Murad v. Professional & Administrative Union Local 1979

CHEN v WAYNE STATE UNIVERSITY Docket Nos. 283420 and 283575. Submitted May 12, 2009, at Detroit. Decided June 2, 2009, at 9:10 a.m. Dr. Kuo-Chun Chen brought an action in the Wayne Circuit Court against Wayne State University, seeking damages and other relief related to his treatment while working as a professor and to the University’s handling of his personal property and a patent. The plaintiff specifically alleged that he was discriminated against because of his national origin, age, and a disability and that he was retaliated against for protesting the discrimination. He also pleaded a claim and delivery count seeking the return of his personal property, a count alleging violation of the Freedom of Information Act, MCL 15.231 et seq., and a count alleging breach of contract. The plaintiff stipulated the dismissal of the counts for breach of contract and claim and delivery, and the court, Robert L. Ziolkowski, J., dismissed those claims without prejudice. The plaintiff then filed those claims in the Court of Claims. At some point, the case in the Court of Claims was consolidated with the case in the circuit court and Judge Ziolkowski heard both cases. The plaintiff was permitted to amend his complaints, but he did not state a claim based on the Freedom of Information Act. The Court of Claims then dismissed the claims of breach of contract and claim and delivery, but allowed the plaintiff to amend the complaint in the Court of Claims action to add as defendants the current chairperson and two former chairpersons of the University’s department of biological sciences and to allege gross negligence against the individuals and negligence against the University with regard to the handling of the plaintiffs property. The Court of Claims then dismissed the negligence claims against the individual defendants and, on May 16, 2006, entered an order dismissing the negligence claim against the University. The order stated that the order resolved the last pending claim in the Court of Claims and closed the case. Judge Ziolkowski dismissed the circuit court claims on March 15,2007, and denied reconsideration of that order on May 3, 2007, and May 8, 2007. The Court of Appeals dismissed the plaintiffs appeals in both cases for lack of jurisdiction because they were not timely filed. Unpublished orders of the Court of Appeals, entered August 30, 2007 (Docket Nos. 278332,278333). The plaintiff applied for leave to appeal both cases, and the Court of Appeals granted leave to appeal both the circuit court order (Docket No. 283420) and the Court of Claims order (Docket No. 283575) in unpublished orders entered August 20, 2008. The appeals were consolidated. The Court of Appeals held: 1. The consolidation of the two cases at the trial court level did not merge the two cases and both retained their separate identities. Therefore, the time to appeal each individual case is determined by reference to the final judgment or order in each case. The application for leave to appeal the Court of Claims case was not filed within one year of the May 16, 2006, final order in that case, as required by the version of MCR 7.205(F)(3)(a) in effect at the time the application was granted. Therefore, the Court of Appeals did not have the discretion to grant the application. The appeal in Docket No. 283575 must be dismissed for lack of jurisdiction. The application for leave to appeal the circuit court case, Docket No. 283420, was timely filed. 2. The plaintiff was required to show that he suffered an adverse employment action in order to establish his discrimination and retaliation claims under the Civil Rights Act, MCL 37.2202(1) and 37.2701. An adverse employment action must be materially adverse to the employee, that is, it must be more than a mere inconvenience or minor alteration of job responsibilities. Materially adverse employment actions are akin to the termination of employment, a demotion shown by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. There must be an objective basis for demonstrating that the employment action is adverse because a plaintiffs subjective impressions are not controlling. 3. There was no objective evidence presented to show that the alleged refusal to assign the plaintiff a new lab constituted an adverse employment action. 4. The plaintiff failed to present any evidence that a department chairperson’s threat to revoke the plaintiffs tenure resulted in a materially adverse change in the terms or conditions of his employment. The threat did not rise to the level of an adverse employment action. 5. There was no evidence that the changes that occurred to the plaintiffs teaching duties amounted to an adverse employment action. 6. There was no evidence that a department chairperson’s actions or omissions with regard to not restoring the plaintiffs regular graduate faculty status or allowing the plaintiff to supervise a graduate student had any effect on the plaintiffs employment. 7. The plaintiff abandoned on appeal his claims regarding merit increases and other miscellaneous adverse actions. 8. The circuit court did not err in granting summary disposition in favor of the University with regard to the claims based on discrimination and retaliation. The order in Docket No. 283420 must be affirmed. Appeal in Docket No. 283575 dismissed and order appealed in Docket No. 283420 affirmed. 1. Actions — Consolidation op Actions — Appeal op Consolidated Actions. Where two cases involve claims that could not have been brought as separate counts in a single complaint, but are nevertheless consolidated for administrative convenience, the consolidated cases are not merged and both cases retain their separate identities; a circuit court case and a Court of Claims case that are joined for trial are not merged and both cases retain their separate identities, and the time to appeal each case must be determined by reference to the final judgment or order for each case (MCL 600.6421). 2. Civil Rights — Employment Discrimination — Adverse Employment Actions. A plaintiff who brings a discrimination or retaliation claim against an employer under § 102 or § 701 of the Civil Rights Act must establish that he or she suffered an adverse employment action; what might constitute an adverse employment action in one employment context might not be actionable in another; an employment action must be materially adverse to the employee, not a mere inconvenience or minor alteration of job responsibilities in order to be actionable; there must be an objective basis for demonstrating that an employment action was adverse because an employee’s subjective impressions are not controlling (MCL 37.2202, 37.2701). Eisner & Mirer, EC. (by Jeanne Mirer and Eugene Eisner), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Donna J. Donati and Megan P. Norris), for the defendants. Before: BORRELLO, EJ., and MURPHY and M. J. KELLY, JJ. PER CURIAM. In these consolidated appeals, plaintiff Dr. Kuo-Chun Chen appeals by leave granted the trial court’s orders granting summary disposition in favor of defendant Wayne State University (the University). In Docket No. 283420, Chen argues that the trial court, which was sitting as the circuit court, erred when it dismissed under MCR 2.116(0(10) Chen’s claims of age and national origin discrimination and retaliation. In Docket No. 283575, Chen argues that the trial