had established a lack of fluency, the Committee’s confinement of fluency assessment to nonnative English speakers had improperly discriminated against the teachers in violation of G. L. c. 151B, § 4. 2. Discussion. The Committee argues on appeal that the arbitrator exceeded his authority because a superintendent’s determination of inadequate fluency and resulting dismissal is not an arbitrable subject matter; because he improperly excluded the OPI scores; and because he violated State law and public policy. We address each contention in turn. a. Standard of review. “Absent proof of one of the grounds enumerated in G. L. c. 150C, § 11, to vacate arbitral awards, we are strictly bound by [an] arbitrator’s factual findings and conclusions of law, even if they are in error.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758 (2003), citing Lynn v. Thompson, 435 Mass. 54, 61-62 (2001), cert, denied, 534 U.S. 1131 (2002). However, “the question whether an arbitrator exceeded his or her authority is always subject to judicial review.” Board of Higher Educ. v. Massachusetts Teachers Assn., NEA, 62 Mass. App. Ct. 42, 47 (2004). See G. L. c. 150C, § 11(a)(3). b. Arbitrator’s authority. General Laws c. 71, § 42, permits an arbitrator to overturn a superintendent’s or principal’s disciplinary personnel decision on substantive or procedural grounds. See School Comm. of Pittsfield v. United Educators of Pittsfield, supra at 760-762; Board of Higher Educ. v. Massachusetts Teachers Assn., NEA, supra at 48. The Committee attempts to distinguish the dismissal of a teacher for substandard language skills from the dismissal for one of the causes enumerated in G. L. c. 71, § 42. It argues that because G. L. c. 71 A, §§ 2(b) and 4, mandate that teachers be fluent in English and because 603 Code Mass. Regs. § 14.05(1) imposes the obligation on superintendents to provide a written assurance that each teacher is in fact fluent in English, the decision to dismiss a teacher who fails to meet the fluency requirement is the “only option under the law” and thus is not an arbitrable subject matter intended by G. L. c. 71, § 42. This argument lacks merit because it presupposes that the teachers are not fluent in English. General Laws c. 71, § 42, protects teachers with professional status from dismissal for reasons ostensibly authorized by the statute, but deficient in fact or violative of the teachers’ substantive and procedural rights under a collective bargaining agreement. The Committee concedes that the superintendent terminated the three teachers for “other just cause” under G. L. c. 71, § 42. Pursuant to that statute and the teachers’ collective bargaining agreement, the arbitrator possessed authority to review the dismissal decision for substantive and procedural errors and authority to reinstate the teachers if the Committee had failed to meet its burden of proof. The issue here is fundamentally different from the one left open by the Supreme Judicial Court in School Dist. of Beverly v. Geller, 435 Mass. 223 (2001): whether an arbitrator has the authority to reinstate a teacher, and thus to “substitute!] his [or her] own judgment as to proper discipline for that of the [school] district,” if the school district establishes cause under G. L. c. 71, § 42. See School Dist. of Beverly v. Geller, supra at 225 (Cordy, J., concurring). Here the question is whether, in the first place, the school authority has established such cause. c. Factual and legal grounds of the arbitrator’s decision. The arbitrator rested his decision upon multiple grounds: (1) the exclusion of the OPI failing scores and the-resulting elimination of the Committee’s proof of inadequate fluency; (2) the failure of the Committee under the DOE guidelines to exhaust the prerequisite methods of the classroom observation and assessment or interview and assessment of fluency by the superintendent, principal, or supervisor before imposition of a testing mechanism; (3) exclusion of the SPEAK test failing scores as proof of inadequate fluency for lack of approval of the examination by DOE and for commission of numerous violations of its protocols by its administrators and graders; (4) the Committee’s imposition of fluency testing upon nonnative English speakers but not upon native English-speaking teachers (those educated in the mainland United States for at least four of their years from kindergarten through grade twelve) in supposed violation of the prohibition of G. L. c. 15IB, § 4(1), against employment discrimination upon the basis of national origin; (5) the conclusion that the personal qualities of the three dismissed teachers rendered them positive role models likely to elevate the performance of their students; and (6) the conclusion that a failure of fluency did not compel the sanction of dismissal but rather the remedy of retraining or reassignment of the teachers within their areas of certification by reason of their seniority. He appears to have reached each one as an independently adequate basis for his award of reinstatement. Several grounds lie beyond the scope of judicial review. The Committee argues that the exclusion of the OPI scores amounts to a “refus[al] to hear evidence material to the controversy” reviewable under G. L. c. 251, § 12(a)(4), inserted by St. 1960, c. 374, § 1. That provision does not bestow reviewability here for two reasons. The OPI scores lack materiality because the Committee lacked authority to substitute them for the mandated priority of classroom evaluation and face-to-face interviews. Also, the arbitrator did not unreasonably refuse to admit them, but excluded them rationally because the teachers could not fairly controvert them without information from the inaccessible test administrator. In the absence of a showing of fraud, arbitral errors of law or fact remain beyond judicial review. Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 674 (2002), citing Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990). For the same reasons, the exclusion of the SPEAK test results did not constitute a refusal to receive material information within the meaning of c. 251, § 12(a)(4). The results would not have cured the Committee’s failure to employ the mandated primary evaluation procedures and therefore lacked materiality. The exclusion of them did not constitute an arbitrary refusal but rather a reasonable precaution against unreliability. Finally, the Committee’s contention that the arbitral award includes excessive back pay without a subtraction for required mitigation efforts constitutes an issue of law and fact beyond the scope of our authority of review. d. The public policy limitation. The statutory limitation upon judicial review of arbitration decisions presumes the commitment of an issue to arbitration by a valid bargaining agreement. In Massachusetts, a governmental body cannot validly bargain away its responsibility for the public health, safety, and welfare. Elements of that inalienable duty are not delegable to contractual arbitration. An arbitrator cannot acquire authority reserved “by statute, by tradition, or by common sense ... to the sole discretion of the public employer so as to preserve the intended role of the governmental agency and its accountability in the political process.” Worcester v. Labor Relations Commn., 438 Mass. 177, 181 (2002), quoting from Lynn v. Labor Relations Commn., 43 Mass. App. Ct. 172, 