Breach of Contract Cases

CATHY HOWARD, Plaintiff-Appellee v. OAKWOOD HOMES CORP., Defendant-Appellant No. COA98-1101 (Filed 6 July 1999) 1. Appeal and Error— appealability — right to arbitrate The right to arbitrate a claim is a substantial right which may be lost if review is delayed and an order denying arbitration is therefore immediately appealable. 2. Employer and Employee— dispute resolution program— employment contract The trial court erred by denying defendant’s motion to compel dispute resolution and stay judicial proceedings where the court concluded that the dispute resolution program (DRP) was unenforceable due to lack of consideration. The evidence was sufficient to show that plaintiff knew that the terms of the DRP would apply to her should she continue her employment and both plaintiff and defendant were mutually bound by the terms of the DRP. Unlike a covenant not to compete, an arbitration agreement requires a new promise from both parties which mutually changes the nature of the employment relationship and this mutual promise is new and sufficient consideration. Agreements to arbitrate are favored and encouraged, whereas covenants not to compete are disfavored. Appeal by defendant from judgment entered 9 July 1998 by Judge Catherine Eagles in Guilford County Superior Court. Heard in the Court of Appeals 20 April 1999. Gray, Newell & Johnson, LLP, by Angela Newell Gray, for plaintiff-appellee. Constangy, Brooks & Smith, LLC, by W.R. Loftis, Jr., and Virginia A. Piekarski, for defendant-appellant. MARTIN, Judge. Defendant Oakwood Homes Corp. appeals the denial of its motion to compel arbitration and stay judicial proceedings in the underlying civil action. Briefly summarized, the record discloses that defendant manufactures and sells homes throughout the United States and employs approximately 9,600 employees to that end. Plaintiff Cathy Howard began employment with defendant on a temporary basis in 1991, and accepted a full time position as an at-will employee in defendant’s Title Department in September 1992. On 1 May 1997, defendant implemented a Dispute Resolution Program (“DRP”) requiring defendant and its employees to submit to dispute resolution as the exclusive means of resolving a variety of employment disputes, including those arising out of an employee’s termination. The program provides that an employee with a claim may submit a written complaint to defendant’s Director of Human Resources. The complaint is then investigated, and an answer is provided to the employee. If the employee is not satisfied, the employee may request non-binding mediation conducted by a mediator provided by the American Arbitration Association. If the defendant and the employee are unable to resolve the dispute through mediation, the employee may elect to submit the dispute to binding arbitration in which the arbitrator may grant any remedy or relief that would have been available through the courts. Under the DRP, all arbitra-tions are conducted in accordance with the Federal Arbitration Act (“FAA”). Prior to the 1 May 1997 effective date of the DRP, on 1 April 1997, defendant’s Vice-President of Human Resources mailed to covered employees a copy of the DRP with a memorandum informing employees that both defendant and the employee would be bound by the program, and that an employee’s decision to continue employment with defendant would constitute an agreement to be bound by the terms of the DRP. Additionally, on 7 April 1997, Paul Macksood, defendant’s Director of Human Resources, distributed an office memorandum to employees informing them of scheduled meetings at which employees were to be instructed on the terms of the DRP and permitted to ask questions about it. On 3 June 1997, following implementation of the DRP, plaintiff’s employment with defendant was terminated for poor performance. Plaintiff complained that she was not issued a final warning prior to her termination. In response to her complaint, Mr. Macksood informed plaintiff that her claim was treated as though it had been brought under the DRP, that it had been investigated accordingly, and although defendant was not required to issue plaintiff a final warning, defendant would provide plaintiff another opportunity to improve her level of performance. Plaintiff’s termination was rescinded. Mr. Macksood reminded plaintiff by letter that she was bound by the DRP and attached a copy of the program thereto. On 18 July 1997 plaintiff was again terminated for poor performance, and on 23 April 1998 she commenced the underlying civil action against defendant, alleging wrongful termination, negligent infliction of emotional distress, negligent supervision, negligent retention, and intentional infliction of emotional distress. On 12 June 1998 defendant moved for an order to stay judicial proceedings and compel plaintiff to submit her claim to dispute resolution pursuant to the DRP. The trial court denied defendant’s motion, concluding that no agreement to arbitrate existed due to lack of consideration. Where a trial court’s order, such as the order sub judice, fails to resolve all issues between all parties in an action, the order is not a final judgment, but rather is interlocutory. First Atlantic Management Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56 (1998). While an interlocutory order is generally not directly appealable, such an order will be considered “ ‘if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review.’ ” N.C. Ins. Guar. Ass’n v. Burnette, 131 N.C. App. 840, 843, 508 S.E.2d 837, 839 (1998) (citation omitted); see also N.C. Gen. Stat. § 1-277, 7A-27. The right to arbitrate a claim is a substantial right which may be lost if review is delayed, and an order denying arbitration is therefore immediately appealable. Burke v. Wilkins, 131 N.C. App. 687, 688, 507 S.E.2d 913, 914 (1998). In its sole assignment of error, defendant argues that its motion to compel arbitration should have been granted, and that the trial court erred in concluding that the DRP was not an enforceable agreement due to lack of consideration. We agree. We note at the outset that North Carolina “ ‘has a strong public policy favoring the settlement of disputes by arbitration’ ”, and that “[o]ur Supreme Court has held that where there is any doubt concerning the existence of an arbitration agreement, it should be resolved in favor of arbitration.” Martin v. Vance, 133 N.C. App. 116, 120, 514 S.E.2d 306, 309 (1999) (citing Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 91-92, 414 S.E.2d 30, 32 (1992)). Although arbitration is favored in the law, in order to be enforced, the underlying agreement must first be shown to be valid as determined by a common law contract analysis. Routh v. Snap-On Tools Corp., 108 N.C. App. 268, 423 S.E.2d 791 (1992). It is a basic principle of contract law that in order to be valid, an agreement must be supported by adequate consideration. Deans v. Layton, 89 N.C. App. 358, 368, 366 S.E.2d 560, 567, disc. review denied, 322 N.C. 834, 371 S.E.2d 276 (1988) (citation omitted). “Mutual promises may constitute reciprocal consideration to support a contract.” Id. In Vance, supra, this Court recently ruled on the validity of an agreement to arbitrate in the employment context. The plaintiff in Vance had been employed with the defendant since 1990, and in 1994 the defendant implemented an alternative dispute resolution grievance procedure which was set forth in the personnel policy manual. In holding that the agreement was supported by adequate consideration, this Court stated, .. . the agreement to arbitrate does not fail for lack of consideration. Mutual binding promises provide adequate consideration to support a contract. Where each party agrees to be bound by an arbitration agreement, there is sufficient consideration to uphold the agreement. Vance at 122, 514 S.E.2d at 310 (citations omitted). The Vance court noted that other jurisdictions have held that mutual promises to arbitrate constitute sufficient consideration, specifically citing the Fourth Circuit opinions in O’Neil v. Hilton Head Hospital, 115 F.3d 272 (4th Cir. 1997), and Johnson v. Circuit City Stores, 148 F.3d 373 (4th Cir. 1998). We too find such cases instructive. In O’Neil, the plaintiff had been employed with defendant hospital since 1991. In 1994, the plaintiff signed an agreement that she would arbitrate all claims as a condition of her continued employment. O’Neil at 273. The plaintiff was subsequently terminated, and she filed suit, arguing that the agreement was invalid for lack of consideration where it was not binding on the hospital. Id. at 274-75. The Fourth Circuit, in holding that the agreement was mutually binding, stated that the employer’s proffer of the agreement implied that both employer and employee would be bound by the agreement, and that the employer had consistently argued that it was bound by the agreement. Id. at 275. The court held that a mutual agreement existed, and that “a mutual promise to arbitrate constitutes sufficient consideration for this arbitration agreement.” Id. (citation omitted). In Johnson, the Fourth Circuit reversed the district court’s conclusion that an arbitration agreement was void for lack of consideration, and held that an agreement between the parties to be bound by the same rules was sufficient consideration to support the arbitration agreement. Johnson at 378. The court stated, As in O’Neil, both parties in this case agreed to be bound by the arbitration process for the resolution of any claim required to be submitted to arbitration under the Dispute Resolution Agreement. Therefore, we hold that the Dispute Resolution Agreement was supported by adequate consideration. ... no consideration above and beyond the agreement to be bound by the arbitration process was required. Id. Following this Court’s holding in Vance, and applying the reasoning of O’Neil and Johnson, we hold that the mutual promise to abide by the provisions of the DRP and to relinquish the right to pursue certain disputes in court is sufficient consideration to support the DRP agreement. Moreover, we are unpersuaded by plaintiff’s argument that there was no mutual agreement to be bound by the terms of the DRP. As in O’Neil, supra, by proffering the DRP, defendant has at least implicitly agreed to be mutually bound by the DRP, and, as in O’Neil, defendant has consistently argued that it is bound by the DRP and has shown a commitment to arbitration by virtue of this action. Moreover, the DRP provides that all arbitrations are to be conducted pursuant to the FAA. The FAA requires that agreements to arbitrate be in writing, however, such agreements need not be signed. See Real Color Displays, Inc. v. Universal Applied Technologies Corp., 950 F. Supp. 714 (E.D.N.C. 1997) (As in contract law, the FAA imposes no requirement that a written arbitration agreement be signed by the party to be charged, and it is sufficient that a party by act or conduct commits himself to the agreement.). In Vance, we noted that where the language of a contract is clear and unambiguous, we must interpret the contract as written. Vance, supra (citing Robbins v. Trading Post, 253 N.C. 474, 117 S.E.2d 438 (1960)). The Vance court, upon noting that the plaintiff had actually signed the contract, the terms of which unambiguously bound her to arbitration, held it unnecessary to look beyond the writing to determine if mutual assent existed. Id. In the present case, however, plaintiff did not sign the agreement, and, while the terms of the DRP unambiguously bound her to the agreement should she continue employment through 1 May 1997, we look beyond the writing to determine if mutual assent to the terms of the DRP existed. An examination of the record shows that plaintiff continued in defendant’s employment with actual notice that the terms of the DRP would be mutually effective 1 May 1997, and she therefore evidenced her mutual assent to the terms of the DRP by continuing in her employment. Defendant mailed to plaintiffs home on 1 April 1997 a copy of the DRP as well as a memorandum regarding the requirements and effective date of the program. On 7 April 1997 defendant notified employees of the impending implementation, as well as a schedule of meetings where employees could learn and ask questions about the DRP. Plaintiff again received a copy of the DRP by mail on 24 June 1997 accompanied by a letter from Mr. Macksood informing her that her prior employment dispute had been handled pursuant to the terms of the DRP. Moreover, plaintiff, in a complaint filed with the Equal Employment Opportunities Commission, acknowledged existence of the DRP agreement and that the recission of her initial termination occurred as a result of DRP procedures. We hold such evidence to be sufficient to show plaintiff knew that the terms of the DRP would apply to her should she continue in her employment, and that by doing so, plaintiff mutually assented to the program. Both plaintiff and defendant were mutually bound by the terms of the DRP, and such mutuality provided the consideration necessary to support the agreement. We, of course, are advertent to the decisional law in this State which holds that the prospect of continued employment is insufficient consideration to support a covenant not to compete where the employee receives “no change in compensation, commission, duties, nature of employment or other consideration in exchange for signing the agreement....” Cox v. Dine-A-Mate, Inc., 129 N.C. App. 773, 776, 501 S.E.2d 353, 355, disc. review denied, 349 N.C. 355, 525 S.E.2d 449 (1998). In Milner Airco, Inc. v. Morris, 111 N.C. App. 866, 870, 433 S.E.2d 811, 814 (1993), this Court held a non-compete agreement to be unsupported by sufficient consideration where the employer “made no new promise that he was required to keep in return for the promise not to compete.” Plaintiff argues that the principle of such cases should apply here. Unlike a covenant not to compete, however, an arbitration agreement requires a new promise from both parties which mutually changes the nature of the employment relationship in that both parties relinquish their right to pursue certain employment disputes in court. As stated above, this mutual promise is new and sufficient consideration to support the agreement. Moreover, the principle that continued employment alone is insufficient consideration is applied in the context of covenants not to compete which invoke policy concerns and are disfavored by the law, whereas agreements to arbitrate are favored and encouraged. See Cox v. Dine-A-Mate, supra (in order to be valid, covenant not to compete must be shown to be reasonable and not against public policy); Johnston County v. R.N. Rouse & Co., supra (North Carolina has strong public policy favoring agreements to arbitrate). Additionally, plaintiff argues that the DRP is egregious and viola-tive of plaintiffs constitutional rights. However, the trial court’s sole conclusion of law in denying defendant’s motion to compel arbitration pursuant to the DRP was that no agreement to arbitrate exists between the parties “since there was no vaiid consideration.” Plaintiff has not cross-assigned error to the trial court’s failure to find and conclude, as an alternative basis for denying defendant’s motion, that the DRP was egregious and violative of plaintiff’s constitutional rights. We therefore do not consider plaintiff’s argument. See N.C.R. App. P. 10(d) (appellee may cross-assign as error any action or omission of the trial court depriving appellee of alternative basis in law for supporting the trial court’s order); N.C.R. App. P. 10(a) (“scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10”); Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998). The order of the trial court denying defendant’s motion to compel dispute resolution and stay judicial proceedings is hereby reversed, and this case is remanded to the trial court for entry of an order granting defendant’s motion. Reversed and remanded. Judges GREENE and McGEE concur.

NOVAK v NATIONWIDE MUTUAL INSURANCE COMPANY Docket No. 204162. Submitted February 2, 1999, at Detroit. Decided June 1, 1999, at 9:05 A.M. Leave to appeal sought. Terry Novak and Novak & Associates Insurance, Inc., brought an action in the Wayne Circuit Court against Nationwide Mutual Insurance Company and other Nationwide Insurance companies (hereinafter Nationwide) and Edward Malinowski, seeking damages for Nationwide’s allegedly illegal termination of Novak’s employment as an insurance sales agent. When plaintiff Novak took over plaintiff agency from his father, he signed an employment agreement with Nationwide that specified, among other things, that he would be enrolled in Nationwide’s agent development program upon successful completion of a training period, that he would begin to receive full commissions on his father’s former accounts if he successfully handled those accounts for two years, that he would not sell insurance for insurance carriers other than Nationwide unless directed to do so by Nationwide, and that the employment contract was terminable at will by either party. Less than two years later, Nationwide terminated Novak’s employment. Novak asserted that the termination of his employment was not subject to the employment-at-will provision of the employment agreement, that he was entitled to continued employment by reason of promissory estoppel or fraudulent and innocent misrepresentations, and that the termination of his employment was improper because it resulted in violations of the Insurance Code, the federal Fair Housing Act, and the Civil Rights Act. Nationwide moved for summary disposition, asserting that, notwithstanding the at-will provision of the employment agreement, Novak’s employment was terminated for cause. The court, Brian K. Zahra, J., granted summary disposition for Nationwide. Plaintiff Novak appealed. The Court of Appeals held: 1. Because the written employment contract contained both an express provision that Novak’s employment was at-will and an express provision that any modification of the contract must be in writing and signed by a representative of Nationwide, Novak’s allegation that he was told by one of Nationwide’s employees that the at-will provision would not apply to him, even if true, would not negate the express language of the written contract that he signed. Accordingly, the trial court properly granted summary disposition for Nationwide with respect to Novak’s common-law wrongful discharge claim. Further, because Novak failed to claim that Nationwide promised just-cause employment to its work force in general, the court properly dismissed Novak’s claim of a right to continued employment based on a legitimate expectation of just-cause employment. 2. Novak alleged that notwithstanding the employment contract’s at-will provision, Nationwide’s termination of his employment was precluded by the anti-redlining provision of § 209 of the Michigan Insurance Code, MCL 500.1209; MSA 24.11209. Subsection 3 of § 209, MCL 500.1209(3); MSA 24.11209(3), provides that a home or automobile insurer is prohibited from canceling an agent’s contract except for malfeasance, breach of fiduciary duty or trust, violation of the Insurance Code, failure to perform in accordance with the parties’ contract, or failure to submit at least twenty-five applications for insurance in the preceding twelve-month period. Subsection 4 of § 209, MCL 500.1209(4); MSA 24.11209(4), provides that subsection 3 is not to be construed as permitting termination of an agent’s authority where the termination is based primarily on the location of the agent’s insurance business or on the actual or expected loss experience of the agent’s business insofar as the loss experience is related to the geographical location of the agent’s business. Subsection 5, MCL 500.1209(5); MSA 24.11209(5), provides that subsection 3 does not apply with respect to an agent that is an employee of the insurer where the property rights in the renewal of insurance policies are owned by the insurer and the termination of the agent’s employment contract does not result in the cancellation or nonrenewal of any home or automobile insurance policy. 3. There is no factual dispute that Novak was an employee of Nationwide or that Nationwide owned the property rights in the renewal of the policies issued to Novak’s customers. Although Novak suggests that the termination of his employment resulted in the cancellation or nonrenewal of home or automobile insurance policies, pointing to a slightly higher rate of cancellation of automobile policies than was usual following the termination, Novak failed to show a single instance in which a home or automobile policy cancellation resulted from the termination of his employment rather than from some legitimate reason. Further, Nationwide’s alleged inefficient servicing of the policies of Novak’s customers after the termination, even if it resulted in those customers seeking insurance with other insurers, does not constitute constructive cancellation of those policies so as to constitute a policy cancellation within the meaning of the language of subsection 5. Accordingly, the trial court properly concluded that the termination of Novak’s employment was subject to subsection 5 and was thus not subject to the restrictions found in subsection 3. 4. Subsection 4 is clearly intended to clarify the nature of the rights and restrictions set forth in subsection 3 and was not meant to stand alone or to create any rights separate and apart from those protected by subsection 3. Accordingly, the exclusionary reference to subsection 3 that is found in subsection 5 is equally applicable to subsection 4, and the trial court properly dismissed Novak’s claim insofar as it was based on § 209 of the Insurance Code. 5. Novak’s claim that the alleged statement by an employee of Nationwide that the at-will provision of the employment contract would not apply to Novak created a right to continued employment under the theory of promissory estoppel is without merit. Because the contract specifically provided that Novak’s employment was to be at-will and that all oral promises were integrated into the written agreement, the circumstances precluded an objective finding of a clear and definite promise of just-cause employment, and the trial court properly dismissed the promissory estoppel claim. 6. Novak’s claim based on fraudulent and innocent misrepresentation is without merit. Novak claimed that he was induced into signing the written agreement by Nationwide’s informing him that he would immediately begin to receive commissions on renewals of policies serviced by his father, that everything in Nationwide’s power would be done to transfer his father’s agency to him, that his office expenses would be paid directly to the creditors, that the at-will provision in the written contract did not apply to him, and that he would be allowed to sell insurance for companies other than Nationwide. 7. A claim of fraudulent misrepresentation requires a showing that a plaintiff suffered damages as a result of acting on a representation that a defendant knew or should have known was false and that was made by the defendant with the intention that the plaintiff act on the representation. Novak failed to establish the elements of a claim of fraudulent misrepresentation. Because Novak acknowledged that the statement concerning commissions was made after the employment contract was signed, it could not have induced Novak to sign the contract. The employment manual that Novak referred to in coqjunction with the allegation concerning the transfer of the agency provides that Nationwide would “sincerely endeavor” to facilitate the transfer if other conditions were met, and there is no evidence that Nationwide failed to do that. There was no showing that the promise with respect to office expenses was false when made, but, rather, the record shows that Nationwide was unable to pay Novak’s office expenses directly because of unforeseen billing difficulties and the apportioning of office expenses between Novak and his non-Nationwide office mate. The allegations relative to the at-will provision and the selling of other insurance were directly contrary to provisions in the written contract, and, thus, Novak could not have reasonably relied on either statement. 8. Novak’s claim that his firing resulted in racial discrimination that was actionable under the federal Fair Housing Act, 42 USC 3604 et seg., was not timely brought. The period of limitation for such a claim is two years. Because the basis of his claim was the economic effect resulting from his firing, the period of limitation began to run on the date of his firing. Thus, the claim under the Fair Housing Act was time-barred three months before Novak brought his action. 9. To the extent that Nationwide may have acted to deny insurance to minorities in violation of § 302 of the Civil Bights Act, MCL 37.2302; MSA 3.548(302), which prohibits racial discrimination in the provision of goods and services, Novak lacked standing to raise that claim. Although Novak may have had an economic interest, § 302 protects the persons who are denied goods and services, not those who are providing those services. Because the Civil Rights Act does not confer standing on insurance agents to bring an action on behalf of persons who are denied insurance by reason of race, Novak lacked standing to bring a claim under § 302 of the Civil Rights Act. Further, because Novak did not show that Nationwide had coerced, intimidated, threatened, or interfered with him as a result of his having aided or encouraged a minority person to exercise any right under the Civil Rights Act, Novak failed to plead a viable action under subsection f of § 701 of the Civil Rights Act, MCL 37.2701(f); MSA 3.548(701)(f). Moreover, because newly licensed drivers are not a protected class under the Civil Rights Act, any attempt by Nationwide to obstruct or to prevent Novak from issuing automobile insurance to newly licensed drivers could not constitute the obstruction or prevention of a person from complying with the act in violation of subsection e of § 701 of the Civil Rights Act, MCL 37.2701(e); MSA 3.548(701)(e). Affirmed. 1. Insurance — Insurance Code — Redlining — Constructive Cancellation op Insurance. Inefficient servicing by an insurer of the policies of its customers, even if such servicing results in those customers seeking insurance with other insurers, does not constitute constructive cancellation of those policies so as to constitute cancellation of a policy within the meaning of the language of subsection 5 of the anti-redlining provisions of § 209 of the Insurance Code (MCL 500.1209[5]; MSA 24.11209[5]) 2. Insurance — Insurance Code — Redlining. Subsection 4 of the anti-redlining provision of § 209 of the Insurance Code is clearly intended to clarify the nature of the rights and restrictions set forth in subsection 3 of § 209 and is not meant to stand alone or to create any rights separate and apart from those protected by subsection 3; accordingly, the exclusionary reference to subsection 3 that is found in subsection 5 of § 209 is equally applicable to subsection 4 (MCL 500.1209[3], [4], [5]; MSA 24.11209[3], [4], [5]). 3. Fraud — Misrepresentation — Reasonable Reliance on Misrepresentation. An actionable claim of fraudulent misrepresentation requires a showing that a plaintiff reasonably relied on the alleged misrepresentation. 