court, which was sitting as the Court of Claims, erred when it refused to permit him to amend his complaint to add new parties and new theories of recovery. We conclude that we lack jurisdiction to hear Chen’s claims of error in Docket No. 283575 and that the trial court did not err when it dismissed Chen’s claims in Docket No. 283420. For these reasons, we dismiss the appeal in Docket No. 283575 and affirm in Docket No. 283420. I. FACTS AND PROCEDURAL HISTORY A. BASIC FACTS This case has its origins in the progression of Chen’s career at the University over a period of more than 25 years. Chen is a citizen of the United States, but was born in China and speaks English with a Chinese accent. The University hired Chen as an associate professor for its department of biological sciences in 1968. Chen’s field of study is genetics. He became a tenured associate professor in 1971. Before joining the University’s faculty, Chen began the development of a device, which he called the Microwave Guide Exposure System (the Microwave Device), with his former roommate at graduate school. Chen completed the Microwave Device with the help of others after he joined the University. He assigned his patent rights to the University, which obtained a patent for it in 1982. The University released the patent to Chen in 1995. Chen apparently did not have any serious difficulties at the University until after Dr. Albert Siegel became the department’s chairperson in 1972. Dr. John Taylor, who joined the department’s faculty in the same year as Chen, testified that Chen apparently did not like Siegel. Taylor said that Siegel treated Chen as though he were a “pseudo molecular biologist” and believed that Chen’s courses were “out-of-date or just plain wrong.” Indeed, Taylor stated that Siegel and some other faculty members had their graduate students leave Chen’s courses. In a memo written some years after Siegel’s chairmanship, Taylor stated that Siegel tried to “change [Chen], then isolated him and then gave up.” Siegel testified that the problems he had with Chen were related to Chen’s ability to get things done on his own. Siegel explained that other professors who had inadequate space worked hard at improving their space, “got their research programs well funded and started right in working and attracting graduate students and did the best they could under the circumstances.” Siegel stated that the problem with Chen was that he “was not of that nature. He didn’t try to help himself.” Chen testified at his deposition that Taylor was apparently jealous of Chen’s achievements and status and alleged that Taylor used his position to impede Chen’s efforts at the University. Specifically, Chen noted that Taylor was apparently bothered by the fact that the University hired Chen as an associate professor whereas the University hired Taylor as an assistant professor. Although Chen started as an associate professor, Taylor eventually surpassed Chen and became a full professor. In addition, in 1974, Taylor replaced Siegel as the department’s chairperson. Taylor testified that he was not jealous of Chen and that he and Chen were originally friends. He stated that they spent a significant amount of time together when they first joined the University. Taylor also stated that he supported Chen by acting as an intermediary in the acquisition of devices for Chen’s lab. Taylor testified that, after he became the department’s chairperson, he met with Chen and recognized that Chen had inadequate lab space. Taylor stated that he tried to help Chen by moving him to a better lab and also tried to obtain funds to modernize Chen’s lab. However, he was unable to help Chen because Chen’s “tastes were always better than what I could afford” and Chen would not compromise. Taylor stated that he eventually gave up trying to help Chen. Chen also testified that Taylor was biased against him because of his Chinese national origin, which was shown by the fact that Taylor referred to him as being “Chinese Mafia.” Taylor admitted that he had used the phrase “Chinese Mafia,” but said that he did not direct it at Chen. Taylor explained that Chen had asked him for assistance in a business matter involving his brother-in-law, who lived in Taiwan. Taylor stated that he referred Chen to a friend who was Chinese for help with the business matter. Taylor said that his friend called him and indicated that Taylor and Chen might want to avoid dealings with Chen’s brother-in-law. After that, Taylor stated that he would use the phrase “Chinese Mafia” in connection with discussions concerning Chen’s brother-in-law. Dr. David Adamany, who was the University’s president, testified that Taylor was a productive researcher and that he was appointed to chair the department in an effort to strengthen the department’s research program. Adamany stated that faculty members who were not active researchers resisted Taylor’s efforts. He stated that the relations between Taylor and those faculty members eventually deteriorated to the point that the department was no longer able to make progress on improving research. Dr. Robert Arking testified that he was a full professor in the department and that he had served on various committees. He stated that Taylor had favorites on the faculty and that Chen was not one of them. Arking said that the faculty committee eventually asked Taylor to step down as chairperson because of issues with hiring, the budget, and faculty relations. About 1980, Chen requested a promotion to full professor. Chen testified that Taylor handled the request and deliberately refused to submit Chen’s request to the faculty. Chen admitted that there was an advisory committee that considered his request, but stated that Taylor controlled this committee. Arking testified that it was possible to get promoted without the support of the chairperson, but that it would be more difficult. Taylor stated that the committee considered Chen’s promotion to full professor in 1980 and 1981 and decided not to recommend promotion to the faculty in both years. Taylor stated that he did not oppose Chen’s promotion. Chen testified that he also had a condition that caused an irregular heartbeat. According to Chen, starting in about 1980, the stress of his job triggered problems with his condition. Chen stated that this condition sometimes interrupted his work and that he even collapsed once during class and had to be rushed to the hospital. Chen testified that Taylor was aware of his condition. He ultimately had the condition surgically corrected in 1991. In 1987, Siegel again briefly served as the chairperson for the department. During that time, Siegel wrote a memo to Chen noting that Chen had made a conscious decision to stop researching and advising Chen that, for that reason, he would have to teach more classes. Siegel testified that after he assigned Chen more classes, there was a constant stream of complaints by undergraduate students concerning the students’ ability to understand Chen. On the basis of these complaints, Siegel recommended that Chen seek help at the University’s English Language Institute, but Chen refused. Siegel stated that Chen did not acknowledge a problem and blamed the students. Dr. Stanley Gangwere replaced Siegel as the department’s chairperson later in 1987. Gangwere testified that Taylor was a controversial chairperson and, for that reason, he tried to “separate” himself “from any association” with Taylor’s policies. Chen testified that Taylor appeared to have a good relationship with Gang-were. Chen further testified that, from the beginning, Gangwere refused to support him and Chen opined that this must have been the result of Taylor’s influence over Gangwere. Gangwere stated that Taylor did not advise him and that he had official and unofficial complaints about Chen by students concerning their ability to understand Chen’s English. In 1988, the University began a renovation and construction project. To accommodate the renovations, the department temporarily rearranged the lab and office assignments for the faculty. Gangwere asked Chen to vacate his current lab and office so that Taylor could occupy it along with some adjacent space that Chen had requested earlier. Gangwere temporarily assigned Chen space in the natural sciences building. Because the new lab space was smaller, Gangwere gave Chen, as he did every professor, the option of placing some of his property in storage for the duration of the renovation. Chen elected to have his Microwave Device placed into storage. Chen disliked the new lab and refused to use it. He indicated that the lab was too small and had large vent fans that made it unacceptable for use as a lab. Arking testified that Chen’s new lab was very small, but had adequate utilities and could be used for research. Gang-were testified that almost every professor lost space during the renovation period. Indeed, Dr. Dwight Freeman testified that he too was moved during the renovation and that he was moved into an old dealership from the 1920s that was “abysmal.” The University hired Dr. E Dennis Smith to replace Gangwere as the department’s chairperson in 1989. Chen stated that Smith did not show much interest in him and, from this, he concluded that the previous chairpersons — Taylor, Siegel, and Gangwere — must have influenced Smith to form a negative opinion about him. Chen testified that Smith brought in new professors without regard to their ability to teach specific courses because it was hoped that these teachers would bring in grant money. However, when these professors failed to obtain the expected grant money, Smith assigned some of Chen’s teaching responsibilities to these professors. Chen said that Smith criticized Chen’s accent and indicated that he had received student complaints. Chen stated that he thought Smith wanted to take his tenure away and get rid of him. Smith testified that he had numerous student complaints about Chen’s ability to communicate. As a result, Smith decided to sit in on one of Chen’s classes. Smith wrote a memo describing his review of the class. In the memo, Smith stated that Chen appeared to know the material well but the students appeared to have trouble following the lecture. Smith also noted frustration on the part of students who attempted to pose questions to Chen. Smith testified that he advised Chen to get help from the language institute and suggested using more visual aids in teaching the course. In 1991, the University finished its construction of its biological sciences building. Smith assigned Chen office and lab space, but Chen refused to use either room. Chen claimed that the office was contaminated from the use of radioactive isotopes in the rooms. However, Chen did not investigate whether the rooms were unusable and did not ask to have them decontaminated. Instead, Chen continued to use the office temporarily assigned to him during the renovations. Smith testified that the room at issue likely was not radioactive, but had only been used for some sort of radiometric counter. He also stated that, had Chen brought up the issue with him, he would have followed up on the problem. Smith said that he thought that Chen had just given up on research. Smith also testified that he was aware that Chen refused to move and had continued to use his old office. Chen later obtained permission from Linda Van Thiel to use another office in the same building that housed his current office. Van Thiel testified that Chen wanted the office for additional space. The office was part of a suite of offices in Room 309. She stated that the agreement was informal and that she never got permission or told anyone about the arrangement. She also testified that she informed Chen that if a particular funding request came through, the space would be renovated into a computer lab. She said that she informed Chen when the funding finally came through. In July 1994, Dr. Jack Lilien replaced Smith as the chairperson. Shortly after the change, Chen sent Lilien a letter notifying Lilien that he felt he was not in a position to do research and requesting help. Chen later had a meeting with Lilien. Chen testified that he told Lilien about his past unfair treatment by previous chairpersons and told him that he did not have an office or space for research. Chen said that he initially got along well with Lilien. Lilien testifie

MEAGHER v WAYNE STATE UNIVERSITY Docket Nos. 177139, 183282. Submitted September 3, 1996, at Detroit. Decided April 15, 1997, at 9:00 A.M. Leave to appeal sought. Suzanne Meagher brought an action in the Wayne Circuit Court against Wayne State University and several university employees, individually and as agents of the university, alleging age discrimination under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., and violation of due process under 42 USC 1983, after her employment as a research assistant supervising graduate students was terminated and a younger person was hired to replace her. The court, William Leo Cahalan, J., denied a motion by the defendants for summary disposition of the due process claim. Judge Robert L. Ziolkowski succeeded Judge Cahalan and granted the defendants summary disposition of the due process claim, ruling that the written contract of employment' had provided for employment that was terminable at will, and directed a jury verdict of no cause of action on the age discrimination claim, ruling that age had not been a factor in the decision to terminate employment. The court also awarded the defendants costs and attorney fees pursuant to MCL 600.2591(3)(a); MSA 27A.2591(3)(a), finding that the plaintiff’s due process claim and the claim against three individual defendants had been frivolous. The plaintiff filed two appeals, and the defendants cross appealed. The appeals were consolidated. The Court of Appeals held,-. 1. The trial court did not err in directing a verdict of no cause of action with respect to the age discrimination claim. Although the plaintiff established a prima facie case of age discrimination by presenting evidence of membership in the protected .class, discharge, qualification for the position, and replacement by a younger person, the plaintiff failed to prove by a preponderance of the evidence that the legitimate nondiscriminatoiy reasons for termination (poor supervision of a graduate student and poor handling of a research case) offered by the defendants were a mere pretext. The plaintiff failed to establish a prima facie case of disparate treatment because she did not show sufficiently that she was treated differently from employees of a different class for the same or similar conduct. With regard to the plaintiff’s claim on appeal that the trial court improperly used the reduction in force standard to determine whether the plaintiff had been discharged on the basis of her age, the trial court granted a directed verdict because it found no evidence that age was a factor in the decision to discharge, not because the plaintiff failed to make the additional proofs required in a case involving a reduction in work force. 