Breach of Contract Cases

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, MICHIGAN COUNCIL 25 AND LOCAL 1416 v HIGHLAND PARK BOARD OF EDUCATION Docket No. 104934. Argued November 6, 1997 (Calendar No. 14). Decided April 21, 1998. Rehearing denied post, 1206. American Federation of State, County and Municipal Employees, Council 25 and Local 1416, brought an action in the Wayne Circuit Court against the Highland Park School District Board of Education for breach of a collective bargaining agreement. Under the agreement, the union had filed grievances and ultimately submitted the matters to arbitration. The arbitrator issued an award in favor of the union; however, by the terms of the collective bargaining agreement, arbitration was nonbinding, and the defendant refused to accept the award. The court, William Leo Cahalan, J., granted summary disposition for the board, stating that the statute of limitations precluded the complaint because the suit was filed more than six years after the breaches of contract allegedly were committed. The Court of Appeals, Marilyn Kelly and J. R. Cooper, JJ. (Taylor, P.J., dissenting), reversed, holding that the nonbinding arbitration provision was mandatory and, therefore, the union was required to exhaust its contractual remedies before filing suit. Under equitable tolling principles, because the union filed suit within six years of the arbitrator’s decision, the suit was timely (Docket No. 170915). The board of education appeals. In an opinion by Justice Cavanagh, joined by Chief Justice Mallett, an opinion by Justice Brickley, and an opinion by Justice Boyle, the Supreme Court held: The grievance procedures in this case were mandatory, and, therefore, the employees were required to exhaust those procedures before filing suit in circuit court for breach of their collective bargaining agreement. The applicable statute of limitations is to be tolled until the conclusion of the mandatory grievance procedures. Affirmed and remanded. Justice Cavanagh, joined by Chief Justice Mallett, further stated that where a collective bargaining agreement expressly states that a party shall use the grievance procedures provided under the terms of the contract, the union or employee is not required to file suit until the grievance procedure is exhausted, even though the result is nonbinding arbitration. Under such circumstances, the applicable statute of limitations is to be tolled until the conclusion of the mandatory grievance procedures. A grievance procedure is a process by which parties to a collective bargaining agreement have chosen to settle disputes. If the procedure is mandatory, the aggrieved party may be forced to complete the procedure before bringing suit; if it is not, the aggrieved party may choose to complete the grievance procedure, but is not required to do so, before filing suit. Grievance procedures and arbitration can be binding or nonbinding. This case involves a mandatory grievance procedure culminating in nonbinding arbitration. Collective bargaining agreements are contracts that govern the terms and conditions of employment. There is a strong presumption in favor of using negotiated grievance procedures for resolving disputes over the interpretation or application of a collective bargaining agreement. Where the parties have expressly agreed that a particular grievance procedure shall be the method of resolving disputes, the employee should not be punished for exhausting those procedures before filing suit, even if the result is nonbinding arbitration. Thus, while the six-year period of limitation for breach of contract actions applies and begins to run on the date of the contract breach, in this case equity requires that the statute of limitations be tolled until exhaustion of the mandatory grievance procedures. Justice Brickley, concurring, further stated that grievance procedures can be either binding or nonbinding. The issue presented in this case is whether the grievance procedures are mandatory. If they are mandatory, then the aggrieved employees must exhaust them and the statute of limitations should be tolled during pursuit of the mandatory grievance procedures. Because exhaustion and tolling do not turn on whether the grievance procedure is final and binding, the Supreme Court need not resolve the apparent conflict between the area of law requiring exhaustion of contractual grievance procedures and the body of law stating that an employee is not required to exhaust internal union appeals procedures that do not provide either complete relief or reactivation of the grievance before filing suit in court. Exhaustion relates only to whether the process at issue is mandatory. Whatever procedures are required according to the collective bargaining agreement must be exhausted before filing suit. Whether a procedure is final and binding should be irrelevant to an exhaustion/tolling analysis because, if the procedure was final and binding, an employee would be completely precluded from filing suit and the court would be precluded from addressing the merits of the claim, absent some type of fraud or other material defect in the grievance process. Tolling should not hinge on whether the grievance procedure provides final and binding relief because tolling should not be an issue, at least with regard to the primary claims, where final and binding relief is afforded under the collective bargaining agreement. This is so because, where final and binding relief is afforded, the grievant would be precluded from seeking relief in court, absent a defect serious enough to warrant relief from the arbitration decision. Equity requires tolling the statute of limitations where collective bargaining grievance procedures are mandatory and therefore are required to be exhausted. Thus, the employees’ claims came within the six-year breach of contract statute of limitations. Justice Boyle, concurring, further stated that steps one through four of the grievance procedure were mandatory and required exhaustion before suit could be filed. The statute should be tolled because the agreement between these parties can fairly be said to contemplate exhaustion before resort to common-law remedies. While this case does not involve a breach of the duty of fair representation, and case law analyzing principles applicable to employee grievances may not be applicable here, the parties’ submissions have not persuasively distinguished between a case brought by a union against the employer and one brought by an employee against both the union and employer. Nor have the parties addressed whether the public employment relations act has any implications for the applicable resolution of this question. The plaintiff’s claims fell within the six-year period of limitation, requiring remand for a determination whether the defendant breached the collective bargaining agreement. Justice Weaver, dissenting, stated that tolling is inappropriate during either the first four steps of the grievance process or the last step, nonbinding and permissive arbitration. Arbitration, as applied in this case is advisory only, and nonbinding. While exhaustion is required for mandatory procedures, tolling remains an equitable remedy and a fact-specific inquiry within the discretion of the trial court. A balance of the equities and competing labor policies reveals that tolling is not warranted in this case where the plaintiff had ample time to file suit. Rather, general breach of contract rules should apply, and the statute of limitations should run from the date that the alleged contractual breach occurred, i.e., when the union first initiated grievance proceedings on behalf of the plaintiffs. Because the statutory period expired before these actions were filed in court, they are barred. Justices Kelly and Taylor took no part in the decision of this case. 214 Mich App 182; 542 NW2d 333 (1995) affirmed. Ensley v Associated Terminals, Inc, 304 Mich 522; 8 NW2d 161 (1943) overruled. Martens, Ice, Geary, Mass, Legghio, Israel & Gorchow, P.C. (by Renate Mass and Michael J. Bommarito), for the plaintiffs-appellees. Brady, Hathaway, P.C. (by Thomas M.J. Hathaway and David A. Hardesty), for the defendant-appellant. Cavanagh, J. The issue presented is whether the American Federation of State, County and Municipal Employees Council 25 and Local 1416 timely filed suit against the board of education of the school district of the city of Highland Park for breach of a collective bargaining agreement between the two parties. We find that suit was timely filed, thus, we would affirm the decision of the Court of Appeals. i On May 2, 1984, the board posted notices regarding two openings for custodian positions. Union members Alvin Casey and Larry Anderson applied for the positions. Despite being the two most senior bargaining unit applicants, the board decided to hire two persons who were not employed by the district. Moreover, the two men who were hired were related by blood or by marriage to members of the school board. On June 30, 1985, the board laid off union members holding the positions of bus driver and security guard, while also denying them certain benefits such as vacation pay, holiday pay, and “bumping rights.” At all pertinent times, the union and the board were parties to a collectively bargained agreement governing the terms and conditions of certain bargaining unit employees, including custodians, building safety officers, bus drivers, and security guards. The parties’ collective bargaining agreement included a grievance procedure culminating in nonbinding arbitration as a method for resolving disputes between the parties. The provision of the collective bargaining agreement in question states in relevant part: 8-Grievance Procedure It is the intent of the parties to this Agreement that the grievance procedure set forth herein shall serve as a means for a peaceful settlement of disputes that may arise between them as to the application and interpretation of this Agreement and disciplinary action or other conditions of employment. Further, it shall serve to settle complaints by a bargaining unit employee, or by the Union in its own behalf. (a) A grievance is a complaint by a bargaining unit employee, or by the Union in its own behalf .... * * * (d) All grievances shall be handled by the following procedures: Any maintenance and operational employee who feels his rights and privileges have been violated shall have the right to Union representation in presenting his grievance in the following order: Step 1 To the Maintenance Shop Foreman .... Step 2 To the Director of Maintenance and Operations Step 3 To the Assistant Superintendent .... Step 4 The Union may appeal the decision of the Superintendent ... to the Board of Education .... * * :|= (g) Arbitration — within ten (10) school days after delivery of the Board’s decision, a grievance may be appealed to advisory arbitration by the Union. . . . The arbitrator’s decision shall be advisory only and shall not be binding upon any party except in matters involving wages, discharge or suspension. Pursuant to the collective bargaining agreement, the union filed grievances and ultimately submitted the matters to arbitration. The arbitrator issued an award in favor of the union; however, by the terms of the collective bargaining agreement, the arbitration was nonbinding, and defendant refused to accept the arbitrator’s award. On April 15, 1991, plaintiffs instituted the present cause of action in circuit court, alleging a violation of the collective bargaining agreement. Defendant moved for summary disposition, stating that the statute of limitations precluded the complaint because the suit was filed more than six years after the breaches of contract were allegedly committed. The circuit court held in favor of the board and entered summary disposition against the union. It stated that the grievances were filed in July 1984 and February 1985, respectively. The court held that the statutory period of limitations for the two claims expired in July 1990 and February 1991. Therefore, the suit that was filed in April 1991 was time barred. The union appealed in the Court of Appeals, which reversed. In a two-to-one decision by Judge Marilyn Kelly, the Court held that the nonbinding arbitration provision was mandatory; therefore, the union was required to exhaust its contractual remedies before filing suit. Under equitable tolling principles, because the union filed suit within six years of the arbitrator’s decision, the suit was timely. 