178 (1997). See School Dist. of Beverly v. Geller, 435 Mass, at 230 (Cordy, J., concurring), quoting from School Comm. of Hanover v. Curry, 3 Mass. App. Ct. 151, 156 (1975), S.C., 369 Mass. 683 (1976) (upon “determinations ... of public law, the arbitrator possesses no special expertise . . ,”). See Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 603 (2000), and cases cited (arbitrators do not have authority to weigh the public policy implications of their awards; only the matters encompassed by the enabling collective bargaining agreement and related contracts). In matters of employee dismissal, the reviewing court will inspect an arbitral award for the violation of a public policy limitation by three criteria: (1) whether the policy is defined, dominant, and visible in specific law sources, and not merely inferable from a general consideration of public interests; (2) whether the discharged employee has engaged in disfavored conduct integral to the performance of his duties; and (3) whether the deficient or offensive conduct would typically require dismissal. Id. at 604-605, and cases cited. In the present circumstances the Committee contends that the award of reinstatement violates the public policy of mandatory fluent English language instruction embodied in G. L. c. 71 A, §§ 2(b) and 4, 603 Code Mass. Regs. § 14.05, and the DOE guidelines. Three of the grounds offered by the arbitrator arguably trespass into considerations of public policy: (1) the unanalyzed conclusion that the Committee’s decision not to investigate the fluency of native English-speaking teachers constituted employment discrimination against nonnative English-speaking teachers in violation of G. L. c. 151B, § 4(1); (2) the conclusion that the personal qualities and histories of the three teachers would so serve their students as to override problems of fluency; and (3) the conclusion that the Committee could not dismiss, but must retrain and reassign, the three teachers despite any fluency shortcomings. However, we need not resolve their validity. Those grounds are gratuitous to the award. Their invalidity would not require its reversal. The award would remain effective by reason of the limited, independent, and unreviewable determinations of fact and law undermining the Committee’s evaluation of the teachers’ inadequate fluency. 3. Conclusion. We therefore affirm the judgment of the Superior Court confirming the arbitration award. So ordered. Alternate spellings of Vong Oung’s name appear in the record. We acknowledge the amicus brief filed by the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association; Mass English Plus Coalition; Multicultural Education Training and Advocacy, Inc.; Massachusetts Immigrant and Refugee Advocacy Coalition; Southeast Asia Resource Action Center; Puerto Rican Legal Defense and Education Fund, Inc.; Harry H. Dow Memorial Legal Assistance Fund; Boston Asian Youth Essential Service; Irish Immigration Center; Massachusetts Coalition for Equitable Education; Children’s Law Center of Massachusetts; Juvenile Justice Center; Suffolk Law School; Citizens for Public Schools; The Union of Minority Neighborhoods; American Civil Liberties Union of Massachusetts; National Lawyers Guild, Massachusetts Chapter; Jewi

Crystal Salvas & another vs. Wal-Mart Stores, Inc. Middlesex. May 7, 2008. September 23, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Labor, Wages. Evidence, Expert opinion, Business record. Practice, Civil, Class action, Statute of limitations. Rules of Civil Procedure. Contract, Performance and breach, Damages. Limitations, Statute of. In a putative class action alleging that the defendant employer wrongfully withheld from certain employees compensation for time worked and denied or cut short rest and meal breaks to which the employees were entitled, the judge abused his discretion in allowing the defendant’s motion to exclude as unreliable the testimony of the plaintiffs’ expert reconstructing and summarizing the defendant’s timekeeper records, where the business records at issue satisfied all of the requirements to be afforded the usual presumption of reliability, and the expert’s methods for reconstructing and summarizing the contents of the records were uncontested [356-360]; further, the defendant’s arguments concerning the admissibility of conclusions that the plaintiffs’ expert drew from the defendant’s records went to the weight of the evidence, not its admissibility [360-361], Discussion of the standard applicable to determining whether a judge’s decision to certify or decertify a class constituted an abuse of discretion. [361] Discussion of the predominance requirement of Mass. R. Civ. P. 23 (b) in class actions. [361-364] A Superior Court judge abused his discretion in allowing the defendant’s motion to decertify a class of current and former hourly workers employed by the defendant in Massachusetts for more than a ten-year period, where the essential factual questions of liability rested on a sufficient constellation of common issues to bind the class members together, and where the judge imposed inapposite and onerous burdens of proof on the plaintiffs. [364-372] In a civil action brought by members of a class of the defendant’s present and former employees alleging that the defendant deprived them of their meal periods, the judge properly concluded that G. L. c. 149, § 100, did not create a private right of action for such deprivation [372-373]; however, the judge erred in granting summary judgment in favor of the defendant, where the lack of a private right of action under that statute did not bar the plaintiffs’ claim that the defendant violated a contractual duty to provide meal periods to the plaintiff class [373-375], In a civil action seeking class certification for claims of unpaid wages under G. L. c. 149, § 148, the plaintiffs failed to show that the limitations period should equitably have been tolled based on a theory of fraudulent concealment [375-376], but did establish a disputed issue of material fact on the question whether a reasonable person in the position of a class member would have known or could reasonably have been expected to know that he or she was being denied compensation [376-378]. Civil action commenced in the Superior Court Department on August 21, 2001. Following certification of a class, motions for exclusion of certain expert testimony, for decertification of the class, and for partial summary judgment were heard by Thomas R. Murtagh, J., and questions of law were reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Carolyn Beasley Burton, of California, & Robert J. Bonsig-nore for the plaintiffs. Charles R. Eskridge, III, of Texas, & Donald R. Frederico (Kathryn P. Hoek with them) for the defendant. Ben Robbins, Martin J. Newhouse, & Jo Ann Shotwell Kaplan, for New England Legal Foundation & another, amici curiae, submitted a brief. Shannon Liss-Riordan, Hillary Schwab, Philip J. Gordon, Audrey R. Richardson, & Catherine K. Ruckelshaus, for Massachusetts Employment Lawyers Association & others, amici curiae, submitted a brief. Elaine Polion, on behalf of themselves and all others similarly situated. Marshall, C.J. In this putative class action, the named plaintiffs are former employees of the defendant, Wal-Mart Stores, Inc. (Wal-Mart), who were paid by the hour (hourly employees). On behalf of themselves and others similarly situated