4. Civil Rights — Racial Discrimination — Goods and Services — Insurance Agents — Standing. An insurance agent lacks standing to bring an action under the Civil Rights Act for an alleged attempt by an insurance company to deny insurance to minority customers of the agent; the Civil Rights Act protects the rights of persons who are being denied goods and services, not the economic interests of persons who attempt to provide the goods and services (MCL 37.2302; MSA 3.548[302]). 5. Civil Rights — Civil Rights Act — Insurance Agents — Coercion — Actions. An insurance agent that has not aided or encouraged a minority customer to exercise any right protected by the Civil Rights Act in response to the denial of insurance by an insurer may not maintain an action against the insurer under the provision of the Civil Rights Act prohibiting coercion or intimidation of a person who aided or encouraged another in the exercise or enjoyment of a right protected by the Civil Rights Act (MCL 37.2701 [f]; MSA 3.548[701][f|). James W. Bigelow, for the plaintiff. Harvey Kruse, P.C. (by Thomas F. Kauza and William F Rivard), for the defendants. Before: Mackenzie, P.J., and Gribbs and Wilder, JJ. Mackenzie, P.J. Plaintiff Terry Novak (plaintiff), who alleged that the Nationwide defendants (defendants) illegally terminated his position as an insurance sales agent because they found his Detroit-area clients economically undesirable, appeals as of right from an order granting defendants’ motion for summary disposition of his nine-count complaint. We affirm. FACTUAL BACKGROUND In August 1991, in anticipation of assuming responsibility for his father’s insurance agency, Novak & Associates Insurance, Inc., plaintiff signed an employment agreement with defendants. Among other things, the agreement specified that (1) if plaintiff successfully completed a training period, defendants would enroll him in their New Agent Development Program or New Business Agent Program, (2) if plaintiff successfully handled his father’s former accounts for two years, he would then begin to receive full commissions on those accounts, (3) plaintiff was not to sell insurance for any insurance carriers other than defendants unless defendants specifically directed him to do so, and (4) plaintiff’s employment with defendants was terminable at will by either party. In March 1993, defendants terminated plaintiff’s employment. Plaintiff filed suit, claiming, among other things, that the at-will provision in the employment contract was inapplicable to him and that defendants improperly terminated his employment on the basis of his reluctance to move his agency out of Wayne County. Defendants argued that notwithstanding the at-will provision, they properly terminated plaintiffs employment because he (1) commingled personal and business funds, (2) often remitted premium payments to them in an untimely fashion, and (3) allowed unauthorized individuals to sign insurance certificates. STANDARDS OF REVIEW Except for his claim under the federal Fair Housing Act (FHA), 42 USC 3601 et seq., discussed infra, all of plaintiffs claims were dismissed under MCR 2.116(C)(10). We review de novo a trial court’s grant of summary disposition under MCR 2.116(C)(10). Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997). Like the trial court, we look at the entire record, view the evidence in favor of the nonmoving party, and decide if there exists a relevant factual issue about which reasonable minds might differ. Id. If, as in the instant case, the nonmoving party would bear the burden of proof at trial, that party, in order to avoid summary disposition, must provide documentary evidence showing the existence of a disputable issue. Quinto v Cross & Peters Co, 451 Mich 358, 362; 574 NW2d 314 (1996). The trial court dismissed plaintiff’s FHA claim under MCR 2.116(C)(7) because it concluded that the period of limitation for the claim had run. We review a grant of summary disposition under MCR 2.116(C)(7) de novo. Iovino v Michigan, 228 Mich App 125, 131; 577 NW2d 193 (1998). We consider all documentary evidence submitted by the parties and accept the plaintiff’s well-pleaded allegations, except those contradicted by documentary evidence, as true. Id.; Patterson v Kleiman, 447 Mich 429, 433-435; 526 NW2d 879 (1994). We view the uncontradicted allegations in favor of the plaintiff and determine whether the claim is time-barred. Id. WRONGFUL DISCHARGE AND BREACH OF LEGITIMATE EXPECTATIONS Plaintiff argues that the termination of his employment violated an implied just-cause employment agreement and that the trial court therefore should not have summarily disposed of his wrongful discharge and breach of legitimate expectations claims. He bases this argument on an alleged oral statement by one of defendants’ employees that the at-will termination provision in the written employment contract would not apply to him. This alleged oral statement, however, did not negate the at-will provision in the written contract, which also contained a provision requiring that modifications of the contract be in writing and be signed by a company representative. When an employment contract expressly provides for employment at will, a plaintiff, by signing the contract, assents to employment at will and cannot maintain a cause of action based on a prior oral agreement for just-cause employment. Nieves v Bell Industries, Inc, 204 Mich App 459, 463; 517 NW2d 235 (1994); see also Stopczynski v Ford Motor Co, 200 Mich App 190, 193; 503 NW2d 912 (1993). Thus, the trial court properly dismissed plaintiff’s wrongful discharge claim. The court also properly dismissed plaintiff’s breach of legitimate expectations claim, because a claim based on legitimate expectations rests on the employer’s promises to the work force in general — for example, promises contained in a company handbook — rather than on promises made to an individual employee, and because plaintiff made no claim that defendants promised just-cause employment to the work force in general. Nieves, supra at 464; see also Dolan v Continental Airlines/Continental Express, 454 Mich 373, 384, 386-387; 563 NW2d 23 (1997). INSURANCE CODE ANTI-REDLINING PROVISIONS Plaintiff argues that notwithstanding the employment contract’s at-will provision, defendants nevertheless improperly terminated his employment because the Insurance Code precludes the termination of an agent’s employment for certain specified reasons even if an employment contract otherwise allows for it. Specifically, plaintiff claims that there was a question of fact regarding whether defendants discharged him because of the loss history and geographic location of his Wayne County agency and thereby violated the anti-redlining provisions contained in § 209 of the Michigan Insurance Code, MCL 500.1209; MSA 24.11209, which states, in pertinent part, as follows: (3) As a condition of maintaining its authority to transact insurance in this state, an insurer transacting automobile insurance or home insurance in this state shall not cancel an agent’s contract. . . except for 1 or more of the following reasons: (a) Malfeasance. (b) Breach of fiduciary duty or trust. (c) A violation of this act. (d) Failure to perform as provided by the contract between the parties. (e) Submission of less than 25 applications for home insurance and automobile insurance within the immediately preceding 12-month period. (4) Subsection (3) shall not be construed as permitting a termination of an agent’s authority based primarily upon any of the following: (a) The geographic location of the agent’s home insurance or automobile insurance business. (b) The actual or expected loss experience of the agent’s automobile or home insurance business, related in whole or in part to the geographical location of that business. * * * (5) Subsection (3) . . . shall not apply with respect to an agent who is an employee of an insurer ... if the property rights in the renewal are owned by the insurer . . . and the cancellation or termination of the agent’s contract does not result in the cancellation or nonrenewal of any home or automobile insurance policy. [Emphasis added.] Plaintiff argues that he did not fall within the parameters of subsection 5 — and that he was therefore protected by subsections 3 and 4 — because his discharge resulted in the cancellation of home and automobile insurance policies. He additionally argues that even if subsection 5 had

PAMELA A. MARTIN, Plaintiff v. JEFFREY M. VANCE, RONALD BEAUVAIS, and DUKE UNIVERSITY, Defendants No. COA98-649 (Filed 4 May 1999) 1. Appeal and Error— appealability — order denying arbitration An order denying arbitration is immediately appealable because it involves a substantial right (the right to arbitrate claims) which might be lost if the appeal is delayed. 2. Arbitration— agreement to arbitrate — employment contract A trial court order denying defendant’s’ motions to dismiss and to stay proceedings pending final arbitration was reversed and remanded where plaintiffs employment contract included an agreement to arbitrate the claims plaintiff asserts. The grievance procedure as set out in the Personnel Policy Manual became a part of plaintiffs employment contract because it had been included in the Manual and it is apparent that plaintiff signed a transfer/upgrade request knowing that any claim arising out of her employment would be subject to resolution pursuant to the grievance procedure. Moreover, she took advantage of the grievance procedure by initiating internal review of her termination and seeking reinstatement. Appeal by defendants from an order entered 31 March 1998 by Judge David Q. LaBarre and filed 14 April 1998 in Orange County Superior Court. Heard in the Court of Appeals 27 January 1999. Baddour & Milner, PLLC, by Robert Terrell Milner, for plaintiff - appellee. Fulbright & Jaworski, L.L.R, by John M. Simpson and Karen M. Moran, for defendants-appellants. WALKER, Judge. On 30 December 1997, plaintiff filed this action against her former employer, Duke University (Duke), and her former supervisors Jeffrey Vance (Vance) and Ronald Beauvais (Beauvais) alleging battery, intentional infliction of emotional distress, tortious interference with contract, and negligent retention. Plaintiff had been employed at Duke since 1990 as a nonexempt biweekly employee who was not covered by a collective bargaining agreement. This meant she was paid every two weeks and was subject to federal overtime restrictions. She was not employed for a fixed period of time and did not have a written employment contract. Since 5 February 1996, plaintiff had worked as Staff Assistant to Vance, an Associate Professor in Neurology at Duke University Medical Center. Beauvais was the Administrator of the Department of Neurology. Vance and Beauvais accused plaintiff of falsifying her time cards which led to her termination by Duke on 28 February 1997. As plaintiff gathered her belongings to leave, she alleges that Vance committed a battery upon her by standing in close proximity to her and then shoving her away from her computer. Plaintiff also alleges that during her employment with Vance she was subjected to a pattern of verbal abuse, insults, and humiliation that led to her diagnosis of clinical depression. Further, she alleges that Vance and Beauvais interfered with her “employment contract. . . with Duke” by representing to her that Duke did not pay overtime but approved her use of “comp time” to make up for the extra hours that she had worked. On 29 January 1997, prior to her termination, plaintiff requested a transfer to another department at Duke. The transfer/upgrade request form that plaintiff filed contained a certification which she signed. That certification read in part: 6. I hereby agree that any dispute or controversy arising out of or related to my employment or termination by Duke University shall be subject to final and binding resolution through the applicable grievance or dispute resolution procedure, as may be periodically amended and which is available upon request from the department of Human Resources. The grievance procedure referred to in the certification was entitled the “Nonexempt (Biweekly) Employee Grievance Procedure” and was contained in the Duke University Personnel Policy Manual. The grievance procedure had been in place at Duke since 1994, and it called for an outside arbitrator to hear all grievances involving the involuntary termination of an employee such as plaintiff. Prior to the filing of her complaint, plaintiff availed herself of the grievance procedure and sought reinstatement through the internal portion of the process, proceeding to the “Second Step.” In response to plaintiffs complaint, defendants filed a motion to dismiss and a motion to stay these proceedings pending completion of arbitration. After a hearing on motions, the trial court made the following findings and conclusions: FINDINGS OF FACT 1. Plaintiff was employed by Defendant Duke University during all times relevant to this action. 2. At no time did Plaintiff sign a written contract of employment with Duke University. 3. Plaintiff signed the document entitled Duke University Transfer/Upgrade Request which contained a clause referring to binding arbitration. Plaintiff never received the transfer she requested. 4. Duke University’s Personnel Policy Manual is a unilaterally promulgated employment policy manual which outlines grievance procedures purporting to provide for the arbitration of certain disputes between Duke University and its employees. CONCLUSIONS OF LAW 1. This Court has personal jurisdiction over the parties to this action, and subject matter jurisdiction over the claims asserted in this action. 2. Plaintiff was employed by Defendant Duke University as an employee-at-will during all times relevant to this action. 3. Pursuant to Walker v. Westinshouse Electric Corp. 77 N.C. App. 253, 335 S.E.2d 79 (1985), Duke University’s unilaterally promulgated Personnel Policy Manual, submitted by Defendants as evidence of a contract between Duke University and Plaintiff to submit disputes such as those at issue in this action to binding arbitration, is not a part of Plaintiff’s employment contract and is therefore not a contract as a matter of law. 4. The document entitled “Duke University Transfer/Upgrade Request” is not a contractual agreement in any sense, is not a part of Plaintiff’s employment contract and is therefore not a contract as a matter of law. The trial court denied defendants’ motions to dismiss and to stay proceedings pending arbitration. Ordinarily, this appeal would be interlocutory because it does not determine all of the issues between the parties and directs some further proceeding preliminary to a final judgment. Futrelle v. Duke University, 127 N.C. App. 244, 247, 488 S.E.2d 635, 638, disc. review denied, 347 N.C. 398, 494 S.E.2d 412 (1997). However, an order denying arbitration is immediately appealable because it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed. Burke v. Wilkins, 131 N.C. App. 687, 688, 507 S.E.2d 913, 914 (1998). On appeal, defendants contend that the grievance procedure was a part of plaintiff’s employment contract and that this was evidenced by her signing of the transfer/upgrade request. Plaintiff argues that the grievance procedure and policy manual were not part of her employment contract and that the transfer/upgrade request did not constitute a supplement to her employment contract because there was no mutuality of assent to the agreement and there was no voluntary waiver of plaintiffs rights to judicial process. At the outset, we note that “North Carolina has a strong public policy favoring the settlement of disputes by arbitration.” Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992). Our review confirms this position is consistent with other jurisdictions including “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 74 L. Ed. 2d 765 (1983); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26 (1991). Our Supreme Court has held that where there is any doubt concerning the existence of an arbitration agreement, it should be resolved in favor of arbitration. R.N. Rouse & Co., 331 N.C. at 92, 414 S.E.2d at 32. The validity of an arbitration agreement is determined by the application of basic contract law principles. Futrelle, 127 N.C. App. 244, 488 S.E.2d 635; Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 134 L. Ed. 2d 902 (1996). The dispositive issue here is whether the plaintiff, in her contract of employment with Duke, agreed to arbitration of her claims in accordance with the procedure set forth in the Personnel Policy Manual. The trial court in its denial of defendants’ motion, cited Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986) where the plaintiff employee alleged he was wrongfully discharged by his employer and claimed that an employee handbook was part of his employment contract which the employer had violated. Under the facts of that case, this Court held that the handbook was not part of the plaintiffs at-will employment contract. Id. There was no issue regarding how the dispute would be resolved. This Court quoted extensively from the employee handbook and concluded that the handbook “did not become an understanding binding on the employer.” Id. at 260, 335 S.E.2d at 84. However, Walker is inapposite here as there is evidence beyond the promulgation of the policy manual that indicates the grievance procedure was made part of plaintiffs employment contract. In this case, we examine a number of factors to determine if plaintiff’s contract of employment included an agreement to arbitrate her claims. First, plaintiff had worked for Duke since 1990 and the Personnel Policy Manual containing the grievance procedure had existed since 1994. Also, in her complaint, plaintiff asserted she had a contract of employment with Duke although she denied in her affidavit the grievance procedure was ever explained to her. However, she does not claim that she was unaware of the grievance procedure, and, in fact, plaintiff availed herself of the grievance procedure and began proceedings prior to the initiation of this action. Further, plaintiff sought a transfer to another department and signed the transfer/upgrade request which contained an explicit certification that any dispute or controversy arising out of or related to her employment or termination by Duke would be subject to resolution through the applicable grievance or dispute resolution procedure. An employment-at-will contract may be supplemented by additional agreements which are enforceable. Walker, 77 N.C. App. at 261, 335 S.E.2d at 84. Before a valid contract can exist, there must be a mutual agreement between the parties as to the terms of the contract. Normile v. Miller and Segal v. Miller, 313 N.C. 98, 326 S.E.2d 11 (1985). “If a question arises concerning a party’s assent to a written instrument, the court must first examine the written instrument to ascertain the intention of the parties.” Routh v. Snap-On Tools Corp., 108 N.C. App. 268, 273, 423 S.E.2d 791, 795 (1992). If the language of the contract is “clear and unambiguous,” the court must interpret the contract as written. Robbins v. Trading Post, 253 N.C. 474, 117 S.E.2d 438 (1960). The transfer/upgrade request, which plaintiff signed, is a “clear and unambiguous” certification of her willingness to submit disputes arising from her employment with Duke to the grievance procedure. As the language in the agreement is unambiguous, we need not look beyond the writing itself to determine whether there was mutual assent to the agreement. Furthermore, plaintiff’s execution of this document charges her with knowledge and assent to the contents of the agreement. Biesecker v. Biesecker, 62 N.C. App. 282, 302 S.E.2d 826 (1983). In this State it is held that one who signs a paper writing is under a duty to ascertain its contents, and in the absence of a showing that he was wilfully misled or misinformed by the defendant as to these contents ... he is held to have signed with full knowledge and assent as to what is therein contained. Gas House, Inc. v. Southern Bell Telephone Co., 289 N.C. 175, 180, 221 S.E.2d 499, 503 (1976) (quoting Harris v. Bingham, 246 N.C. 77, 97 S.E.2d 453 (1957) and Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364 (1941)), overruled on other grounds, State ex rel. Utilities Comm. v. Southern Bell, 307 N.C. 541, 299 S.E.2d 763 (1983). Moreover, the agreement to arbitrate does not fail for lack of consideration. Mutual binding promises provide adequate consideration to support a contract. Casualty Co. v. Funderburg, 264 N.C. 131, 140 S.E.2d 750 (1965); Kirby v. Board of Education, 230 N.C. 619, 55 S.E.2d 322 (1949). Where each party agrees to be bound by an arbitration agreement, there is sufficient consideration to uphold the agreement. See Johnson v. Circuit City Stores, 148 F.3d 373 (4th Cir. 1998). Other jurisdictions have held that arbitration agreements evidenced by similar circumstances as here are enforceable. In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26 (1991), the plaintiff was required by his employer to register as a securities representative with several securities exchanges including the New York Stock Exchange. Included in the registration materials was a requirement that the plaintiff agree to arbitrate any disputes that arose between him and his employer and which were required to be arbitrated by the rules of the stock exchange. Id. After the plaintiff was terminated by his employer at the age of 62, he sued under the Age Discrimination in Employment Act and the employer moved to compel arbitration. Id. The Supreme Court affirmed the Fourth Circuit Court of Appeals and held that the claim was arbitra-ble under the agreement signed by the plaintiff with the stock exchange. Id. In O’Neil v. Hilton Head Hospital, 115 F.3d 272 (4th Cir. 1997), the plaintiff, while on leave from work, signed an acknowledgment form when she received an employee handbook from the new owners of the defendant hospital. Id. at 273. The acknowledgment form contained an agreement to arbitrate all claims arising out of plaintiff’s employment. Id. The plaintiff argued that the arbitration agreement failed for lack of mutual assent claiming that the hospital had not agreed to be bound. The Fourth Circuit Court of Appeals disagreed and held that by submitting the arbitration policy to plaintiff, the defendant hospital had implicitly agreed to be bound by the policy. Id. at 275. Noting the strong federal policy supporting arbitration of disputes, the trial court reversed and remanded the case for a stay pending arbitration. Id. at 276. Similarly, in Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir. 1997), plaintiff was employed at a hospital owned by defendant, and, when she received a copy of Tenet’s employee handbook, she signed an arbitration clause set out on the last page of the handbook. Id. at 834. The trial court found that the signed arbitration clause constituted a contract and dismissed the plaintiffs complaint. Id. On appeal, Patterson argued that Missouri law ordinarily did not consider an employee handbook part of an employment contract because it lacks the usual prerequisites to a contract. Id. at 835. However, the Eighth Circuit Court of Appeals found that although the employee handbook was not a contract, the arbitration clause formed a separate contract because it was separate and distinct from the remainder of the handbook. Id. Thus, the arbitration agreement was enforceable for all claims that the plaintiff brought against the hospital. In Johnson v. Circuit City Stores, 148 F.3d 373 (4th Cir. 1998), the plaintiff applied for a job with defendant and signed her job application which contained an arbitration agreement whereby any claims arising out of her application or her employment with defendant would be submitted to arbitration. The district court held that the agreement was not enforceable for lack of consideration and denied defendant’s motion for summary judgment. Id. at 377. Pursuant to their earlier decision in O’Neil, the Fourth Circuit Court of Appeals reversed the trial court holding that where both parties agree to be bound by the arbitration, there was sufficient consideration to enforce the contract. Id. at 379. In each of the above cases, the court held the plaintiff was bound by an arbitration agreement which was proffered by an employer, prospective employer, or a regulating body and which was not part of a formal employment contract. Here, plaintiff alleged in her complaint that she had an employment contract with Duke during her seven years of employment. The grievance procedure had been included in the Personnel Policy Manual since 1994. With this additional background, it is apparent that plaintiff signed the transfer/upgrade request document knowing that any claim arising out of her employment would be subject to resolution pursuant to the grievance procedure. Moreover, plaintiff took advantage of the grievance procedure by initiating the internal review of her termination and seeking reinstatement. Thus, the grievance procedure as set out in the Personnel Policy Manual became a part of plaintiffs employment contract. The plaintiff cites Routh, 108 N.C. App. 268, 423 S.E.2d 791, in support of her contention that there was no agreement. In Routh, the plaintiff signed an agreement which terminated the business relationship between the parties and which also included an arbitration agreement. Id. However, an additional term to the agreement had been placed at the end of the standard form and plaintiff only signed on the line after the added term, not on the original line designated for his signature. Id. This Court, in affirming the trial court’s holding that the arbitration agreement was invalid, held that there was no meeting of the minds by the parties with regard to the agreement to arbitrate. Id. at 274, 423 S.E.2d at 795. We reasoned that an ambiguity existed in the agreement because of the added term and the signature after the added term and that extrinsic evidence was properly admitted to interpret the contract. Id. at 273, 423 S.E.2d at 795. The extrinsic evidence indicated that the parties had not agreed on the term requiring arbitration. Id. There is no such ambiguity in the agreement signed by the plaintiff and she makes no such contention. Plaintiff also contends that the agreement was not enforceable because she did not make a voluntary waiver of her rights to judicial process and cites Prudential Ins. Co. of America v. Lai, 42 F.3d 1299 (9th Cir. 1994), cert. denied, 516 U.S. 812, 133 L. Ed. 2d 24 (1995) as authority. In Lai, the Ninth Circuit Court of Appeals held that a plaintiff must make a knowing and voluntary waiver of her right to litigate a claim brought under Title VII for sexual discrimination. Id. Lai is distinguishable, however, because it deals specifically with federal statutory claims arising out of the employment. Further, the agreement only required those claims selected by the employer to be arbitrated. In this case, plaintiffs claims are not statutorily based nor were they selected by the employer to be arbitrated. The parties’ agreement to abide by the grievance procedure includes all claims arising out of the employment relationship. Moreover, as noted above, plaintiff is charged with knowledge of and assent to the agreement which she signed. See Biesecker, 62 N.C. App. 282, 302 S.E.2d 826. We conclude that plaintiff’s employment contract included an agreement to arbitrate plaintiff’s claims which she now asserts. For the reasons stated herein, we reverse the order of the trial court denying defendants’ motions to dismiss and to stay the proceedings pending final arbitration and remand for entry of an order staying proceedings pending final arbitration. Reversed and remanded. Judges LEWIS and TIMMONS-GOODSON concur.