2. The original judge’s denial of the defendants’ motion for summary disposition of the due process claim was not dispositive of the issue because the successor judge, under MCR 2.604, had the power to modify any order entered before the final judgment. The successor judge correctly granted summary disposition of the due process claim on the ground that employment had been terminable at will under the terms of the written employment contract. A public employee does not have a property right in continued employment where, as here, the position is held at the will of the employee’s superiors and the employee has not been promised termination only for cause. 3. The plaintiff failed to preserve for appellate review the claim that certain records were improperly admitted into evidence under the hearsay exception for business records by not objecting at trial on the ground asserted on appeal. 4. The plaintiff’s claim that the chief judge of the circuit court abused his discretion in upholding the trial judge’s denial of the plaintiff’s motion for disqualification of the trial judge cannot be considered because the plaintiff failed to provide a transcript of the chief judge’s ruling. No error is apparent from the record of the trial judge’s ruling on the motion, and disqualification for due process is not supported by evidence of a probability of actual bias that was too high to be tolerable under the Due Process Clause'of the constitution. 5. The record does not support the plaintiff’s claim that the trial judge was biased against her. 6. The trial court did not clearly, err in finding that the plaintiff’s due process claim and claim against three individual defendants were devoid of arguable legal merit so as to justify an award of costs and attorney fees to the defendants under MCL 600.2591(3)(a); MSA 27A.2591(3)(a). The trial court’s finding with respect to the due process claim is not clearly erroneous in light of the plaintiff’s written contract of employment providing for termination at will, and the finding with respect to the individual defendants is not clearly erroneous in the absence of a showing by the plaintiff of any factual or legal basis for the claims against those defendants. 7. The trial court did not have to await the 'outcome of the plaintiffs appeal of the grant of a directed verdict before granting the defendants’ motion for costs and attorney fees. The defendants won on the entire record at trial and therefore were the prevailing party for purposes of MCL 600.2591; MSA 27A.2591. 8. The plaintiff’s appeal with regard to the due process claim was vexatious within the meaning of MCR 7.216(C)(1)(b) because the plaintiff’s appellate brief violated court rules in exceeding the fifty-page limit on briefs and grossly disregarded the requirement of a fair presentation of the claim to this Court. The case must be remanded for an award to the defendants under MCR 7.216(C)(2) of their actual damages- and expenses, including reasonable attorney fees incurred in defending against the plaintiff’s appeal of the dismissal of the due process claim. Affirmed and remanded. 1. Motions and Orders — Directed Verdicts — Appeal. A grant or denial of a motion for a directed verdict is reviewed de novo on appeal; the evidence is considered in the light most favorable to the nonmoving party; a directed verdict is appropriate only when no factual question exists upon which reasonable minds may differ. 2. Civil Rights Employment Discrimination — Age — Intentional Discrimination — Disparate Treatment. Intentional discrimination and disparate treatment in employment involve the same theory of discrimination but different methods of proof (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 3. Civil Rights — Employment Discrimination — Age — Discharge. A prima facie case and rebuttable presumption of age discrimination with respect to termination of employment is established by a plaintiff who shows that the plaintiff is a member of the protected class, was discharged, was qualified for the position, and was replaced by a younger person; once a prima facie case is made, the defendant must produce evidence of a legitimate, nondiscriminatory reason for termination; if the' defendant produces such evidence, the plaintiff must prove by a preponderance of the evidence that the reason offered by the defendant is a mere pretext (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 4. Master and Servant — Public Employment — Property Interest — Due Process. A public employee does not have a property interest in continued employment, and therefore does not have a cognizable claim under 42 USC 1983 upon termination of employment for deprivation of property without due process, where the position is held at the will of the employee’s superiors and the employee has not been promised termination only for just cause. 5. Costs — Attorney Fees — Frivolous Claims. A claim is frivolous and a trial court may tax costs on the claimant to reimburse the prevailing party for costs incurred in litigation where the claimant’s primary purpose in initiating the action or asserting a defense was to harass, embarrass, or injure the prevailing party, the claimant had no reasonable basis to believe that the underlying facts were true, or the claimant’s position was devoid of arguable legal merit; a trial court need not await the outcome of a claimant’s appeal before awarding costs and attorney fees to a prevailing party (MCL 600.2591[3][a]; MSA 27A.2591[3][a]). Mary Anne M. Helveston, for the plaintiff. . Einheuser and Associates (by Michael Einheuser and Jonathan A. Green), for the defendants. Before: Young, P.J., and Taylor and R. C. Livo, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Taylor, J. This case arises out of the termination of plaintiffs employment at Wayne State University in 1991. In Docket No. 177139, plaintiff appeals as of right from a judgment of no cause of action resulting from a directed verdict, granted after a jury heard nine days of proofs, on her age discrimination claim, and the trial court’s pretrial grant of summary disposition of her due process claim under 42 USC 1983. Defendants have filed a cross appeal, but limit their arguments to plaintiff’s issues. In Docket No. 183282, plaintiff appeals as of right from the trial court’s post-trial order awarding costs and attorney fees pursuant to MCL 600.2591; MSA 27A.2591. We affirm and remand for imposition of sanctions pursuant to MCR 7.216(C) (vexatious appeal). i Plaintiff commenced this action on July 1, 1992, seeking damages and reinstatement to her former position as a research assistant for the Parents and Children Together (pact) Project in the Department of Sociology of the College of Liberal Arts at Wayne State University. Pact is funded pursuant to a contract between the university and the former Department of Social Services (dss). Pact studies families (e.g., the characteristics of families having children in foster care) and provides services to families referred by the dss. Pact’s goal was to return children to families, although, in some cases, the children stayed in the family home rather than in