they allege that Wal-Mart wrongfully withheld compensation for time worked and denied or cut short rest and meal breaks to which they were entitled. The plaintiffs appealed from a Superior Court judge’s allowance of summary judgment on certain counts of their complaint and also filed an application for direct appellate review. The judge reported the case to the Appeals Court. See Mass. R. Civ. R 64, as amended, 423 Mass. 1410 (1996), and G. L. c. 231, § 111. See also note 40, infra. Wal-Mart also filed an application for direct appellate review. We granted both applications. In essence we are asked to determine (1) whether the judge abused his discretion by (a) allowing Wal-Mart’s motion to exclude the testimony of the plaintiffs’ principal expert, Dr. Martin Shapiro, as unreliable, and (b) allowing Wal-Mart’s motion to decertify the class of approximately 67,500 current and former hourly workers employed by Wal-Mart in Massachusetts for more than a ten-year period; and (2) whether the judge erred in granting summary judgment to Wal-Mart on all of the plaintiffs’ claims concerning meal breaks, as well as certain of the plaintiffs’ claims under the payment of wages law, G. L. c. 149, § 148, for failure to compensate the plaintiffs for the time they worked. For the reasons set forth below, we vacate the judge’s orders. We conclude, inter alla, that the judge abused his discretion in allowing Wal-Mart’s motions to exclude the testimony of the plaintiffs’ expert and to decertify the class. We further conclude that the judge erred in granting partial summary judgment to Wal-Mart. We remand the case for the entry of an order certifying the class and for further proceedings consistent with this opinion. 1. Facts.' Wal-Mart is a national mass-merchandising retail chain headquartered in Bentonville, Arkansas (home office), with stores located throughout Massachusetts. The operations of individual Wal-Mart stores, including payroll controls, are directed by corporate-wide policies established, disseminated, and carefully controlled by the home office. The central labor policies and payroll controls relevant to this litigation include the following. Wal-Mart policy required all hourly employees (called “associates” by Wal-Mart) to adhere to stringent timekeeping procedures, including clocking in and out at the beginning and end of each shift and at other prescribed times. Wal-Mart’s uniform timekeeping requirements were communicated to hourly employees from their first day of work and consistently throughout their employment at Wal-Mart through, among other channels: an employee handbook intended for every hourly employee nationwide, oral and written materials presented in orientation sessions designed by the home office that newly hired hourly employees were required to attend, oral and written “coaching” (disciplinary) actions, and posters and other materials posted near store time clocks and elsewhere throughout Wal-Mart stores. The timekeeping instructions given to hourly employees embodied the substance of two corporate-wide Wal-Mart policy directives applicable uniformly to all hourly employees. The policy directives were known internally as PD-07 and PD-43. PD-07 provided that, unless otherwise required by State law, all hourly employees were entitled to one paid, fifteen-minute rest break for every three hours of consecutive time worked (to a maximum of two rest breaks), and an unpaid meal break of at least thirty minutes for work in excess of six consecutive hours. A version of PD-07 in effect until February 10, 2001, stated that hourly employees “whose break or meal period is interrupted to perform work would receive compensation for the entire period at their regular rate of pay and be allowed an additional break or meal period.” Until that date, PD-07 required employees to clock in and out for both rest and meal breaks. Thereafter, employees were required to clock in and out for meal breaks but not for rest breaks. Neither PD-07 nor any other Wal-Mart policy directive has ever expressly permitted hourly employees to waive breaks. PD-43 stated that hourly employees should never be required to work “off-the-clock,” that is, work when the employees’ hours are not being recorded for compensation. The same policy directive also generally prohibited employees from working overtime. PD-43 obligated store managerial personnel to investigate every instance where it was determined that an employee worked off-the-clock and to complete a working off-the-clock notice, to be signed by the supervisor or manager, the employees, and a “witness” who was required to be a salaried employee. Wal-Mart repeatedly warned its hourly employees that they would be subject to an escalating series of disciplinary “coaching,” including termination, for violating company policy concerning breaks and off-the-clock work. The plaintiffs introduced numerous policy directives and other internal documents, as well as affidavits and deposition testimony, specifying that Wal-Mart’s policies regarding work breaks (as well as its policies regarding off-the-clock work) were, in the words of an internal Wal-Mart memorandum, among the company’s “non-negotiables.” The day-to-day responsibility for ensuring that hourly employees followed company timekeeping policies fell on individual store managers. For store managers, the responsibility for payroll came with considerable pressure from the home office to boost profits by, among other things, minimizing labor costs, one of the corporation’s largest controllable expenses. Store managers were rewarded for keeping payroll costs low. Conversely, if they exceeded Wal-Mart’s stringent labor cost guidelines, they might lose their bonuses or lose their jobs. According to documents proffered by the plaintiffs, Wal-Mart informed Massachusetts store managers of the precise margins by which their payrolls exceeded the labor cost guidelines and ordered the store managers to cut those payroll costs accordingly. At least since 1989, senior Wal-Mart home office executives have been made aware that, despite the written policy directives to the contrary, store managers were sometimes “[ajltering time cards to decrease reported payroll expenses” and “[ijnstructing associates to work off the clock . . . .” Further, at least since 1998, the home office was aware that some hourly employees “are not receiving scheduled breaks and lunches.” One Wal-Mart payroll audit, known as the “Shipley audit,” dated July 17, 2000, surveyed 128 Wal-Mart stores nationwide. Among other things, the Shipley audit documented that in a two-week period, 127 “[s]tores were not in compliance with company and state regulations concerning the allotment of breaks and meals as 76,472 exceptions were noted.” Wal-Mart was also aware, during the class period, of allegations of “time shaving” by store managers. Two time-shaving techniques in particular feature prominently in this litigation. The first was the insertion by Wal-Mart supervisors of meal break periods into hourly employees’ time records, allegedly when no meal break had in fact been taken. This effectively deprived hourly employees of compensation for the amount of time of the inserted meal break period., The second was a practice known as the “one-minute clock-out,” in which a manager inserted a “clock-out” one minute after the hourly employee had clocked in (either for a shift, or on