TELEFLEX INFORMATION SYSTEMS, INC., Plaintiff v. DAVID J. ARNOLD, JR., Defendant, and DAVID J. ARNOLD, JR., Third-Party Plaintiff v. VANGUARD CELLULAR SYSTEMS, INC., Third-Party Defendant No. COA96-1067 (Filed 6 April 1999) 1. Employer and Employee— at-will employment contract— action for wrongful termination — public policy — not extended The trial court did not err by granting summary judgment against Arnold (the original defendant who counterclaimed against the original plaintiff and then brought a third-party complaint against the original plaintiffs parent company, including many of the same claims) on a claim for wrongful termination of an at-will employment contract where Arnold alleged violation of public patent policy, the fruits of his labor clause of the North Carolina Constitution, the open door clause of the North Carolina Constitution, and his right to free speech. The Court of Appeals declined to expand public policy exceptions to essentially private contract disputes. 2. Employer and Employee— breach of implied covenant of fair dealing — summary judgment The trial court did not err by granting summary judgment for Arnold on a claim against his employer for breach of an implied covenant of fair dealing in the context of an at-will employment contract. 3. Employer and Employee— interference with prospective economic relations — no action The trial court did not err by granting summary judgment for Arnold on a claim for interference with prospective economic relations arising from a dispute over ownership of software. There is no basis for believing that a cause of action exists in North Carolina for interference with prospective contractual relationships. Appeal by David J. Arnold, Jr., third-party plaintiff, from judgment entered 11 March 1996 by Judge W. Steven Allen, Sr., in Guilford County Superior Court. Heard in the Court of Appeals 16 February 1999. This' case arises out of a controversy between Teleflex Information Systems, Inc. (Teleflex), and David J. Arnold, Jr. (Arnold), over the ownership of certain methods and processes Arnold developed, or invented, while an employee of Teleflex. Teleflex is the wholly owned subsidiary of Vanguard Cellular Systems, Inc. (Vanguard). Teleflex instituted this action seeking an injunction from the trial court to prevent Arnold from divulging any trade secrets of Teleflex; seeking a declaration that Arnold was “hired to invent” the software in question, and a declaration that Teleflex owns all rights, including intellectual property rights, in the software; and seeking damages. Arnold counterclaimed, seeking similar relief against Teleflex and seeking damages for wrongful termination of his employment, among other things. Arnold brought a third-party complaint against Vanguard, which included many of the same claims he asserted against Teleflex. The nine causes of action in his third-party complaint against Vanguard included claims for wrongful termination of employment [Count II], breach of the duty of fair dealing [Count IV], and interference with prospective economic relations [Count V]. On motion of Vanguard, the trial court granted summary judgment on Counts II, IV, and V of Arnold’s third-party complaint, certified there was “no just cause for delay,” and Arnold appealed to this Court from the grant of summary judgment. Upchurch & Galifianakis, by Nick Galifianakis; and Lee L. Corum, for third-party plaintiff-appellant. Smith Helms Mulliss & Moore, L.L.P., by William Sam Byassee, for third-party defendant-appellee. HORTON, Judge. A. Wrongful Termination of Employment [Count II] During the time Arnold was an at-will employee of Teleflex or Vanguard, or both, Arnold developed a “new batch billing architecture.” Arnold contends, and Vanguard denies, that the new process resulted from work Arnold did on his own time, without any assistance from Vanguard or its employees, and that he is the sole owner of the process or “invention.” Arnold agrees, that he was an “at-will” employee of Vanguard, but argues that he was fired by Vanguard on 28 January 1994 in violation of the public policy of this State for refusing to sign a document acknowledging that he claimed no ownership interest in the process. Although there is a continuing factual dispute whether Arnold was in fact an employee of Vanguard, counsel for Vanguard stipulated in oral argument that Arnold could be considered an employee of Vanguard for purposes of this appeal. Although the discharge of an employee-at-will normally does not support an action for wrongful termination of employment, North Carolina courts have developed a public policy exception to the general rule. There is no “bright-line” test for determining when the termination of an at-will employee violates public policy. Our Supreme Court held in Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992), that: [although the definition of “public policy” approved by this Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Id. at 363, 416 S.E.2d at 169 (footnote omitted). The plaintiff employee in Amos was fired because she refused to work for less than the statutory minimum wage. The Court held that “defendants violated the public policy of North Carolina by firing plaintiffs for refusing to work for less than the statutory minimum wage.” Id. at 354, 416 S.E.2d at 170. Plaintiff alleges four public policy violations arising from termination of his at-will employment with Vanguard. Arnold contends that his discharge violates “public patent policy,” as set out in Article I, § 8, cl. 8 of the U.S. Constitution; that his termination denies him the right to the fruits of his labors as found in Article I, § 1 of the N.C. Constitution; that the action of Vanguard in terminating his employment operates to bar the courthouse door in violation of Article I, § 18 of the N.C. Constitution; and that his discharge violates his rights to free speech as guaranteed by both the U.S. and N.C. Constitutions. We disagree but will examine each of appellant’s arguments. Public Patent Policy Plaintiff contends that defendant terminated his employment in violation of a “public patent policy.” He contends that Article I, § 8, cl. 8 of the U.S. Constitution confers upon him a right to protect his inventions, and to terminate his employment in light of his alleged right violates the Constitution. He also claims that defendant’s conduct harms the public at large because to deny plaintiff the ability to file a patent is to delay or deny the public’s right to the future use of his inventions. In its brief, defendant cites Article I, § 8, cl. 8, which provides that “congress shall have power . . . [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries[.]” Defendant contends that the language of Article I, § 8, cl. 8 confers no patent right upon plaintiff, but rather grants Congress the power to enact laws that create property rights in inventions. We agree with defendant’s contention, in light of the fact that after the Constitution was ratified, Congress passed the Patent Act in 1790. We follow the holdings of other jurisdictions that the “Patent Clause” of the U.S. Constitution “authorizes Congress to enact the patent laws, but does not confer any rights by itself upon an individual.” Brosso v. Devices for Vascular Intervention, Inc., 879 F. Supp. 473, 478, aff’d, 74 F.3d 1225 (E.D. Pa. 1995). We decline to create a “public patent policy” exception to the employment at-will doctrine. Denial of the Fruits of His Labor Plaintiff further contends that defendant’s conduct violates public policy as promoted under the North Carolina Constitution. Article I, § 1 of the N.C. Constitution guarantees all citizens of North Carolina “certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” He claims that defendant terminated him in an effort to deny him “the enjoyment of the fruits” of his own labor. Defendant contends that Article I, § 1 creates no interest which limits the employment at-will doctrine, and argues that the constitutional provision guarantees to an individual only the right to pursue ordinary and simple occupations free from government regulation. In Real Estate Licensing Board v. Aikens, 31 N.C. App. 8, 228 S.E.2d 493 (1976), this Court determined that an amendment to our statutes regulating real estate brokers and requiring their licensure was unconstitutional as being overly broad, because the definition contained in the amendment purported to regulate business activities such as those of defendant, which “consisted] only of selling for a modest fee the addresses of property for rent, some information about the features of the properties, and the phone numbers of the lessors.” Id. at 11, 228 S.E.2d at 495. This Court held, in part, that to regulate the defendant, and others like him, as real estate brokers was “a sharp and dangerous detour from any established and accepted definition” of real estate broker. Id. at 12, 228 S.E.2d at 496. In Aikens, the defendant argued that such regulation violated several provisions of our State Constitution, including Article I, § 1. We agreed, holding that the “fundamental provisions” of our State Constitution, such as Article I, § 1, were inserted to “guarantee the right to pursue ordinary and simple occupations free from governmental regulation.” Id. at 13, 228 S.E.2d at 496 (emphasis added). See also State v. Ballance, 229 N.C. 764, 768, 51 S.E.2d 731, 734 (1949), in which Justice Ervin eloquently observed that the declaration of rights in our State Constitution was inserted “chiefly to protect the individual from the State." Id. (emphasis added). Here, Arnold does not seek redress for any governmental action, and the cited provision of the State Constitution does not give him a remedy against a corporate defendant in an essentially private dispute over the ownership of property. We agree with defendant’s position for the above reasons, and find that Article I, § 1 of the North Carolina Constitution does not apply to plaintiffs claim. Barring the Courthouse Door Plaintiff contends that defendant’s conduct violates public policy as promoted under Article I, § 18 of the North Carolina Constitution. The section provides that: All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay. Plaintiff contends that, when defendant learned that plaintiff consulted a patent attorney and asserted his legal rights as an inventor, defendant made an effort to bar plaintiff from asserting his rights in court by confronting plaintiff with two options: either relinquish his ownership rights, or face termination of employment. Defendant contends that the very fact plaintiff has asserted his claims in a court of law contradicts his own argument that defendant has somehow barred plaintiff a judicial remedy. We agree with defendant’s contention, and we find no evidence that defendant illegally prohibited plaintiff from asserting his rights in a court of law. Right to Free Speech Plaintiff contends that defendant violated public policy by denying him his constitutionally protected right to free speech. He contends that defendant abridged his right to claim ownership of his inventions, and that defendant terminated his employment because he refused to disavow those rights. Defendant contends there is no free speech interest to be protected here; no free speech rights are implicated in a dispute between an employee and a private employer. If “state action” is responsible for restricting speech, then there is a potential constitutional violation. See Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289, reh’g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, 506 U.S. 985, 121 S.E.2d 431 (1992). Defendant contends that, as a private entity, it is allowed to abridge plaintiff’s free speech rights without violating public policy. We agree with defendant’s contention for the above-stated reasons, and we find no public policy violation here. In determining whether to enlarge the scope of the public policy exceptions to the employment-at-will doctrine, we must focus on the public interests involved. In McLaughlin v. Barclays American Corp., plaintiff asked this Court “to recognize, as a public-policy exception to the employee-at-will doctrine, a cause of action for wrongful discharge when the termination results from the employee’s use of self-defense.” 95 N.C. App. 301, 304, 382 S.E.2d 836, 839, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989). We noted in McLaughlin that “ ‘[p]ublic policy’ is a ‘vague expression’ but has been defined as the principle of law holding that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Id. at 305, 382 S.E.2d at 839 (citations omitted). After analyzing the leading North Carolina cases of Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989), and Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. reviews denied, 314 N.C. 331, 333 S.E.2d 490 and disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985), we stated: In each case, our courts focused on the potential harm to the public at large if those instructions [i.e., to give perjured testimony in Sides and to violate the state and federal highway safety regulations in Coman] were obeyed. Similar public-policy implications are not present in Mr. McLaughlin’s case. We do not perceive the kind of deleterious consequences for the general public, if we uphold Barclays’ action, as might have resulted from decisions favorable to the employers in Sides and Coman. McLaughlin, 95 N.C. App. at 306, 382 S.E.2d at 840 (emphasis added). Here, we do not find the “potential harm to the public at large” as in Sides, Coman, and their successors. In those cases, the defendant-employer encouraged the plaintiff-employee to violate some law or risk being fired. In the case before us, the evidence does not suggest that Vanguard encouraged Arnold to violate any law. We know of no law requiring the plaintiff to claim an ownership interest in his inventions or to file a patent application. We decline to expand the public policy exceptions to essentially private contract disputes such as this. The assignment of error is overruled. B. Breach of Duty of Fair Dealing [Count IV] Arnold contends that North Carolina recognizes a cause of action for an employer’s alleged breach of an implied covenant of fair dealing in the context of an at-will employment. In support of his contention, Arnold cites Speck v. N.C. Dairy Foundation, 64 N.C. App. 419, 307 S.E.2d 785 (1983), reversed, 311 N.C. 679, 319 S.E.2d 139 (1984); and Coman, 325 N.C. at 174-75, 381 S.E.2d at 446-47. Speck provides no support for Arnold’s argument, however. Speck involved the claim by two professors that they had an interest in a secret scientific process which made possible the production of “Sweet Acidophilus” milk, and which process they discovered while employed by North Carolina State University. The trial court in Speck granted summary judgment for the defendants, and this Court reversed, holding that there was a question of fact about the existence of a fiduciary relationship between plaintiffs and the defendants. In reversing the decision of this Court, the Supreme Court held that the plaintiffs never had any interest in the process which they developed while employed by the University: “As the secret process in question belonged to the University immediately upon its discovery by the plaintiffs, the plaintiffs never possessed any interest cognizable in equity or at law in the process.” Speck, 311 N.C. at 687, 319 S.E.2d at 144. Therefore, defendants never stood in a fiduciary relationship with the plaintiffs with regard to their discovery. Id. In Coman, our Supreme Court stated that courts in other states “have recognized wrongful discharge theories characterized either as the bad faith exception to the at-will doctrine or under the implied covenant of good faith and fair dealing.” Coman, 325 N.C. at 177, 416 S.E.2d at 173 (citation omitted). In Amos, 331 N.C. 348, 416 S.E.2d 166, however, the Supreme Court stated that the above-quoted statements from Coman were “dicta,” and specifically stated that the Court “did not recognize a separate claim for wrongful discharge in bad faith.” Id. at 360, 416 S.E.2d at 173. The trial court properly entered summary judgment on this claim for relief. C. Interference with Prospective Economic Relations [Count V] Our Supreme Court set out the elements of tortious interference with contract in United Laboratories, Inc. v. Kuykendall: The tort of interference with contract has five elements: (1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff. Childress v. Abeles, 240 N.C. 667, 84 S.E.2d 176 (1954). 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). Plaintiff contends, however, that the interference is with his “prospective” contractual relationships. In EEE-ZZZ Lay Drain Co. v. N.C. Dept. of Human Resources, 108 N.C. App. 24, 422 S.E.2d 338 (1992), overruled on other grounds, 347 N.C. 97, 489 S.E.2d 880 (1997), this Court reversed the trial court’s denial of summary judgment, holding in part that “[pjlaintiff was unable to point to any specific instance when these acts [i.e., interference with prospective contractual relations] occurred, and this Court is unable to find any evidence of such in the record. We find no basis for believing that such a cause of action even exists in North Carolina. ” Id. at 31, 422 S.E.2d at 343 (emphasis added). Likewise, in the case before us, Arnold cannot point to any particular prospective relationships with which Vanguard tortiously interfered, and the trial court’s grant of summary judgment must be affirmed. Arnold is not without a remedy, however. If he ultimately prevails at trial, he may seek damages from Vanguard for wrongfully obtaining an injunction against him. N.C. Gen. Stat. § 1A-1, Rule 65(e) (1990). In summary, we affirm the grant of summary judgment by the trial court as to all three counts which are the subject of this appeal. Affirmed. Judges GREENE and LEWIS concur.

FRANZEL v KERR MANUFACTURING COMPANY Docket No. 201802. Submitted November 3, 1998, at Detroit. Decided March 30, 1999, at 9:00 A.M. Shirley Franzel brought an action in the Wayne Circuit Court against Kerr Manufacturing Company and Rebecca Leinen, Kerr’s vice president of human resources, alleging several claims as a result of Franzel’s second termination from employment. The court, Kay Tertzag, J., granted Leinen’s motion for summary disposition and dismissed the plaintiff’s claims of sexual harassment, hostile work environment sex discrimination, retaliation for attempting to oppose a violation of the Civil Rights Act, and intentional infliction of emotional distress. The jury considered the claims of wrongful discharge, sex discrimination in violation of the Civil Rights Act, and breach of contract for Kerr’s alleged violation of an unconditional offer to the plaintiff to return to work after her first termination from employment. The jury, specifically finding that the plaintiff was not an employee whose employment could be terminated for just cause only, found no wrongful discharge. The jury also found no sex discrimination, but did find that Kerr breached the contract between it and the plaintiff made before the plaintiff returned to work after her first termination from employment. The jury awarded the plaintiff damages but reduced the amount because of the plaintiff’s failure to mitigate her damages. Kerr appealed and the plaintiff cross appealed. The Court of Appeals held: 1. The plaintiff was entitled to only nominal damages for the breach of the at-will employment contract. The court erred in denying Kerr’s motion for remittitur, and that order must be reversed. 2. The jury did not find that the plaintiff had been an at-will employee before her first termination from employment or that following her reinstatement she was an employee whose employment could be terminated for just cause only. 3. The plaintiff was on notice when she signed the reinstatement contract that her employment was at will. 4. The court erred in admitting, over Kerr’s objection, a letter written by Kerr’s counsel to defendant Leinen. The letter was not intentionally presented to the plaintiff by Kerr’s counsel. An unprejudiced person reviewing the evidence would find no justification or excuse for the court’s decision to deny Kerr’s motion to suppress the evidence. The letter was improperly admitted and its contents created undue prejudice against Kerr. The admission of the evidence constituted error requiring reversal of the judgment with regard to the breach of contract claim. 5. The court abused its discretion in permitting an expert witness to testify that the plaintiff is a credible witness and in permitting the witness to testify with regard to matters outside the witness’ field of expertise. The expert witness should not have been allowed to testify with regard to evidence that was subject to the attorney-client privilege and that was erroneously admitted into evidence. 6. The court did not err in finding either no genuine issue of material fact regarding the claims of intentional gender discrimination, sexual harassment, retailiation for opposing a violation of the Civil Rights Act or the failure to state a claim regarding sexual harassment, gender discrimination by defendant Leinen, or intentional infliction of emotional distress. Those orders of summary disposition must be affirmed. Affirmed in part, reversed in part, and remanded. 1. Contracts — Employment at Will — Breach of Contract — Damages. The measure of damages for an employer’s breach of an employment contract involving an at-will employee is nominal damages. 2. Contracts — Damages. Neither mental distress damages nor exemplary damages are available in an action for breach of contract, even if the breach was malicious or wilful. 3. Master and Servant — Employment at Will. An at-will employment relationship is presumed where an employment agreement is silent regarding the type of employment relationship intended. 4. Witnesses — Experts — Opinion Testimony — Appeal. Whether a witness is qualified to render an expert opinion and the admissibility of an expert’s testimony are matters within a trial court’s discretion; an abuse of discretion will be found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. 5. Witnesses — Experts. The subject matter of an expert’s testimony should be directly related to and within the immediate scope of the witness’ expertise; a prerequisite to the admission of an expert’s testimony is a showing that the expert has knowledge in a particular area that belongs more to an expert than to the common man; an expert should not be permitted to express an opinion where the jury is in as good a position as the expert to determine intelligently the issue involved without enlightenment from the expert (MRE 702). 6. Witnesses — Experts — Work-Product Privilege. Facts known and opinions held by an expert are not work product, but the expert’s arrangement of those facts and opinions in a report, made in direct response to the inquiries of an attorney, is work product protected by the work-product privilege (MCR 2.302[B][4]). 7. Trial — Witnesses — Jury Trial — Witness Credibility — Expert Testimony. The jury is the sole arbiter of witness credibility in a jury trial; expert testimony regarding the credibility of a witness is improper in a jury trial. Allen J. Counard, P.C. (by Allen J. Counard), for the plaintiff. Kell & Lynch, P. C. (by M. V. Kell and Margaret A. Lynch), for Kerr Manufacturing Company. Before: Hood, P.J., and Griffin and Markey, JJ. Per Curiam. Kerr Manufacturing Company (hereafter defendant) appeals by right the jury verdict finding that while defendant did not wrongfully discharge plaintiff Shirley Franzel or commit sexual discrimination against her, defendant did breach the parties’ contract that formed the basis for plaintiff’s return to work in January 1987. Plaintiff cross appeals to determine whether the trial court erred in summarily dismissing plaintiff’s claims under the Civil Rights Act (cra) of intentional gender discrimination, MCL 37.2202(1); MSA 3.548(202)(1), hostile work environment sexual harassment, MCL 37.2103(1); MSA 3.548(103)(i), retaliation for attempting to oppose a violation of the CRA, MCL 37.2701; MSA 3.548(701), gender discrimination by defendant Rebecca Leinen, Kerr’s vice president of human resources, and her claim of intentional infliction of emotional distress. Plaintiff also cross appeals from the trial court’s refusal to enter an order of judgment including costs, attorney fees, or mediation sanctions. We vacate the judgment in favor of plaintiff and affirm regarding the cross appeal. FACTS Plaintiff worked as a sales representative, district manager, and metro market manager for defendant, a dental products manufacturer, from 1981 through July 1986, and again from January 1987 through May 1987. Plaintiff aspired to the position of regional manager, but allegedly defendant and a host of its employees were committed to preventing a woman from reaching upper management. Plaintiff claims that defendant began discriminating and conspiring against her after three January 1986 incidents at a national sales meeting in Marco Island, Florida, where two comments were made during a slide show that insinuated plaintiff had slept her way to her current position, and where another manager, who was vying for the same regional manager promotion, pinched her on the buttocks. Rick Amos, plaintiff’s supervising regional manager, terminated her employment in July 1986 for failing to satisfy the requirements of a February 1986 “performance improvement plan” (pip), also known as probation. In August 1986, plaintiff filed her complaint in state court against defendant Kerr, asserting claims of sexual harassment and sexual discrimination in violation of the CRA, breach of contract, wrongful discharge, negligent evaluation, and retaliatory treatment for filing the lawsuit, but the action was removed to the United States District Court for the Eastern District of Michigan on diversity grounds. After a lengthy trial before Judge Barbara K. Hackett, the federal court jury found that plaintiffs employment could be terminated for just cause only, but issued a verdict of no cause of action. The federal case was subsequently dismissed, however, when plaintiff filed a posttrial challenge to diversity jurisdiction and defendant did not oppose it. Thus, the parties refiled their pleadings in the Wayne Circuit Court and the instant lawsuit proceeded. Rebecca Leinen was also added as a defendant in the state court action. While her federal lawsuit was pending, however, defendant made plaintiff an unconditional offer to return to work. After negotiations, plaintiff agreed and signed a December 11, 1986, letter setting forth the conditions of her reinstatement, including the geographical territories she would service (which did not include the same successful Michigan accounts she had in the past), that Amos would no longer oversee her work, and that she was subject to annual reviews like all other district managers. From the outset, the problems that had plagued plaintiff before her first termination involving extremely late paperwork and expense reports began to reoccur, and plaintiff was again placed on a pip. When plaintiff refused a direct order to (1) retrieve from home some “documentation” that she claimed existed to rebut the allegations in her pip (and support many of the allegations she made against other employees who allegedly sexually harassed her and conspired against her), and (2) return to work with the documentation on the same day, she was suspended. Plaintiff then informed defendant that she could not return to work for medical reasons at the direction of her psychologist, but she refused to submit to an independent medical or psychological examination that defendant requested. Defendant once again terminated her employment, this time for insubordination. In the state court action, the trial court granted defendant Rebecca Leinen’s motion for summary disposition and dismissed plaintiffs claims of sexual harassment, hostile work environment sex discrimination, retaliation, and intentional Infliction of emotional distress. The jury was instructed with regard to the claims of (1) wrongful discharge, (2) sex discrimination in violation of the CRA, and (3) breach of contract for defendant’s alleged violation of the unconditional offer to return to work. The jury found no wrongful discharge (specifically finding that plaintiff was not an employee whose employment could be terminated for just cause only) and no sex discrimination, but it did find that defendant breached the contract between the parties that formed the basis for plaintiff’s return to work in January 1987. The jury awarded plaintiff $425,000 in damages but reduced that amount by $200,000 for failure to mitigate. Defendant appealed, and plaintiff cross appealed to this Court. i A First, defendant Kerr asserts that the trial court committed error requiring reversal in refusing to reduce the jury’s damage award to a nominal amount Defendant argues that the jury’s damage award was purely speculative and that plaintiff was entitled to only nominal damages under Sepanske v Bendix Corp, 147 Mich App 819; 384 NW2d 54 (1985), and Environair, Inc v Steelcase, Inc, 190 Mich App 289, 293; 475 NW2d 366 (1991). These cases support the proposition that even if defendant breached its contract with plaintiff regarding her return to work, nothing in the contract ensured her continued employment because, as the jury found, she was an at-will employee, not an employee whose employment could be terminated for just cause only. Notably, neither mental distress damages nor exemplary damages are available in an action for breach of contract, even if the breach is malicious or wilful. Walker v Consumers Power Co, 824 F2d 499, 504-505 (CA 6, 1987); Valentine v General American Credit, Inc, 420 Mich 256, 259-263; 362 NW2d 628 (1984). We find that plaintiff was entitled to only nominal damages for breach of the at-will employment contract and the trial court erred in denying defendant’s motion for remittitur. In Sepanske, supra at 828-829, this Court affirmed the proposition that the breach of an at-will employment contract entitles the employee to receive only nominal damages because, regardless of the contract terms, the employee had no reasonable expectation of continued employment. In that case, plaintiff Sepanske returned to work after taking a company-approved social service leave of absence but was placed in a different job in a different department, contrary to company policy guaranteeing reinstatement to a former position or one of equal or greater responsibility. The defendant’s personnel manager had also given Sepanske a letter stating that Sepanske was “ ‘scheduled to return to [his] former position’ ” upon completion of his social service leave. Id. at 823. The jury found that Sepanske’s responsibilities regarding his new job were neither greater than nor equal to those regarding his former job, and awarded him $75,206 in damages for future lost earnings. Id. at 824-825. This Court vacated the jury’s damage award and remanded to the district court for entry of a judgment in Sepanske’s favor “for nominal damages only.” Id. at 829. The Court stated: We take an entirely different approach [than the parties] on the issue of damages. We think that plaintiff was entitled to nominal damages only for defendant’s breach of the employment contract. This is not a case of wrongful discharge. Plaintiff’s expectation under the contract was to be restored to his old job or to an at-will position which was equivalent to or better than his position in pension and payroll, but he had no actionable expectation that any such restoration would be permanent. The position was still at will—one which the employer was free to alter or terminate without consequence. The fact that