214 Mich App 182; 542 NW2d 333 (1995). The dissent, by Judge Clifford Taylor, held that while the grievance procedure was mandatory, the nonbinding arbitration was permissive. Therefore, the union did not have to exhaust its contractual remedies before filing suit. The dissent held that the union should have filed suit at the time the contract was breached; thus, the complaint by the union against the board was time barred, and the principles of equitable tolling should not apply. Id. at 191-194. n The issue presented is one of first impression. In fact, to our knowledge, there is no case in the country dealing with precisely the same issue. This is so because the parties have negotiated a unique collective bargaining agreement, providing a mandatory grievance procedure that ends with nonbinding arbitration in all matters, except those dealing with wages, discharge, or suspension. To understand why this combination is unique, we must first examine the terms used to describe the methods of dispute resolution between parties. The grievance procedure is the process by which the parties have chosen to settle their disputes. Typical grievance procedures provide a multistep process of resolution and appeal. The grievance procedure (which we will refer to as the multistep process of appeals not including arbitration) and arbitration may be mandatory or they may be permissive. If the procedure is mandatory, the aggrieved party may be forced to complete the grievance procedure before bringing suit in court. If the procedure is not mandatory, the aggrieved party may choose to complete the grievance procedure first, but is not required to do so, before filing suit. The grievance procedure and arbitration can also be either binding or nonbinding (sometimes referred to as advisory). This simply means that, if binding, the parties must adhere to the decision of the arbitrator or the person of highest appellate authority under the grievance process. If nonbinding, the parties are not bound by the decision of the final appellate authority or arbitrator, but they may mutually agree to abide by the decision if they so choose. Most collective bargaining agreements provide for some sort of grievance procedure (mandatory or permissive) and binding arbitration. Over the past two decades, the courts have spent most of their time determining whether the terms of a particular grievance procedure are mandatory or permissive. As will be explained in more detail below, as a general rule, most courts have held that grievance procedures set out by the parties are mandatory. In those cases, almost all the procedures ended in binding arbitration. In fact, as we noted in Breish v Ring Screw Works, 397 Mich 586, 594; 248 NW2d 526 (1976), at that time, approximately ninety-six percent of contracts had provisions that resulted in final and binding arbitration as the result of the grievance procedure. Our situation today is unique because we have a rare combination: mandatory grievance procedures culminating in nonbinding arbitration. Having stated this general background, it is important to understand the underlying arguments of the parties, and those arguments that the parties are not making. The union asserts that regardless of whether the final step of a grievance procedure is nonbinding, the entire process of going through the grievance procedure and arbitration is mandatory under the terms of the contract. Therefore, because the grievance procedure and arbitration are mandatory, the statute of limitations should be tolled until the completion of both steps. The board, on the other hand, argues that regardless of whether the grievance procedure and arbitration are mandatory under the contract, if they end in a nonbinding result, it would be futile for the parties to exhaust the entire procedure before filing suit. Having stated the positions of both sides, we note that, contrary to the position taken by both the majority and dissent in the Court of Appeals, the issue is not whether the arbitration provision was mandatory. Rather, regardless of whether the grievance procedure or arbitration is mandatory, if the process ends with something nonbinding, should the statute of limitations be tolled? As this opinion will examine in the next section, there is a strong body of case law that favors exhaustion of grievance procedures before filing suit. Equally persuasive is a body of case law suggesting that if an agreement cannot provide a binding result, the aggrieved party may file suit before exhausting contractual remedies. Our task today is to resolve the apparent conflict that occurs when the two areas of law are merged. m Since the beginning of the twentieth century, employees have banded together to form labor unions to protect themselves from unfavorable conditions at the workplace. As a tool for achieving their goals, unions and management have negotiated collective bargaining agreements, which are contracts that govern the terms and conditions of employment. Unlike contracts of adhesion, parties to a collective bargaining agreement usually are able to negotiate on an even playing field. Thus, both employers and unions are free to negotiate the relative terms of their contracts, and are able to settle on mutually agreed conditions governing the employees’ working conditions. As a result, an entire body of federal labor law interpreting collective bargaining agreements has emerged over the decades. A In 1960, the United States Supreme Court decided three federal cases now known as the Steelworkers Trilogy. These cases gave birth to a family of labor law that has continued until today. They establish a strong presumption in favor of using negotiated grievance procedures for resolving disputes over the interpretation or application of a collective bargaining agreement. In United Steelworkers of America v American Mfg Co, 363 US 564; 80 S Ct 1343; 4 L Ed 2d 1403 (1960), the Court stated that the policy favoring negotiated dispute resolution mechanisms “can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.” Id. at 566. Only five years later, the United States Supreme Court issued a decision reinforcing the principle that contractual grievance procedures should be used. In Republic Steel Corp v Maddox, 379 US 650; 85 S Ct 614; 13 L Ed 2d 580 (1965), the Court stated: As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. . . . [U]nless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf. [Id. at 652 (citations omitted; emphasis added).] As stated by the Court, federal courts must presume that the grievance procedures are mandatory unless otherwise expressly stated in the contract. Even language providing that an employee “may” discuss a complaint with a union committeeman before embarking on the next step of a grievance procedure does not demonstrate that an employee may ignore the contractual remedies provided under the agreement. Indeed, the Court stated that the [u]se of the permissive “may” does not of itself reveal a clear unders

KYLE R. PASCHAL, Plaintiff v. JERRY D. MYERS, Personally and in his Official Capacity as County Manager of Rockingham County, North Carolina; W. WAYNE GARRISON, Personally and in his Official Capacity as Director of Rockingham County Emergency Medical Services; and ROCKINGHAM COUNTY, a Political Subdivision of the State of North Carolina, Defendants No. COA97-193 (Filed 17 March 1998) 1. Labor and Employment § 54 (NCI4th)— employee handbook — personnel policies — adoption as ordinance — not part of employment contract A county’s personnel policies set forth in its employee handbook did not become a part of a former EMS employee’s contract of employment because the county commissioners had adopted the personnel policies as an ordinance. Therefore, plaintiff EMS employee remained an employee at will, and summary judgment was properly entered against plaintiff on his breach of contract claim based on the county’s alleged failure to follow its personnel policies in terminating his employment. 2. Constitutional Law § 105 (NCI4th); Labor and Employment § 63 (NCI4th)— county EMS employee — property interest in employment — creation by ordinance A former county EMS employee showed an enforceable property interest in continued employment created by ordinance in that the county’s employee handbook, which had been adopted as an ordinance, created the reasonable expectation of continued employment -within the meaning of the Due Process Clause. 3. Public Officers and Employees § 35 (NCI4th)— county officials — sued in official capacities A county manager and a county EMS director were sued only in their official capacities where the complaint failed to assert any allegations to show that these defendants were acting in any manner other than in their official capacities, and there were no allegations that defendant’s actions were corrupt or malicious or that defendants acted outside the scope of their duties. 4. Labor and Employment § 69 (NCI4th)— pre-termination due process — meetings sufficient Two meetings between plaintiff and county EMS officials prior to the termination of plaintiff’s employment with the county EMS met due process requirements where, at the first meeting, the EMS training officer gave plaintiff a copy of a letter from plaintiff’s supervisor alleging that plaintiff had filed a workers’ compensation claim falsely stating that an injury to his finger was work-related, informed plaintiff that he could make a written statement explaining his side of the story, and gave plaintiff a memorandum suspending him for three days pending an investigation of the allegations in the letter; and at the second meeting, the training officer, supervisor and plaintiff listened to a tape recording of plaintiff’s telephone calls on the night plaintiff hurt his finger, plaintiff presented a written incident report, and the training officer gave plaintiff a memorandum which summarized her investigation of the allegations against him and her reasons for his dismissal. 5. Labor and Employment § 69 (NCI4th)— post-termination due process — hearings sufficient Plaintiff former county EMS employee was accorded post-termination due process where plaintiff was provided all of the evidence upon which an EMS training officer relied in deciding to dismiss him; the director of EMS reviewed plaintiff’s dismissal at a hearing at which plaintiffs attorney made an oral presentation and submitted a written statement on plaintiffs behalf and plaintiff spoke in his own behalf; the county manager then conducted an evidentiary hearing at which plaintiff was represented by counsel, who presented evidence and cross-examined witnesses, and at which plaintiff testified in his own behalf; and plaintiff failed to present any real evidence that the county manager relied upon the opinions of the county attorney or county personnel officer in making his decision. Appeal by plaintiff from order entered 31 October 1996. by Judge Melzer A. Morgan, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 8 October 1997. Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr., for plaintiff-appellant. Womble Carlyle Sandridge & Rice, a Professional Limited Liability Company, by James R. Morgan, Jr., for defendants-appellees. TIMMONS-GOODSON, Judge. Plaintiff Kyle R. Paschal filed this wrongful termination action on 22 November 1995 against defendants Jerry D. Myers, W. Wayne Garrison, and Rockingham County. In his complaint, plaintiff alleged that he had been terminated from permanent employment with defendant County in violation of his contractual and statutory rights not to be discharged except for adequate cause, in violation of the procedural rights accorded him by the Rockingham County personnel ordinance, in violation of the state personnel records privacy law, and in violation of his due process rights under the Law of the Land Clause of the North Carolina Constitution. Defendants filed their answer on 26 December 1995, denying the material allegations of plaintiff’s complaint, and asserting affirmative defenses including governmental and official immunity, failure to exhaust administrative remedies, and failure to mitigate damages. Thereafter, on 12 September 1996, defendants filed a motion for summary judgment. This motion was heard by Judge Melzer A. Morgan, Jr. during the 11 October 1996 civil session of Rockingham County Superior Court. The evidence tends to show that plaintiff had been employed by defendant County with its Emergency Medical Service (hereinafter “EMS”) as an emergency medical technician-paramedic since August 1992. In June 1993, plaintiff became a full-time, non-probationary employee of defendant County. At all times during plaintiffs employment, defendant County had an established employment policy, which had been enacted as an ordinance of Rockingham County. On 20 May 1995, plaintiff fractured the little finger on his right hand. On 22 May 1995, plaintiff completed a North Carolina Industrial Commission Form 19 (hereinafter “I.C. Form 19”), indicating that he had been injured during and in the course of employment. This form was submitted to an EMS officer on or about 1 June 1995. Upon receiving a copy of this form, plaintiff’s immediate supervisor, Lisa King, asked EMS Training Officer, Phyllis Paschall, to investigate plaintiffs statement that he had been injured during and in the course of employment. King told Paschall that plaintiff had previously indicated that he had hurt his finger while vacuuming, but had told other EMS employees that he had injured his finger during and in the course of employment, in accordance with the statement on the I.C. Form 19 injury report. Plaintiff met with Paschall and King on 1 June 1995, and was suspended from employment pending investigation of King’s allegations that plaintiff had falsified the I.C. Form 19 injury report. Subsequently, Paschall took the statements of several of plaintiff’s coworkers, who confirmed King’s version of the cause of plaintiff’s injury. These witnesses stated that they had heard plaintiff tell King, during a telephone conversation, that he had injured his finger while vacuuming. Paschall also listened to a C-Comm tape of plaintiff’s telephone calls on the evening of 20 May 1995, during which plaintiff discussed the cause of his injury. As a result of the information obtained during her investigation, on 5 June 1995, Paschall executed a written notice of termination discharging plaintiff from employment. The reasons for termination stated therein included falsification of a county record for profit, and discourteous treatment of another county employee. Plaintiff has at all times denied telling King that he had injured himself while vacuuming. Moreover, plaintiff contends that he never had notice of any problems with his job performance, specifically, in reference to discourteous treatment of another county employee before termination. On 13 June 1995, plaintiff submitted a written request for review of his termination to the Director of Rockingham County EMS, defendant W. Wayne Garrison. Defendant Garrison held a conference on this matter on 8 August 1995. Upon review of the evidence utilized by Paschall in making her decision, defendant Garrison issued a ruling on 14 August 1995, upholding plaintiff’s dismissal for the reasons stated in Paschall’s 5 June 1995 notice of termination. Defendant Garrison concluded that dismissal was proper because plaintiffs alleged misrepresentation of the cause of his finger injury indicated that plaintiff “may lie about giving medicine.” Thereafter, plaintiff requested a hearing before defendant Jerry D. Myers, Rockingham County Manager. Defendant Myers conducted a full, evidentiary hearing in this matter on 3 October 1995, and, on 27 October 1995, issued a ruling upholding plaintiffs termination. Therein, defendant Myers found that plaintiff had injured his finger on 20 May 1995 during a violent altercation with a guest of the department, Amanda West, resulting in their both having to receive medical treatment; that this altercation led to plaintiffs injury; and that plaintiff made a conscious effort to mislead his supervisors as to the cause of his injury. After reviewing all of the evidence before him, Judge Morgan entered an order granting defendants’ motion for summary judgment. Plaintiff appeals. Plaintiff brings forth but one assignment of error on appeal, by which he argues that the trial court erred in granting defendants’ motion for summary judgment. For the reasons discussed herein, we cannot agree, and accordingly, affirm the decision of the trial court. Summary judgment is properly granted if, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact, and any party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56. The moving party bears the burden of showing a lack of issue of triable fact, and may meet this burden by showing the non-moving party cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Messick v. Catawba County, 110 N.C. App. 707, 712, 431 S.E.2d 489, 492-93 (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 342 (1992)), disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). I. Breach of Contract Claim First, plaintiff contends that his contract of employment was governed by the County’s personnel policies included in its Employee Handbook. As those policies were properly a part of plaintiffs contract of employment, plaintiff asserts that there are disputed issues of fact as to whether defendants carried out his suspension and dismissal in breach of his contract of employment. Irrefutably, North Carolina caselaw mandates that in the absence of an employment contract for a definite period, the employment is presumed to be “at will,” terminable at the will of either employer or employee. Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 446, 480 S.E.2d 685, 687, reh’g denied, 345 N.C. 761, 485 S.E.2d 299 (1997). Our Supreme Court has recognized two exceptions to the terminable-at-will doctrine: (1) “where plaintiff-employee is assured that he cannot be fired except for incompetence and ‘where the employee gives some special consideration in addition to his services,’ ” Howell v. Town of Carolina Beach, 106 N.C. App. 410, 416, 417 S.E.2d 277, 280 (1992) (quoting Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. review denied, 314 N.C. 331, 333 S.E.2d 490, and disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985)) (alteration in original); and (2) “where an employment contract is terminated ‘for an unlawful reason or purpose that contravenes public policy.’ ” Id. at 416, 417 S.E.2d at 281 (quoting Coman v. Thomas Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)). Additionally, “in some circumstances employee manuals setting forth reasons and procedures for termination may become part of the employment contract even where an express contract is nonexistent,” so as to negate the terminable-at-will doctrine. Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 655, 412 S.E.2d 97, 99 (1991) (citing 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)), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992). Notably, however, “ ‘unilaterally promulgated employment manuals or policies do not become [a] part of the employment contract, unless expressly included [therein].’ ” Howell, 106 N.C. App. at 414, 417 S.E.2d at 279 (quoting Walker, 77 N.C. App. at 259, 335 S.E.2d at 83-84). In the instant case, plaintiff was a non-probationary, permanent employee for an indefinite term, i.e., an at-will employee. Further, plaintiff’s case does not come within any of the public policy exceptions to the terminable-at-will doctrine. Plaintiff has not presented any evidence to show that the County’s Employee Handbook was given to him at the time of his employment, that he had to sign indicating its receipt and his understanding of the Handbook’s contents, or any other evidence that the Handbook’s personnel policies had been made a part of his employment contract. Plaintiff maintains, however, the mere fact that the Rockingham County Board of County Commissioners had adopted, as an ordinance, the County’s personnel policies contained in the Handbook demands that the Handbook’s personnel policies were a part of his contract. This argument is unpersuasive. This Court in Howell, 106 N.C. App. 410, 417 S.E.2d 277, was presented with similar circumstances, where the Town Council of Carolina Beach had adopted and issued a “Personnel Policies and Procedures Manual (pursuant to section 160A-164 of the North Carolina General Statutes).” In that case, this Court declined to hold that the mere adoption of the Town’s personnel policies as an ordinance would necessitate the conclusion that the policies had been included in the plaintiff’s employment contract. Id. In accordance with Howell, we decline to hold that mere adoption of Rockingham County’s Employee Handbook’s personnel policies as an ordinance, makes those personnel policies a part of plaintiff’s employment contract. As plaintiff has failed to show that the Handbook’s personnel policies were expressly included in his employment contract, summary judgment was properly granted on plaintiff’s breach of contract claim. II. Due Process Claim Plaintiff also contends that there are issues of fact as to whether defendants denied him due process of law by failing to adequately and fairly notify him prior to his termination and post-termination appeals of the evidence, which was the alleged basis for his suspension and dismissal, and by rendering decisions which were arbitrary and capricious. While defendants contend otherwise, plaintiff has sufficiently shown that an enforceable property interest in continued employment was “created by ordinance,” in this case. See Burwell v. Griffin, 67 N.C. App. 198, 209, 312 S.E.2d 917, 924 (quoting Bishop v. Wood, 426 U.S. 341, 344-45, 48 L. Ed. 2d 684, 690 (1976)), appeal dismissed and disc. review denied, 311 N.C. 303, 317 S.E.2d 678 (1984). Herein, the Employee Handbook, which was also a town ordinance, created the reasonable expectation of continued employment within the meaning of the Due Process Clause. See Howell, 106 N.C. App. at 417, 417 S.E.2d at 281 (comparing the Town of Carolina Beach’s ordinance to the rights given State employees pursuant to N.C. Gen. Stat. § 126-35 (1991), which has been held to create a reasonable expectation of employment and a property interest within the meaning of the Due Process Clause). We must, therefore, decide whether plaintiff received the process he was due. In order to facilitate discussion of this question, however, we must first address the capacities in which the defendants are being sued. We note that while the caption of the complaint alleges that plaintiff is suing defendants Garrison and Myers in their individual and official capacities, the complaint fails to assert any allegations that show that these defendants were acting in any manner other than their official capacities. Moreover, the general rule is that “a ‘public official’ is immune from personal liability for ‘mere negligence’ in the performance of those duties, but he is not shielded from liability if his alleged actions were ‘corrupt or malicious’ or if ‘he acted outside and beyond the scope of his duties.’ ” Wiggins v. City of Monroe, 73 N.C. App. 44, 49, 326 S.E.2d 39, 43 (1985) (citations omitted), quoted in Thompson Cadillac-Oldsmobile, Inc. v. Silk Hope Automobile, Inc., 87 N.C. App. 467, 469, 361 S.E.2d 418, 420 (1987), disc. rev. denied, 321 N.C. 480, 364 S.E.2d 672 (1988). The facts fail to show any actions of the magnitude to pierce the cloak of official immunity, so as to allow defendants Myers and Garrison to be sued in their individual capacities. We conclude, then, that defendants Myers and Garrison may only be sued in their official capacities, as Rockingham County Manager and Director of Rockingham County EMS, respectively. The County, of course, may be derivatively liable for the actions of defendants Myers and Garrison if they have waived immunity from suit. See N.C. Gen. Stat. § 153A-435 (1991). A. Pre-termination Due Process In Cleveland Bd. of Educ. v. Loudermill, the United States Supreme Court determined that the Due Process Clause requires “ ‘an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ ” 470 U.S. 532, 542, 84 L. Ed. 2d 494, 503-04 (1985) (citation omitted) (emphasis omitted). The employee must have a pre-termination opportunity to respond to the allegations against him. This pre-termination opportunity to respond is “ ‘an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.’ ” Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 349, 342 S.E.2d 914, 922 (quoting Loudermill, 470 U.S. at 545-46, 84 L. Ed. 2d at 506), cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). The employer must also provide the employee with “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Loudermill, 470 U.S. at 546, 84 L. Ed. 2d at 506. This evidence need not include all evidence on a charge, or even the documentary evidence in support thereof; rather, due process only requires that a descriptive explanation be given the employee so as to permit him to identify that conduct giving rise to the dismissal so that the employee may make a response. Linton v. Frederick County Bd. of County Com’rs, 964 F.2d 1436, 1440 (4th Cir. 1992). In this case, on 1 June 1995, plaintiff met with Lisa King, his supervisor, and EMS Training Officer, Phyllis Paschall. At this time, Paschall gave plaintiff a copy of King’s letter to Paschall, indicating that plaintiff had told King that he broke his finger while vacuuming, but had stated on his I.C. Form 19 injury report that he had broken his finger during and in the course of employment. Plaintiff denied these allegations. Plaintiff was informed that he had the opportunity to make a written statement, explaining his side of the story. Finally, Paschall gave plaintiff a short memorandum informing him that he was being suspended for three days, pending investigation of King’s allegations, and instructing him to report to Paschall on 5 June 1995 for further discussion and action. At plaintiff’s 5 June 1995 meeting with King and Paschall, the three listened to a C-Comm tape of plaintiff’s telephone calls on the night that plaintiff hurt his finger. While King and Paschall believed that the C-Comm

DRIVER v HANLEY (AFTER REMAND) Docket No. 193047. Submitted June 11, 1997, at Grand Rapids. Decided November 25, 1997, at 9:10 am. Leave to appeal sought. Maria E. Driver brought an action in the Benzie Circuit Court against William and Julia Hanley, alleging violation of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2), retaliatory discharge in violation of public policy, and breach of an employment contract relating to the termination of her employment after she complained about the defendants to the United States Department of Labor. The court, James M. Batzer, J., removed the action to the 85th District Court after mediation resulted in an evaluation in the plaintiff’s favor at less than the circuit court’s jurisdictional limit. The district court, Brent V. Danielson, J., entered a judgment on a jury verdict for the plaintiff on all counts. The circuit court affirmed the judgment with respect to the wpa claim, but reversed with respect to the claims of public policy violation and breach of contract, ruling those claims to be preempted by the wpa. On appeal by the defendants on leave granted and a cross appeal by the plaintiff, the Court of Appeals, Taylor, P.J., and Mackenzie and M. J. Matuzak, JJ., believing that the plaintiff had made her complaint to the Michigan Department of Labor rather than to the United States Department of Labor, affirmed the circuit court’s reversal of the district court judgment with respect to the claims of public policy violation and breach of contract, holding that the wpa is the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer’s violation of law. The Court of Appeals, however, reversed the circuit court’s affirmance of the district court judgment with respect to the wpa claim, holding that an action under the wpa is within the exclusive jurisdiction of the circuit court. 207 Mich App 13 (1994). The circuit court thereafter granted the defendants’ motion for summary disposition of the wpa claim on the ground that the wpa offers no protection to employees discharged for reporting to federal agencies. The circuit court also denied the plaintiffs motion for relief from the original circuit court judgment in the form of reinstatement of the district court judgment with respect to the claims of public policy violation and breach of contract. The plaintiff appealed. After remand, the Court of Appeals held-. 1. The defendants were not judicially estopped from asserting on remand to the circuit court that the wpa does not apply to this case. In the proceedings before remand to the circuit court, the defendants never asserted unequivocally that the wpa applies to this case; instead, the defendants merely argued that because the plaintiff had alleged a violation of the wpa, she could not, as a matter of law, allege a cumulative claim of breach of contract. 2. The circuit court abused its discretion by denying the plaintiff’s motion for relief from the original circuit court judgment in the form of reinstatement of the district court judgment with respect to the claim of breach of contract. Reinstatement was denied on the basis that the wpa provided the plaintiffs exclusive remedy. However, because the wpa provided no remedy, it could not have provided the plaintiff exclusive remedy. The doctrine of law of the case does not bind the circuit court or the Court of Appeals to the holding in the prior opinion of the Court of Appeals that the wpa represents the plaintiff’s exclusive remedy. Application of that doctrine requires that the facts remain materially the same. Here, in the first appeal of this case to the Court of Appeals, the Court of Appeals incorrectly believed that the plaintiff had made her complaint about the defendants to the Michigan Department of Labor. The plaintiff is not entitled to reinstatement of the district court judgment with respect to the claim of violation of public policy because that claim was not dismissed by the circuit court on the basis of the purported exclusivity of the wpa. On remand, the circuit court must reinstate the district court judgment in favor of the plaintiff with respect to the claim of breach of contract only. Affirmed in part, reversed in part, and remanded. Cunningham Davison Rogers & Alward (by William M. Davison), for the plaintiff. Michael E. Hall, for the defendants. AFTER REMAND Before: Reilly, P.J., and Hood and Murphy, JJ. Per Curiam. Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition of plaintiff’s claim under § 2 of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2). Plaintiff also contests the circuit court’s subsequent order denying plaintiff’s motion for reinstatement of a prior district court judgment. We affirm the circuit court’s order granting defendants’ motion for summary disposition. We reverse, in part, the circuit court’s order denying plaintiff’s motion seeking reinstatement of the district court judgment. This case is before this Court for the second time. In 1985, plaintiff was discharged from her employment with defendants. The facts underlying plaintiff’s discharge were set forth in this Court’s first opinion. See Driver v Hanley, 207 Mich App 13, 14-15; 523 NW2d 815 (1994). As noted in that opinion, plaintiff filed a complaint in the circuit court against defendants alleging (1) a violation of the wpa, (2) a violation of the public policy against retaliatory discharge, and (3) a breach of her employment contract. Because the parties received a mediation evaluation below the jurisdictional limit, the case was removed to the district court, where a jury, in a special verdict, found in favor of plaintiff on each count and awarded $24,800 in damages. On appeal, the circuit court (1) affirmed the district court verdict on plaintiff’s wpa count, (2) reversed the verdict on her public policy count on the ground that plaintiff failed to exhaust her administrative remedies, and (3) reversed the verdict on her breach of contract count on the ground that it was preempted by the wpa. Defendants then appealed to this Court on leave granted, and plaintiff cross appealed. Defendants argued that the district court lacked subject-matter jurisdiction over plaintiff’s wpa claim on the ground that exclusive jurisdiction was within the circuit court. This Court agreed and reversed the circuit court’s ruling with respect to plaintiffs wpa claim. Driver, supra at 16-18. In her cross appeal, plaintiff argued that the circuit court erred in reversing the verdict on her breach of contract count. This Court disagreed and affirmed the circuit court verdict with respect to plaintiff’s breach of contract count, holding that the wpa provided her exclusive remedy. Id. at 18. After remand from this Court, plaintiff was left with only a wpa claim pending in the circuit court. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), arguing that plaintiff could not sustain a successful claim under the WPA under the facts as alleged and developed. In particular, defendants argued that plaintiff’s alleged report to the United States Department of Labor (usdl) was insufficient to support plaintiff’s claim, because the usdl did not constitute a “public body” within the meaning of the wpa. According to defendants, the wpa did not offer protection to employees discharged for reporting to federal agencies. The circuit court agreed and granted defendants’ motion for summary disposition. Plaintiff then moved for reinstatement of the original district court judgment, arguing that the dismissal of her other two claims had been predicated solely on the existence of a valid wpa claim against defendants. The circuit court denied plaintiff’s motion, reasoning that the wpa precluded plaintiff’s public policy and breach of contract claims despite being inapplicable to plaintiffs case. Plaintiff first contends that the circuit court erred in dismissing her claim under the wpa. A trial court’s determination regarding a motion for summary disposition is reviewed de novo. Atkinson v Detroit, 222 Mich App 7, 9; 564 NW2d 473 (1997). Here, the circuit court did not specify which subsection of MCR 2.116(C) it was relying on when it granted defendants’ motion for summary disposition. However, because it relied on matters outside the pleadings, we will construe the motion as having been granted pursuant to MCR 2.116(C)(10). Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 705; 532 NW2d 186 (1995). A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Atkinson, supra at 9. The moving party is entitled to judgment as a matter of law if the claim suffers a deficiency that cannot be overcome. Id. Plaintiff does not argue that the circuit court erred substantively in dismissing her wpa claim on the ground that the USDL was not a “public body.” Accordingly, we will not address the issue whether an agency of the federal government constitutes a “public body” for purposes of the WPA. Radtke v Everett, 442 Mich 368, 397-398, & n 48; 501 NW2d 155 (1993). Instead, plaintiff argues only that defendants should have been estopped from asserting that the WPA was inapplicable to plaintiff’s case. In Michigan, the doctrine of judicial estoppel prohibits a party who has successfully and unequivocally asserted a position in a prior proceeding from asserting a wholly inconsistent position in a subsequent proceeding. Pashke v Retool Industries, 445 Mich 502, 509-510; 519 NW2d 441 (1994). The fact that the prior and subsequent proceedings in this case occurred within the same litigation is not a bar to the application of the doctrine. See Detroit Edison Co v Public Service Comm, 221 Mich App 370, 382; 562 NW2d 224 (1997). Here, defendants successfully argued to the circuit court (on appeal from the district court) and to this Court that the WPA provided plaintiffs exclusive remedy. Then, on remand to the circuit court, defendants argued that the wpa was inapplicable to the specific facts of plaintiffs case. Plaintiff contends that defendants’ “new” position, allegedly taken for the first time on remand, was wholly inconsistent with defendants’ prior position. We disagree. Contrary to plaintiff’s assertion, defendants’ position on remand regarding the applicability of the WPA to the specific facts of plaintiff’s case did not conflict with their prior arguments and was not a new position. Defendants first raised both arguments in their original (and ultimately unsuccessful) motions for summary disposition filed in 1986. Moreover, at no time did defendants ever assert, unequivocally, that the wpa was applicable to the specific facts of plaintiffs case. After the initial district court judgment, defendants’ arguments did not address the applicability of the wpa to the specific facts of plaintiff’s case. Instead, defendants merely argued that, because plaintiff had alleged a violation of the wpa, she could not, as a matter of law, allege a cumulative breach of contract claim. Finally, we note that plaintiff failed to raise the issue of judicial estop-pel before the circuit court and therefore failed to preserve the issue for appellate review. Chilingirian v City of Fraser, 194 Mich App 65, 70-71; 486 NW2d 347 (1992), remanded 442 Mich 874 (1993), on remand 200 Mich App 198; 504 NW2d 1 (1993). For these reasons, we hold that the circuit court did not err in allowing defendants to argue that the WPA was inapplicable to the specific facts of plaintiff’s case. See Pashke, supra at 509-510. Plaintiff next argues, in the alternative, that because the circuit court dismissed her WPA claim, which had been deemed her “exclusive remedy,” it should have reinstated the judgment of the district court with respect to her public policy and breach of contract claims. A trial court on remand possesses the authority to take any action that is consistent with the opinion of the appellate court. VanderWall v Midkiff 186 Mich App 191, 196; 463 NW2d 219 (1990). In this case, it is apparent from the record that when plaintiff requested reinstatement of the district court judgment, she was in fact requesting relief from the original circuit court order dismissing the district court’s favorable judgment on her public policy and breach of contract claims. Under MCR 2.612(C)(1)(f), relief from judgment may be granted for “any reason justifying relief from the operation of the judgment.” Huber v Frankenmuth Mut Ins Co, 160 Mich App 568, 575-576; 408 NW2d 505 (1987). A trial court’s decision to grant such relief is discretionary and will not be disturbed absent an abuse of discretion. Id. at 576. The law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue. Reeves v Cincinnati, Inc (After Remand), 208 Mich App 556, 559; 528 NW2d 787 (1995). Thus, a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case. Id. This rule applies without regard to the correctness of the prior determination. Id. However, the law of the case doctrine controls only if the facts have remained materially the same. CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). In deciding the first appeal in this case, this Court relied on the “well established” rule that “the wpa provides the exclusive remedy for an employee who has been discharged wrongfully from employment for reporting an employer’s violation of the law.” Driver, supra at 18. We then held that, because plaintiff’s breach of contract claim “was based solely on the fact that she reported defendants’ violations of the law,” the remedy provided by the wpa was exclusive. Id. This Court’s holding was expressly limited to the facts of the case, and in reciting the facts, we incorrectly stated that plaintiff had “filed a complaint with the Michigan Department of Labor, Wage and Hour Division.” Id. at 15, 18. On remand, the circuit court dismissed plaintiff’s wpa claim because plaintiff’s report was made to the usdl, a federal agency. Both parties agree that plaintiff’s report was made to the federal agency rather than a state agency. Accordingly, because the key fact upon which the circuit court relied to dismiss plaintiff’s “exclusive remedy” was not among the facts apparently relied on by this Court, the law of the case doctrine was not applicable on remand and does not now bind this Court on the issue. CAF Investment, supra at 454. As a general rule, remedies provided by a statute for the violation of a right having no common-law counterpart are exclusive rather than cumulative. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78; 503 NW2d 645 (1993), citing Pompey v General Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971). The wpa is such a statute. Dudewicz, supra at 79; Covell v Spengler, 141 Mich App 76, 82-84; 366 NW2d 76 (1985). The Michigan Supreme Court, in Dudewicz, supra at 80, held that because the wpa provided relief, the plaintiff’s cumulative public policy claim was not sustainable. The Court explained that a public policy claim is sustainable “only where there is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue.” Id. (emphasis added); see also Garavaglia v Centra, Inc, 211 Mich App 625, 630; 536 NW2d 805 (1995). In this case, the circuit court determined that the wpa was not applicable to the facts regarding plaintiff’s discharge. Because the wpa provided no remedy at all, it could not have provided plaintiff’s exclusive remedy. Dudewicz, supra at 80. Therefore, we hold that the circuit court abused its discretion when it denied plaintiff’s motion on the ground that the wpa provided plaintiff’s exclusive remedy. Huber, supra at 576. Although plaintiff sought reinstatement (or relief from a prior circuit court order) with respect to both her public policy and breach of contract claims, only her breach of contract claim was dismissed on the basis of the purported exclusivity of the wpa. Accordingly, plaintiff is not entitled to relief from the circuit court’s order regarding her public policy claim. We therefore remand with instructions to the circuit court to (1) modify its prior order reversing the district court’s judgment in favor of plaintiff with regard to plaintiff’s breach of contract claim and to (2) reinstate the judgment of the district court with respect to that count only. Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full. The circuit court construed plaintiffs public policy claim as being a claim for retaliatory discharge under the wages and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. In plaintiffs reply brief on appeal, she specifically states that the circuit court’s ruling regarding the applicability of the wpa “is not an issue in this appeal.” In these motions, defendants argued (1) that the wpa was inapplicable because the usdl did not constitute a “public body” and (2) that plaintiffs public policy claim was excluded by the wpa. Although plaintiffs motion was entitled “Motion For Rehearing/Reinstatement of Judgment,” she explained at the first hearing on the motion and in her supplemental brief in support of the motion that, procedurally, the motion was actually a motion seeking relief from the prior circuit court order.

LEWIS KURTZMAN v. APPLIED ANALYTICAL INDUSTRIES, INC. No. 103PA97 (Filed 7 November 1997) Labor and Employment § 65 (NCI4th)— employment contract — assurances—moving residence — not converted from at-will An action for breach of an employment contract was remanded for an order setting aside the verdict for plaintiff and entering judgment for defendant notwithstanding the verdict where defendant contacted plaintiff and recruited him for a position as director of sales; plaintiff inquired into the security of the proposed position during negotiations; he was told “If you do your job, you’ll have a job,” “This is a long-term growth opportunity for you,” “This is a secure position,” and “We’re offering you a career position”; plaintiff began his employment with defendant on 30 March 1992, moved immediately from Massachusetts to Wilmington, with his wife and daughter joining him following the sale of their home; and defendant terminated his employment on 2 November 1992. Although plaintiff argues that the combination of defendant’s assurances and plaintiff’s move to accept the offer of employment created a contract under which plaintiff could be discharged only for cause, plaintiff-employee’s change of residence in the wake of defendant-employer’s statements here does not constitute additional consideration making what is otherwise an at-will employment relationship one that can be terminated by the employer only for cause. The employment-at-will doctrine has prevailed in North Carolina for a century; the narrow exceptions to it have been grounded in considerations of public policy designed either to prohibit status-based discrimination or to insure the integrity of the judicial process or the enforcement of the law. The society to which the employment-at-will doctrine currently applies is a highly mobile one in which relocation to accept new employment is common. To remove an employment relationship from the at-will presumption upon an employee’s change of residence, coupled with vague assurances of continued employment, would substantially erode the rule and bring considerable instability to an otherwise largely clear area of the law. Am Jur 2d, Employment Relationship § 35. Justice Frye dissenting. On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 125 N.C. App. 261, 480 S.E.2d 425 (1997), affirming a judgment awarding damages to plaintiff entered by Cobb, J., out of session on 1 August 1995, following a jury verdict for plaintiff at the 22 May 1995 Civil Session of Superior Court, New Hanover County. Heard in the Supreme Court 14 October 1997. Shipman & Associates, L.L.P., by Gary K. Shipman and C. Wes Hodges, II, for plaintiff-appellee. Robinson, Bradshaw & Hinson, P.A., by John R. Wester and Frank H. Lancaster, for defendant-appellant. Hunton & Williams, by Amy E. Simpson, for North Carolina Citizens for Business and Industry, amicus curiae. Patterson, Harkavy & Lawrence, L.L.P., by Martha A. Geer, for the North Carolina Academy of Trial Lawyers, amicus curiae. WHICHARD, Justice. Plaintiff, Lewis Kurtzman, brought suit against his former employer, Applied Analytical Industries, Inc., alleging, inter alia, breach of an employment contract. On 1 June 1995 a jury returned a verdict in plaintiffs favor and awarded him $350,000 in damages. Defendant moved to set aside the verdict or, in the alternative, for a new trial. The trial court denied both motions. Defendant appealed to the Court of Appeals, which unanimously affirmed the trial court except in immaterial part. This Court allowed defendant’s petition for discretionary review on 5 June 1997. Defendant, Applied Analytical Industries, Inc., is based in Wilmington, North Carolina, and assists clients in securing FDA approval of pharmaceutical products. Plaintiff has worked in the pharmaceutical industry for over twenty years and was employed as national sales manager of E.M. Separations Technology in Rhode Island immediately prior to his employment with defendant. Defendant contacted plaintiff in October 1991 and began recruiting him for a position as director of sales in Wilmington. In January 1992 defendant offered plaintiff the position, and the parties negotiated the terms of employment until plaintiff accepted defendant’s offer on 6 March 1992. Evidence at trial tended to show that during negotiations, plaintiff inquired into the security of his proposed position with defendant. Defendant’s agents attempted to assure plaintiff by statements that included the following: “If you do your job, you’ll have a job”; “This is a long-term growth opportunity for you”; “This is a secure position”; and “We’re offering you a career position.” Plaintiff began his employment with defendant on 30 March 1992. He immediately moved to Wilmington, and following the sale of his home in Massachusetts, his wife, and daughter joined him there. Defendant terminated plaintiff’s employment on 2 November 1992. Plaintiff argues that the combination of the additional consideration of moving his residence and defendant’s specific assurances of continued employment removed the employment relationship from the traditional at-will presumption and created an employment contract under which he could not be terminated absent cause. This asserted exception is gleaned principally from Sides v. Duke Univ., 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985). Plaintiff argues that the exception is well established in North Carolina’s jurisprudence and that the judgment in his favor thus should be affirmed. We disagree. North Carolina is an employment-at-will state. This 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. Soles v. City of Raleigh Civil Serv. Comm’n, 345 N.C. 443, 446, 480 S.E.2d 685, 687 (1997); Harris v. Duke Power Co., 319 N.C. 627, 629, 356 S.E.2d 357, 359 (1987). There are limited exceptions. 