returning from a break) even though the employee had actually worked for longer than one minute., The plaintiffs, Crystal Salvas and Elaine Polion, averred that, as hourly employees at Wal-Mart during the class period, they worked off-the-clock and were denied rest and meal breaks. The plaintiffs augmented their affidavits with evidence from other hourly employees. This evidence includes, among other things, letters, records of telephone calls to an internal “grass roots” complaint hotline for hourly employees, and other communications to superiors from Massachusetts hourly employees in various Wal-Mart stores throughout the Commonwealth complaining about time-shaving practices and missed rest and meal breaks. Wal-Mart submitted countervailing affidavits from Massachusetts hourly employees stating that they did not work off-the-clock and were not denied rest or meal breaks. Some of the evidence proffered by the plaintiffs consists of an expert’s analysis of Wal-Mart’s business records, which were obtained by the plaintiffs through discovery from Wal-Mart’s home office. See part 3, infra. As noted, the home office closely monitored the payroll activities of all of its stores, including its Massachusetts stores. For example, each store’s electronic time clock, which was programmed and maintained by the home office, transmitted each employee’s time clock punches to the home office every fifteen minutes. Wal-Mart required that payroll and timekeeping data be recorded on a uniform set of forms. Some of these forms factor into this litigation. Among these is Wal-Mart’s time clock exception report (exception report), in effect after 2001. The exception report consists of a list of all hourly employees whose records revealed timekeeping anomalies, such as missed punches at the end of the day or an overly long or overly short lunch period. Managers at each Wal-Mart store are required to investigate every item generated by an exception report. If an exception report showed that an hourly employee had not taken a lunch or a rest break or had otherwise missed a punch, the manager was expected to inquire of the hourly employee and, if a punch or punches had been missed, to complete a time adjustment request (TAR) that both the hourly employee and the manager were required to sign, or later, to use an electronic time adjustment system. Another report, the time clock archive report (archive report), recorded and transmitted to the home office the total number of times each hourly employee swiped in and out during every shift of each pay period, and tallied the hourly employee’s total hours of work recorded for the pay period. Store managers were required to investigate and resolve any discrepancies appearing on the archive report before the payroll was finalized. Hourly employees were required to review and sign off on the accuracy of the archive report prior to receiving their paychecks. Wal-Mart’s time clock punch error report (punch error report) also captured daily punch errors in hourly employees’ timekeeping. The home office would not finalize daily store payroll until the errors on the punch error report were corrected. These reports, along with others, together comprise the business records analyzed by the plaintiffs’ expert, Shapiro, as discussed more fully infra. 2. Procedural history. On August 21, 2001, two former WalMart hourly employees filed a complaint against Wal-Mart alleging multiple causes of action in implied-in-fact contract, tort, and Massachusetts wage statutes for wrongful failure to compensate hourly employees for time worked and to provide them with rest breaks and meal breaks to which they were entitled. The plaintiffs sought to represent a class of approximately 67,500 current and former Wal-Mart hourly employees who worked at forty-seven Wal-Mart stores in Massachusetts during the class period. In January, 2004, a Superior Court judge allowed the plaintiffs’ motion to certify the class. See Mass. R. Civ. P. 23 (a) and (b), 365 Mass. 767 (1974). Wal-Mart appealed from the decision to the Appeals Court. In June, 2004, a single justice of the Appeals Court vacated the class certification order and remanded the matter to the Superior Court. Among other things, the single justice concluded that the Superior Court judge had erroneously side stepped his obligation to determine whether the statistical proffer that the plaintiffs proposed as a justification to proceed on a class rather than an individual basis was “reliable enough to be admissible” and whether its admission would infringe Wal-Mart’s rights of due process. The single justice faulted the motion judge for failing to “give careful consideration” to whether, in light of the tactical decision by the named plaintiffs to waive any claim under G. L. c. 149, § 148, in order to avoid removal to Federal Court, they could adequately represent the class. Following the single justice’s order, and after they claimed to have discovered new evidence of Wal-Mart’s allegedly wrongful labor practices, the plaintiffs renewed a motion previously denied to amend their complaint a second time to add a claim for violation of G. L. c. 149, § 148. They also made a second motion for class certification. A second Superior Court judge allowed the motion to amend the complaint., On remand of the class certification issue, the judge who allowed the initial certification motion declined to revisit his findings concerning predominance and concluded that the plaintiffs had met their burden of proving the requirements for class certification for their claims under G. L. c. 149, § 148. Thus, in December, 2004, he again certified the class, now expanded to cover claims under § 148. Two years later, on September 21, 2006, a third Superior Court judge allowed in part and denied in part a motion by Wal-Mart for partial summary judgment. Specifically, the judge allowed Wal-Mart’s motion on all claims concerning missed, interrupted, or shortened meal periods, on the ground that, because meal breaks were unpaid, the plaintiffs would be unable to show harm for meal breaks that were shortened or eliminated. As for the claims predicated on missed, interrupted, or shortened rest breaks, the judge granted summary judgment on the counts alleging breach of the implied covenant of good faith and fair dealing (count three), unjust enrichment (count four), promissory estoppel (count five), and conversion (count six). In addition, the judge allowed Wal-Mart’s motion to shorten the class period to between August 21,1998, and December 31, 2005 (shortened class period), on the remaining § 148 claim (count nine), on the ground that defining the class period to begin earlier would violate the three-year statute of limitations under § 148. See G. L. c. 149, § 150. Thus, what remained of the plaintiffs’ second amended complaint after summary judgment was (1) the breach of implied contract claim (count one) for failing to provide or compensate the plaintiffs for their earned rest breaks; (2) at the plaintiffs’ election, the breach of implied contract claim (count two) or the unjust enrichment claim (count four) for failure to provide compensation for off-the-clock work, and (3) damages, including treble damages, (a) under G. L. c. 151, § 1A, for failure to pay overtime (count seven); (b) under G. L. c. 151, § l, for failure to pay minimum wage (count eight); and (c) under G. L. c. 149, § 148, for failure to provide compensation for certain off-the-clock work, limited to the shortened class period (count nine). On November 7, 2006, the same Superior Court judge who had ruled on the motion for partial summary judgment allowed an earlier filed motion by Wal-Mart to exclude the testimony of the plaintiffs’ expert, Shapiro, and to decertify the class, a decision we discuss in detail infra. The judge stayed both decisions pending resolution of the questions he reported to the Appeals Court. We granted both parties’ application for direct appellate review. We consider first the judge’s decision to allow Wal-Mart’s motion to exclude the plaintiffs’ expert and to decertify the class. We begin with the portion of that motion seeking to exclude Shapiro’s expert testimony as unreliable. 3. The plaintiffs’ expert witness, a. Standard of