foster care when the family was referred by the dss to pact. Graduate students are hired by pact to serve as caseworkers for its in-home project for those families referred by the dss to pact. In addition to providing services, the graduate students were required to file regular reports on their assigned families. Mary Jane Van Meter was the principal investigator for pact at the time of plaintiff’s discharge. Van Meter was ultimately responsible for everything that happened in pact. Although Van Meter - supervised the pact research, there were several levels of supervision between Van Meter and the graduate students who were employed by PACT as caseworkers. As a research assistant in pact, plaintiff was one of the direct súpervisors of the graduate students. Plaintiff started working at PACT in 1977. For each of her fourteen years of employment, plaintiff executed written contracts setting forth the terms of her appointment as a research assistant. The contract language was modified over the years as new contracts were executed. The last contract executed by plaintiff specified: [R]enewal is to begin on.October 1, 1990. This is a non-tenure track assignment and carries no presumption of cpn.tinuing tenure. This renewal is subject to the pleasure of. the President or his/her designee and contingent on the availability of funding... . The terms of this agreement may not be modified or altered by any oral statements or representations. This agreement may only be modified in writing, signed by a University official as authorized by Executive Order 85-1. . . . The continuation of the assignment is dependent upon your satisfactory performance and upon continuation of funding. Plaintiff was discharged by Van Meter in May of 1991. Van Meter, who indicated that she was older than plaintiff, cited plaintiffs inadequate handling of a case in the in-home project (hereafter referred to as the Doe case) as grounds for the termination. The Doe case was being serviced by a graduate student subject to plaintiffs direct supervision. The Doe case was referred by the dss to pact on February 28, 1991. A graduate student was then assigned to provide in-home services for the family, which had one child residing outside the home as a temporary ward of the court and other children residing in the home with the mother. Among the stated goals set forth in the referral document was one to “improve mother’s parenting skills and discipline technique. Help entire family deal with issues around sexual abuse. Help to become more - secure when returning home transition.” It was undisputed that the graduate student assigned to the Doe case was experiencing personal difficulties during May of 1991, which, according to plaintiff’s own trial testimony, could probably be described as burnout. There was also trial evidence presented by the defense that information was acquired during pact’s handling of the case that should have been reported to the dss so that an investigation could be made by the DSS regarding whether children in the home were at risk for sexual abuse. On May 16, 1991, Van Meter was confronted by the mother in the Doe case about one of her daughters running away and Van Meter discussed this matter with the plaintiff. On May 21, 1991, Van Meter informed plaintiff that her employment was being terminated. After plaintiff was discharged, other supervisors of PACT shared plaintiff’s former responsibilities. Plaintiff, who was forty-eight years old, was temporarily replaced with an individual of similar age. Finally, after posting and rewriting the qualifications for the position to require that the applicant have a master’s degree in social work, a person significantly younger than the plaintiff was hired to permanently replace plaintiff. Plaintiff’s amended complaint alleged age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and' denial of due process under 42 USC 1983. The complaint named Wayne State University and four individual defendants: David Adamany in his individual capacity and as president of Wayne State University; John Oliver in his individual capacity and as dean of the College of Liberal Arts; David Britt in his individual' capacity and as the chairperson of the Department of Sociology; and Van Meter in her individual capacity and as an associate professor of sociology and principal investigator for PACT. In ruling on pretrial motions, the court determined that the due process claim should be dismissed because plaintiff’s employment was terminable at will. The case proceeded to trial solely on plaintiff’s age discrimination claim. n Defendants moved for a directed verdict at the close of plaintiff’s proofs. The court took the matter under advisement. After the close of defendants’ proofs, the court granted a directed verdict in favor of defendants because there was no evidence that age was a factor in the decision to terminate plaintiff’s employment. Plaintiff first contends that the trial court erred in granting a directed verdict on her age discrimination claim. Plaintiff asserts that the trial court applied the wrong standard when directing a verdict against her by utilizing a “reduction in force” standard. We find no error. At the outset, we note some conflict in the case law regarding the standard of review that we are to apply. One line of authority holds that we should review a trial court’s granting of a directed verdict under the deferential “abuse of discretion” standard. See, e.g., Rasmussen v Louisville Ladder Co, Inc, 211 Mich App 541, 545; 536 NW2d 221 (1995); Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186-187; 466 NW2d 717 (1991). Another line of authority holds that we should utilize the same test as the trial court, which implies review de novo. See, e.g., Matras v Amoco Oil Co, 424 Mich 675, 681-682; 385 NW2d 586 (1986); Haberkorn v Chrysler Corp, 210 Mich App 354, 364; 533 NW2d 373 (1995); Dep’t of Transportation v McNabb, 204 Mich App 674, 676; 516 NW2d 83 (1994); Berryman v K mart Corp, 193 Mich App 88, 91; 483 NW2d 642 (1992). Because we have found no Michigan Supreme Court opinion holding that a directed verdict is reviewed for an abuse of discretion, and because Matras, supra, indicates that an appellate court is to apply the same test that the trial court applies, we review the trial court’s decision de novo and reject the cases that hold that we. should review the trial court’s decision for an abuse of discretion.. When evaluating a motion for a directed verdict, a court must consider the evidence in the light most favorable to the nonmoving party, making all reasonable inferences in favor of the nonmoving party. Locke v Pachtman, 446 Mich 216, 223; 521 NW2d 786 (1994). Directed verdicts are appropriate only when no factual question exists upon which reasonable minds may differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). Plaintiff’s age discrimination claim is based upon that portion of the Civil Rights Act that provides that an “employer” shall not [f]ail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age. [MCL 37.2202(1)(a); MSA 3.548(202)(1)(a).] A plaintiff may attempt to prove age discrimination using different methods. Wolff v Automobile Club of Michigan, 194 Mich App 6, 11; 486 NW2d 75 (1992). As explained in Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538-539; 470 NW2d 678 (1991): To prove intentional discrimination, the plaintiff must show that he