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 Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992) (discharging an employee for refusing to work for less than minimum wage violates public policy); 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). Plaintiff does not rely upon any of these exceptions. He instead invokes an asserted exception earlier described by the Court of Appeals as follows: Generally, employment contracts that attempt to provide for permanent employment, or “employment for life,” are terminable at will by either party. Where the employee gives some special consideration in addition to his services, such as relinquishing a claim for personal injuries against the employer, removing his residence from one place to another in order to accept employment, or assisting in breaking a strike, such a contract may be enforced. Burkhimer v. Gealy, 39 N.C. App. 450, 454, 250 S.E.2d 678, 682 (emphasis added), disc. rev. denied, 297 N.C. 298, 254 S.E.2d 918 (1979). The Court of Appeals relied upon this “moving residence” exception as additional support for its holding in Sides v. Duke University. There, the plaintiff, a nurse anesthetist who had moved from Michigan to North Carolina to accept employment at Duke University Medical Center, sued the Medical Center based on the termination of her employment. After concluding that the plaintiff had stated a claim that fell within a public-policy exception to the at-will doctrine, the court considered a “moving residence” exception, stating: The additional consideration that the complaint alleges, her move from Michigan, was sufficient, we believe, to remove plaintiffs employment contract from the terminable-at-will rule and allow her to state a claim for breach of contract since it is also alleged that her discharge was for a reason other than the unsatisfactory performance of her duties. Sides, 74 N.C. App. at 345, 328 S.E.2d at 828. Here, plaintiff wishes to rely on this asserted “moving residence” exception to state a claim for relief. He does not contend that defendant’s assurances of continued employment were sufficient, standing alone, to create an employment contract for a definite term. Under well-settled law, they are not. This Court has held that a contract for “a regular permanent job” is not sufficiently definite to remove the employment relationship from the at-will presumption. Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971); Malever v. Kay Jewelry Co., 223 N.C. 148, 149, 25 S.E.2d 436, 437 (1943). The assurances defendant made here were no more specific than those in Still and Malever. Further, the assurance plaintiff here primarily relies upon, “If you do your job, you’ll have a job,” is not sufficient to make this indefinite hiring terminable only for cause. See Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 219, 139 S.E.2d 249, 25 1 (1964) (plaintiff-employee’s contention that he had an agreement with defendant-employer such that plaintiff would “have a permanent job as long as [his] work was satisfactory” was insufficient to remove the employment contract from the terminable-at-will rule). Nor does plaintiff contend that a statutory or public-policy exception to the at-will doctrine applies. Rather, he argues that the combination of defendant’s assurances, such as, “If you do your job, you’ll have a job,” and plaintiff’s move from Massachusetts to North Carolina to accept the offer of employment, created a contract under which plaintiff could be discharged only for cause. The question thus is whether this Court should recognize a “moving residence” exception to the general rule of employment at will. Plaintiff’s contention that this exception is well established in our jurisprudence is incorrect. This Court has not heretofore expressly passed upon it. While Malever, on which defendant relies, is somewhat pertinent, we do not consider it dispositive. The Court’s focus there was on whether the employer’s use of the term “permanent” in reference to the employment sufficed to remove the case from the employment-at-will doctrine, not on whether the employee’s relocation constituted additional consideration that accomplished such removal. Further, the Court noted that the employee’s relocation appeared motivated primarily by family rather than employment considerations. Malever, 223 N.C. at 149, 25 S.E.2d at 437. In Harris v. Duke Power Co., we cited application of the “moving residence” exception in Sides as part of a background discussion of exceptions to the general rule of employment at will. Harris, 319 N.C. at 629, 356 S.E.2d at 359. We neither specifically approved nor disapproved such an exception, however, and any language in Harris that may be viewed as suggesting the contrary is disapproved. The pertinent language quoted above from the Court of Appeals’ opinions in Burkhimer and Sides is also disapproved. The employment-at-will doctrine has prevailed in this state for a century. See Edwards v. Seaboard & Roanoke R.R. Co., 121 N.C. 490, 491-92, 28 S.E. 137, 137 (1897). The narrow exceptions to it have been grounded in considerations of public policy designed either to prohibit status-based discrimination or to insure the integrity of the judicial process or the enforcement of the law. The facts here do not present policy concerns of this nature. Rather, they are representative of negotiations and circumstances characteristically associated with traditional at-will employment situations. Further, as we recognized in Coman, “adoption of the [at-will] rule by the courts greatly facilitated the development of the American economy at the end of the nineteenth century.” Coman, 325 N.C. at 174, 381 S.E.2d at 446. A century later, the rule remains an incentive to economic development, and any significant erosion of it could serve as a disincentive. Additional exceptions thus demand careful consideration and should be adopted only with substantial justification grounded in compelling considerations of public policy. We perceive no such justification here. The society to which the employment-at-will doctrine currently applies is a highly mobile one in which relocation to accept new employment is common. To remove an employment relationship from the at-will presumption upon an employee’s change of residence, coupled with vague assurances of continued employment, would substantially erode the rule and bring considerable instability to an otherwise largely clear area of the law. See House v. Cannon Mills Co., 713 F. Supp. 159, 164 (M.D.N.C. 1988) (“Recognition of a general exception whenever relocation or a job change is involved would emasculate the terminable-at-will rule, because many if not most hirings involve either a job change or a change of residence or both.”). We thus hold that plaintiff-employee’s change of residence in the wake of defendant-employer’s statements here does not constitute additional consideration making what is otherwise an at-will employment relationship one that can be terminated by the employer only for cause. We do not, as the dissenting opinion suggests, hold that the establishment of “a definite term of service” is the sole means of contractually removing the at-will presumption. We simply follow settled law which holds that the employer’s assurances of continued employment do not remove an employment relationship from the at-will presumption, Tuttle, 263 N.C. at 219, 139 S.E.2d at 251, and now hold that the asserted additional consideration of the employee’s relocation of residence to accept the employment likewise does not alter this status. Because we do not recognize the exception plaintiff seeks, we need not consider, as does the dissent, whether the evidence sufficed to support a verdict for plaintiff under the asserted exception. For the reasons stated, the decision of the Court of Appeals is reversed. The case is remanded to that court for further remand to the Superior Court, New Hanover County, for an order setting aside the verdict for plaintiff and entering judgment for defendant notwithstanding the verdict. REVERSED AND REMANDED Justice Frye dissenting. Although our cases have in the past made reference to the existence of an “additional consideration” exception to the doctrine of employment at will, see Harris v. Duke Power Co., 319 N.C. 627, 629, 356 S.E.2d 357, 359 (1987); Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 219, 139 S.E.2d 249, 251 (1964), and our Court of Appeals has more fully described the exception based on moving residence, see Sides v. Duke Univ., 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985); Burkhimer v. Gealy, 39 N.C. App. 450, 454, 250 S.E.2d 678, 682, disc. rev. denied, 297 N.C. 298, 254 S.E.2d 918 (1979), as the majority notes, this Court has never expressly passed upon the precise issue presented by the facts of this case. This Court granted defendant’s petition for discretionary review in this case to decide, first, whether North Carolina recognizes an exception to the rule of employment at will based on: (1) an employer’s making statements that can be construed as assurances that the employee will be discharged only for deficient performance, and (2) an employee’s providing “additional consideration” by moving his residence to accept employment in response to those assurances. I believe a more precise statement of this question is whether an enforceable contract exists between employer and employee, so as to remove the presumption that the employment is terminable at will, where the employer makes specific assurances and the prospective employee gives additional consideration in reliance on those assurances. The majority correctly states that North Carolina follows the doctrine of employment at will. However, employment at will is not, nor should it be, an ironclad mandate which prevents employers and employees from negotiating the terms of the employment relationship to their mutual satisfaction. The general rule of employment at will is more accurately construed as a rebuttable presumption which can be overcome by the words and conduct of the parties, allowing a jury to find that the parties in fact reached certain agreements within a contract of employment. I read the majority’s decision as holding that representations made by an employer to a prospective employee and supported by additional consideration are insufficient as a matter of law to create an enforceable contract unless the employer specifies a definite term of service. Because this holding contradicts established principles of contract law, I must respectfully dissent. The case often cited as the earliest adoption of North Carolina’s employment-at-will rule, Edwards v. Seaboard & Roanoke R.R. Co., 121 N.C. 490, 28 S.E. 137 (1897), in fact recognized the contractual nature of the employment relationship. The facts in Edwards' required the Court to discern the intent of the parties as to the term of employment. The Court held that the contract was not specific as to the term of service, and therefore, “[i]t does not seem unreasonable that the parties intended that the service should be performed for a price that should aggregate the gross sum annually, leaving the parties to sever their relations at will, for their own convenience.” Id. at 491, 28 S.E. at 137 (emphasis added). In reviewing the origins of employment at will, this Court has noted that American courts moved toward the doctrine after “the industrial revolution and the development of freedom of contract.” Coman v. Thomas Mfg. Co., 325 N.C. 172, 174, 381 S.E.2d 445, 446 (1989). Nothing else appearing, freedom of contract arguably presumes the freedom of either party to terminate the employment relationship at will. However, an inflexible adherence to this presumption cannot stand in the face of evidence of contrary intent on the part of the contracting parties. As stated by the majority, “parties can remove the at-will presumption by specifying a definite period of employment contractually.” Likewise, where an employer agrees to restrict his right to discharge an employee in exchange for additional consideration provided by the employee, the courts must recognize that a contract has been formed which removes the presumption of employment at will. In applying this analysis, the essential inquiry is whether the necessary elements of an enforceable contract were present. “A contract is an agreement, upon a sufficient consideration, to do or not to do a particular thing.” Campbell v. Campbell, 234 N.C. 188, 191, 66 S.E.2d 672, 674 (1951). Cases in which an employee relocates merely as an incident of accepting new employment will not rebut the presumption of employment at will. However, an agreement and consideration are both present where the employer has induced the employee to move his residence ba