Melissa Romero vs. UHS of Westwood Pembroke, Inc., & another. No. 07-P-931. Middlesex. May 5, 2008. - September 8, 2008. Present: Grasso, Trainor, & Wolohojian, JJ. Health Care Facility. Employment, Retaliation, Discrimination, Termination. Anti-Discrimination Law, Sex, Termination of employment. Unlawful Interference. Contract, Interference with contractual relations. In a civil action alleging a violation of G. L. c. 149, § 187, the Massachusetts medical provider whistleblower statute, the judge properly granted summary judgment in favor of the defendant, a health care facility, where the plaintiff failed to demonstrate that she objected to any existing activity, policy, or practice of the defendant; where the record contained no evidence that tire proposal to which the plaintiff objected (which was never adopted) violated any law, rule, regulation, or professional standard of practice; and where the claimed retaliatory conduct occurred before the plaintiff voiced her objection to the proposal. [540-543] In a civil action alleging employment discrimination based on pregnancy, the judge properly granted summary judgment in favor of the defendant employer, where the record did not support the claim that an administrative reorganization was an adverse employment event, and the plaintiff did not produce evidence that she and the person to whom she reported as a result of the reorganization were similarly situated [543-545]; and where, with respect to the plaintiff’s termination as part of a layoff, the plaintiff failed to meet her burden of producing sufficient credible evidence that the employer’s proffered nondiscriminatory reasons for her layoff were merely a pretext [545-548]. In a civil action alleging intentional interference with advantageous business relations, the judge properly granted summary judgment in favor of the defendant, where the plaintiff, as a matter of law, could not satisfy the element of “improper motive or means” required to make out an interference claim. [548] Civil action commenced in the Superior Court Department on September 10, 2003. A motion for partial summary judgment was heard by Julian T. Houston, J., and the remaining counts were also heard by him on a motion for summary judgment. Jeffrey R. Mazer for the plaintiff. Barbara S. Hamelburg (.Laura Bernardo Sorafine with her) for the defendants. Robert Spiegel. Wolohojian, J. The plaintiff, formerly the director of a partial hospitalization program (the Boston Center) of the defendant, UHS of Westwood Pembroke, Inc. (Westwood), appeals from the dismissal on summary judgment of her claims for (1) violation of G. L. c. 149, § 187, the Massachusetts medical provider whistleblower statute; (2) violation of G. L. c. 15IB; and (3) intentional interference with advantageous business relations. The claims were based on an administrative reorganization of staff conducted by Westwood in April, 2002, that resulted in the plaintiff reporting to someone new, and on the plaintiff’s subsequent termination as part of a reduction in force in July, 2002. In broad summary, the plaintiff claimed that both the reorganization and her subsequent termination were unlawful responses to her (a) objecting to proposed patient-to-staff ratio increases; and (b) notifying her employer that she was pregnant. On appeal, we view the record in the light most favorable to the plaintiff, Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), and “consider the record and the legal principles involved without deference to the motion judge’s reasoning.” Zielinski v. Connecticut Valley Sanitary Waste Disposal, Inc., 70 Mass. App. Ct. 326, 334 (2007). We discuss each claim in turn below. 1. General Laws c. 149, § 187. Section 187 of G. L. c. 149 provides a cause of action to health care providers who are retaliated against for disclosing problems within health care facilities. Section 187(6) prohibits health care facilities from “refus[ing] to hire, terminat[ing] a contractual agreement with or tak[ing] any retaliatory action against a health care provider” for engaging in any of the acts protected under the section. The protected acts include those contained in § 187(6)(3), on which the plaintiff relies: “objecting] to or refusing] to participate in any activity, policy or practice of the health care facility . . . which the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” A claim under § 187(¿>)(3) requires the plaintiff to establish that (1) she objected to, or refused to participate in, an activity, policy or practice that (2) she reasonably believed to be in violation of a law, rule, regulation, or professional standard of practice, (3) which she reasonably believed posed a risk to public health, and (4) she was retaliated against as a result. Summary judgment was properly entered on this claim for several reasons, not least of which being that the record does not show that the plaintiff objected to any existing “activity, policy, or practice” at Westwood. Instead, the record reflects that the plaintiff objected to a proposed increase in the patient census which, as a result of objections raised by her and others, was in fact never adopted., General Laws c. 149, § 187, does not extend to mere proposals. Instead, the plain language of the statute refers only to existing activities, policies, and practices of a health care facility that are (the statute itself using the present tense) in violation of a statute, rule, regulation, or professional standard. The policies underlying the statute would be undermined were we to extend it to include objections to proposals, particularly to proposals such as the one at issue in this case, that are never adopted. As reflected in the provision of the statute requiring that a health care facility be given notice of an objection in cases Where the health care provider initially objects to a third party, a significant purpose of the statute is to “afford[] the health care facility a reasonable opportunity to correct the activity, policy or practice.” G. L. c. 149, § 187(c)(1). In those cases, if the health care facility corrects the problem, the objecting health care provider has no claim. Ibid. For the same reason, the plaintiff should have no claim here: she and others objected to the proposed increase in the pediatric patient census and, as a result, the proposal was abandoned. This salutary internal debate among health care professionals regarding how best to handle their medical practice is not the basis for a claim under G. L. c. 149, § 187. Summary judgment was also appropriately entered on this