was a member of the affected class, that he • was discharged, and that the person who discharged him was predisposed to discriminate against persons in the affected class and actually acted on that disposition in dis-' charging him. To prove disparate treatment, the plaintiff must show that the plaintiff was a member of the class entitled to protection under the act and that he was treated differently than persons of a different class for the same or similar conduct. A prima facie case of discrimination can also be made by showing a disparate effect. This theory requires a showing that a facially neutral employment practice burdens a protected class of persons more harshly than others. [Citations omitted.] This quote from Reisman seems to suggest that intentional discrimination is different from disparate treatment. That is not the case. As noted in Lytle v Malady, 209 Mich App 179, 185, n 1; 530 NW2d 135 (1995), lv gtd 451 Mich 920 (1996), many decisions have confused these two theories of discrimination with the differing methods of proving each theory. Intentional discrimination is not a separate theory, but rather another name for the disparate treatment theory. Id. Or, as stated in Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 654; 378 NW2d 558 (1985), an alternative method of proving disparate treatment has been labeled as “intentional discrimination.” This is confirmed by the fact that the jury instruction for disparate treatment provides “the discrimination must have been intentional.” SJI2d 105.02. The general rule in an age discrimination case is that, to survive a motion for a directed verdict, the plaintiff must present evidence that, when viewed in a light most favorable to the plaintiff, would permit a reasonable jury to find that the plaintiff was discharged because of age. Matras, supra at 682. When it is asserted that the plaintiff was discharged because of age, the individual’s age need not be the only reason or main reason for discharge but must be one of the reasons that made a difference in determining whether to discharge the person. SJI2d 105.04. The question is whether age was a determining factor in the discharge. Barnell v Taubman Co, Inc, 203 Mich App 110, 121; 512 NW2d 13 (1993). Although the inquiry is always the same, i.e., was the discharge “because of age,” different approaches may be used to meet this burden of pro

REISMAN v REGENTS OF WAYNE STATE UNIVERSITY Docket Nos. 111538, 111557. Submitted July 8, 1990, at Lansing. Decided April 16, 1991, at 9:05 a.m. Leave to appeal sought. Betty L. Reisman brought an action in the Court of Claims and the Wayne Circuit Court against the Regents of Wayne State University alleging breach of an employment contract and reverse discrimination, respectively, after her contract of employment was not renewed. Trials were conducted simultaneously by Richard P. Hathaway, J. The Court of Claims entered a judgment of no cause of action on the breach of contract claim, and a circuit court jury returned a judgment for the plaintiff with regard to the reverse discrimination claim. The plaintiff appealed the judgment of the Court of Claims and the defendant appealed that of the circuit court. The appeals were consolidated in the Court of Appeals. The Court of Appeals held: The judgment of the Court of Claims is affirmed. The judgment of the Wayne Circuit Court is affirmed in part and reversed in part, and the case is remanded for a new trial. 1. The Court of Claims judgment of no cause of action was proper. An employee, such as the plaintiff, who is discharged for reasons of budget cutbacks or economic necessity does not have grounds for a wrongful discharge claim, even if the employment contract expressly provides that the employee is subject to termination only for just cause. The evidence supports a finding that the decision not to renew the plaintiff’s employment contract was motivated by economic necessity. The defendant permitted the plaintiff to serve out the term of her contract of employment and did not breach the contract. 2. The defendant preserved for appeal the issue of the jury instruction regarding the effect of the defendant’s affirmative action policy. 3. The fact that an affirmative action plan, like the one involved in this action, has not been approved by the Civil Rights Commission does not render the plan invalid, and actions taken pursuant to an unapproved plan are not discriminatory per se. The jury was erroneously instructed that, if it found that the defendant considered race in deciding not to renew the plaintiffs contract, it must find that the defendant violated the plaintiffs civil rights. The instruction precluded the jury from considering whether consideration of the affirmative action policy was a legitimate justification for the nonrenewal of the plaintiffs contract. The instruction denied the defendant a fair trial, and reversal is required. References Am Jur 2d, Job Discrimination § 1158. See the Index to Annotations under Budgets and Budgetary Matters; Discrimination; Equal Employment Opportunity. 4. Because the plaintiffs contract allegedly was not renewed because of economic necessity, a prima facie case of race discrimination cannot be established merely by showing that race was a factor in the decision not to renew the plaintiffs employment contract. Instead, the plaintiff must present sufficient evidence to establish that race was a determining factor in the decision not to renew her contract. Because the evidence was such that reasonable jurors could honestly have reached different conclusions about whether the plaintiffs race was a determining factor in the decision not to renew her contract, the trial court did not err in denying the defendant’s motions for a directed verdict and judgment notwithstanding the verdict. 5. If it is determined on retrial that the defendant violated the Civil Rights Act in deciding not to renew the plaintiffs contract, the plaintiff is entitled to any damages which she can show she suffered as a result of the discrimination. Affirmed in part, reversed in part, and remanded. 1. Master and Servant — Termination of Employment — Economic Necessity. An employee who is discharged for reasons of budget cutbacks or economic necessity does not have grounds for a wrongful discharge claim, even if the employment contract expressly provides that the employee is subject to termination only for just cause. 