defendant historically had not arbitrarily reclassified positions or terminated employees does not change its right to do so. . . . The jury’s damage assessment in such a situation amounts to pure speculation. There is no tangible basis upon which damages may be assessed where plaintiff’s eccpectation was for an at-will position which could have been changed or from which he could have been terminated without consequence. See Sax v Detroit, G H & M R Co, 129 Mich 502, 506; 89 NW 368 (1902). [Id. (emphasis added).] This Court recently reiterated that Sepanske should not be extended beyond breach of contract actions where at-will employees are entitled to only nominal damages. Hord v Environmental Research Institute of Michigan, 228 Mich App 638, 643-644; 579 NW2d 133 (1998). In Environair, supra at 293-294, we stated that while Sepanske involved an employment relationship, its holding regarding the speculative nature of damages was equally applicable to nonemployment, at-will contractual relationships (e.g., exclusive sales contracts). Our Supreme Court has not affirmatively endorsed Sepanske, but the Court has discussed its holding, if only to distinguish it from a case being considered. In Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 251, n 31, 253; 531 NW2d 144 (1995), the Supreme Court found Sepanske inapplicable where the plaintiff sued her employer in tort for worker’s compensation retaliatory discharge. After quoting pertinent parts of the Sepanske opinion as set forth above, the Supreme Court merely stated that “[t]he claim in Sepanske, however, was premised on breach of contract, not a separate tort.” Id. at 253. Accord Sax, supra at 506; Mallory v Jack, 281 Mich 156; 274 NW 746 (1937) (future damages may not be awarded under employment contracts terminable at will). Notably, the Sax Court stated: There is no foundation for even a guess by a jury upon either question of fact [regarding when the employment contract would end and when it in fact ended], because either could terminate the contract at will, and it was equally impossible to tell how much of the time [the plaintiff, a train brakeman who was injured and subsequently rehired,] would be employed. The jury were [sic] turned, loose into afield of pure speculation and conjecture, without any practical or tangible basis upon which to assess damages. Under such circumstances, none can be assessed. [Sax, supra at 506 (emphasis added).] Plaintiff offers no case law support contrary to Sepanske; rather, she merely emphasizes Judge Shepherd’s position in his dissenting opinion in Sepanske that because the defendant could have fired the plaintiff at any time, it did not mean that the defendant was likely to fire him. Sepanske, supra at 832. In his dissent, Judge Shepherd also argued that public policy and fairness favor placing the burden of proof on the defendant to show that in fact the plaintiff would have been discharged, particularly given that the plaintiff in Sepanske was providing a public service on the defendant’s behalf while on leave before the employment relationship ended. Id. at 833. We find these arguments unpersuasive. B Plaintiff also argues that the reinstatement “contract” between plaintiff and defendant dated December 11, 1986, constituted an employment contract that was terminable for just cause only. Plaintiff asserts that the jury’s special verdict form evidences that the jury found plaintiff to be an at-will employee during her first term of employment but not during her reinstatement. A quick review of the jury’s special verdict form disproves this argument. The following are the questions and the jury’s responses to the special verdict form: Count i: Do you find that Plaintiff has proven by a preponderance of the evidence that the employment relation ship between the Plaintiff and Defendant was such that Plaintiff would not be discharged except for just cause? NO Count n: Do you find that Plaintiff has proved by a preponderance of the evidence that one of the reasons she was discharged was because of her sex? no Count III: Question 1: Do you find that Plaintiff has proved by a preponderance of the evidence that Defendant breached the contract which Plaintiff and Defendant entered into upon her return to work? yes Question 2: Do you find by a preponderance of the evidence that Plaintiff suffered damages as a result of the breach of contract? yes Damages: Question 1: If plaintiff suffered damages, what is the amount of damages you award to Plaintiff? Count ill, Breach of Contract, $425,000 Question 2: Did Plaintiff make a reasonable effort to minimize her damage? NO By what amount do you find the award of damages will be reduced? $200,000 [Emphasis added.] Cleaxly, nothing in the language of the special vexdict foxm xegaxding count I limited the question of at-will ox just-cause employment to eithex plaintiffs first ox second period of employment. c Plaintiff further argues that the language of the reinstatement contract itself establishes the just-cause nature of the employment relationship. A review of the pertinent language in the reinstatement contract that plaintiff signed supports a contrary view: 1. Kerr will unconditionally reinstate you to the position of District Manager within the Michigan market effective January 5, 1987. 2. You will be reinstated at your former salary of $35,000.00 per year. 3. You will be entitled to the normal bonus arrangement available to District Managers. 4. You will be provided with all fringe benefits available to District Managers. 5. You will be subject to annual reviews the same as is provided to all other District Managers. 6. For a period of six (6) months, you will be assigned the following accounts: A. University of Michigan B. Healthco C. Either Patterson or Bignall While the

RICKY ADAM RIDENHOUR, Plaintiff-Appellant v. INTERNATIONAL BUSINESS MACHINES CORPORATION and CHET GURSKI, Defendants-Appellees No. COA98-361 (Filed 16 March 1999) 1. Fraud— constructive fraud — breach of fiduciary duty— failure to show benefit In plaintiff’s action against his former employer and its plant manager for constructive fraud based on breach of fiduciary duty after defendants failed to keep confidential defendant’s identity as the person who gave the employer information about a supplier’s fraud, benefits plaintiff claims were allegedly received by defendants from the breach of fiduciary duty were insufficient to support a claim of constructive fraud since (1) the employer’s recovery of more than one million dollars from the supplier for fraud as a result of the information supplied by plaintiff did not relate to any breach of fiduciary duty owed to plaintiff; (2) the employer’s continued business relationship with the supplier was not predicated on a breach of fiduciary duty owed to plaintiff; and (3) the employer’s right to terminate plaintiff’s at-will employment without cause was a right the employer already possessed and did not result from a breach of fiduciary duty to plaintiff. 2. Employer and Employee— wrongful discharge — violation of public policy — insufficient evidence Plaintiff former employee failed as a matter of law to establish a claim of wrongful discharge in violation of public policy where plaintiff’s evidence failed to show that defendant employer was engaged in illegal activity or that plaintiff was asked by defendant to violate any state or federal law or to perform any activity injurious to the public, and uncontroverted evidence at trial tended to show that plaintiff was discharged immediately following a lengthy unexcused and unexplained absence from work. Appeal by plaintiff from judgment entered 12 March 1997 by Judge Ronald E. Bogle in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 November 1998. Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Harold L. Kennedy, III, Harvey L. Kennedy, and Annie Brown Kennedy, for plaintiff-appellant. Kilpatrick Stockton LLP, by Charles E. Johnson and R. Rand Thicker, for defendants-appellees. HUNTER, Judge. Plaintiff was employed as a machinist with International Business Machines Corporation (IBM) at its facility in Charlotte, North Carolina from December 1989 until December 4, 1991. In March 1990, plaintiff learned that IBM was renegotiating their contract with Atlantic Design Company (ADC), a company where plaintiff had previously worked. Plaintiff informed his manager that he had sensitive information that would be helpful to IBM in their negotiations. He asked for anonymity and was given assurances that his identity would be kept confidential. Plaintiff disclosed that ADC had contracted to manufacture cards for IBM by hand, was actually manufacturing the cards by machine on off shifts, and was billing IBM as if the cards were done by hand. Plaintiff referred to the jobs as “cheat jobs” and stated they involved millions of dollars in fraud. Plaintiff related the same information to numerous IBM officials and requested anonymity from each, explaining that the ADC managers involved in the fraud were unsavory characters and he feared for his safety. At one point during the investigation, plaintiff met with a representative of ADC’s parent company and was introduced to him by name by an IBM manager. Plaintiff claims this was a breach of the manager’s promise to maintain his anonymity and after the introduction plaintiff became fearful for his life, became nervous, could not eat, and developed severe stomach and back pains. As a result of plaintiffs information regarding the fraud of ADC, IBM recovered $1,250,000.00 from ADC. Plaintiff applied for IBM’s national suggestion award and on 15 June 1991, he received the maximum award of $150,000.00. The award was presented in the presence of four IBM managers, an act which plaintiff contends also breached IBM’s commitment to confidentiality. However, defendants claim the application for the award made clear that such an application and award could not be kept confidential. Plaintiff further claims he experienced on-the-job retaliation after he received the suggestion award. Retaliatory acts included being removed from his regular job and used as an extra, being assigned to the worst machines to assure a decrease in production numbers, being given bad appraisals and bypassed for promotion, and ultimately being terminated on 4 December 1991. Defendants claim that IBM terminated plaintiff’s employment after plaintiff left work on 23 November 1991 without permission, had six days of unexcused absences, failed to follow IBM’s call-in procedures, and failed to respond to his supervisor’s requests for an explanation for his absence. On 15 December 1994, plaintiff filed a complaint against IBM and several IBM employees including Chet Gurski, IBM’s plant manager, alleging wrongful discharge in violation of public policy. An amended complaint added the claim of constructive fraud based on breach of fiduciary duty. During discovery, two defendants were voluntarily dismissed without prejudice and one was dismissed pursuant to Rules 12(b)(4), 12(b)(5), and 12(b)(6) of the North Carolina Rules of Civil Procedure. The remaining defendants’ (Gurski and IBM) motion for summary judgment was denied and the case was tried before a jury on 27 January 1997. After the close of plaintiff’s evidence, the trial court granted defendants’ motion for directed verdict as to all claims against Gurski and as to the constructive fraud claim against IBM. A jury rendered a verdict against the plaintiff on his remaining claim of wrongful discharge in violation of public policy against IBM. Plaintiff appeals. Plaintiff first contends the trial court committed reversible error in granting defendants’ motion for a directed verdict on plaintiff’s claim for constructive fraud based on a breach of fiduciary duty. Upon defendants’ motion for a directed verdict, the evidence must be taken as true and considered in the light most favorable to the plaintiff. Farmer v. Chaney, 292 N.C. 451, 452, 233 S.E.2d 582, 584 (1977). However, if plaintiff fails to present evidence of each element of his claim for relief, the claim will not survive a directed verdict motion. Felts v. Liberty Emergency Service, 97 N.C. App. 381, 383, 388 S.E.2d 619, 620 (1990). In order to withstand defendants’ motion for directed verdict, plaintiff had the burden of presenting evidence to support each element of his constructive fraud claim. In stating a cause of action for constructive fraud, plaintiff must allege facts and circumstances which created the relation of trust and confidence and “which led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.” Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997) (citation omitted). “Implicit in the requirement that a defendant ‘[take] advantage of his position of trust to the hurt of plaintiff is the notion that the defendant must seek his own advantage in the transaction; that is, the defendant must seek to benefit himself.” Id. “The requirement of a benefit to defendant follows logically from the requirement that a defendant harm a plaintiff by taking advantage of their relationship of trust and confidence . . . [and is] implicit throughout the cases allowing constructive fraud claims.” Id. at 667, 488 S.E.2d at 224. See, e.g., Terry v. Terry, 302 N.C. 77, 84, 273 S.E.2d 674, 678-79 (1981) (defendant used position of trust and confidence to take advantage of his ill brother and purchase his business at a price below market value); Link v. Link, 278 N.C. 181, 193, 179 S.E.2d 697, 704 (1971) (defendant husband took advantage of relationship with wife to obtain shares of stock as part of a separation agreement); Vail v. Vail, 233 N.C. 109, 115, 63 S.E.2d 202, 207 (1951) (defendant son took advantage of relationship of trust to obtain deed to property from his mother). The parties dispute whether plaintiffs forecast of evidence tends to show there was a relationship of trust and confidence between defendants and plaintiff sufficient to support a claim for constructive fraud. We need not decide this issue, however, because we find that although plaintiff claims IBM benefitted from a breach of its fiduciary duty, the benefits plaintiff claims were received are insufficient to support a claim of constructive fraud. Plaintiff first claims that IBM received the monetary benefit of $1,250,000.00 recouped from ADC. However, this money was recovered because of the fraud by ADC and there is no evidence the recovery of the funds relates to any breach of a fiduciary duty owed to plaintiff by IBM. Plaintiff also claims that IBM benefitted by having a continued business relationship with ADC. Again, we fail to see how this continued relationship was predicated on a breach of fiduciary duty owed to plaintiff. In addition, our Supreme Court has stated that the benefit of a continued relationship “is insufficient to establish the benefit required for a claim of constructive fraud.” Barger, 346 N.C. at 667, 488 S.E.2d at 224. The final benefit plaintiff claims IBM received is the retaliatory firing of plaintiff. It has been held that “[e]ither party to an employment-at-will contract can terminate the contract at will for no reason at all, or for an arbitrary or irrational reason.” Tompkins v. Allen, 107 N.C. App. 620, 622, 421 S.E.2d 176, 178 (1992), disc. review denied, 333 N.C. 348, 426 S.E.2d 713 (1993) (citation omitted). “However, this doctrine is not without limits and a valid claim for relief exists for wrongful discharge of an employee at will if the contract is terminated for an unlawful reason or a purpose that contravenes public policy.” Id. (citations omitted). The jury either found that plaintiff’s conduct of reporting the fraud by ADC was not protected by law or that plaintiffs conduct was not a substantial factor in IBM’s decision to terminate plaintiff. The benefit of the right to terminate plaintiff without cause was a right IBM already possessed, and therefore IBM could not have received that benefit from breaching a fiduciary duty. We find the trial court properly granted defendants’ motion for directed verdict on plaintiff’s claim for constructive fraud based on breach of fiduciary duty. Plaintiff next contends the trial court committed reversible error in its instructions to the jury on plaintiff’s claim of wrongful discharge in violation of public policy and in failing to give plaintiff’s proposed special jury instructions regarding that claim. Plaintiff requested the trial court to instruct the jury, in part, that no employee may be terminated from his employment in violation of public policy. The court denied plaintiff’s request and, instead, instructed the jury from the North Carolina Pattern Jury Instructions — Civil 640.20 (1991). “It is well settled [that] the trial court must give the instructions requested, at least in substance, if they are proper and supported by evidence. However, the trial court may exercise discretion to refuse instructions based on erroneous statements of the law.” Roberts v. Young, 120 N.C. App. 720, 726, 464 S.E.2d 78, 83 (1995) (citation omitted). Here, the trial court determined, in its discretion, that the evidence did not support plaintiff’s allegation that he was discharged for a purpose contravening public policy and instructed the jury to determine whether the plaintiff was wrongfully discharged for “his participation in conduct protected by law.” The jury rejected this remaining contention. As previously stated, North Carolina is an employment-at-will state. Our Supreme Court “has repeatedly held that in the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.” Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997), reh’g denied, 347 N.C. 586, 502 S.E.2d 594 (1998). Limited exceptions have been adopted to this bright-line rule. First, as stated above, parties can remove the at-will presumption by specifying a definite period of employment contractually. Second, federal and state statutes have created exceptions prohibiting employers from discharging employees based on impermissible considerations such as the employee’s age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer. See, e.g., 29 U.S.C. § 623(a) (1988) (Age Discrimination Act); 42 U.S.C. § 2000e-2a (1988) (Equal Employment Opportunities Act); 42 U.S.C. § 12112(a) (Supp. 1988) (Americans with Disabilities Act); N.C.G.S. § 95-241 (1993) (prohibiting discharge in retaliation for filing workers’ compensation, OSHA, and similar claims). Finally, this Court has recognized a public-policy exception to the employment-at-will rule. See . . . Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989) (discharging an employee for refusing to falsify driver records to show compliance with federal transportation regulations offends public policy). Id. at 331-32, 493 S.E.2d at 422. Public policy is defined as “the principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Johnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 296, 484 S.E.2d 840, 842-43, disc. review denied, 346 N.C. 547, 488 S.E.2d 802 (1997). There is no specific list of what actions constitute a violation of public policy. Garner v. Rentenbach Constructors Inc., 129 N.C. App. 624, 628, 501 S.E.2d 83, 86 (1998). However, wrongful discharge claims have been recognized in North Carolina where the employee was discharged (1) for refusing to violate the law at the employers request, see Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985), (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy, see Garner, supra. Viewing the evidence in a light most favorable to plaintiff, it appears, as a matter of law, that plaintiff has failed to establish a claim of wrongful discharge under any of these recognized public policy exceptions. First, plaintiffs employer was not engaged in unlawful activity and plaintiffs evidence shows no indication he was asked by his employer to violate any federal or state law or to perform any activity “injurious to the public or against the public good.” Rather, defendant, IBM, was actually the victim of unlawful activity. Plaintiff, of his own accord, reported the fraudulent activity to IBM and saved his employer well over $1 million dollars for which he was awarded $150,000.00. Second, uncontraverted evidence introduced at trial tended to show that plaintiff was discharged immediately following a lengthy unexcused and unexplained absence from work. Based on the above, we find no violation of public policy. The trial court was justified in refusing to instruct the jury on the public policy exception to North Carolina’s employment-at-will doctrine. As a result of our holdings above, we find it unnecessary to address plaintiffs remaining assignment of error. Affirmed. Judges MARTIN and SMITH concur.

BARNEY HUANG, Plaintiff v. THOMAS J. ZIKO, BECKY R. FRENCH, BRUCE R. POULTON, THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA AND CONSTITUENT INSTITUTION, NORTH CAROLINA STATE UNIVERSITY, Defendants No. COA98-352 (Filed 16 February 1999) Statute of Limitations— tolling — federal action The trial court did not err by allowing defendant’s motion for summary judgment on the basis of the statute of limitations where plaintiff pursued through the state and federal courts claims arising from his dismissal as a university professor following charges of attempted second-degree rape and assault on a female; assuming that plaintiffs claims accrued when defendant Board affirmed his dismissal on 9 February 1990, plaintiff ordinarily would have had until 9 February 1993 to file his complaint in state court; plaintiff did not file his claim in state court until 22 May 1996 and his claims were time barred unless the statute of limitations was tolled; no statute or rule provides for the exclusion of the time during which the federal action was pending from the limitations period; and, because North Carolina has no applicable “grace period” longer than the thirty-day period set out in 28 U.S.C.A. § 1367, the statute of limitations was tolled while the federal action was pending and for thirty days thereafter. Plaintiff could have filed his complaint in state court at any time during the pendency of the federal action and up to thirty days after the United States Court of Appeals reached its decision on 7 December 1995. Appeal by plaintiff from judgment entered 16 February 1998 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 25 January 1999. Kenneth N. Barnes for plaintiff-appellant. Attorney General Michael F. Easley, by Special Deputy Attorney General David Roy Blackwell, for defendants-appellees. TIMMONS-GOODSON, Judge. Prior to his dismissal, plaintiff was a tenured professor in the Department of Biological and Agricultural Engineering at North Carolina State University (hereinafter “defendant University”). In June 1988, plaintiff was charged with attempted second-degree rape and assault on a female. On 14 July 1988, defendant Bruce R. Poulton, then chancellor of defendant University, issued a notice of intent to discharge letter to plaintiff suspending him from his duties and terminating his salary as of 1 January 1989. Plaintiff requested a hearing on his dismissal pursuant to the Code of the Board of Governors of the University of North Carolina (hereinafter “defendant Board”). Following a hearing and recommendation by a Faculty Hearing Committee that plaintiff be removed from the faculty, defendant Poulton dismissed plaintiff effective 7 February 1989. Plaintiff appealed to defendant University’s Board of Trustees and, then, to defendant Board. Defendant Board ultimately affirmed the Board of Trustees’ decision on 9 February 1990. Plaintiff appealed to the superior court, which reversed his dismissal. This Court affirmed the superior court’s reversal of plaintiff’s dismissal, but the Supreme Court reversed this Court’s decision and upheld plaintiff’s dismissal. In re Dismissal of Huang, 336 N.C. 67, 441 S.E.2d 696 (1994). Prior to exhausting his administrative remedies, plaintiff filed a complaint in superior court against defendant University and defendant Poulton for breach of contract and intentional infliction of emotional distress. The trial court granted summary judgment for defendants on the emotional distress claim and for plaintiff on the contract claim. Defendants appealed to this Court, which reversed the trial court’s summary judgment for plaintiff on the ground that he had an adequate remedy for breach of contract in the administrative appeal of his discharge. Huang v. N.C. State University, 107 N.C. App. 710, 421 S.E.2d 812 (1992). On 21 June 1991, plaintiff filed a complaint in the United States District Court for the Eastern District of North Carolina against defendants Thomas J. Ziko, Becky R. French, Poulton, Board, and University. In the complaint, he alleged federal claims of civil rights violations, Title VII violations, free speech violations, and age discrimination. He alleged state claims of due process and equal protection. Defendants filed a motion for summary judgment. On 11 January 1993, the United States District Court granted defendants’ motion for summary judgment with respect to all federal claims. As to plaintiff’s state claims, the court ruled as follows: Because all the federal claims have been dismissed against defendants in this action, the court dismisses without prejudice the remaining pendent state claims plaintiff has asserted under the North Carolina Constitution. In view of this, the court is divested of jurisdiction to entertain these claims, and plaintiff is left to pursue these matters in state court. Plaintiff appealed to the United States Court of Appeals for the Fourth Circuit. On 7 December 1995, the Court of Appeals affirmed the lower court’s decision in an unpublished per curiam opinion. Huang v. French, 73 F.3d 357 (4th Cir. 1995). On 22 April 1996, the United States Supreme Court denied plaintiffs petition for a writ of certiorari. Huang v. French, 517 U.S. 1157, 134 L. Ed. 2d 649 (1996). On 22 May 1996, plaintiff filed a complaint in the superior court seeking compensatory and punitive damages from defendants for breach of contract, due process violations, malicious prosecution, intentional infliction of emotional distress, civil conspiracy, and constructive fraud. Defendants subsequently filed an answer that included a motion to dismiss and alternative motion for summary judgment. Defendants asserted as an affirmative defense that each of plaintiffs claims was barred by a three-year statute of limitations. On 16 February 1998, the trial court granted defendants’ motion for summary judgment. The trial court ruled that “[t]he statute of limitations bars each and every one of the Plaintiff’s claims.” Plaintiff appeals. Plaintiff argues that the trial court erred by granting defendants’ motion for summary judgment. He contends that the statute of limitations had not run at the time he filed his complaint. We disagree. The parties agree that each of plaintiff’s claims was subject to a three-year statute of limitations. Assuming arguendo that plaintiff’s claims accrued when defendant Board affirmed his dismissal on 9 February 1990, plaintiff ordinarily would have had until 9 February 1993 to file his complaint in state court. Because plaintiff did not file his complaint in state court until 22 May 1996, his claims were time-barred, unless the statute of limitations was tolled. As the parties recognize, “filing an action in federal court which is based on state substantive law . . . toll[s] the statute of limitations while that action is pending.” Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 808, 431 S.E.2d 227, 229 (1993), aff’d per curiam, 336 N.C. 599, 444 S.E.2d 223 (1994). The parties agree that plaintiff’s federal action was no longer pending for the purpose of tolling the statute of limitations when the United States Court of Appeals reached its decision on 7 December 1995. See Clark, 110 N.C. App. 803, 431 S.E.2d 227 (holding that because a petition for writ of cer-tiorari to the United States Supreme Court is not an appeal of right, the federal action is not alive for the purpose of tolling the statute of limitations while a decision to allow or deny such a petition is pending). However, the parties disagree as to whether plaintiff had additional time to file his complaint in state court after the United States Court of Appeals reached its decision. Plaintiff contends that once the federal action was no longer pending, the time for filing his complaint in state court should have been extended for the portion of the three-year limitations period that had not been used when he filed the federal action. Since less than a year and a half had passed when plaintiff filed his federal action, he would have had more than a year and a half after 7 December 1995 to file his complaint in state court. Plaintiff’s contention is untenable. The rule which plaintiff would have this Court adopt is contrary to the policy in favor of prompt prosecution of legal claims. Furthermore, such a rule is contrary to the general rule that “[i]n the absence of statute, a party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice as to him[.]” 51 Am. Jur. 2d Limitation of Actions § 311 (1970). In this case, no statute or rule provides for the exclusion of the time during which the federal action was pending from the limitations period. We likewise find unpersuasive defendants’ contention that the statute of limitations was tolled only until the United States Court of Appeals reached its decision and that plaintiff had no additional time to file his complaint in state court. We believe the question presented by this appeal is controlled by 28 U.S.C.A. § 1367 (1993). See Kolani v. Gluska, 75 Cal. Rptr. 2d 257 (1998); Roden v. Wright, 611 So. 2d 333 (Ala. 1992). That federal statute provides that when a federal district court has original jurisdiction over a civil action it may also exercise “pendent” or “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy[.]” 28 U.S.C.A. § 1367(a). A federal district court may decline to exercise supplemental jurisdiction over a claim if it “has dismissed all claims over which it has original jurisdiction].]” 28 U.S.C.A. § 1367(c)(3). The statute further provides that the period of limitations for any supplemental claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C.A. § 1367(d). Since the claims now asserted by plaintiff were supplemental claims dismissed by the United States District Court, he was entitled to thirty additional days to file his complaint in state court after the United States Court of Appeals reached its decision, unless some state statute provided for a longer period of time. Rule 41(b) of the North Carolina Rules of Civil Procedure provides a savings provision for claims that have been involuntarily dismissed: If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal. N.C. Gen. Stat. § 1A-1, Rule 41(b) (1990). Assuming arguendo that Rule 41(b) could apply in this case, the United States District Court did not specify in its order that a new action based on the same claims could be commenced within one year after the dismissal. See Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991). Therefore, the time for plaintiff to file his complaint in state court was not extended for an additional year. Because North Carolina has no applicable “grace period” longer than the thirty-day period set out in 28 U.S.C.A. § 1367, the statute of limitations was tolled while the federal action was pending and for thirty days thereafter. Plaintiff could have filed his complaint in state court at any time during the pendency of the federal action and up to thirty days after the United States Court of Appeals reached its decision on 7 December 1995. Plaintiffs complaint, filed on 22 May 1996, was not timely filed, and the trial court did not err by allowing defendants’ motion for summary judgment. The summary judgment entered by the trial court is affirmed. Affirmed. Judges GREENE and HUNTER concur.