DIANE FUTRELLE, Plaintiff v. DUKE UNIVERSITY, SUSAN J. FEINGLOS, PATRICIA L. THIBODEAU, Defendants No. COA96-902 (Filed 19 August 1997) 1. Appeal and Error § 124 (NCI4th)— denial of motion to confirm arbitration — interlocutory order — immediate appeal An interlocutory order denying defendants’ motion to confirm an arbitration award and to dismiss plaintiffs action for breach of contract, wrongful discharge, and defamation involved a substantial right and was immediately appealable. 2. Accord and Satisfaction § 8 (NCI4th)— arbitration award — acceptance and cashing of check Plaintiff university medical librarian’s acceptance and cashing of a check from defendant university pursuant to an arbitration award in a dispute concerning her termination by her supervisors and the university constituted an accord and satisfaction, although the check did not contain the words “payment in full,” where the undisputed facts show (1) that defendants intended the check to be full and final payment resolving the dispute, and (2) that plaintiff understood defendants’ intent. 3. Arbitration and Award § 33 (NCI4th)— cashing of check— ratification of arbitration award Plaintiff ratified an arbitration award when she accepted and cashed defendants’ check paid pursuant to the award. 4. Arbitration and Award § 36 (NCI4th)— wrongful termination — arbitration award — cashing of check — waiver of related claims Plaintiff university medical librarian’s acceptance and cashing of defendant university’s check constituted an accord and satisfaction and ratification of an arbitration award pertaining to a dispute as to whether she was wrongfully terminated by defendant university which waived any right to bring future claims arising out of or related to the termination where the letter sent by defendant university with the check stated that payment was being made in accordance with the arbitration award; the stipulated arbitration issue was whether plaintiff was terminated in violation of the law or university policy; and the arbitration award referred to provisions of the university’s dispute resolution procedure regarding the binding effect of arbitration. Therefore, plaintiff’s claims for breach of contract and wrongful discharge, which related directly to whether she was wrongfully terminated, and her defamation claims, which arose out of and were directly related to her termination, were barred and should have been dismissed by the trial court. Appeal by defendants from order entered 24 April 1996 by Judge F. Gordon Battle in Orange County Superior Court. Heard in the Court of Appeals 2 April 1997. Michael B. Brough & Associates, by Stephen D. Brody and Michael B. Brough, for plaintiff-appellee. Fulbright & Jaworski L.L.P., by John M. Simpson, for defendant-appellants. McGEE, Judge. In November 1992, plaintiff was hired by Duke University (Duke) for a specified term of employment as a Learning Resources Librarian at the Duke University Medical Center Library (Library). Plaintiff became an “exempt employee” meaning that she was not subject to a collective bargaining agreement. Duke contends, and plaintiff disagrees, that Duke’s Exempt Staff Member Dispute Resolution Procedure (DRP) became part of plaintiff’s employment contract when she was hired. In September 1994, plaintiff requested permission from Susan Feinglos, her supervisor, to attend a professional conference. Defendants contend Feinglos denied the request. Plaintiff contends Feinglos authorized her to attend the conference if she completed equipment specifications for a work project. Plaintiff attended the conference and was absent from the workplace on 29 September and 30 September 1994. On 29 September 1994, plaintiff contacted Feinglos from the conference site at which time Feinglos told plaintiff she had not been given permission to attend the conference. Upon plaintiff’s return to work on 3 October 1994, Feinglos handed her a termination letter. Another supervisor, Patricia L. Thibodeau, escorted plaintiff to her office and told her to pack her belongings and leave the premises. Plaintiff contends Feinglos sent a copy of the termination letter to Gordon Hammes, an administrator with Duke University Medical Center. She also contends that, shortly after her termination, Thibodeau attended a professional conference and told one or more persons in attendance that plaintiff was terminated for “willful insubordination.” Plaintiff further contends Thibodeau told several of plaintiff’s professional colleagues at the Library that plaintiff had been terminated for willful insubordination, grave misconduct, and a poor work performance history. Plaintiff challenged her dismissal through the DRP. After proceeding through various steps of review under DRP, plaintiff requested arbitration under Article IV of DRP which provides that the decision of the arbitration panel “shall be final and binding between the parties as to all claims which were or could have been raised in connection with the dispute, to the full extent permitted by the United States Arbitration Act.” In the letter requesting arbitration, plaintiff’s attorney stated plaintiff’s “request is made without prejudice to [her] right to pursue any other form of relief’ and that it was his understanding that arbitration “would not have any preclusive effect.” In this letter, he asked Duke to respond if it had a contrary understanding so that plaintiff would have the opportunity to withdraw her request for arbitration. In a response letter, Duke’s attorney accepted plaintiff’s request for arbitration but also stated “I am enclosing a copy of the University’s exempt staff member dispute resolution procedure, which answers the other questions in your letter.” The parties then proceeded with arbitration before a panel of the American Arbitration Association. In an award issued 6 July 1995, the panel concluded plaintiff was intentionally insubordinate but that termination was too harsh because she had no past incidents of discipline on her record and had not received any corrective discipline prior to termination. The panel further concluded the appropriate penalty was reinstatement with three month’s back pay and benefits. However, the panel also quoted from a DRP provision which gives Duke the discretion to pay severance pay in lieu of reinstatement and concluded, in reference to this option, that “the parties are bound by that language, if it is properly executed and enforced.” In July 1995, Duke’s attorney informed plaintiff that Duke was exercising its discretion under the DRP to pay severance pay in lieu of reinstatement and enclosed a check in the amount of $16,158.69. In her affidavit, defendant Thibodeau asserts this check cleared Duke’s account in August 1995. Accompanying the check was a letter from Duke University Counsel which stated: In accordance with the Arbitration Panel’s Award, [the defendant] is enclosing a check payable to [plaintiff] which includes payment for six (6) months severance pay (in lieu of reinstatement); for three (3) months backpay; and for vacation accrued for such three (3) months backpay; and for vacation accrued for such three (3) month period. On 3 October 1995, plaintiff filed this action against defendants seeking damages for breach of contract, wrongful discharge, and defamation. On 15 November 1995, defendants moved to confirm the arbitration award and to dismiss the action. By order filed 24 April 1996, Judge F. Gordon Battle denied defendants’ motion. Defendants appeal. I. We first note this appeal is interlocutory because the order denying defendants’ motion to confirm the arbitration award and dismiss the action “ ‘does not determine the issues but directs some further proceeding preliminary to final decree.’” See Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (quoting Greene v. Laboratories, Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961)). However, we have held an “order denying arbitration, although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed.” Bennish v. North Carolina Dance Theater, 108 N.C. App. 42, 44, 422 S.E.2d 335, 336 (1992) (quoting Prime South Homes v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991)). Similarly here, we hold the order denying defendants’ motion involves a substantial right because the right to arbitration would effectively be lost if appeal is delayed. We initially recognize that “North Carolina has a strong public policy favoring arbitration.” Red Springs Presbyterian Church v. Terminix Co., 119 N.C. App. 299, 303, 458 S.E.2d 270, 273 (1995). The essential thrust of the Federal Arbitration Act, which is in accord with the law of our state, is to require the application of contract law to determine whether a particular arbitration agreement is enforceable; thereby placing arbitration agreements “upon the same footing as other contracts.” Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 134 L. Ed. 2d 902, 909 (1996) (citations omitted). It is essential that parties to an arbitration specify clearly the scope and terms of their agreement to arbitrate as enforcement of arbitration agreements is not subject to less scrutiny than the enforcement of other agreements. Defendants contend plaintiff was bound by the arbitration award pursuant to her employment contract and, in the alternative, by her participation in arbitration under the DRP, and that the trial court therefore erred by failing to confirm the award and denying their motion to dismiss. We do not reach the merits of whether there was a valid agreement to arbitrate, however, because we hold plaintiffs acceptance of defendants’ payment pursuant to the arbitration award constitutes both an accord and satisfaction and a ratification of the arbitration award. In its order denying defendants’ motion to confirm the award and to dismiss plaintiff’s claims, the trial court stated it reviewed the pleadings and affidavits filed in support of and in opposition to this motion. When a trial court considers matters outside the pleadings, a motion to dismiss may be converted into a motion for summary judgment. King v. Durham County Mental Health Authority, 113 N.C. App. 341, 345, 439 S.E.2d 771, 774 (1994). In addition, here the issue of accord and satisfaction may be resolved as a matter of law since there are no material facts in issue surrounding the delivery and acceptance of defendants’ payment. “Although the existence of accord and satisfaction is generally a question of fact, ‘where the only reasonable inference is existence or non-existence, accord and satisfaction is a question of law and may be adjudicated by summary judgment when the essential facts are made clear of record.’” Zanone v. RJR Nabisco, 120 N.C. App. 768, 771, 463 S.E.2d 584, 587 (1995). Article 3 of the Uniform Commercial Code is invoked when a dispute arises over a payment made with a negotiable instrument, such as the check issued by the defendants to plaintiff. See N.C. Gen. Stat. § 25-3-102 (1995) (discussing scope of Article 3); see also N.C. Gen. Stat. § 25-3-104 (1995) (defining “negotiable instrument”). Under this article, a payment by a party may constitute an accord and satisfaction of a dispute if the following