2. Civil Rights — Affirmative Action Plans — Civil Rights Commission Approval. The fact that an affirmative action plan has not been approved by the Civil Rights Commission does not render the plan invalid, and actions taken pursuant to an unapproved plan are not discriminatory per se. 3. Civil Rights — Employment Discrimination — Race — Economic Necessity — Burden of Proof. A plaintiffs burden of proof in an action alleging employment discrimination based on race may vary depending on the facts of the particular case; a plaintiff has a greater burden of proof where the employer is making cutbacks because of economic necessity; under such circumstances, a prima facie case of race discrimination cannot be established merely by showing that race was a factor in the employment decision; instead, the plaintiff must present sufficient evidence to establish that race was a determining factor. Fried & Levitt, P.C. (by Gary E. Levitt), for the plaintiff. Wayne State University Office of the General Counsel (by Daniel J. Bernard, Assistant General Counsel), for the defendant. Before: Marilyn Kelly, P.J., and Hood and Doctoroff, JJ. Per Curiam. These are appeals as of right from two cases that were conducted simultaneously before the same judge. The appeals were consolidated. In Docket No. 111538, plaintiff filed a complaint in the Court of Claims, alleging breach of an employment contract. This claim was heard by a Wayne Circuit Court judge sitting as the Court of Claims. Plaintiff appeals from the trial court’s ruling of no cause of action, arguing that the court erred in ruling that plaintiff failed to prove that she was discharged without cause. We affirm. In Docket No. 111557, plaintiff filed a complaint in the Wayne Circuit Court, alleging reverse race discrimination. This claim was heard by a jury, which returned a verdict in plaintiff’s favor in the amount of $1,582,000, plus interest and attorney fees. The trial court subsequently granted remittitur, reducing the damage award by $200,000. Defendant appeals, raising several issues. Defendant argues that the uncertainty of tenure is fatal to plaintiff’s claim for future wages and benefits; that the trial court erred in excluding certain evidence, in instructing the jury regarding the effect of defendant’s affirmative action policy, and in failing to grant defendant’s motions for a directed verdict and judgment notwithstanding the verdict; and that a new trial is required because of jury misconduct and inconsistent verdicts. Plaintiff cross appeals, arguing that the trial court erred in granting remittitur. We find dispositive defendant’s argument that the trial court erred in instructing the jury regarding the effect of defendant’s affirmative action policy. Accordingly, we reverse and remand for a new trial. On July 12, 1979, the university offered Gordon Smith, a black male, a position as an assistant professor in the area of guidance and counseling of the Division of Theoretical and Behavioral Foundations of the College of Education, for a two-year term. On July 23, 1979, the university offered plaintiff, a white female, the position of associate professor in the guidance and counseling area of the same division for a two-year term. Both plaintiff and Smith accepted the offers and began teaching in the fall semester of 1979. Both contracts were renewed twice more, both times for one-year terms. In November 1982, at the beginning of her fourth year with the university, plaintiff applied for tenure. On November 24, 1982, the university informed plaintiff that her contract would not be renewed and that her employment would end on August 31, 1983. Smith’s contract was renewed for another one-year term. In May 1983, plaintiff was notified that her application for tenure was denied. In Docket No. 111538, plaintiff appeals from the judgment of no cause of action entered by the Court of Claims in regard to plaintiff’s breach of contract claim. In an opinion issued on March 24, 1988, the Court of Claims concluded that in 1979 and 1981 the parties entered into legally enforceable contracts of employment which provided that plaintiff could be terminated only for just cause, that plaintiff had not proven by a preponderance of the evidence that the dean of the College of Education made all the alleged statements concerning "life time” employment, that defendant did not breach the employment contract by nonrenewal of plaintiff’s contract of employment for the 1983-84 school year, and that plaintiff had not proven by a preponderance of the evidence that she was terminated without just cause. Plaintiff asserts that the Court of Claims correctly found that a Toussaint contract existed, but that the court erred in ruling that she failed to prove by a preponderance of the evidence that her employment was terminated without just cause. Defendant argues that Toussaint does not apply to the contract at issue, but, nevertheless, that the judgment of no cause of action was correct. Where a trial court reaches the correct result for the wrong reason, the result will not be disturbed on appeal. Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 642; 413 NW2d 79 (1987); Dutka v Sinai Hosp of Detroit, 143 Mich App 170, 176; 371 NW2d 901 (1985). For several reasons, the judgment of no cause of action was correct. First, the contract theories articulated in Toussaint do not apply when the conduct of the parties is governed by a collective bargaining contract. Sankar v Detroit Bd of Ed, 160 Mich App 470, 478-479; 409 NW2d 213 (1987). In the instant case, a collective bargaining agreement was in force at all times. Indeed, plaintiff availed herself of the grievance and arbitration procedure set forth in the collective bargaining agreement. Second, an employee who is discharged for reasons of budget cutbacks or economic necessity does not have grounds for a wrongful discharge claim, even if the employment contract expressly provides that the employee is subject to termination only for just cause. Bhogaonker v Metropolitan Hosp, 164 Mich App 563; 417 NW2d 501 (1987); Friske v Jasinski Builders, Inc, 156 Mich App 468; 402 NW2d 42 (1986). Plaintiff concedes that in 1981 and 1982 defendant was experiencing a budget crisis which required work force reductions. In addition, the evidence overwhelmingly supports a finding that the decision not to renew plaintiffs contract was motivated by economic necessity. Third, plaintiffs contracts with defendant were for a definite term. The collective bargaining agreement, the supplement to the agreement negotiated in 1982, the university’s "statutes,” and the letters of offer and acceptance establish that the express terms of the contract created employment for the stated duration. In fact, the letters offering plaintiff one-year renewals for 1981-82 and 1982-83 specifically stated, "Please note that this appointment carries no presumption of reappointment beyond the stated time period.” Plaintiff accepted the reappointments by signing the letters. The university permitted plaintiff to serve out the term of her last contract as expressly provided and, thus, did not breach the contract. The dismissal of plaintiffs breach of contract action is affirmed. In Docket No. 111557, defendant appeals from the verdict in plaintiffs favor on her race-discrimination claim. We first address defendant’s argument that the trial court erred in instructing the jury regarding the effect of defendant’s affirmative action policy. Plaintiff asserts that defendant failed to preserve this issue for appeal. Defendant did not state its objections to the instruction immediately after the trial court finished instructing the jury. However, defendant did object to the instruction during the discussion of jury instructions that took place before the trial court instructed the jury and also raised the issue in its motion for judgment notwithstanding the verdict or a new trial. Thus, the trial court had the opportunity to consider the issue. In our view, this issue was sufficiently preserved for review. In addition, when a defect in an instruction to which no objection was made pertains to a basic and controlling issue in a case, this Court may address the error in order to avoid manifest injustice. Gallaway v Chrysler Corp, 105 Mich App 1, 6-7; 306 NW2d 368 (1981). Plaintiff’s theory in this case was that the decision not to renew her contract was based on defendant’s