DEARBORN HEIGHTS SCHOOL DISTRICT NO 7 v WAYNE COUNTY MEA/NEA Docket No. 200468. Submitted February 11, 1998, at Detroit. Decided December 8, 1998, at 9:00 A.M. Dearborn Heights School District No. 7, the employer of teacher Sherrie Adis, brought an action in the Wayne Circuit Court against Wayne County MEA/NEA (Adis’ union) and Adis, seeking to have an arbitration award vacated. The union and Adis filed a counter-complaint, seeking to have the arbitration award confirmed. Adis had been suspended following proceedings in the State Tenure Commission, which decided that Adis had assaulted and battered a fellow teacher, as the school district had charged. The Court of Appeals, Griffin, P.J., and Bandstra and M. Warshawsky, JJ., in an unpublished opinion per curiam, issued August 2,1996 (Docket No. 183953), had affirmed the decision of the commission. Arbitration had concerned a grievance filed by the union that the implementation of the commission’s decision violated the terms of the collective bargaining agreement. The arbitrator had reduced the length of the suspension after finding that Adis had not committed battery. On cross-motions for summary disposition, the court, Diane M. Hathaway, J., granted summary disposition for the union and Adis, determining that the arbitrator was free to decide differently from the commission with respect to the issue whether Adis had committed assault and battery. The school district appealed. The Court of Appeals held: Collateral estoppel applied to preclude Adis and her union from relitigating, and the arbitrator from deciding anew, the question whether Adis had assaulted and battered a fellow teacher. 1. The doctrine of collateral estoppel precludes relitigation of an issue in a different, subsequent action between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding. In this case, the parties to the proceedings before the commission and the arbitrator were substantially identical and the question of precisely what misconduct Adis engaged in was actually determined in the proceeding before the commission. 2. Where the earlier proceeding giving rise to the question of collateral estoppel was an administrative one, the doctrine will preclude relitigation of an issue that had been necessarily decided if, as in this case, the administrative proceeding was adjudicatory in nature, a method of appeal was provided, and the Legislature intended the administrative determination to be final in the absence of an appeal. Reversed and remanded. 1. Actions — Collateral Estoppel The doctrine of collateral estoppel precludes relitigation of an issue in a different, subsequent action between the same parties or then-privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding. 2. Actions — Collateral Estoppel — Identity of Parties. Collateral estoppel requires substantial, not precise, identity of parties; the purpose of this requirement is to ensure that collateral estoppel is applied only where the interests of the litigating party are adequately represented in the first proceeding; a nonparty to an earlier proceeding will be bound by the result if that party controlled the earlier proceeding or if the party’s interests were adequately represented in the original matter. 3. Actions — Collateral Estoppel — Administrative Proceedings. The doctrine of collateral estoppel will preclude relitigation of an issue that had been necessarily decided in an administrative proceeding if the administrative proceeding was adjudicatory in nature, a method of appeal was provided, and the Legislature intended the administrative proceeding to be final in the absence of an appeal. Allen, James & Foley, P.C. (by Kevin J. Foley), for Dearborn Heights School District No. 7. Fink Zausmer, P.C. (by Harvey I. Wax), for Wayne County MEA/NEA and Sherrie Adis. Before: O’Connell, P.J., and Gribbs and Smolensk, JJ. O’Connell, P.J. Plaintiff/counterdefendant Dearborn Heights School District No. 7 appeals as of right from the circuit court’s decision on a motion for summary disposition enforcing an arbitration award and denying a motion to vacate the award in favor of counter-plaintiffs. We reverse and remand. On April 18, 1994, the school district’s interim superintendent filed tenure charges against counter-plaintiff Sherrie Adis pursuant to the teacher tenure act. The charges alleged that Adis had threatened and physically assaulted another staff member. Pursuant to the statute, the school district’s board of education decided to proceed on the charges as filed. Adis contested the charges, arguing before a hearing referee of the State Tenure Commission that the assault and battery did not occur, and, alternatively, that if it did occur as alleged, it did not constitute “just and reasonable cause” for discharge. On December 5, 1994, the hearing referee issued a preliminary decision and order finding that Adis had committed the assault and battery and that she should be subject to a one-semester, unpaid suspension. Both parties objected to the determination. On February 27, 1995, the commission issued an opinion and order affirming the hearing referee’s preliminary decision but increasing the suspension from one to three semesters. This Court affirmed the commission’s decision on appeal. Adis v Dearborn Heights School Dist No 7 Bd of Ed, unpublished opinion per curiam of the Court of Appeals, issued August 2, 1996 (Docket No. 183953). Adis then decided to pursue an alternate administrative remedy. Because her employment with the school district was governed by a collective bargaining agreement, her interests in that agreement were represented by her union, defendant/counterplaintiff Wayne County MEA/NEA. The union filed grievances on Adis’ behalf, asserting that the school district violated the collective bargaining agreement by implementing the decision and order of the commission. An arbitrator heard the grievances in October and November of 1995. In an opinion dated May 7, 1996, the arbitrator, declaring that he was not bound by the commission’s earlier findings or decision, determined that Adis’ misconduct did not include a battery and that Adis should receive a one-month suspension without pay. The school district then filed a complaint in the circuit court to vacate the arbitrator’s award, arguing that the award was an abuse of discretion, arbitrary, capricious, unreasonable, based on substantial errors of law, inconsistent with the parties’ contract, and against public policy. The union filed an answer and countercomplaint to enforce the award. The parties then filed cross-motions for summary disposition. The circuit court ruled that the arbitrator was not required to follow the decision of the commission, holding that the two proceedings concerned sufficiently different issues and parties as to render principles of res judicata or collateral estoppel inapplicable. Accordingly, the court granted summary disposition in favor of counterplaintiffs. The school district presents on appeal an issue of first impression, namely, whether the doctrine of collateral estoppel applies to labor arbitration proceedings as concerns issues previously decided by the commission. We conclude that Adis is estopped from relitigating the commission’s factual conclusion that Adis had intentionally struck a fellow teacher and that upon remand the arbitrator’s assessment concerning the propriety of her suspension under the collective bargaining agreement must presume the validity of that finding. The doctrine of collateral estoppel precludes relitigation of an issue in a different, subsequent action between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding. See People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990); 1 Restatement Judgments, 2d, § 27, p 250. The doctrine is intended to relieve parties of multiple litigation, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Detroit v Qualls, 434 Mich 340, 357, n 30; 454 NW2d 374 (1990), citing Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980). Collateral estoppel bars relitigation of issues where the parties had a full and fair opportunity to litigate those issues in an earlier action. Arim v General Motors Corp, 206 Mich App 178, 195; 520 NW2d 695 (1994). In the instant case, the doctrine should have operated to prevent Adis and her union from relitigating the issue whether Adis intentionally struck her fellow teacher and therefore committed a battery. The question of precisely what misconduct Adis engaged in is one of fact, essential to the judgment, which was actually litigated and resolved by the commission. See Jones v State Farm Mut Automobile Ins Co, 202 Mich App 393, 401; 509 NW2d 829 (1993) (noting that a key determination concerning whether an earlier proceeding controls a later one is whether “the same facts or evidence are essential to the maintenance of the two actions”). In this case, identical factual accounts were elicited from identical witnesses before the commission and the arbitrator, the two proceedings invoking the same burden of proof. Indeed, the arbitrator admitted into evidence the entire record from the administrative proceeding, including the hearing officer’s preliminary decision and the commission’s final order. Accordingly, the commission’s factual determination should have bound the parties in the subsequent action, preventing the arbitrator from determining anew whether a battery occurred. See O’Keefe v Dep’t of Social Services, 162 Mich App 498, 509-510; 413 NW2d 32 (1987). The facts and circumstances in this case are similar to those of Ingham Co Employees’ Ass’n (ICEA) v Ingham Circuit Court, 170 Mich App 118; 428 NW2d 7 (1988). In ICEA, the circuit court found that the plaintiff was not entitled to unemployment benefits pursuant to the applicable statute because he had engaged in “misconduct” during his employment. Id. at 120-121. This Court affirmed that factual finding, id. at 121-122. The plaintiff then brought claims under the veterans’ preference act, MCL 35.401 et seq.; MSA 4.1221 et seq. In lieu of conducting a full hearing, the parties stipulated that the court could use the plaintiff’s record from the proceedings before the Michigan Employment Security Commission. ICEA, supra at 121. On appeal, this Court concluded that there was no “relevant distinction” between “misconduct” disqualifying an individual from receiving unemployment and “official misconduct” under the veterans’ preference act, and that because the Court had already affirmed the lower court’s finding of “misconduct,” the plaintiff was estopped from rehtigating that issue. Id. at 121-122. See also Viera v Saginaw Bd of Ed, 91 Mich App 555, 559- 560; 283 NW2d 796 (1979) (where the commission upheld a finding that a teacher was dismissed for reasonable and just cause, the teacher was collaterally estopped from recovering damages in a subsequent suit for breach of contract). Further, the “substantial identify” of the parties in the two proceedings at issue here supports the application of collateral estoppel. Local 98 of the United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, AFL-CIO v Flamegas Detroit Corp, 52 Mich App 297, 302; 217 NW2d 131 (1974) (for purposes of collateral estoppel, “[substantial identity, not precise identity, is all that is required”), citing Sunshine Anthracite Coal Co v Atkins, 310 US 381; 60 S Ct 907; 84 L Ed 1263 (1940). The purpose of the substantial-identity rule is to ensure that collateral estoppel is applied only where the interests of the litigating party are adequately represented in the first proceeding. See Nummer v Dep’t of Treasury, 448 Mich 534, 542-543; 533 NW2d 250 (1995). Thus, a nonparty to an earlier proceeding will be bound by the result if that party controlled the earlier proceeding or if the party’s interests were adequately represented in the original matter. Becherer v Merrill Lynch, Pierce, Fenner & Smith, Inc, 43 F3d 1054, 1069-1070 (CA 6, 1995). A party is one who was directly interested in the subject matter, and who had a right to defend in, or control, the proceedings, and who had a right to appeal from the judgment. Duncan v State Hwy Comm, 147 Mich App 267, 271; 382 NW2d 762 (1985), citing Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 42; 191 NW2d 313 (1971). As this Court has noted, individual employees are “substantially identical to the labor organizations which represented them as charging parties before merc.” Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 60 Mich App 606, 612; 231 NW2d 479 (1975), aff’d 399 Mich 449; 249 NW2d 121 (1976). In the instant case, the same attorney represented the same parties and presented the same witnesses and evidence. Although the union may have an institutional interest of its own in enforcing the contractual requirement of just cause for discipline, Adis’ interests were adequately represented before the commission, having had every incentive and opportunity to litigate her personal interest in the tenure proceeding fully and aggressively. Further, it is clear that the union was simply acting in a representative capacity for Adis in the arbitration proceedings. Thus, there was substantial identity between the parties for purposes of invoking collateral estoppel to bring the commission’s conclusion that Adis committed assault and battery to bear on any subsequent proceedings. See Ayers v Genter, 367 Mich 675, 678-679; 117 NW2d 38 (1962). Both case law and public policy support this reasoning. As our Supreme Court has repeatedly noted, “Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency’s choice between two reasonably differing views of the evidence.” Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Michigan Transportation Authority, 437 Mich 441, 450; 473 NW2d 249 (1991), citing MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974). An arbitrator’s review of an administrative agency’s factual findings is subject to the same principle. Where resolution of a controversy involves both an administrative hearing and a statutorily recognized arbitration procedure, the latter should supplement, not obviate, the former. See Jackson Fire Fighters Ass’n, Local 1306, AFL-CIO v City of Jackson (On Remand), 227 Mich App 520, 525; 575 NW2d 823 (1998). If a teacher were allowed to relitigate a factual question previously decided by the commission, it would reduce the administrative process to a mere rehearsal; an employee satisfied with the commission’s findings could accept them, while a dissatisfied employee could start over with a clean slate by bringing the matter before an arbitrator. Although surely most dissatisfied litigants would enjoy a second bite at the apple, our system disfavors resort to successive litigation to resolve identical issues. Where the earlier proceeding giving rise to the question of collateral estoppel was an administrative one, the doctrine will preclude relitigation of an issue that had been necessarily decided if the administrative proceeding was adjudicatory in nature, a method of appeal was provided, and the Legislature intended the administrative determination to be final in the absence of an appeal. Nummer, supra at 542. Counterplaintiffs argue that the last of these criteria is not met in the instant case. We disagree. Several statutory indications suggest that the Legislature intended the commission’s factual determinations to be final in the absence of, or affirmance upon, an appeal. Initially, we note that MCL 38.101; MSA 15.2001 vests the commission with the authority to determine whether a tenured teacher was discharged or demoted for cause. Further, even if the teacher tenure act is silent concerning whether a determination by the commission is to be given preclusive effect, in the absence of legislative intent to the contrary, the applicability of principles of preclusion is presumed. See Nummer, supra at 548; Lumley v Bd of Regents for the Univ of Michigan, 215 Mich App 125, 133; 544 NW2d 692 (1996). Finally, it is instructive that, pursuant to the Administrative Procedures Act, the only procedure available to a party aggrieved by a final decision of the commission is direct review by the courts. MCL 24.301; MSA 3.560(201). Because the appeal process, by its very nature, does not contemplate a new, original action, the commission’s decision is clearly intended to be a final decision on the merits. See Nummer, supra at 551. Counterplaintiffs’ position in this case would leave this Court in the precarious position of having two different panels issue two potentially opposing opinions concerning one factual issue. Such circumstances are but one type of the “repetitious and needless litigation” that the doctrine of collateral estoppel is designed to prevent. Storey v Meijer, Inc, 431 Mich 368, 372; 429 NW2d 169 (1988); Nummer, supra at 541. Certainly this is not the result intended by the Legislature. A teacher alleging wrongful termination or other adverse action typically has her choice from among multiple forums and causes of action to vindicate her rights.* **** For example, the teacher may file a claim with the federal Equal Employment Opportunity Commission or the Michigan Employment Relations Commission; she may pursue a grievance through arbitration under the collective bargaining agreement; she may challenge her termination before the State Tenure Commission; or she may file suit in state or federal court with regard to a variety of statutory, common-law, or constitutional theories. The question here is, if the teacher chooses a forum, loses on the central claim, then appeals unsuccessfully to this Court, may she then relitigate her claim in a new forum? May she get a second bite at the apple? Further, if a litigant had the right to a second forum to adjudicate her rights without risk that the first adjudication were binding, one must ask, why not a third or fourth try after losing two or three times? These questions, of course, underscore the importance of finality in litigation. In this case, allowing the arbitrator to decide de novo a factual question already resolved by the commission and affirmed by this Court would invite an incongruous outcome. Because the arbitrator’s award was based on different factual findings from those of the commission, we reverse the arbitrator’s decision and remand for further proceedings consistent with this opinion. On remand, the arbitrator must accept the commission’s factual findings. Reversed and remanded. We do not retain jurisdiction. Gribbs, J. I concur in the result only. MCL 38.71 et seq.\ MSA 15.1971 et seq. Although Adis is estopped from asking the arbitrator to make factual findings concerning her misconduct contrary to the findings of the commission, she may properly ask the arbitrator to review the decision of the commission concerning the discipline to be imposed for that misconduct. Therefore, we are remanding this case to the arbitrator to permit the arbitrator to reconsider whether in light of the battery and other uncontested facts, a three-semester suspension without pay constitutes a breach of Adis’ contractual right under the collective bargaining agreement to discipline for “just cause.” Because the exercises of judgment called for in the two proceedings concerned substantially different criteria — the commission’s concern for whether Adis was suspended for cause as opposed t

BRACCO v MICHIGAN TECHNOLOGICAL UNIVERSITY Docket No. 179661. Submitted May 19, 1998, at Sault Ste. Marie. Decided September 22, 1998, at 9:00 A.M. Leave to appeal sought. Kenneth C. and Beverly Braceo, following the termination by Michigan Technological University of Kenneth Bracco’s employment, brought an action against the university in the Houghton Circuit Court, alleging age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.\ deprivation, without due process, of a property interest in employment; and deprivation, without due process, of a liberty interest in reputation. The Braceos also brought an action against the university in the Court of Claims, alleging that employment was supposed to be terminable only for just cause and that the discharge was not supported by just cause. The actions were consolidated. A jury returned a verdict of no cause of action with regard to the age-discrimination claim. The remaining claims were tried before the bench. The court, Edward A. Quinnell, J., determined that employment was terminable only for just cause, that just cause existed for the discharge, that Kenneth Braceo was deprived of a property interest without due process, and that Kenneth Braceo was not deprived of a protectible liberty interest. The university appealed, and the Braceos cross appealed. The Court of Appeals held: 1. In the absence of a civil service scheme providing that public employees employed for an indefinite term may be discharged only for just cause, public employers and employees may nonetheless create an employment relationship that is terminable only for just cause by express contract or agreement or through the employees’ legitimate expectations from the employer’s policies or practices. An oral contract or agreement for discharge only for just cause must be supported by evidence of negotiations about job security, by clear and unequivocal statements of job security by the employer, and by mutual assent to discharge only for just cause. A legitimate expectation of discharge only for just cause must be supported by evidence of an employer’s promise that is reasonably capable of instilling in the employee a legitimate expectation that employment would be terminated only for just cause. In this case, there was no civil service scheme providing for discharge only for just cause, the purported oral contract or agreement for discharge only for just cause was not supported by evidence of negotiations over job security, by clear and unequivocal statements of job security, or by mutual assent to discharge only for just cause, and the payment by the university of a bonus to employees who voluntarily retire early, by itself, could not give rise to a legitimate expectation of employment that was terminable only for just cause. Accordingly, Kenneth Bracco’s employment was terminable at will, not terminable only for just cause, and he did not have a protectible property interest in continued employment. The trial court therefore erred in determining that employment was terminable for just cause only and that Kenneth Bracco was deprived of a property interest without due process. 2. The trial court did not clearly err in finding that the university did not damage Kenneth Bracco’s reputation such that he was deprived of a liberty interest in reputation. Affirmed in part, reversed in part, and remanded for entry of judgment of no cause of action. 1. Master and Servant — Public Employment — Discharge Only for Just Cause. A public employer and a public employee, in the absence of a civil service scheme providing for discharge only for just cause, may create an employment relationship that is terminable only for just cause by express contract or agreement or through the employee’s legitimate expectations from the employer’s policies or practices. 2. Master and Servant — Discharge Only for Just Cause — Oral Contracts or Agreements. An oral contract or agreement for employment discharge only for just cause must be supported by negotiations over job security, by clear and unequivocal statements by the employer of job security, and by mutual assent to discharge only for just cause. 3. Master and Servant — Discharge Only for Just Cause — Legitimate Expectations. An expectation by an employee of employment discharge only for just cause must be supported by a promise by the employer that is reasonably capable of instilling in the employee a legitimate expectation that employment will be terminated only for just cause. 4. Master and Servant — Discharge Only for Just Cause — Legitimate Expectations — Early Retirement Bonuses. An employer’s payment of a bonus for early employee retirement, by itself, cannot give rise to a legitimate expectation by an employee that employment is terminable only for just cause rather than terminable at will by either party for any reason. Hunter H. Watson, for the plaintiff. Vercruysse Metz & Murray (by Robert M. Vercruysse and Bernice McReynolds), for the defendant. Before: Markman, P.J., and Griffin and Whitbeck, JJ. Whitbeck, J. In 1987, defendant Michigan Technological University (mtu) terminated the employment of plaintiff Kenneth Braceo. Plaintiffs filed suit, alleging numerous counts, but, following pretrial proceedings, were left with claims of age discrimination, breach of a just-cause employment contract, and deprivation of constitutional rights with respect to Braceo and a derivative claim for loss of consortium with respect to plaintiff Beverly Braceo. A jury heard the evidence of alleged age discrimination and returned a verdict of no cause of action in favor of mtu. The parties tried the remaining contract and constitutional claims in a bench trial. The trial court found that Braceo had a “just cause” contract of employment, but that MTU had just cause for terminating Braceo. However, the trial court also found that MTU deprived Braceo of due process, to which he was entitled by virtue of his property interest in the contract of employment, and awarded plaintiffs damages, together with costs and attorney fees. The trial court found that Braceo was not deprived of a protected liberty interest in his reputation. Mtu now appeals, and plaintiffs cross appeal. The key issue on appeal is whether Braceo had a “just cause” contract of employment with MTU. We find that he did not, and we reverse with respect to this issue. However, we affirm the trial court’s finding that Braceo was not deprived of a protected liberty interest in his reputation. I. BASIC PACTS AND PROCEDURAL HISTORY In 1970, mtu hired Bracco as a security guard. Mtu terminated Bracco in 1987 after two other employees reported that he committed a theft. These employees reported that Bracco took a few packages of packaged snacks from the display rack at the cafeteria of the student union, put the packages into his pocket, and left the area. When his supervisor confronted him with the statements of the employees, Bracco gave his own statement. Although Bracco admitted that the employees’ statements were accurate and admitted the conduct, adding that it “indeed did not look good,” he did not specifically admit theft. Bracco’s supervisor then took the statements to an administrator. The administrator and supervisor reviewed the statements with the acting employee-relations director, Pat Vitton. Although the precise facts are unclear, it appears that these three agreed that if the statements were true, mtu should terminate Bracco’s employment. They further agreed that if termination were necessary, Bracco should be given the opportunity to resign. Vitton then met with Bracco but the testimony differs with regard to what transpired. Mtu contends that Vitton confronted Bracco with the employees’ statements and asked for his explanation, while Bracco contends that Vitton merely told him he could resign or be fired. It appears undisputed that Bracco responded with an apology for his conduct but provided no explanation or defense. Vitton then told Braceo he should take time to think about the decision whether to resign. Vitton testified that when Braceo returned later that same day, he agreed to resign; Braceo did not, however, submit a written resignation. To Vitton’s astonishment, Braceo arrived at her office the next morning, asserting that he was ready to go to work. The testimony again differs, but Braceo contends that he informed Vitton that he had done nothing wrong. Underlying Bracco’s position of innocence was testimony regarding a practice that took place at mtu. Braceo testified that security guards and other uniformed officers from the area could enjoy free food at the student union after hours. Mtu, however, elicited testimony that the practice ceased years before this incident. The learned trial court succinctly summarized the procedural history as follows: Plaintiff [Braceo] filed timely suit in the Houghton County Circuit Court and in the Court of Claims, and the matters were consolidated. The cases have experienced numerous discovery proceedings, an interlocutory trip to the Court of Appeals, the retirement of one judge and the disqualification of his successor. Three theories of potential liability survived. The Elliott-Larsen Civil Rights Act [MCL 37.2101 et seq.; MSA 3.548(101) et seq.] claim (age discrimination) was tried to a Houghton County jury in March of 1992, The jury found in favor of the defendant [mtu] as to that claim. The two remaining claims are a breach of oral contract claim (Toussaint [v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980)]) in the Court of Claims and a Due Process claim (deprivation of property and deprivation of liberty) in the Houghton Circuit Court. Because of the potential relief available if a Due Process violation were found, both of these theories were presented to me sitting without a jury. The non-jury trial commenced on July 27,1992. By agreement, all evidence received during the jury trial was considered as admitted in the non-jury phase, to the extent relevant. Because of the length of time that had passed since the earlier trial and the voluminous exhibits, I directed the parties to file post-trial briefs in lieu of closing arguments, and the parties have done so. After the bench trial, the trial court issued detailed findings of fact and conclusions of law. Relying on Toussaint, the trial court concluded that “the evidence clearly and unequivocally demonstrates that plaintiff [Bracco] had a subjective expectation of job security, and that his subjective expectation was objectively reasonable and was intended by both parties.” The trial court therefore concluded that Bracco had “sustained his burden of proving that he could be discharged only for just cause.” The trial court further concluded that Bracco did not commit theft, stating that “he [Bracco] had a subjectively honest belief that he had a right to eat the food under the circumstances.” Nevertheless, the trial court went on to state: However, I also conclude that, based on the facts known to them at the time of the termination, the officials of mtu responsible for it were acting in good faith, were acting reasonably (subject to the Due Process discussion to follow), and that the perceived theft amounted to just cause for discharge under standards set by mtu. The trial court found that Bracco did not have a liberty interest in his employment, stating: The evidence is totally devoid of any conduct on the part of the university suggesting that the university did anything to create or enhance any stigma resulting from the termination of plaintiff’s employment. The termination was mentioned in a news story carried in the campus newspaper, but that occurred only in reporting the filing of the complaint; other news organizations carried a similar news story. However, the trial court went on to find that, given the existence of a “just cause” employment relationship between Braceo and MTU, “plaintiff’s [Bracco’s] entitlement is a property interest protected by the Due Process Clause, and therefore the government cannot deprive him of it without affording him appropriate due process rights.” The trial court then found that mtu denied Bracco’s “procedural Due Process protections in terminating him in the manner in which it did.” Accordingly, and after further briefing on damages, the trial court awarded the plaintiffs substantial damages and granted their motion for attorney fees, costs, and expenses. The trial court later entered a judgment in the amount of $373,395.06 against mtu. Mtu has appealed the trial court’s finding that Braceo had a just-cause contract and that mtu violated Bracco’s due process rights. Mtu has also appealed the trial court’s award of attorney fees and costs as well as the trial court’s calculation of damages. Plaintiffs cross appealed, asserting that the trial court erred in rejecting Bracco’s liberty interest claim, by reducing the amount of attorney fees awarded to plaintiffs, and by finding that mtu had just cause for terminating Braceo. H. STANDARD OF REVIEW We review a trial court’s findings of fact for clear error. “Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). “A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.” In re Forfeiture of $19,250, 209 Mich App 20, 29; 530 NW2d 759 (1995). Whether those facts result in the creation of a contract is an issue of law, to be reviewed de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). When a trial court incorrectly chooses, interprets, or applies the law, it commits legal error that the appellate court is bound to correct. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994) (Brickley, J., joined by Cavanagh, C.J., and Boyle, J.). m. JUST-CAUSE EMPLOYMENT A. OVERVIEW This case stands or falls on a single proposition: that Bracco had a “just cause” contract or agreement of employment with MTU. If Bracco did not have such a contract or agreement, then we need not address the questions whether MTU discharged him for just cause or whether MTU deprived him of his property interests without the process to which he was due. Nonetheless, the reasoning in Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985), is—even though it is a due process case dealing with the property rights of public employees in their continued employment—particularly instructive. Loudermill recognizes one situation where a public employee is a “just cause” employee: when that employee is covered by a civil service scheme in which the governing law provides that such employees can be terminated only for cause. While we may have such schemes in Michigan, it is clear that Braceo is not covered by one. The threshold question is, therefore, whether in the absence of a civil service scheme in which the governing law provides that public employees may be terminated only for cause, public employers and public employees may create a just-cause employment relationship. In Engquist v Livingston Co, 139 Mich App 280, 285; 361 NW2d 794 (1984), citing Bd of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972), and Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972), this Court held: A property right emanates from a contract or statute; public employment in and of itself is not a property interest automatically entitling an employee to procedural due process. [Emphasis supplied.] See also Johnson v Menominee, 173 Mich App 690, 695-696; 434 NW2d 211 (1988). In Meagher v Wayne State Univ, 222 Mich App 700, 720-721; 565 NW2d 401 (1997), this Court fleshed this issue out definitively when we said: A property right may come from contract or statute, but a public employee does not have a property right in continued employment when the position is held at the will of the employee’s superiors and the employee has not been promised termination only for just cause. Manning v Hazel Park, 202 Mich App 685, 694; 509 NW2d 874 (1993). A public employee may show a just-cause contract under ordinary contract principles (e.g., that an express agreement, oral or written, exists for just-cause employment) or under the “legitimate expectations” theory of Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). See Manning [v Hazel Park, 202 Mich App 685; 509 NW2d 874 (1993)] and Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692; 513 NW2d 230 (1994). The latter theory, in its pure form, stemmed from the Supreme Court’s common-law authority to recognize enforceable obligations that arise outside the operation of normal contract principles. Rood v General Dynamics Corp, 444 Mich 107, 118; 507 NW2d 591 (1993). Liability is nevertheless still premised on the parties’ mutual assent to be bound. Parties are free to bind themselves to whatever termination provisions they wish. Thomas v John Deere Corp, 205 Mich App 91; 517 NW2d 265 (1994). However, the “implied contract” theory of Toussaint may not be relied upon in Michigan when there is an express contract covering the same subject matter. Scholz v Montgomery Ward & Co, Inc, 437 Mich 83, 93; 468 NW2d 845 (1991); Wallace v Recorder’s Court, 207 Mich App 443, 447; 525 NW2d 481 (1994). [Emphasis supplied.] Thus, although the Michigan Supreme Court has not spoken definitively on this subject, in this Court at least, it is clear that in the absence of a civil service scheme in which the governing law provides that public employees may be terminated only for cause, public employers and public employees may nonetheless create a just-cause employment relationship. Further, in this Court at least, it is also clear that public employers and public employees may create such relationships by ordinary contractual means (i.e., through an express contract or agreement that is either oral or written) or through the “legitimate expectations” theory of Toussaint (i.e., outside “normal” contractual means). B. TOUSSAINT AND ITS LIMITATIONS (1) THE FACTUAL BACKGROUND IN TOUSSAINT As stated by Justice Levin, writing for the majority in Toussaint: Charles Toussaint was employed in a middle management position with Blue Cross and Walter Ebling was similarly employed by Masco. After being employed five and two years, respectively, each was discharged. They commenced actions against their former employers, claiming that the discharges violated their employment agreements which permitted discharge only for cause. A verdict of $72,835.52 was rendered for Toussaint and a verdict of $300,000 for Ebling whose discharge left him ineligible to exercise a stock option. Different panels of the Court of Appeals reversed Toussaint and affirmed Ebling. These cases are not factually distinguishable. Both Toussaint and Ebling inquired regarding job security when they were hired. Toussaint testified that he was told he would be with the company “as long as I did my job”. Ebling testified that he was told that if he was “doing the job” he would not be discharged. Toussaint’s testimony, like Ebling’s, made submissible to the jury whether there was an agreement for a contract of employment terminable only for cause. Toussaint’s case is, if anything, stronger because he was handed a manual of Blue Cross personnel policies which reinforced the oral assurance of job security. It stated that the disciplinary procedures applied to all Blue Cross employees who had completed their probationary period and that it was the “policy” of the company to release employees “for just cause only”. [Toussaint, supra at 595, 597-598.] (2) THE CONTRA

BUCHANAN v CITY COUNCIL OF FLINT Docket No. 193153. Submitted May 5, 1998, at Grand Rapids. Decided September 11, 1998, at 9:10 A.M. Leave to appeal sought. Darryl Buchanan brought an action in the Genesee Circuit Court against the City Council of Flint. When two female employees filed complaints alleging sexual harassment by the plaintiff, Flint’s ombudsman, the city attorney’s office undertook an investigation. A panel reviewed the investigation undertaken by an assistant city attorney and forwarded to the city council for its independent review and action a recommendation for remedial and disciplinary action. The city council placed the plaintiff on administrative leave with pay pending the outcome of an investigation of a special counsel that it had appointed. The plaintiff then filed his complaint, alleging disparate treatment, false light defamation, and intentional infliction of emotional distress and seeking judicial review, injunctive relief, and damages. The court, Donald R. Freeman, J., revoked the administrative leave and ordered that the plaintiff be reinstated as ombudsman, finding that the city charter made no provision for a suspension of or imposing administrative leave on the ombudsman, but held that the city’s policy regarding harassment and discrimination applied to the ombudsman and that the city council could conduct an investigation of those charges levied against the plaintiff. The city council conducted an impeachment hearing, hearing the testimony of numerous witnesses, and, thereafter, determined that the plaintiff should be removed as ombudsman, holding specifically that the plaintiff had wilfully caused citizens’ complaints not to be worked on, had permitted a conflict of interest in a specified case, had created a difficult work environment through erratic personnel policies, had delegated personnel matters to an advisory board and to consultants, and had failed to train and supervise staff appropriately. The plaintiff amended his complaint in the circuit court, challenging the city council’s removal of him from office. The parties agreed that the proper standard of review by the court was review de novo, but agreed that the court did not have to review all the testimony presented before the city council and rather could render its decision on the basis of an extract of the testimony that would be supplied by the parties. Following its review, the court set aside the city council’s decision and ordered the plaintiff reinstated. The city council moved for reconsideration, asking the court to review the entire record of the hearing before the city council. The court agreed to review the entire record and, following its review of that record, denied the motion for reconsideration. The city council appealed by leave granted. The Court of Appeals held: 1. The city council argues that the standard of review that the court should have used is the substantial evidence standard found in Const 1963, art 6, § 28, rather than the review de novo standard contained in Flint Charter, § 1-603(C), because the standard set forth in the constitution takes precedence over the standard set forth in the city charter. The court properly used the review de novo standard of review required by the city charter, because the substantial evidence standard of art 6, § 28 sets forth the minimum standard that must be observed for judicial review of an administrative determination, but does not preclude the setting of a stricter standard of review. Here the city charter sets a stricter standard of review for judicial review of the city council’s decisions, review de novo, and the court properly used that stricter standard in reviewing the decision of the city council. 2. The court erred in finding that there was insufficient evidence to support the decision of the city council to remove the plaintiff. The city charter provides for-removal of an appointee “for good cause.” Under either the substantial evidence standard or the review de novo standard, there was clearly sufficient evidence to support the city council’s finding that the plaintiff purposefully delayed the investigation of citizens’ complaints to apply pressure on the city council to secure more funding for the ombudsman’s office, and the court’s finding that there was not sufficient evidence to support that finding of the city council was clearly erroneous. Because the plaintiff’s actions in this regard controverted the essential mission of the ombudsman’s office, sufficient cause for the plaintiff’s removal from office was shown, and the court erred in setting aside the city council's decision to remove the plaintiff from office. 3. Because the only matter at issue in these proceedings was the review of the propriety of the city council’s decision to remove the plaintiff torn office, the court did not err as a matter of law in its determination not to make findings of fact concerning the questions whether the plaintiff discriminated or retaliated against employees or whether the plaintiff had a claim for wrongful discharge. 4. The court did not err in denying the city council’s motion to disqualify the plaintiff’s attorney because of alleged conflicts of interests. The court’s finding that there was no continuing attorney-client relationship between the city council and the plaintiff’s attorney or between the ombudsman’s office and that attorney was not clearly erroneous. Reversed in part and affirmed in part. Administrative Law — Findings op Fact — Judicial Review — Standard op Review. The substantial evidence standard set forth in the state constitution for judicial review of the findings of fact of an administrative agency sets a minimum standard of judicial review but does not preclude the adoption of a stricter standard of review, such as review de novo (Const 1963, art 6, § 28). George R. Hamo, for the plaintiff. Patrick L. Rose, for the defendant. Amicus Curiae: Vamum, Riddering, Schmidt & Howlett (by Peter Armstrong and George B. Davis'), for the Michigan Municipal League. Before: Sawyer, P.J., and Kelly and Smolensk, JJ. Kelly, J. Defendant, the City Council of Flint appeals by leave granted from the February 20, 1996, order of the Genesee Circuit Court that set aside the city council’s decision to remove plaintiff, Darryl Buchanan, from the office of ombudsman and reinstated him to the position. The city council also appeals from the June 10, 1996, order that reiterated plaintiff’s reinstatement as ombudsman and denied the city council’s motion to disqualify his attorney. By order of this Court, plaintiff was not permitted to return to his position as ombudsman during the pendency of this appeal. We reverse in part and affirm in part. Plaintiff, who had been with the ombudsman’s office for approximately fourteen years, starting as an investigative trainee and working his way up to assistant ombudsman and director of investigations, was appointed ombudsman by the city council on August 17, 1994. Almost immediately, problems began. In January of 1995, Deborah Milling, plaintiff’s former girlfriend and an employee of the ombudsman’s office, filed a sexual harassment and gender discrimination complaint with the Michigan Department of Civil Rights. In April of 1995, she filed a complaint against plaintiff with the Flint city attorney’s office, alleging sexual harassment. In May of 1995, Rose Fizer, another employee of the ombudsman’s office, also filed a sexual harassment complaint against plaintiff with the city attorney’s office. The city’s policy statement relative to harassment and discrimination requires an independent investigation of complaints. Therefore, the complaints were investigated by an assistant city attorney who took statements from all the employees of the ombudsman’s office regarding the allegations against plaintiff. Thereafter a panel was formed to conduct a review of the investigation. On June 26, 1995, the panel issued its decision finding that plaintiff had violated the city’s policy on harassment and discrimination. Because the city charter provides that only the city council has authority over the office of the ombudsman, the panel forwarded its recommendation for remedial and disciplinary action to the city council for independent review and action. The city council appointed Charles Forrest, a former city attorney, as special counsel to investigate whether there was evidence of official misconduct that would justify removal of plaintiff from office. The city council placed plaintiff on administrative leave with pay pending the outcome of the investigation. Thereafter, plaintiff retained attorney George Hamo and filed a complaint in the Genesee Circuit Court against the city council, alleging disparate treatment, false light defamation, and intentional infliction of emotional distress and requesting judicial review, injunctive relief, and damages. Following a hearing on July 11, 1995, the trial court, after interpreting the city charter to contain no provision for the suspension of or the imposition of administrative leave on the ombudsman, revoked the administrative leave imposed by the city council and ordered plaintiff reinstated as ombudsman. However, the trial court found that the city’s policy regarding harassment and discrimination applied to the ombudsman, and, therefore, the city council could conduct an investigation of those charges levied against plaintiff. An impeachment hearing commenced before the city council on August 23, 1995. After five days of hearings and numerous witnesses, the city council determined that plaintiff should be removed as ombudsman, finding five different specific acts by plaintiff that were cause for his removal. The specific cause for removal was set forth in the August 28, 1995, city council resolution as follows: Be it further resolved, that the specific cause for removal is that the testimony indicates that the Ombudsman did wilfully cause complaints not be worked on or to be backed up for budgetary purposes; permitted a conflict of interest in the Steverson Davis case; created a difficult work environment through erratic personnel policies; delegated personnel matters to the Ombudsman’s Advisory Board and to consultants; and failed to train and supervise staff appropriately. On August 30, 1995, plaintiff filed an amended complaint in the circuit court, challenging the city council’s vote to remove him from office. Subsequently, a hearing was held concerning the matter. At the hearing, the parties agreed that, on the basis of the requirements of the city charter, review de novo was the appropriate standard of review to be used to evaluate the city council’s removal of plaintiff. The parties also agreed that the trial court need not review all the testimony presented before the city council and that the parties would provide the court with the testimony necessary to render its opinion. At the conclusion of the hearing, the trial court determined that the city council was without cause to remove plaintiff from his position as ombudsman. By order entered on February 20, 1996, the trial court set aside the city council’s decision to remove plaintiff from the office of ombudsman and reinstated him to that position. A motion for reconsideration followed. At the March 21, 1996, hearing regarding city council’s motion for reconsideration, the city attorney requested that the trial court review the entire record of the hearing before the city council. The circuit court agreed to do so and spent the next few days listening to the testimony presented before the city council. After reviewing the entire record, the trial court denied the city council’s motion for reconsideration, and this appeal followed. Subsequently, this Court ordered that plaintiff could not return to office during the pendency of this appeal or until further order of this Court. i On appeal, the city council first argues that the circuit court erred in applying a review de novo standard of review with regard to the city council’s decision to remove plaintiff from the office of the ombudsman. The city council claims that the circuit court should have applied the “substantial evidence” standard of review. The city council also argues that the circuit court erred in finding that “cause” for plaintiff’s removal was lacking. We hold that under either a review de novo standard or a substantial evidence standard, there was sufficient evidence to support the city council's action. Const 1963, art 6, § 28 provides that a judicial review should determine whether an administrative ruling was supported by competent, material, and substantial evidence on the whole record. Birmingham School Dist v Buck (On Remand), 211 Mich App 523, 525; 536 NW2d 297 (1995). In In re Payne, 444 Mich 679, 692-693; 514 NW2d 121 (1994), our Supreme Court stated, in pertinent part: When reviewing the decision of an administrative agency for substantial evidence, a court should accept the agency’s findings of fact if they are supported by that quantum of evidence. A court will not set aside findings merely because alternative findings also could have been supported by substantial evidence on the record. “Substantial evidence” has a classic definition: the amount of evidence that a reasonable mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance. . . . [T]he substantial evidence standard found in Const 1963, art 6, § 28, does not depart from this definition, at least according to its drafters. [Citations omitted.] The city council claims that Payne is controlling and that the “substantial evidence” standard should have been the standard of review used by the circuit court. However, according to the comments made at the Constitutional Convention in 1961, in reference to Const 1963, art 6, § 28, the provision was intended only to ensure “ ‘minimum rights so far as appeals are concerned,’ ” In re Payne, supra at 692-693, n 9, quoting 1 Official Record, Constitutional Convention 1961, p 1467 (emphasis supplied), and a more rigorous standard is required by the Flint city charter. Flint Charter, § 1-603 provides for removal of an elected or appointed city employee for cause. Subsection C provides in pertinent part: Decisions made by the city council under this section are not reviewable by the mayor but are subject to judicial review in a hearing de novo. [Emphasis supplied.] Const 1963, art 6, § 28 requires the substantial evidence standard “as a minimum.” By carefully providing for “minimum” standards, it is clear the drafters did not preclude an administrative agency from requiring a stricter standard of review. In this case, the city charter clearly provides for review de novo and both sides requested review de novo before the circuit court. We believe that the Michigan Constitution clearly gives the city freedom to impose a stricter standard of review and to require review de novo of a decision to remove the ombudsman. Therefore, when the circuit court reviewed de novo the city council decision, it was not violating the Michigan Constitution. The Flint charter established the standard of review required in these proceedings, and the circuit court merely followed the requirements set forth in the city charter. In any event, under either standard of review we find sufficient evidence to support the city council's decision to remove Buchanan from office. n Flint Charter, § 1-603 provides that the “city council shall declare the forfeiture of the office of any elective officer or appointee and may remove for cause any person appointed to an office for a fixed term.” Flint Charter, § 3-502(B) provides that the ombudsman may be removed for cause by three-fourths of the city council members elect. Black’s Law Dictionary (6th ed), p 221 defines “cause” “[a]s a reason for an action.” In a similar vein, we note that this Court has recently indicated that “good cause” generally means “ ‘a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.’ ” Franchise Management Unlimited, Inc v America’s Favorite Chicken, 221 Mich App 239, 246; 561 NW2d 123 (1997), quoting Black’s Law Dictionary (6th ed), p 692. In this case, in its resolution adopted August 28, 1995, the city council gave the following reasons for the removal of the ombudsman: Now be it resolved, that based on the testimony and the evidence presented during the hearings, that the Ombudsman, Darryl Buchanan, be removed for cause: Be it further resolved, that the specific cause for removal is that the testimony indicates that the Ombudsman did wilfully cause complaints not be worked on or to be backed up for budgetary purposes; permitted a conflict of interest in the Steverson Davis personnel policies; delegated personnel matters to the Ombudsman’s Advisory Board and to consultants; and failed to train and supervise staff appropriately.[] After conducting its review, the trial court found insufficient evidence to support the stated reasons for Buchanan’s removal. We review the trial court’s factual findings for clear error, which occurs if an appellate court is left with a firm and definite conviction that a mistake has been made. MCR 2.613(C); Ghidotti v Barber (On Remand), 222 Mich App 373, 377; 564 NW2d 141 (1997). We have such a conviction. Even were we to agree with the trial court that there was scant evidence supporting other stated reasons for removal, the evidence, through the testimony of senior investigator Joseph Valu and investigators Barbara Burdette and Ramona Sain, did clearly establish that plaintiff purposefully delayed the assignment and investigation of citizen complaints to apply pressure upon the city council to secure more funding for the ombudsman’s office. The trial court’s finding that there was insufficient evidence to support this stated reason for removal was clearly erroneous. Plaintiff’s actions in this regard controverted the essential mission of the office, which was to investigate and resolve citizen complaints, and, in our opinion, constituted cause for his removal. Because we find that there was sufficient cause for his removal, we believe the circuit court erred in setting aside the city council’s decision to remove plaintiff from office. Having found that the trial court erred in setting aside the city council’s decision to remove plaintiff from office, we need only briefly address some of the other issues raised by the city council. The circuit court did not err as a matter of law in its determination not to make findings of fact concerning the questions whether plaintiff discriminated or retaliated against employees Debra Milling and Rose Fizer or whether plaintiff had a claim for wrongful discharge. The only matter before the circuit court was a review of the decision of the city council to remove plaintiff from his position as the ombudsman. The circuit court was acting in the role of an appellate court for this hearing. Its task was to determine whether the stated reasons for plaintiffs removal constituted sufficient cause based on the evidence before the council. The city council did not state that discrimination or retaliation was a reason for plaintiffs removal as ombudsman, and Milling’s and Fizer’s claims of sexual harassment, sexual discrimination, retaliation and so on are the subject of separate pending circuit court actions. Moreover, in his amended complaint, plaintiff did not state a claim for wrongful discharge. Hence, the claims of wrongful discharge, sexual discrimination, or retaliation were not before the circuit court, and, therefore, the court did not err in its determination that it would not make findings of fact regarding these issues. Lastly, we do not believe that the trial court erred in denying the city council’s motion to disqualify plaintiff’s attorney, George Hamo, on the ground that by Hamo’s