claim because the record contains no evidence that the proposal violated any law, rule, regulation or professional standard of practice. The record contains no evidence of any law, rule, regulation or professional standard governing the patient census or imposing a particular patient-to-staff ratio for a facility such as the Boston Center. In the absence of any such evidence, as a matter of law, the plaintiff could not have had an objectively reasonable belief that the proposed patient census increase was in violation of any statute, rule, regulation or professional standard. See Lynch v. Boston, 180 F.3d 1, 17 (1st Cir. 1999) (construing G. L. c. 149, § 185). The plaintiff’s personal views on the proposed patient census increase, unsupported by reference to any statutory, regulatory or professional standard of practice, were not enough to support her claim. Finally, to the extent that the plaintiff claims that the administrative reorganization that was announced on April 10, 2002, was retaliatory conduct within the meaning of § 187, that argument fails because the reorganization was announced before the plaintiff objected to the proposed patient census increase. The plaintiff has pointed to nothing in the record reflecting any date on which she aired her objection to the proposal apart from May 7, 2002, the date she sent a memorandum voicing her objections. It is logically and legally impossible for the claimed retaliatory conduct to have occurred before the plaintiff voiced her objection. For each of these reasons, summary judgment was appropriately entered in Westwood’s favor on the plaintiff’s claim under G. L. c. 149, § 187. 2. General Laws c. 15IB. In March, 2002, approximately six months after she was hired, the plaintiff informed her supervisor that she was pregnant with an expected delivery date in September. She contends that, as a result of this disclosure, West-wood took the same two adverse employment actions against her upon which she rested her whistleblower claim: i.e., as part of the administrative reorganization, she no longer reported directly to the chief executive officer, Robert Spiegel, and she was terminated as part of a reduction in force. A plaintiff must prove four elements to succeed on a claim under G. L. c. 151B: “membership in a protected class, harm, discriminatory animus, and causation.” Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). There is no dispute in this case as to the first element: the plaintiff was pregnant. As to the second element, there is no dispute that her termination constituted actionable harm, but there is disagreement whether the structural reorganization did. In an indirect evidence case, such as this one, the third and fourth elements may be established using the familiar three-stage, burden-shifting paradigm, which we set out in the margin. a. The April reorganization. It was undisputed that Spiegel, Westwood’s chief executive officer, “began to consider the restructuring of Westwood’s child and adolescent partial hospitalization programs” in late January or early February, 2002 — in other words, before the plaintiff informed him that she was pregnant. Contrary to Westwood’s argument, however, this does not dispose of the plaintiff’s claim, because Spiegel never stated when he decided to go forward with the restructuring or when he decided to have the plaintiff report to a newly-created director of child and adolescent partial hospitalization services. Summary judgment, however, was properly granted because the record did not support a finding that the administrative restructuring was an adverse employment event. The plaintiff concedes that the restructuring did not change her job duties or her pay. She also admits that the restructuring did not “cause any difficulties for [her] in terms of [her] job function,” or in her “employee status.” However, she argues that “the restructuring [created] a redundancy” between her duties and those of her new supervisor, which facilitated her later termination as part of the reduction in force. This argument might have had some appeal had the plaintiff pointed to anything in the record to support her assertion that redundancies were created. Absent any such evidence, the reorganization did nothing more than create a new layer of reporting between the plaintiff and Spiegel. As a result of the reorganization, the plaintiff, instead of reporting directly to Spiegel, reported to Daniel Litwack (who was appointed the director of child and adolescent partial hospitalization services), who in turn reported to Spiegel. Standing alone, this was insufficient to constitute an adverse employment action. See Mac-Cormack v. Boston Edison Co., 423 Mass. 652, 663 (1996) (the fact that “[d]uties were rearranged and new reporting structures devised” did not amount to adverse employment action). Summary judgment was also appropriate because the plaintiff came forward with no evidence to show that Litwack and the plaintiff were similarly situated. The plaintiff provides no comparison of Litwack’s position, duties, pay, and experience with her own, whether in his new position or in his previous position at Westwood. Westwood’s undisputed evidence, on the other hand, was that Litwack had been employed longer at Westwood and had greater previous experience than the plaintiff. In the face of this evidence presented by Westwood, the plaintiff did not meet her burden of presenting evidence sufficient to withstand summary judgment with respect to the reorganization. b. The July layoff. The plaintiff’s claim arising from her termination as part of a layoff in July, 2002, is more complicated. As the motion judge found, the plaintiff satisfied her burden in coming forward with sufficient evidence to establish a prima facie case for purposes of stage one of the burden-shifting paradigm. The motion judge also properly determined that Westwood had amply met its burden of articulating nondiscriminatory reasons for the layoff and of presenting credible evidence that its reasons were the real reasons for laying off the plaintiff. This case, therefore, falls squarely within the analytical framework of Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 (2005), in which the Supreme Judicial Court reviewed the granting of summary judgment in a case involving a reduction in force. Sullivan turned, as this case does, on whether the plaintiff had come forward with sufficient “credible evidence that [the employer’s] proffered reasons for her layoff were merely a pretext for a true intent of [pregnancy] discrimination.” Id. at 55. “This may be accomplished by showing that the reasons advanced by [Westwood] for making the adverse decision are not true.” Ibid., quoting from Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117 (2000). Westwood pointed to ample evidence in the summary judgment record that the July, 2002, systemwide layoff was necessitated by financial losses. See note 9, supra. The Boston Center alone had posted pretax losses of more than $96,000 through June, 2002. The plaintiff herself acknowledged her understanding that if the patient census did not improve, staffing at the Boston Center would need to be reduced. The plaintiff does not attack or dispute the evidence of financial losses. Instead, she argues that pretext can be inferred from the facts that (a) Litwack was not terminated; (b) the director of the Lowell program (a