affirmative action policy. Plaintiff argued that the policy was invalid because it had not been approved by the Civil Rights Commission and, therefore, that any consideration of race by defendant was a violation of the law. Thus, the effect of the affirmative action policy was a basic and controlling issue in this case. If a jury charge is erroneous or inadequate, reversal is required only where failure to reverse would be inconsistent with substantial justice. MCR 2.613(A); Willoughby v Lehrbass, 150 Mich App 319, 336; 388 NW2d 688 (1986). The trial court charged the jury as follows: I instruct you that if you find that race or color was at least one of the reasons that made a difference in determining that Betty Reisman’s contract was to be non-renewed, defendant cannot avoid liability to plaintiff by claiming that the defendant’s acts were done pursuant to an affirmative action plan. The challenged instruction was based upon the interpretation of § 210 of the Civil Rights Act, MCL 37.2210; MSA 3.548(210), by the Court in JF Cavanaugh & Co v Detroit, 126 Mich App 627; 337 NW2d 605 (1983). Section 210 provides: A person subject to this article may adopt and carry out a plan to eliminate present effects of past discriminatory practices or assure equal opportunity with respect to religion, race, color, national origin, or sex if the plan is filed with the commission under rules of the commission and the commission approves the plan. In Cavanaugh, the City of Detroit passed an ordinance requiring all city contractors to take affirmative action to achieve reasonable representation of minority groups and women on their work force. Although primarily a preemption case, this Court also affirmed the trial court’s ruling that the ordinance was invalid because it conflicted with state law requiring that employers not discriminate on the basis of religion, race, color, national origin, or sex. In discussing the validity of the ordinance, the Court quoted § 210 and then stated: In view of the statute’s prohibition of discrimination, §210 implicitly precludes the use of an affirmative action plan unless the plan is "filed with the [civil rights] commission under rules of the commission and the commission approves the plan.” The nature of the interaction between nondiscrimination laws and affirmative action plans is such that we are convinced that the Legislature intended to preclude municipalities from requiring the adoption and use of plans approved only by the municipality. We also agree with plaintiffs’ contention that compliance with a city-approved affirmative action plan will not insulate an employer from charges that it violated the state’s nondiscrimination law. [126 Mich App 637-638.] The next case addressing this issue was Van Dam v Civil Service Bd of Grand Rapids, 162 Mich App 135; 412 NW2d 260 (1987). The Court in Van Dam reversed the grant of summary disposition in the defendant’s favor. The trial court had ruled that submission of an affirmative action plan for approval was not absolutely required by §210. This Court found that the trial court erred in construing the statute as giving the city discretion in submitting the plan for approval and ruled that, once a plan is initiated, it must be submitted to the Civil Rights Commission for approval before it can take effect. Citing Cavanaugh, this Court held that the defendant’s unapproved plan was invalid. See also Victorson v Dep’t of Treasury, 183 Mich App 318; 454 NW2d 256 (1990) (an unapproved affirmative action plan is invalid). A conflict in decisions developed with the release of Ruppal v Dep’t of Treasury, 163 Mich App 219; 413 NW2d 751 (1987). The trial court in Ruppal ruled that action taken pursuant to an unapproved affirmative action plan was void and discriminatory per se, and granted summary disposition for the plaintiff. This Court rejected the view that an unapproved affirmative action plan was void and discriminatory per se and reversed. The Court rejected the trial court’s reasoning, stating: There are at least two problems with this line of reasoning. First, there is nothing to suggest that an unapproved affirmative action plan is void under § 210, or that any action taken pursuant to the plan is void as discriminatory per se. Instead, failure to obtain Civil Rights Commission approval means that the plan "will not insulate an employer from charges that it violated the state’s nondiscrimination law.” J F Cavanaugh & Co v Detroit, 126 Mich App 627; 337 NW2d 605 (1983). Stated differently, protection from a lawsuit alleging discrimination cannot be guaranteed absent an approved plan. This is a far-different proposition than the trial court’s conclusion that the plan and actions taken pursuant to the plan are wholly invalid. Second, and more fundamentally, a court’s inquiry in a sex discrimination case under the Civil Rights Act does not end with a finding that the plaintiff has made out a prima facie case that sex has been taken into account in an employer’s employment decision. Once a court concludes that a plaintiff has proven a prima facie case of discrimination then the court must next consider the defendant’s explanation or justification for the presumptively discriminatory action. [163 Mich App 226-227. Emphasis in original.] The Ruppal Court, in short, ruled that the defendants could not be held liable merely because of the failure to obtain Civil Rights Commission approval of the affirmative action plan. Failure to obtain approval simply precluded the plan from serving as a statutory defense. See also Kulek v Mt Clemens, 164 Mich App 51, 64; 416 NW2d 321 (1987) (reliance on an unapproved plan will not insulate an employer from charges that it violated the state’s nondiscrimination law, "but the unapproved plan itself, and actions taken pursuant to it, are not necessarily invalid”). Where the language of a statute is clear and unambiguous, judicial interpretation is precluded, and this Court should not look beyond the ordinary meaning of the unambiguous language in giving effect to the statute. Wills v Iron Co Bd of Canvassers, 183 Mich App 797, 801; 455 NW2d 405 (1990). If construction is required, this Court is obliged to determine and give effect to the intention of the Legislature. Id. Statutory language should be given a reasonable construction considering its purpose and the object sought to be accomplished. An act must be read in its entirety, giving due consideration to all sections to produce an harmonious and consistent enactment of the whole. Id. Statutes are to be construed to avoid absurd or unreasonable consequences. Id. The overall purpose of the Civil Rights Act was stated in Miller v C A Muer Corp, 420 Mich 355, 362-363; 362 NW2d 650 (1984): Civil rights acts seek to prevent discrimination against a person because of stereotyped impressions about the characteristics of a class to which the person belongs. The Michigan civil rights act is aimed at "the prejudices and biases” borne against persons because of their membership in a certain class, Boscaglia v Michigan Bell Telephone Co, 420 Mich 308, 316; 362 NW2d 642 (1984); Freeman v Kelvinator, Inc, 469 F Supp 999, 1000 (ED Mich, 1979), and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. We agree with the decision in Ruppal that nothing in the statute suggests that an unapproved affirmative action plan is void or that action taken pursuant to an unapproved plan is di