TRANKER v FIGGIE INTERNATIONAL, INC (ON REMAND) Docket No. 210656. Submitted April 3, 1998, at Lansing. Decided August 11, 1998, at 9:05 A.M. Leave to appeal sought. Paul and Denise Tranker brought an action in the Van Burén Circuit Court against Figgie International, Inc., alleging that the defendant violated the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and an employment contract with Paul Tranker when it terminated his employment. The court, William C. Buhl, J., granted summary disposition for the defendant, finding that the doctrine of judicial estoppel defeated the hcra claim and that the defendant did not violate the employment contract. The plaintiffs appealed. The Court of Appeals affirmed, finding the employment contract allowed termination at will and not for just cause only. The Court also agreed that the doctrine of judicial estoppel applied and that, because Paul Tranker had successfully represented himself as being totally disabled to the Social Security Administration for purposes of receiving social security benefits, he could not be considered handicapped for purposes of his subsequent hcra claim. 221 Mich App 7 (1997). The Supreme Court, in lieu of granting leave to appeal, remanded the matter to the Court of Appeals for reconsideration in light of several federal decisions that hold that the receipt of social security disability benefits does not bar a claim for discrimination under the Americans with Disabilities Act (ada), 42 USC 12101 et seq. 456 Mich 931 (1998). On remand, the Court of Appeals held: 1. The prior ruling in this matter that judicial estoppel bars a subsequent hcra claim must be vacated. The receipt of social security disability benefits does not bar a subsequent claim under the hcra because the two acts are designed for different purposes and utilize different standards. Because the focus of the two acts is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the hcra. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent. 2. Although judicial estoppel does not automatically bar a disability benefit recipient’s hcra claim, statements made by a person in applying for disability benefits may weigh against the person in a subsequent hcra claim. 3. The prior ruling in this matter that Paul Tranker was not handicapped within the meaning of the hcra because his disabilities were related to his ability to perform his job duties in the available maintenance position must be affirmed. Paul Tranker admitted he could not perform the acts required for the position and did not allege that he could perform them with reasonable accommodations. 4. The defendant had no duty to accommodate Paul Tranker by recreating for him his former position that had been eliminated or placing him in a job other than the available maintenance job. 5. The order granting summary disposition for the defendant with regard to the hcra and breach of contract claims must be affirmed. Affirmed. 1. Estoppel — Judicial Estoppel — Handicappers’ Civil Rights Act — Social Security. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent; it is not inconsistent that a person could be disabled under the Social Security Act and be receiving social security disability benefits and still be qualified to perform the duties of the job or a job the person is seeking with reasonable accommodations for purposes of a claim under the Michigan Handicappers’ Civil Rights Act; the receipt of social security disability benefits does not automatically preclude a subsequent handicap discrimination claim because the two acts are designed for different purposes and utilize different standards and definitions; because the focus of the two acts is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the HCRA (42 USC 301 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 2. Estoppel — Judicial Estoppel — Handicappers’ Civil Rights Act — Social Security. Statements made by a person in a prior application for social security disability benefits may weigh against the person in a subsequent claim under the Michigan Handicappers’ Civil Rights Act although judicial estoppel does not automatically bar a disability recipient’s handicap discrimination claim (42 USC 301 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 3. Civil Rights —• Handicappers’ Civil Rights Act — Duty of Accommodation. An employer’s duty under the Michigan Handicappers’ Civil Rights Act to accommodate a handicapped employee does not extend to placing the employee in a new job or transferring the employee to other positions (MCL 37.1101 et seq.; MSA 3.550[101] et seq.}. 4. Civil Rights — Handicappers’ Civil Rights Act — Words and Phrases — Handicap. A condition related to an individual’s ability to perform the duties of a job is not a handicap within the meaning of the Michigan Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] et seq.}. Plaszcsak & Bauhof, P.C. (by James F. Bauhof), for the plaintiffs. Miller, Canfield, Paddock and Stone, P.L.C. (by Ronald E. Baylor and Scott R. Sikkenga), for the defendant. ON REMAND Before: Hood, P.J., and Neff and Gage, JJ. Per Curiam. This case is before us on remand from the Supreme Court, 456 Mich 931 (1998), for reconsideration in light of several federal decisions that hold that the receipt of social security disability benefits does not bar a claim for discrimination under the Americans with Disabilities Act (ada), 42 USC 12101 et seq. On remand, we agree that receipt of social security disability benefits does not automatically preclude a subsequent handicap discrimination claim. However, on the basis of the facts of this case, we nevertheless affirm the trial court’s order granting summary disposition for defendant with regard to plaintiff Paul Tranker’s handicap discrimination claim. The facts of this case were set forth in detail in our prior opinion, Tranker v Figgie Int’l, Inc, 221 Mich App 7; 561 NW2d 397 (1997), and will not be reiterated here. Since our previous ruling, several decisions clarifying the issue before this Court have been issued. Swanks v Washington Metropolitan Area Transit Authority, 325 US App DC 238; 116 F3d 582 (1997), Whitbeck v Vital Signs, Inc, 325 US App DC 244; 116 F3d 588 (1997), Blanton v Inco Alloys Int’l, Inc, 123 F3d 916 (CA 6, 1977), and Griffith v Wal-Mart Stores, Inc, 135 F3d 376 (CA 6, 1998). Although set forth in the context of the ADA, these cases provide insight into the issue whether judicial estoppel should operate to bar a handicap discrimination claim where the plaintiff is currently receiving social security disability benefits. In Swanks, the court specifically addressed the issue of the effect of Social Security Administration disability determinations on ADA claims. It observed that the ADA was enacted to protect against discrimination in employment, including hiring, firing, and advancement. Swanks, supra at 240. The protection afforded by the ADA extends to disabled individuals who can perform the essential functions of the employment position that they hold or desire with or without reasonable accommodation. Id. The court then ruled that the receipt of social security disability benefits does not automatically bar an ADA claim because the standards utilized to determine disability under the Social Security Act (ssa), 42 USC 301 et seq., do not take into account whether the disabled individual could work with reasonable accommodations, the critical ADA issue. Id. at 242. In other words, the criteria for determining whether one is disabled under the ssa and under the ADA are different. See also Whitbeck, supra at 247, wherein the court followed Swanks and also indicated that the receipt of private disability benefits is similarly not an automatic bar to a subsequent handicapper claim. In Swanks, the Social Security Administration and the Equal Employment Opportunity Commission agreed that the receipt of social security benefits should not automatically bar ADA claims because the acts have different purposes and have no direct application to one another. The contrary view—that Social Security disability benefits preclude ada relief—would force disabled individuals into an “untenable” choice between receiving immediate subsistence benefits under the Social Security Act or pursuing discrimination remedies. Forcing such a choice would undermine the pro-employment and anti-discrimination purposes of the two statutes. . . . Claimants choosing benefits would sacrifice an opportunity for reinstatement while simultaneously shielding their employers from liability for allegedly unlawful discrimination. Individuals choosing instead to seek ada relief would, by doing so, forego their entitlement to Social Security disability benefits. Nothing in either statute requires disabled individuals to make this choice. [Swanks, supra at 242 (citations omitted).] The Swanks court pointed out that of the federal appellate circuits only the Third Circuit Court of Appeals has reached a contrary conclusion and held that the doctrine of judicial estoppel bars an ADA claim where an individual is receiving social security benefits after claiming to be disabled. Id. at 243, citing McNemar v Disney Store, Inc, 91 F3d 610 (CA 3, 1996). In Blanton, supra at 917, the Sixth Circuit Court of Appeals adopted the Swanks opinion and held that the receipt of disability benefits does not preclude a subsequent ADA action. It specifically rejected the theory that the doctrine of judicial estoppel would bar such a claim. Id. In Griffith, supra at 380-382, it more fully addressed why the doctrine of judicial estoppel should not bar a subsequent handicap claim: The doctrine of judicial estoppel “forbids a party ‘from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.’ ’’ Courts apply judicial estoppel in order to “preserve]] the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposing to suit an exigency of the moment.” The doctrine applies only when a party shows that his opponent: (1) took a contrary position; (2) under oath in a prior proceeding; and (3) the prior position was accepted by the court. * * * [Statements made in an application for Social Security disability benefits, while relevant, do not result in judicial estoppel. First, judicial estoppel does not apply because the answers given in a Social Security disability benefit application are not necessarily inconsistent with a plaintiff’s claim that he could have worked at his job, during the relevant period, with a reasonable accommodation. The precise question of whether the applicant could have worked with a reasonable accommodation during the relevant period is not asked in a Social Security context because, as discussed above, it would not necessarily bar receipt of those benefits. Furthermore, the statements made in the ssa application and forms are open to interpretation. . . . Moreover, judicial estoppel is an equitable doctrine, and “is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement.” Applying judicial estoppel under the circumstances presented here would be inappropriate given that the truth-seeking function of the court would be supplanted by an agency administrative decision rendered without an evidentiary hearing. For these reasons, the district court’s decision cannot be sustained based on the doctrine of judicial estoppel. [Citations omitted.] In our previous opinion we adopted what is obviously now the minority view found in McNemar, supra, and held that the doctrine of judicial estoppel barred plaintiff’s handicap discrimination claim. However, upon further review, we now disavow that position. Like the ada, the Michigan Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 el seq.-, MSA 3.550(101) et seq., prohibits discrimination, including in hiring, firing, and advancement. MCL 37.1202; MSA 3.550(202). After its 1990 amendments, it also requires that reasonable accommodations be made to assist the handicapped in performing duties of their employment. MCL 37.1103(e) and (1); MSA 3.550(103)(e) and (1). See Hatfield v St Mary’s Medical Center, 211 Mich App 321, 326-327; 535 NW2d 272 (1995). We agree with the Swanks court that the receipt of social security disability benefits should not bar a subsequent claim under the HCRA for the same reasons that it does not bar a subsequent claim under the ADA. The two acts are designed for different purposes and utilize different standards, and requiring a plaintiff to choose between the acts is unreasonable and illogical. Moreover, we agree that the social security definition of “disability” does not require a finding that the individual cannot perform any job under any circumstance. Griffith, supra at 382. The SSA does not take into consideration that a disabled individual may be able to perform a job with reasonable accommodations. Therefore, it is not inconsistent that a plaintiff could be disabled under the SSA and still be qualified to perform the duties of his job or a job he is seeking with reasonable accommodation under the hcra. For that reason, we also agree that judicial estoppel should not bar a subsequent handicapper claim. “[T]he Social Security Administration’s inquiry into an individual’s eligibility for disability benefits focuses on the individual’s ability to do work generally available in the national economy and does not address the possible effect of accommodation on ability to work.” Whitbeck, supra at 247. Because the focus is different, positions taken before the Social Security Administration are not necessarily contrary to positions taken under the HCRA. Judicial estoppel operates only where the positions taken by a party are wholly inconsistent. Paschke v Retool Industries, 445 Mich 502, 509-510; 519 NW2d 441 (1994). Our prior ruling that judicial estoppel bars a subsequent handicap discrimination claim is vacated. We note that although we have determined that judicial estoppel does not operate to automatically bar a disability benefit recipient’s handicap discrimination claim, statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim. The conclusion we reach today does not mean that claimants’ statements in support of disability claims are never relevant in ada suits. For example, ada plaintiffs who in support of claims for disability benefits tell the Social Security Administration they cannot perform the essential functions of a job even with accommodation could well be barred from asserting, for ada purposes, that accommodation would have allowed them to perform that same job. [Swanks, supra at 243.] See also Griffith, supra at 383 (reasoning that an employer sued for handicap discrimination could rely on the claimant’s prior representations to attempt to prove that the claimant is not a qualified handicapped applicant); Blanton, supra (agreeing with Swanks that a party’s prior sworn statements would be relevant in a subsequent handicap discrimination claim). We also note that a disability recipient’s subsequent award of damages for a handicap discrimination claim may be reduced in order to prevent double recovery. See Blanton, supra; Swanks, supra. Our ruling regarding this issue, however, does not result in relief from summary disposition for this plaintiff. In our prior opinion, we indicated that plaintiff was not handicapped within the meaning of the hcra because his disabilities were related to his ability to perform his job duties in the maintenance position. Tranker, supra at 17, n 3. We affirm that position on remand. In his complaint, plaintiff alleged that defendant failed to accommodate him and that defendant placed him in a job position different than the one that he had before his lengthy leave of absence in 1991 and 1992. The evidence presented to the lower court indicated that during plaintiffs leave of absence, the duties of his former position as an engineering liaison/expediter were reassigned to other employees during a reduction in work force. Defendant closed one of its production facilities and reduced its work force by twenty percent. The engineering liaison position was eliminated. Defendant had no duty to accommodate plaintiff by recreating the position of engineering liaison/expediter for him or placing him in a job other than the available maintenance job. See Koester v Novi, 213 Mich App 653, 662-663; 540 NW2d 765 (1995), rev’d in part on other grounds 458 Mich 1; 580 NW2d 835 (1998), where this Court reiterated that the duty to accommodate does not extend to new job placement or transfers to other positions. Thus, plaintiffs argument that he should have been accommodated by being given the position of engineering liaison/expediter was not actionable. With regard to the maintenance position, which was plaintiffs position at the time of his termination, plaintiff specifically alleged that he could not perform the duties of the job. In his complaint at paragraph 9, he stated: That the Defendant ignored said medical advice and insisted on putting Plaintiff paúl tranker in a position that required physical acts he could not do and that was dangerous to his health and well-being and discriminatory against him in that the Defendant required the Plaintiff PAUL tranker, who is a handicapped person, to undertake an employment position that the Defendant knew that the Plaintiff paúl tranker would not be able to do because of his handicap and, in fact, put the Plaintiff PAUL TRANKER in a position of danger. “[A] condition related to an individual’s ability to perform the duties of a job is not a handicap within the meaning of the HCRA.” Id. at 661-662. Here, plaintiff admitted that he could not perform the acts required for the maintenance position. He also failed to allege that he could have performed them with reasonable accommodations. Because plaintiff’s handicap was directly related to his ability to perform the maintenance job, with or without accommodation, he is not handicapped under the act for that position and is not entitled to relief. In so holding, we note that in his complaint, plaintiff alleged only that his handicap was unrelated to his ability to perform the duties of the engineering liaison/expediter position, which was not the position at issue and which position did not exist. He never alleged that his physical handicaps were unrelated to his ability to do the available job. Affirmed. The term plaintiff in this opinion refers only to Paul Tranker. Our decision to affirm the trial court’s grant of summary disposition regarding plaintiffs breach of contract claim remains unchanged and is not the.subject of this review on remand. There was no evidence that plaintiff enjoyed a termination for just cause only employment relationship with defendant. The Eighth Circuit Court of Appeals specifically declined to decide this issue in Dush v Appleton Electric Co, 124 F3d 957 (CA 8, 1997). We also note that plaintiff did not attempt to base his hcra claim on defendant’s decision to eliminate the engineering liaison/expediter position. He did not allege that the position was eliminated in order to discriminate against him because of his handicaps.

Dennis Tuper vs. North Adams Ambulance Service, Inc. Berkshire. May 4, 1998. August 5, 1998. Present (Sitting at Pittsfield): Wilkins, C.J., Abrams, Greaney, Fried, Marshall, & Ireland, JJ. Practice, Civil, Motion in limine. Collateral Estoppel. Contract, Employment. Employment, Termination. Collateral estoppel principles did not permit a discharged employee, who was awarded unemployment compensation benefits based upon the determination of the Department of Employment and Training that the employee had not been insubordinate to his employer, to use that determination offensively against his former employer in a subsequent civil action for wrongful termination, where the issues litigated in the two proceedings were not identical. [135-137] In a wrongful termination action, the trial judge correctly allowed the defendant employer’s motion to preclude any reference to the earlier proceedings between the parties before the Department of Employment and Training, based on the clear and unambiguous language of G. L. c. 151 A, § 46, which provides that such information is confidential and may not be used in any action or proceeding. [137] Civil action commenced in the Superior Court Department on November 23, 1994. Motions in limine were heard by Francis X. Spina, J., and the case was tried before him. The Supreme Judicial Court granted an application for direct appellate review. Peter C. Alessio (.Richard I. Isacoff with him) for the plaintiff. John B. Stewart for the defendant. Scott Harshbarger, Attorney General, & Neil Sherring, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief. Ireland, J. In this case of first impression, the principal issue on appeal is whether collateral estoppel principles permit a discharged employee, who was awarded unemployment compensation benefits in an administrative decision by the Department of Employment and Training (department), to use that decision offensively against his former employer in a subsequent civil action for wrongful termination. After a hearing on pretrial motions, a Superior Court judge ruled that the department’s decision had no preclusive effect in the civil action. The case was then tried to a jury, which returned a verdict against the employee. He now claims error. We affirm. The plaintiff, Dennis Tuper, entered into an employment contract with the defendant, North Adams Ambulance Service, Inc., as an “EMT Coordinator” for the period beginning on January 1, 1993, and ending on December 31, 1994. The contract provided that the plaintiff’s employment could only be terminated for just cause. On July 26, 1993, the defendant informed the plaintiff by letter that his employment was being terminated immediately because of his “grossly insubordinate behavior,” which consisted of refusing to obey a direct order from his manager and “disparaging [the defendant] in the presence of a non-employee.” The plaintiff applied for unemployment compensation benefits. After a hearing, the department’s commissioner determined that, pursuant to G. L. c. 151 A, § 25 (e) (2), the plaintiff was not eligible for benefits, because there was “substantial and credible evidence to show that the [plaintiff] knowingly violated a reasonable and uniformly enforced company rule or policy, and that the violation was not as a result of the [plaintiff’s] incompetence.” The plaintiff appealed to the department’s board of review (board). The board adopted the commissioner’s findings of fact as supported by substantial evidence, but concluded that the commissioner’s decision was based on an error of law. The board determined instead that the plaintiff was “entitled to know” that the defendant considered his actions as insubordination and that, because the defendant had “never set forth an expectation pertaining to the following of orders and the subsequent consequence of contesting orders,” his actions “[did] not rise to the level of insubordination, but rather appealed] to be a break-down in communication.” The board further determined that the plaintiff “neither violated the [defendant’s] rule or policy, nor acted with deliberate misconduct in wilful disregard of the [defendant’s] interest,” as would be required under G. L. c. 151 A, § 25 (e) (2), to deny benefits to the plaintiff. The board correspondingly decided that the plaintiff was entitled to benefits, so long as he was otherwise eligible. Neither party sought judicial review of the board’s decision. On November 23, 1994, the plaintiff filed this action in the Superior Court. His complaint set forth claims for breach of contract, defamation, and tortious interference with a contractual relationship against the defendant and other named individuals associated with the defendant. After discovery and summary judgment proceedings, the plaintiff’s action was limited to a single contract claim against the defendant. The case was called for trial on February 20, 1997. Prior to jury selection, the plaintiff filed a motion in limine to prevent the defendant, on the basis of issue preclusion, from offering evidence that the plaintiff had been insubordinate or had disobeyed a direct order. The plaintiff’s motion also requested the judge to instruct the jury that they must assume that the plaintiff had not been insubordinate and did not disobey a direct order. The defendant filed a cross motion in limine seeking to preclude admission of the department’s decision, as well as any reference to the proceedings before the department. The judge denied the plaintiff’s motion and allowed the defendant’s motion. The case proceeded to trial and a special question was submitted to the jury, asking whether the plaintiff had “sustained his burden of proving the termination of his employment by the defendant was not for ‘just cause.’ ” The jury answered, “No,” to this question. The plaintiff filed a notice of appeal challenging the judge’s rulings on the motions in limine, and we allowed the defendant’s application for direct appellate review. Before a party will be precluded from relitigating an issue, a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication. See Fay v. Federal Nat’l Mtge. Ass’n, 419 Mass. 782, 790 (1995), quoting Massachusetts Prop. Ins. Underwriting Ass’n v. Norrington, 395 Mass. 751, 753 (1985). Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment. See Fay, supra, citing Bannister v. Commonwealth, 411 Mass. 130, 131 (1991). The prior adjudication need not have been before a court. If the conditions for preclusion are otherwise met, “[a] final order of an administrative agency in an adjudicatory proceeding . . . precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction.” Stowe v. Bologna, 415 Mass. 20, 22 (1993). However, our cases in which the prior adjudication was before an administrative agency have all involved the defensive use of collateral estoppel. See, e.g., Martin v. Ring, 401 Mass. 59, 62-64 (1987) (applying defensive collateral estoppel to decision of Industrial Accident Board); Stowe, supra (same to decision of rent control board of Cambridge); Almeida v. Travelers Ins. Co., 383 Mass. 226, 228-231 (1981) (same to decision of board of appeal on motor vehicle liability policies and bonds). Here, the plaintiff is attempting instead to use a prior adjudication before an administrative agency offensively to collaterally estop his former employer. The plaintiff argues that collateral estoppel should be applied offensively to preclude relitigating the board’s determinations that he had not been insubordinate and had not disobeyed a direct order. In particular, the plaintiff argues that the defendant should have been precluded from offering any evidence that the plaintiff was insubordinate or had disobeyed a direct order, and that the judge correspondingly should have instructed the jury to assume that the plaintiff had not been insubordinate and had not disobeyed a direct order. We disagree. The issues in the two adjudications were not identical. The board determined that the plaintiff was not insubordinate and had not disobeyed a direct order because he did not know (and was entitled to know) that the defendant would interpret his actions as constituting insubordination and disobedience. As such, the board’s determinations were based on the subjective knowledge and state of mind of the plaintiff. By contrast, the judge in this action instructed the jury that the determination of just cause had to be decided in part on the basis of the objective reasonableness of the defendant’s state of mind. The issues surrounding these determinations thus were not identical. It was entirely possible, and even plausible, that the plaintiff could have subjectively believed that his actions did not constitute insubordination or disobedience, while the defendant reasonably believed the opposite. The judge was, therefore, correct in ruling that the board’s determinations that the plaintiff was not insubordinate and had not disobeyed a direct order had no preclusive effect in this action. Accordingly, the judge also was not required to instruct the jury that they were to assume that the plaintiff was not insubordinate and had not disobeyed a direct order. Our conclusion here comports with over-all considerations of fairness. See Whitehall Co. v. Barletta, 404 Mass. 497, 502 (1989); Loring v. Marshall, 396 Mass. 166, 175-176 (1985) (O’Connor, J., dissenting). The proceedings before the board were relatively informal and the defendant’s stake in the adjudication was relatively small. See G. L. c. 151A, § 14 (setting forth formulas for employer’s contributions to pooled fund, based on employer’s claims experience). By contrast, in this action, the plaintiff’s demands for relief, which included punitive damages, exceeded $250,000. Applying a preclusive effect to the board’s determinations would be plainly unfair. Further, our conclusion also comports with the broad policy considerations underlying G. L. c. 151 A, § 25 (e) (2). This statute “was enacted to afford relief to those who are unemployed through no fault of their own.” Cahalen v. Commissioner of the Dep’t of Employment & Training, 41 Mass. App. Ct. 26, 27 (1996), citing Haefs v. Director of the Div. of Employment Sec., 391 Mass. 804, 806 (1984). The statute contemplates the prompt adjudication of claims for unemployment benefits, in response to the need to alleviate quickly the harsh financial consequences of unemployment. See Director of the Div. of Employment Sec. v. Mattapoisett, 392 Mass. 858, 862 n.6 (1984). If successful claimants before the department are allowed to use collateral estoppel offensively in a subsequent civil action, employers will be forced to litigate unemployment compensation claims to the hilt, with full appeals, because of the substantially greater variety and extent of civil claims which might then follow. Such a result would be directly contrary to the objective, and even the Federal mandate, of promptly resolving such claims. See California Dep’t of Human Resources Dev. v. Java, 402 U.S. 121, 135 (1971). Finally, the plaintiff also argues that the judge erred in allowing the defendant’s motion to preclude any reference to the board’s proceedings and decision in the civil action. General Laws c. 151 A, § 46, provides that, with certain exceptions not relevant here, information secured pursuant to this chapter is confidential, is for the exclusive use and information of the department in the discharge of its duties, is not a public record, and may not be used in any action or proceeding. The language of the statute is sufficiently clear and unambiguous to support a conclusion that the judge did not err. Judgment affirmed. According to the defendant’s letter to the plaintiff, the plaintiff’s manager twice ordered the plaintiff to conduct a training program at an upcoming staff meeting, and the plaintiff “loudly refused to obey” each time. The letter states that the plaintiff’s refusal took place in the presence of two other employees and a service representative from an outside company. The relevant part of the judge’s instruction defined just cause as follows: “The term just cause means whether or not there was a reasonable basis for employer dissatisfaction with an employee, and whether or not that dissatisfaction or termination was entertained in good faith for reasons such as lack of capacity or lack of diligence or failure to conform to usual standards of conduct, or some other culpable or inappropriate behavior.” Accordingly, we need not reach the question whether preclusion would not apply because the objective reasonableness of the defendant’s state of mind was not the product of “full litigation and careful decision” at the prior adjudication, and thus was not essential to that adjudication. Home Owners Fed. Sav. & Loan Ass’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968). In a different context, we held that it would be unfair to deem that a defendant, who was found “[rjesponsible” for a traffic offense and paid a $40 fine without appealing, had made an admission of liability for purposes of a subsequent civil action. See LePage v. Bumila, 407 Mass. 163, 165-167 & n.4 (1990).