nonpregnant woman) was not terminated; and (c) unlike four of the six employees who were terminated (all nonpregnant women), the plaintiff was not offered a comparable position at Westwood after her termination. None of these rebuts Westwood’s “proffered reasons for laying off [the plaintiff] and does not, by itself, create reasonable inferences of discriminatory animus and causation.” Sullivan v. Liberty Mut. Ins. Co., supra at 55. In large part, this is so because the record does not contain the information necessary to permit a reasonable inference of pretext to be drawn in this case. The plaintiff is correct that Litwack was not terminated as a part of the reduction in force. However, in order for a reasonable inference of pretext to be drawn, the plaintiff needed to provide evidence of more than the fact that he was a man; she needed to show that he was similarly situated. As set out above, the plaintiff failed to do so. Moreover, Westwood presented evidence of Litwack’s greater experience, both at Westwood and at previous employers. Similarly, the record contains no evidence that the director of the Lowell program was similarly situated to the plaintiff. West-wood’s uncontroverted evidence was that the Lowell program was not comparable to that of the Boston Center. Specifically, the Lowell program was a large inpatient facility whereas the Boston Center was a “partial” (i.e., outpatient) program only. Again, absent evidence that the director of the Lowell program was similarly situated, no reasonable inference could be drawn simply from the fact that she was neither pregnant nor terminated. Finally, the plaintiff argues that pretext can be inferred from the fact that she was not offered the directorship of the partial program at Pembroke Hospital. She points to the fact that of the six employees laid off as part of the July, 2002, reduction-in-force, four (nonpregnant women) were offered comparable positions within Westwood whereas she was not.* As the motion judge found, however, the plaintiff presented no evidence of an available suitable opening at Westwood. Westwood presented evidence — that was uncontradicted — that the Pembroke Hospital was a separate entity with different management from Westwood. No reasonable inference of discriminatory animus could be drawn from Westwood’s failure to offer a position that was not its to give. For these reasons, summary judgment was properly granted on the plaintiff’s claim under G. L. c. 151B. 3. Intentional interference with advantageous business relations. The plaintiff, an at-will employee, brought this claim against Spiegel, alleging that she had a reasonable expectation of continued employment at Westwood with which he improperly interfered by selecting her to be laid off because she was pregnant. Because her interference claim depends entirely on her discrimination claim, it fails for the reasons set forth in the preceding section. Absent a legally sufficient claim for discrimination, the plaintiff, as a matter of law, cannot satisfy the element of “improper motive or means” required to make out her interference claim, and summary judgment was properly allowed. See Alba v. Sampson, 44 Mass. App. Ct. 311, 314 (1998) (elements of interference claim). For the reasons set out above, summary judgment was properly entered on all claims. Judgments affirmed. The section largely tracks the language of the Massachusetts whistleblower statute, which is not limited to health care providers. See G. L. c. 149, § 185. For purposes of this section, a plaintiff’s belief must be objectively reasonable. See Lynch v. Boston, 180 F.3d 1, 17 (1st Cir. 1999) (construing G. L. c. 149, § 185). The objection must be “a substantial or motivating part” of the adverse employment action. See Taylor v. Freetown, 479 F. Supp. 2d 227, 241 (D. Mass. 2007) (construing G. L. c. 149, § 185). In March, 2002, Robert Spiegel, the chief executive officer of Westwood, directed that the number of pediatric patients at the Boston Center be increased without an increase in staff. The plaintiff points to nothing in the record to indicate that she objected to this proposal before May 7, 2002, when she sent a memorandum that reflected her understanding that a census increase “has been proposed.” The plaintiff did not object to an increase in the pediatric patient census per se; her objection was to an increase in census “without a formal plan in place and/or with realistic patient to staff ratio under agreement.” Although the plaintiff argues in her brief that she objected to other items as well, such as the staffing grid, the record does not support her claim. The portions of the record to which she cites do not show that she informed anyone that she had an objection or complaint to any of those matters. In order to withstand summary judgment, the plaintiff was required, among other things, to put forward sufficient material to demonstrate that she voiced an objection. Lyon v. Morphew, 424 Mass. 828, 831 (1997), quoting from Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) (“A complete failure of proof concerning an essential element of the non-moving party’s case renders all other facts immaterial”). In stage one, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that (1) she was in a protected class; (2) she performed her job at an acceptable level; (3) she suffered an adverse employment event; and (4) her employer sought to fill her position with an individual with similar qualifications; or, in the case of a reduction in force, her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. See Abramian v. Presid

MARILYN WILLIAMS, Plaintiff v. NEW HOPE FOUNDATION, INC., Defendant No. COA08-19 (Filed 2 September 2008) Employer and Employee— retaliatory discharge — ratio of damages to attorney fees — no abuse of discretion The trial court did not abuse its discretion in a retaliatory discharge action by awarding $25,000.00 in attorney fees and $2,534.14 in costs to plaintiff pursuant to N.C.G.S. § 95-25.22(d) on damages of $72.00 (for unpaid wages and liquidated damages). .The purpose of the statute is to provide relief for a person who has sustained damage so small that defendant would have an unjustly superior bargaining position in settlement negotiations. Appeal by defendant from order entered on or after 18 June 2007 by Judge J. Richard Parker in Hertford County Superior Court. Heard in the Court of Appeals 20 August 2008. Glenn, Mills, Fisher & Mahoney, P.A., by Stewart W. Fisher, for plaintiff-appellee. Hairston Lane Brannon, P.A., by Anthony M. Brannon, for defendant-appellant. TYSON, Judge. New Hope Foundation, Inc. (“defendant”) appeals from order entered, which awarded Marilyn Williams (“plaintiff’) attorney’s fees and costs. We affirm. I. Background On or about 18 June 2005, plaintiff was discharged from her employment with defendant. Plaintiff filed an employment discrimination complaint with the North Carolina Department of Labor Workplace Retaliatory Discrimination Division (“DOL”). On or about 16 September 2005, the DOL issued a “Right to Sue” letter, to enable plaintiff the right to file a lawsuit under the North Carolina Retaliatory Employment Discrimination Act (“REDA”). On 26 November 2005, plaintiff filed a complaint, which alleged claims for relief under REDA and the North Carolina Wage and Hour Act (“Wage Act”). Defendant denied all allegations. An order allowing plaintiff to