ST CLAIR INTERMEDIATE SCHOOL DISTRICT v INTERMEDIATE EDUCATION ASSOCIATION/MICHIGAN EDUCATION ASSOCIATION Docket Nos. 107479, 107480. Argued May 6, 1998 (Calendar No. 9). Decided July 31, 1998. The St. Clair Intermediate School District filed an unfair labor practice with the Employment Relations Commission against the Intermediate Education Association/Michigan Education Association and the Michigan Education Special Services Association, alleging that it unilaterally implemented a midterm modification of.a collective bargaining agreement by increasing the district’s group insurance lifetime maximum health care benefit. A hearing referee found that the messa was an agent of the mea and that the unilateral change in the benefit maximum was an announced, not proposed, change to the contract, resulting in a midterm modification of the collective bargaining agreement. However, the referee further found that the school district had waived the right to bargain with respect to benefit changes because its participation agreement allowed the MESSA to modify or discontinue the group plan. The Employment Relations Commission affirmed, but disagreed that there was a waiver of the right to bargain. The Court of Appeals, Markey, P.J., and McDonald and M. J. Talbot, JJ., affirmed in an opinion per curiam, holding that, in bargaining for the health care benefit, the school district bargained for the specific contents of a policy, and, because it was denied the opportunity to renegotiate before a unilateral change of the policy was effected, the change amounted to an unfair labor practice (Docket Nos. 161643, 161645). The respondents appeal. In an opinion by Justice Boyle, joined by Chief Justice Mallett, and Justices Brickley, Weaver, and Taylor, the Supreme Court held: The Michigan Education Association committed an unfair labor practice by unilaterally implementing a midterm modification of the collective bargaining agreement to increase the lifetime maximum health care benefit through the independent actions of its agent, the Michigan Educational Special Services Association. 1. Health insurance benefits are mandatory subjects of bargaining. Changes in levels of such benefits must be bargained by an employer and its employees’ bargaining representatives. In this case, by unilaterally modifying the existing contract midterm, without the agreement of the school district, the mea committed an unfair labor practice. 2. More than a mere agency relationship exists between the messa and the mea. The mea created the messa as a subsidiary corporation and was the exclusive sponsor for messa products. Thus, the mea and the messa were bound by a formal affiliation and common agreement. Under messa bylaws, mea members had majority control of the messa board that made the decision to increase the benefit level. The messa also had substantial input into the collective bargaining process and was kept involved and informed concerning marketing of its products to mea members. The mea disaffiliation policy allowed the mea to control both messa membership and access to messa benefits, advancing the interests of the mea over that of the MESSA organization and its members. 3. The school district did not waive its right to renegotiate modification of the term, nor did it extend to the messa through its participation agreement the right to unilaterally make benefit changes to the insurance coverage specified in the contract. Further, the defendants’ assertion that a change in the contract terms would not impose a financial cost on the district is no justification for an unassented modification of contradictory contract language. Affirmed. Justice Kelly, joined by Justice Cavanagh, dissenting, stated that the Michigan Education Special Services Association did not act as an agent of the Michigan Education Association when it increased the lifetime maximum health care coverage for messa policyholders. The right to control an agent is fundamental to the existence of an agency relationship. The symbiotic-relationship test impliedly ratified by the majority is- inconsistent with the well-established rule that separate corporate identities will be respected, absent a substantial abuse of the corporate form. The mea lacked the ability to control the actions of the messa, and the messa has continually acted as a separate entity. Simply because the mea markets messa products does not demonstrate an agency relationship; nor does the existence of a homogenous client base. While the two entities have many similarities and overlapping concerns, the existence of entanglements without the ability to control is not enough to establish an agency relationship. 218 Mich App 734; 555 NW2d 267 (1996) affirmed. Thrun, Maatsch & Nordberg, P.C. (by Donald J. Bonato and Cheryl Takacs Bell), for the charging party-appellee. White, Przybylowicz, Schneider & Baird, P.C. (by Arthur R. Przybylowicz and Suzanne Krumholz Clark), for the respondents-appellants IEA and MEA. Fraser, Trebilcock, Davis & Foster, P.C. (by Iris K. Linder and Graham K. Crabtree), for respondent-appellant MESSA. Boyle, J. We are asked to determine whether the Michigan Education Association (MEA) committed an unfair labor practice under MCL 423.210(3)(c); MSA 17.455(10)(3)(c) and MCL 423.216; MSA 17.455(16) of the public employment relations act (pera) by unilaterally implementing a midterm modification of a collective bargaining agreement. We affirm the decision of the Court of Appeals, which upheld the conclusion of the Michigan Employment Relations Commission (merc) that the Michigan Educational Special Services Association (messa) was an agent of the mea and that the increase in the lifetime maximum health care benefit was a violation of the statute. FACTS The Michigan Educational Special Services Association is a Michigan nonprofit, nonstock corporation. Its purpose is to provide various types of insurance benefits to its membership. The MESSA bylaws restrict membership to Michigan Education Association members and certain specified categories of employees with past or present ties to an mea bargaining unit, including employees of the MESSA itself. The MESSA is not an insurance company; rather, it is a policyholder that contracts with a qualified insurance company to underwrite its various plans. Blue Cross/Blue Shield of Michigan is currently the underwriter for MESSA health insurance plans. Blue Cross and the messa share responsibility for administering the plans. The MESSA qualifies as a third-party administrator under the Insurance Code. The MESSA is managed by a board of trustees consisting of thirteen persons, all of whom must be messa members. Under the bylaws, six trustees must be elected from and by the MEA board of directors, and five must be elected by the messa voting members. Voting members of the messa consist of the incumbent trustees and officers of the MESSA and incumbent members of the mea board of directors, who are members of the messa. The final two trustees are the president and vice president of the mea. The same person serves as the executive director of the mea and the executive secretary of the messa. The messa has its own executive director. The mea “markets” the messa insurance by persuading members of its constituent units and local affiliates of the superiority of the messa plans and by negotiating these plans into collective bargaining agreements reached with employers. The Mea UniServ directors are largely responsible for bargaining and for successfully negotiating contracts, including messa plans. The UniServ directors are evaluated in part by how well they achieve negotiation of the messa products into collective bargaining agreements, and the mea is required to use its best efforts to negotiate MESSA benefits into collective bargaining agreements. The mea provides the MESSA with legislative, lobbying, and research services. The messa currently leases from the MEA the land on which its building sits, and the current MESSA building is adjacent to mea headquarters. The mea and the messa have a written agreement under which the messa compensates the mea for these services. For the fiscal year 1989-90, the messa paid the mea $1,400,424. The mea is the authorized collective bargaining agent for the St. Clair School District’s teaching employees. Messa health coverage for at least some employees has been included in the contract between the mea and the school district since approximately 1967. Article IX of the parties’ collective bargaining agreement for the period ending June 30, 1991, reads: The District agrees to pay premiums for health insurance for each teacher through a carrier to be determined by the Board. For the (3) year period 1988-89 through 1990-91, the District agrees to provide Messa Super Med II for 1988-89 and Messa Super Care II[) for 1989-90 and 1990-91. Total health insurance payments for any teacher will not exceed the actual cost of the messa plan herein outlined. There will be no supplemental payments by the Board. The payments will be the full premium amounts for the messa plan outlined herein for single, two persons, or full family coverage. Effective July 1, 1990 and until a successor Agreement is reached, the obligation of the Board to pay health insurance premiums shall not exceed the Board’s base premium amount for the 1990-91 insurance year, July 1, 1990 to June 30, 1991. If health insurance premiums effective July 1,1991, exceed the Board’s base premium for the 1990-91 insurance year, the excess amounts over the individual employee’s premium cost, shall be paid in full by the individual employee by way of payroll deduction. In addition, the school district signed an “Employer Participation Agreement For Negotiated Group Benefit Programs” with the MESSA in February, 1990. The participation agreement includes the following paragraph: If accepted for participation, the Employer agrees to be bound by the terms of the Trust, the Equitable group insurance policy(ies) and the. Bcbsm Group Operating Agreement(s) and certificates issued to messa. Copies of the above may be examined by any Participating Employer during the regular business hours at the office of messa in East Lansing, Michigan. In 1985, the MESSA changed its underwriter of health insurance from the Equitable Insurance Company to Blue Cross. The MESSA took the position that, because coverage in each bargaining unit was pursuant to a collective bargaining agreement, each employer and local association would have to negotiate and agree to the change in carriers. The reason for this position was that the messa hoped these negotiations would force employers to pass the savings resulting from the change along to employees, rather than permit employers to enjoy the reduced premiums. The MEA and the MESSA asserted that the messa hoped such negotiations would lead to purchases of other messa insurance products. Aside from this instance, however, the record indicates that the messa, by action of its trustees, made minor plan changes to insurance benefits without giving prior notice or an opportunity to renegotiate the change to employers. One change, other than the increase in the lifetime maximum made unilaterally by the MESSA during the term of the parties’ 1989-91 contract, was the addition of a wig benefit for cancer patients. On March 9, 1990, the messa staff presented the trustees with a proposal to raise the lifetime maximum on all messa plans to $2,000,000. Reasons cited to the trustees were that several members were then approaching the maximum, the effect of inflation in medical costs, and that competing plans had raised their máximums. Beverly Wolkow, mea executive director and the executive secretary of the messa, argued against the change on the basis that it would make messa insurance more difficult to sell to employers at the bargaining table. However, the change was approved by the trustees. The school district was notified of this change by letter dated May 8, 1990, which also described rate changes to be effective July 1, 1990. The school district did not make a demand to bargain, but filed an unfair labor charge on the basis that the change was an accomplished fact. After the original hearing referee had heard the case, a request by the school district to reopen the record in order to add the messa’s affiliation/ disaffiliation policy and subsequent testimony to the record was granted by a subsequent hearing referee. The affihation/disaffiliation policy referenced in the messa bylaws and adopted by the board of trustees in March, 1982, provides that individual membership in messa health insurance plans terminates for employees eligible for membership in the mea if the employees affiliate with a labor organization other than the mea. This information had not been available to the school district before the original hearing because commission procedure does not allow for prehearing discovery. The affihation/disaffiliation pohcy was considered material to the question whether there was an agency relationship between the MESSA and the MEA. PROCEDURE The hearing referee found that the MESSA was an agent of the mea and that the unilateral change in the benefit maximum was an announced, not proposed, change in the contract, resulting in a midterm modification of the collective bargaining agreement. The hearing referee also held that the charging party, the school district, had waived the right to bargain with respect to benefit changes because under the contract, the employer participation agreement bound the employer to the language of the insurance certificates issued to the messa, thus allowing the messa to modify or discontinue the group plan. The merc affirmed the ruling of the hearing referee with the exception that it disagreed that there was a waiver of the right to bargain over a modification or unilateral action by respondents MBA and messa. The Court of Appeals affirmed the MERC decision, 218 Mich App 734; 555 NW2d 267 (1996), holding that, in bargaining for the Messa Super Care II policy, the Charging Party bargained for the specific contents of the policy when the collective bargaining agreement was entered and that the school district was denied its opportunity to renegotiate before unilateral change of the policy was effected, thus resulting in an unfair labor practice. We granted leave to appeal. 456 Mich 901 (1997). i The PERA governs labor relations in public employment. It imposes a duty of collective bargaining on public employers, unions, and their agents, MCL 423.210; MSA 17.455Q0). Violations of § 10 of the pera are deemed unfair labor practices under MCL 423.216; MSA 17.455(16) remediable by the Michigan Employment Relations Commission. We have interpreted § 16 as vesting the merc with exclusive jurisdiction over unfair labor practices. Detroit Bd of Ed v Parks, 417 Mich 268, 283; 335 NW2d 641 (1983). By statute, the employer and the representative of the employees are required to bargain for wages, hours, and other terms and conditions of employment, MCL 423.215; MSA 17.455(15), which constitute mandatory subjects of collective bargaining. Pontiac Police Officers Ass’n v Pontiac (After Remand), 397 Mich 674, 679; 246 NW2d 831 (1976). Mandatory subjects of collective bargaining are comprised of issues that “settle an aspect of the relationship between the employer and employees,” Allied Chemical & Alkali Workers of America v Pittsburgh Plate Glass Co, 404 US 157, 178; 92 S Ct 383; 30 L Ed 2d 341 (1971), and include, but are not limited to, terms and conditions of employment concerning hourly, overtime, and holiday pay, work shifts, pension- and profit sharing, grievance procedures, sick leave, seniority, and compulsory retirement age. Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974). Health insurance benefits are mandatory subjects of bargaining. Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309, 317, n 12; 550 NW2d 228 (1996). Although the PERA does not currently allow labor to bargain for “[w]ho is or will be the policyholder of an employee group insurance benefit,” this does not “affect the duty to bargain with respect to types and levels of benefits and coverages for employee group insurance.” MCL 423.215(3)(a); MSA 17.455(15)(3)(a). Under subsection 15(3)(a) of the pera, changes in levels of benefits must be bargained by the employer and the employees’ bargaining representative. The existing three-year collective bargaining agreement between the school district and the mea is the manifestation of the parties’ discharge of their statutory obligations. That is, “ ‘[a]fter the parties have met in good faith and bargained over the mandatory subjects placed upon the bargaining table, they have satisfied their statutory duty.’ ” Port Huron, supra at 322. The school district approved the messa as the policyholder and agreed specifically to the Messa Super Med II and Super Care II programs as they existed at the time of the agreement, which was memorialized in a written contract confirmed by both parties. By unilaterally modifying the existing contract in midterm without the agreement of the school district, respondent MEA, committed an unfair labor practice. n As an initial matter, this Court has acknowledged the expertise and judgment possessed by the MERC in the labor relations arena. We are also mindful of the fact that [o]ur review of the commission’s decision is circumscribed by the statutory mandate that factual findings of the commission are conclusive if supported by competent, material, and substantial evidence on the record considered as a whole. MCL 423.216(e); MSA 17.455(16)(e), Const 1963, art 6, § 28. Review of factual findings of the commission must be undertaken with sensitivity, and due deference must be accorded to administrative expertise. Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency’s choice between two reasonably differing views of the evidence. MERC v Detroit Symphony Orchestra, 393 Mich 116, 124; 223 NW2d 283 (1974). [Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Michigan Transportation Authority, 437 Mich 441, 450; 473 NW2d 249 (1991).] The principal focus of this controversy centers on the commission’s determination that the messa is an agent of the mea. The findings of fact made by the merc are conclusive if supported by substantial, material, and competent evidence on the record as a whole. Independent review of the record supports the following facts. The messa is not a labor organization, but is an independent coiporate subsidiary of the MEA and a member of a family of organizations formed by and affiliated with the MEA, the collective bargaining agent for the school district’s employees. The messa’s original articles of incorporation indicate that it was formed to “benefit . . . members of the Michigan Education Association . . . .” The messa acts as an insurance agent to provide various forms of insurance for members of the mea and acts as a third-party administrator under the Insurance Code. The MESSA and the MEA have an interlocking board of trustees consisting of thirteen persons, all members of the MESSA. The MESSA bylaws require that six trustees must be elected from and by the mea board of directors and five others are elected by the messa. The final two trustees are the president and vice president of the MEA. Thus, the mea holds a majority voting position on the messa board of trustees. Additionally, the positions of executive director of the mea and the executive secretary (or chief executive officer) are filled by the same person. The performance of the executive director of the MEA is evaluated by the MEA board of directors, in part on the basis of how well the director controls and monitors the MESSA. The MEA is the exclusive agent for the messa and markets its products during the collecti

LYTLE v MALADY (ON REHEARING) Docket No. 102515. Argued January 6, 1998 (Calendar No. 11). Decided July 1, 1998. Rehearing denied 459 Mich 1203. Nancy Lytle brought an action in the Muskegon Circuit Court against Michael Malady, her supervisor, and the Howmet Corporation, her employer, after she was discharged from her employment. She alleged breach of a contract providing for termination of employment for just cause only, and age and sex discrimination. Howmet asserted that the discharge was the result of a company-wide reduction in its work force. The court, R. Max Daniels, J., granted summary disposition for the defendants on all counts. The Court of Appeals, D. E. Holbrook, Jr., P.J., and Murphy and J. C. Kingsley, JJ., reversed (Docket No. 157627). The Supreme Court affirmed in part, finding that the plaintiff reasonably could have had a legitimate expectation of just-cause employment, but reversed the Court of Appeals by finding that the plaintiff failed to present evidence demonstrating the existence of bad faith on behalf of the defendant in conducting its reduction in force. The Supreme Court further affirmed the Court of Appeals in holding that the plaintiff raised a genuine issue of fact with respect to whether the defendant discriminated against her on the basis of her age and gender. 456 Mich 1 (1997). On motion by both parties, the Supreme Court subsequently granted rehearing. 456 Mich 1202 (1997). In an opinion by Justice Weaver, joined by Justices Boyle and Taylor, and an opinion by Chief Justice Mallett, the Supreme Court held: Even when an employer’s decision to reduce its work force is deemed bona fide, a discharged employee claiming age or gender discrimination may survive a motion for summary disposition by presenting sufficient admissible evidence to create a reasonable factual dispute that the employer’s proffered reason for discharge was a mere pretext and that age or gender discrimination was a true motivation underlying the plaintiff’s discharge. In this case, the plaintiff failed to provide sufficient evidence, direct or circumstantial, to allow a reasonable trier of fact to find that the defendant-employer’s reduction in force was a mere pretext for discriminatory animus. The Court further held that the plaintiff cannot assert a legitimate expectation of just-cause employment on the basis of the employer’s policy to terminate only for proper cause, particularly where an employer’s policy handbook specifically disclaims any intent to create contractual obligations with employees. 1. Generally, Michigan law presumes that employment relationships are terminable at the will of either party. The presumption can be rebutted, however, so that contractual obligations and limitations are imposed on an employer’s right to terminate an employment at will. The presumption is overcome with proof of either a contract provision for a definite term of employment, or one that forbids discharge absent just cause; an express agreement, either written or oral, regarding job security that is clear and unequivocal; or a contractual provision, implied at law, where an employer’s policies and procedures instill a legitimate expectation of job security in the employee. Provisions in a handbook will not create enforceable rights, particularly when the handbook expressly states that such provisions are not intended to create an employment contract; nor will oral assurances of job security create such rights, unless they are clear and unequivocal. On the basis of the facts of this case, the plaintiff cannot assert a legitimate expectation of just-cause employment. Moreover, the oral assurances given to the plaintiff were unclear and equivocal. Thus, the plaintiff failed to raise a triable issue with respect to whether she had just-cause employment with the defendant. 2. To establish a prima facie case of discrimination under the Civil Rights Act, a plaintiff must prove by a preponderance of the evidence that the plaintiff was a member of a protected class, suffered an adverse employment action, was qualified for the position, and was discharged under circumstances that give rise to an inference of unlawful discrimination. Once a plaintiff has sufficiently established a prima facie case, a presumption of discrimination arises. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the plaintiff’s termination. Once the employer produces such evidence, even if later refuted or disbelieved, the presumption drops away, and the burden of proof shifts back to plaintiff. The plaintiff then must show, by a preponderance of admissible, direct, or circumstantial evidence, that there is a triable issue that the employer’s proffered reasons were not true reasons, but were a mere pretext for discrimination. Disproof of an employer’s articulated reason for an adverse employment decision defeats summary disposition only if such disproof also raises a triable issue that discriminatory animus was a motivating factor underlying the employer’s adverse action. Thus, in the context of summary disposition, a plaintiff must prove discrimination with admissible evidence, either direct or circumstantial, sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action. 3. To establish a prima facie case of age discrimination, the plaintiff must prove, by a preponderance of the evidence, that the plaintiff was a member of a protected class, suffered an adverse employment action, was qualified for the position, and was replaced by a younger person. In this case, the plaintiff failed to raise a genuine issue of fact that the employer’s proffered reason for discharge, a reduction in force, was a mere pretext for discrimination. To prove that the reduction in force was a mere pretext and that age was a determining factor, the plaintiff had to show that she was treated differently from similarly situated employees. However, her proofs cannot sustain a reasonable inference that economic necessity was really a pretext for discriminatory animus on the part of the employer. 4. To prevail in a claim of gender discrimination over a motion for summary disposition, a plaintiff must raise a triable question of fact that a demotion and eventual discharge were motivated by gender discrimination, not economic or business judgment. In this case, the plaintiff met her burden of establishing a prima facie case with proof that she was a female, was a member of a protected class, and was qualified for her position, but nonetheless was demoted and then discharged under circumstances giving rise to an inference of discrimination. However, she failed to provide evidence sufficient to raise a reasonable, triable question of fact that she was similarly situated to her replacement, the new employer manager of her department, that the reduction in force was a mere pretext for discriminatory animus, and that gender was a determining factor in the employer’s decision to demote and then discharge her. Mere disproof of an employer’s proffered nondiscriminatory reason is insufficient to survive summary disposition, unless such disproof also raises a triable question of discriminatory motive, not mere falsity. The plaintiff merely provided evidence to reasonably suggest that she and her supervisor had a personality conflict. Therefore, she has not raised a triable issue with regard to whether gender discrimination was a cause of her demotion or eventual discharge. Justice Brickley, concurring, stated that the plaintiff created a question of fact whether she was a just-cause employee because she had a legitimate expectation of just-cause employment under Rood v General Dynamics Corp, 444 Mich 107 (1993). However, summary disposition for the defendant should be upheld because the plaintiff failed to raise a question of material fact that the defendant had just cause to terminate her as part of its reduction in force. Reversed. Chief Justice Mallett, concurring in part and dissenting in part, further stated that the plaintiff cannot assert a legitimate expectation of just-cause employment because the handbook specifically disclaims any intent to create contractual or binding obligations to employees. Even when an employer demonstrates a bona fide reduction in force, a plaintiff may survive a motion for summary disposition by presenting sufficient evidence that the reduction in work force was a mere pretext and that discriminatory animus was a true motivation behind the discharge. In this case, the plaintiff has not presented sufficient evidence to survive summary disposition of her age discrimination claim; however, a reasonable person could find that her demotion was motivated by gender discrimination. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that reasonable minds could conclude that the employee handbook created a legitimate expectation of just-cause employment; thus, a question of fact existed precluding summary disposition in favor of the defendants. A disclaimer of contractual intent should have no effect on a policy contained in a handbook that gives rise to legitimate expectations of just-cause employment that are outside the operation of normal contract principles. In this case, the employer’s policy statement that no employee would be terminated without proper cause or reason is reasonably capable of instilling a legitimate expectation of just-cause employment, and the employer’s contractual disclaimer did not contradict that expectation, raising a question of fact regarding whether the plaintiff had a legitimate expectation of just-cause employment. While the defendant asserted that it was conducting a reduction in force, and while it appears the reduction was genuine, factual questions remain regarding whether the plaintiff was terminated as a result of the reduction in force or as a result of unlawful discrimination. 209 Mich App 179; 530 NW2d 135 (1995) reversed. Bott & Spencer, P.C. (by Timothy J. Bott and Karen M. Spencer), for the plaintiff. Vamum, Riddering, Schmidt & Howlett, L.L.P. (by Joseph J. Vogan and Paul M. Kara), for the defendants. Amicus Curiae: Miller, Canfield, Paddock & Stone (by Charles S. Mishkind) for Michigan Chamber of Commerce. ON REHEARING Weaver, J. We granted rehearing in this case to clarify the evidentiary standard that plaintiff, alleging age and gender discrimination, must satisfy to survive summary disposition under MCR 2.116(C)(10). We hold that even when an employer’s decision to reduce its work force is deemed bona fide, a plaintiff may survive a motion for summary disposition by presenting sufficient admissible evidence to create a reasonable factual dispute that the employer’s proffered reason was a mere pretext and that age or gender discrimination was a true motivation behind plaintiff’s discharge. In this case, we find that plaintiff failed to provide sufficient evidence, direct or circumstantial, to allow a reasonable trier of fact to find that the Howmet Corporation’s (defendant-employer’s) reduction in work force (rif) was a mere pretext for discriminatory animus. We also granted rehearing to decide whether the employer’s policy handbook provisions could reasonably have created a legitimate expectation of just-cause employment. We hold that plaintiff cannot assert a legitimate expectation of just-cause employment based on the employer’s policy to terminate only for cause, particularly where the handbook specifically disclaims any intent to create contractual or binding obligations to employees. Moreover, we reject plaintiff’s claim that her supervisor’s assurances regarding secure employment were sufficient to allow a reasonable juror to find just-cause employment. Accordingly, we reverse the decision of the Court of Appeals with regard to defendant-employer, and affirm the trial court’s grant of summary disposition for the employer with regard to plaintiff’s wrongful discharge claim and her age and gender discrimination claims. i A On January 29, 1973, plaintiff Lytle was hired by the employer as a general clerk in the human resources department at its Whitehall site. Plaintiff’s first immediate supervisor was John Ozar. While plaintiff worked with Ozar, she received several favorable performance evaluations and two promotions, one in 1976 and another in 1979, when she was promoted to manager of the entire Whitehall human resources department. About this time, Ozar hired Walter Boczkaja as plaintiff’s subordinate trainee, a position he held for ten years until 1989, when he assumed plaintiff’s position as department manager. Boczkaja received a series of departmental promotions during his first two years of employment while working under plaintiff’s direction. During 1984-85, Ozar retired and was replaced by William Roof, who then decided to decentralize the department, thereby allowing the Whitehall division to have its own human resources representative. Roof also hired defendant Malady as head of the Whitehall Machined Products Division and, therefore, as plaintiffs new supervisor. Plaintiff and her new supervisor, Malady, developed a personality conflict. Plaintiff claimed the conflict stemmed from a June 1987 incident when she refused to wear a dress to a company “open house.” Plaintiff alleged that Malady told her all the “girls” should wear dresses to this company picnic event. Shortly thereafter, Malady gave her an unfavorable job evaluation, her first in her time with the company. Plaintiff claimed other similar incidents followed. Plaintiff received her second critical performance evaluation in September 1987. Two years later, in January 1989, Malady recommended, and Roof approved, a change in plaintiffs job title. Although her salary and job duties remained the same, plaintiff claimed this change constituted a demotion. Plaintiff retained this newly entitled position until her November 1, 1991, discharge. The day plaintiff was demoted in 1989, Boczkaja, her subordinate and one-time trainee, assumed her position as “employer manager” of the department. In November 1991, when plaintiff was forty-four years of age, she was notified that her position was being eliminated pursuant to the employer’s reduction in force. To rebut the presumption of discrimination, the employer showed that the company-wide rif was prompted by a projected significant decline in company sales. The employer provided statistical data to establish that between 1987 and 1992 the number of employees in Whitehall was reduced by almost fifty percent (from 4,100 to 2,450) and that in 1991 the rif resulted in termination of ninety-one employees, only fifty-four of whom were under the age of forty and sixty-eight of whom were male. Six months before plaintiff’s discharge, the employer hired Andrea Achterhoff as human resources manager of a different department. About that same time, the employer also effected a transfer of Jeff Billingsley to the training section of plaintiff’s department. Billingsley was specifically transferred to facilitate training of a new manufacturing concept, a job he had been performing for the previous two years in another department. Boczkaja completed plaintiffs termination evaluation on November 22, 1991. Her supervisor, Malady, accepted the evaluation, which indicated that plaintiff should be rehired should a nonsupervisory, administrative position become available. Meanwhile, upon discharge, plaintiffs duties were distributed among other departmental employees. Roughly two months later, on January 7, 1992, plaintiff filed a complaint against the employer and her supervisor, alleging wrongful discharge, or breach of a “just-cause” employment contract, and age and gender discrimination in violation of Michigan’s Civil Rights Act, MCL 37.2202; MSA 3.548(202). B Plaintiff’s breach of contract claim was premised on two theories. First, plaintiff asserted that she legitimately expected that her employment would not be terminated except for just cause, given certain employee handbook provisions and verbal assertions. Second, plaintiff further claimed that in 1979 she told Ozar that she was considering resigning, in response to which he assured plaintiff that her employment was not only secure, but subject to further advancement. With respect to the legitimate-expectation claim, at the time she was hired in 1973, plaintiff received an employee handbook that set forth all the employer’s employment policies and procedures. Specifically the handbook provided: The contents of this booklet are not intended to establish, and should not be interpreted to constitute any contract between the Misco Whitehall Division, Product Support Operations, Reactive Metal Operations or the Technical Center of Howmet Turbine Components Corporation and any employee, or group of employees. For over twenty years we have concentrated on the production of the finest investment castings, with the development of policies and principles which aim at the attainment of pride in every day’s work for every employee, plus the satisfaction of finding opportunities for individual growth and security. [Emphasis added.] Regarding employment status, the handbook stated that a probationary period existed during which both employer and employee could evaluate whether to continue the employment relationship. That same section also included the following statement: No employee will be terminated without proper cause or reason and not until management has made a careful review of the facts. In 1981, the employer added the following disclaimer to the handbook: “[T]he Company reserves the right to terminate employees without assigning cause; therefore, the employee serves at the will of the employer.” Generally, only new employees received direct notification of this disclaimer, which was affixed to handbooks distributed to new employees. Plaintiffs job duties, however, included supervising employees who actually placed such notices in the new handbooks. When she noticed the policy, plaintiff claims she asked a co-worker if it applied to her and was told it only applied to new employees. c Pursuant to MCR 2.116(C)(10), both defendants moved for summary disposition, which the circuit court granted with respect to all counts. The Court of Appeals partially reversed and remanded. 209 Mich App 179; 530 NW2d 135 (1995). This Court granted leave to appeal, and issued a divided opinion in which the majority affirmed the decision of the Court of Appeals, finding that plaintiff reasonably could have had a legitimate expectation of just-cause employment. The majority reversed the Court of Appeals, however, by finding that plaintiff failed to present evidence demonstrating the existence of bad faith on behalf of defendant-employer in employer’s decision to conduct an RIF. The majority further affirmed the Court of Appeals holding that plaintiff raised a genuine issue of fact with respect to whether the defendant-employer discriminated against her on the basis of her age and gender. 456 Mich 1; 566 NW2d 582 (1997). We granted the reconsideration motions filed by both parties to again consider the issues presented in this case. 456 Mich 1202 (1997). n Plaintiff claimed she was wrongfully discharged because her employment could only be terminated for just cause. Generally, and under Michigan law by presumption, employment relationships are terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). However, the presumption of employment at will can be rebutted so that contractual obligations and limitations are imposed on an employer’s right to terminate employment. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). See also Edwards v Whirlpool Corp, 678 F Supp 1284, 1291 (WD Mich, 1987). The presumption of employment at will is overcome with proof of either a contract provision for a def