file an amended complaint, to add a claim for wrongful discharge, was granted on 26 February 2007. The case was tried the week of 9 April 2007 and the jury awarded plaintiff $36.00 in unpaid wages incurred as a result of unpaid travel expenses. The trial court then awarded an additional $36.00 in liquidated damages. Defendant did not appeal the jury’s verdict nor the judgment entered thereon. On 22 May 2007, plaintiff moved “for an award of attorney’s fees and costs[]” pursuant to N.C. Gen. Stat. § 95-25.22(d). Plaintiff requested $50,100.00 in attorney’s fees and $3,982.19 in costs. The trial court awarded plaintiff attorney’s fees of $25,000.00 and costs of $2,534.14 on 18 June 2007. Defendant appeals. II.Issue Defendant argues the trial court erred when it granted plaintiffs motion for attorney’s fees and costs. III.Standard of Review “The case law in North Carolina is clear that to overturn the trial judge’s determination [of attorney’s fees and costs], the defendant must show an abuse of discretion.” Hillman v. United States Liability Ins. Co., 59 N.C. App. 145, 155, 296 S.E.2d 302, 309 (1982) (citation omitted), disc. rev. denied, 307 N.C. 468, 299 S.E.2d 221 (1983). To show an abuse of discretion, the defendant must prove that the trial court’s ruling was “manifestly unsupported by reason. A ruling committed to a trial court’s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal citation omitted). IV.N.C. Gen. Stat. $ 95-25.22 Defendant argues the trial court abused its discretion when it awarded $25,000.00 in attorney’s fees and $2,534.14 in costs when a judgment of only $72.00 was awarded to plaintiff and the remaining claims for violation of REDA and wrongful discharge were dismissed with prejudice. We disagree. “The general rule is that attorney fees may not be recovered by the successful litigant as damages or a part of the court costs, unless expressly authorized by statute or a contractual obligation.” Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 466-67, 553 S.E.2d 431, 443 (2001) (citing Stillwell Enterprises, Inc. v. Interstate Equip. Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814 (1980)), disc. rev. denied, 356 N.C. 315, 571 S.E.2d 220 (2002). N.C. Gen. Stat. § 95-25.22(d) (2005) states, “[t]he court, in any action brought under this Article may, in addition to any judgment awarded plaintiff, order costs and fees of the action and reasonable attorneys’ fees to be paid by the defendant.” (Emphasis supplied). Before awarding attorney’s fees, the trial court must make specific findings of fact concerning: (1) the lawyer’s skill; (2) the lawyer’s hourly rate; and (3) the nature and scope of the legal services rendered. In re Baby Boy Searce, 81 N.C. App. 662, 663-64, 345 S.E.2d 411, 413, disc. rev. denied, 318 N.C. 415, 349 S.E.2d 590 (1986); see also Kelly v. N.C. Dep’t of Env’t & Natural Res., 192 N.C. App. 129, -, - S.E.2d -, - (2008) (“Although the award of attorney’s fees is within the discretion of the trial judge . . ., the trial court must make findings of fact ‘as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.’ ” (Quoting N.C. Dep’t of Corr. v. Myers, 120 N.C. App. 437, 442, 462 S.E.2d 824, 828, aff'd per curiam, 344 N.C. 626, 476 S.E.2d 364 (1996))). In Whiteside Estates, Inc., the defendant appealed attorney and expert witness fees awarded under the Sedimentation Pollution Control Act of 1973. 146. N.C. App. at 468, 553 S.E.2d at 444. The record on appeal revealed that “detailed invoices for legal fees were submitted to the trial court along with an affidavit of . . . [the] plaintiff’s counsel, which set forth the hourly rates for the legal services rendered, the fact that the hourly rates charged were commensurate with the type of work involved, and [were] within the range of such fees and charges customarily charged in the community.” Id. This Court affirmed the trial court’s award of attorney’s fees and stated, “[the] [defendant . . . presented no evidence that the trial court ignored its motion, responses, or arguments. Absent such a showing by [the] defendant, we cannot find an abuse of discretion.” Id. at 469, 553 S.E.2d at 444. Here, defendant concedes that the trial court’s factual findings with regard to the skill and hourly rate of plaintiff’s counsel are adequate, but disputes the trial court’s findings with regard to the nature and scope of the legal services rendered: (6) That the hours expended by [plaintiff’s counsel in order to obtain a verdict in [p]laintiff’s favor were reasonable considering the issues in this case and the manner in which the case was defended. (7) That the Court has taken into consideration the jury’s verdict on the [REDA] claim and the fact that the jury ultimately ruled in favor of [defendant on its affirmative defense. That the Court is not awarding fees for this cause of action. (8) That the Court has taken into account the nature of the settlement negotiations between the parties and finds that it was reasonable and necessary for [p]laintiff to seek a jury trial of her case. (9) That the fees being awarded by the Court were necessary to the prosecution of this case and the rendering of a final judgment in favor of [p]laintiff on her claim for unpaid wages under the Wage and Hour Act. Defendant has failed to show that the trial court, in making these findings: (1) did not hear all of the attorneys’ arguments; (2) observe their litigation strategies; (3) watch their examination of witnesses; (4) rule on their evidentiary objections; (5) read their briefs; (6) listen to their summations of the evidence; and (7) consider their post-trial motions. “Absent such a showing by defendant, we cannot find an abuse of discretion.” Id. Adopting the position advocated by defendant could hinder future parties from litigating claims when attorney fees and costs might outweigh the award received. In Hicks v. Albertson, our Supreme Court reviewed an award of attorney’s fees in a property damage claim case. 284 N.C. 236, 200 S.E.2d 40 (1973). Our Supreme Court affirmed the trial court’s award and stated: The obvious purpose of th[e] statute [at issue was] to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that is not economically feasible to bring suit on his claim. In such a situation the Legislature apparently concluded that the defendant, though at fault, would have an unjustly superior bargaining power in settlement negotiations. Id. at 239, 200 S.E.2d at 42. Here, although plaintiff’s claim for attorney’s fees and costs stemmed from a jury’s verdict awarding plaintiff unpaid wages, the same reasoning articulated by our Supreme Court in Hicks is equally applicable. 284 N.C. at 239, 200 S.E.2d at 42. Based upon our Supreme Court’s reasoning in Hicks and this Court’s reasoning in Whiteside Estates, Inc., defendant has failed to show the trial court abused its discretion when it awarded to plaintiff attorney’s fees and costs pursuant to N.C. Gen. Stat. § 95-25.22. Hicks, 284 N.C. at 239, 200 S.E.2d at 42; Whiteside Estates, Inc. -, 146 N.C. App. at 469, 553 S.E.2d at 444. This assignment of error is overruled. V. Conclusion Defendant failed to show that the trial court’s order “was so arbitrary that it could not have been the result of a reasoned decision.” White, 312 N.C. at 777, 324 S.E.2d at 833. The trial court’s order, which awarded attorney’s fees and costs to plaintiff, is affirmed. Affirmed. Judges CALABRIA and ELMORE concur.