requirements are met: (a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply. (b) . . . the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim. N.C. Gen. Stat. § 25-3-311 (1995). In Zanone, RJR Nabisco by letter offered former employee Zanone a $5000 check as “full and final payment of [Zanone’s] severance relocation associated benefits.” Zanone, 120 N.C. App. at 772, 463 S.E.2d at 588. Although RJR’s letter was not marked “payment in full” or accompanied by a letter explaining it was “payment in full,” this Court found the letter “established RJR’s intent [that] the $5000 check be treated as an accord” because the facts and circumstances surrounding receipt of a check may establish an accord and satisfaction. Id. Upon receipt of RJR’s letter, Zanone responded stating he regretted he could not accept the offer as final and he believed $5000 to be insufficient. Id. at 772-73, 463 S.E.2d at 588. RJR then mailed the check to Zanone who cashed it. This Court found: “[although Zanone registered his objection to the $5000 amount by letter ... , he had no further communication with RJR concerning the disputed debt prior to cashing the $5000 check.” Id. at 774, 463 S.E.2d at 589. This Court concluded “Zanone received the $5000 check clearly understanding RJR was offering the $5000 check as ‘full and final’ payment of the disputed debt” and held there was accord and satisfaction as a matter of law barring Zanone’s breach of contract claim. Id. at 774-75, 463 S.E.2d at 589. Similarly here, defendants have established, as a matter of law, the Article 3 requirements for accord and satisfaction. Defendants have introduced undisputed evidence that they tendered to plaintiff in good faith a check for $16,158.69. By affidavit defendant Thibodeau testified this check cleared Duke’s account in August 1995. Plaintiff has presented no evidence to contest defendants’ assertion that plaintiff cashed the check. The requirement, that a dispute exist, is satisfied in that, prior to payment of this amount, the parties disputed what remedy, if any, plaintiff was entitled to receive because of defendants’ decision to terminate her employment contract. The requirement of a conspicuous statement that the instrument is tendered as full satisfaction of the claim is satisfied by the letter from Duke University Counsel which accompanied the check. This letter acknowledges receipt of the arbitration panel’s decision and states defendants are exercising their discretion to pay severance pay in lieu of the reinstatement ordered in the arbitration award. The letter states the check is enclosed “ [i]n accordance with the Arbitration Panel’s Award.” As in Zanone, the omission of the words “payment in full” does not prevent the accord and satisfaction given the facts and circumstances surrounding payment and receipt of the check. We hold there was an accord and satisfaction as a matter of law because the undisputed facts show the following to be the only reasonable inferences regarding the parties’ intent: (1) that defendants intended the check to be full and final payment resolving the dispute and (2) that given the reference to the final arbitration award, plaintiff understood that this was defendants’ intent. Furthermore, by cashing the check as presented to her, plaintiff effectively ratified the arbitration award. The Oregon Court of Appeals reached a similar conclusion in Harrington v. Warlick, 758 P.2d 387 (Or. App. 1988). In Harrington, the court held that the defendants waived their right to appeal an arbitration award when they accepted the award. Id. at 388. Although here the issue is whether a party may collaterally attack an arbitration award through civil action rather than whether the party may appeal the award, we find the same principles apply. Thus, we hold plaintiff ratified the arbitration award when she accepted defendants’ check paid pursuant to the award. For this reason, the trial court erred by failing to confirm the arbitration award. II. Since the trial court erred by denying the motion to confirm the arbitration award, upon remand the trial court is directed to confirm and enter judgment on the award. Once judgment is entered upon the arbitration award, it will then operate “as an estoppel not only as to all matters actually determined or litigated in the prior proceeding, but also as to all relevant and material matters within the scope of the proceeding which the parties, in the exercise of reasonable diligence, could and should have brought forward for determination.” Rodgers Builders v. McQueen, 76 N.C. App. 16, 22, 331 S.E.2d 726, 730 (1985), disc. rev. denied, 315 N.C. 590, 341 S.E.2d 29 (1986). Since all claims within the scope of the arbitration proceeding are barred by judgment on the award, we must determine the scope of the accord and satisfaction and plaintiffs ratification of the arbitration award and the resulting impact on plaintiffs claims. In determining whether the parties agreed to submit a particular dispute or claim to arbitration, we must look to the language in the agreement. Id. at 23-24, 331 S.E.2d at 731. “Whether denominated accord and satisfaction or compromise and settlement, the executed agreement terminating or purporting to terminate a controversy is a contract, to be interpreted and tested by established rules relating to contracts.” Casualty Co. v. Teer Co., 250 N.C. 547, 550, 109 S.E.2d 171, 173 (1959). In an accord and satisfaction, the accord is the agreement and the satisfaction is execution of the performance of the agreement. Bizzell v. Bizzell, 247 N.C. 590, 601, 101 S.E.2d 668, 676, cert. denied, 358 U.S. 888, 3 L. Ed. 2d 115 (1958), reh’g denied, 358 U.S. 938, 3 L. Ed. 2d 310 (1959); Bumgarner v. Tomblin, 63 N.C. App. 636, 642, 306 S.E.2d 178, 183 (1983). Here, the letter sent by defendants along with the check states the payment is being made “[i]n accordance with the Arbitration Panel’s Award.” By so referencing the award, this letter effectively incorporated the terms of the arbitration award making the terms of the award part of the offer of settlement included in the accord. Plaintiffs ratification of the award by cashing the check effected her acceptance of the accord terms. The stipulated issue of the arbitration stated in the arbitration award was whether the plaintiff was “terminated in violation of the law or University policy.” Given this stipulation, we hold plaintiffs claims for breach of contract and wrongful discharge, both of which relate directly to whether she was wrongfully terminated, are barred and should have been dismissed. The award also states that it is “based on the entire record, the Exempt Staff Member Dispute Resolution Procedure [DRP] and the facts and circumstances of this case.” Section E of the DRP provides “[t]he decision of the panel shall be final and binding between the parties as to all claims which were or could have been raised in connection with the dispute, to the full extent permitted by the United States Arbitration Act.” The award further states that the parties are bound by language in the DRP which gives defendants the option to pay severance pay in lieu of reinstatement. Since the arbitration award, ratified by plaintiff, directly references the DRP provisions regarding the binding effect of arbitration and states that it is based on the DRP, we hold, as a matter of law, that plaintiff accepted the resolution of the dispute based solely on the stipulated issue and waived any right to bring future claims arising out of or related to the termination when she ratified the award by accepting the check in satisfaction of the dispute. Since the slander and libel claims clearly arise out of and are directly related to her termination, these claims should be dismissed. We note that parties entering into arbitration should exercise great care to delineate the precise claims and disputes to be resolved and to reserve specifically any claims they wish not to be precluded by the arbitration. As this Court has previously emphasized: A party is required to bring forth the whole case at one time and will not be permitted to split the claim or divide the grounds for recover

Joanna Upton vs. JWP Businessland. Norfolk. May 7, 1997. - August 18, 1997. Present: Wilkins, C.J., Abrams, O’Connor, Greaney, & Marshall, JJ. Contract, Employment. Public Policy. Employment, Termination. Estoppel. Discussion of the circumstances in which an at-will employee may maintain an action for wrongful discharge. [757-758] The termination of an at-will employee for her refusal to work long hours based on the employee’s need to be with her young child did not violate public policy and could not form the basis of an action for wrongful discharge. [758-760] The record on summary judgment of a claim that the defendant employer was estopped to discharge the plaintiff employee did not establish that the plaintiff reasonably relied to her detriment on the defendant’s representations regarding her hours of work. [760] Civil action commenced in the Superior Court Department on February 24, 1992. The case was heard by Patrick F. Brady, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Harvey A. Schwartz for the plaintiff. Wilkins, CJ. The plaintiff, a former at-will employee of the defendant and a divorced single parent, appeals from the entry of summary judgment for the defendant. She asserts that the defendant discharged her when, because of the need to be with her young son, she was unwilling to work long hours. She argues that such a discharge is contrary to public policy and entitles her to damages. We granted the plaintiff’s application for direct appellate review. We affirm the judgment. For the purpose of considering the propriety of the allowance of the defendant’s motion for summary judgment, the following facts are relevant. At the time of her discharge, the plaintiff was the mother of a young son whom she cared for herself -and supported entirely from her earnings. She commuted from Cape Cod to work for the defendant in Canton. When she was hired in April, 1991, she was told that her hours of work would be 8:15 a.m. to 5:30 p.m., with the need to work late on one or two days each month. The plaintiff arranged child care accordingly. In fact, the requirements of her job kept her until 6:30 p.m. to 7 p.m. from the outset and even later as the job progressed. In late July, 1991, the plaintiff was told that she would have to work until 9 or 10 p.m. each evening and all day Saturday for at least several months. The plaintiff informed her employer that she would not be able to work such hours because of her responsibilities as a mother. She was discharged two weeks later. The general rule is that an at-will employee may be terminated at any time for any reason or for no reason at all. See Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 394 (1994); Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). Liability may be imposed on an employer, however, if an at-will employee is terminated for a reason that violates a clearly established public policy. See King v. Driscoll, 418 Mass. 576, 582 (1994); Flesner v. Technical Communications Corp., 410 Mass. 805, 810 (1991); DeRose v. Putnam Mgt. Co., 398 Mass. 205, 210 (1986). The public policy exception makes redress available to employees who are terminated for asserting a legal right (e.g., filing a workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to disobey the law (e.g., refusing to commit perjury). See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). We have identified additional reasons for terminations which would directly contradict well-defined public policies of the Commonwealth. See Flesner v. Technical Communications Corp., supra at 811 (at-will employee cooperated with law enforcement agency investigation of his employer); Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (at-will employee allegedly discharged for enforcing safety laws which were her responsibility to enforce); DeRose v. Putnam Mgt. Co., supra at 209-211 (at-will employee refused to give false testimony against coworker in criminal trial). See also Shea v. Emmanuel College, post 761, 762-763 (1997) (at-will employee who internally reports suspected criminal wrongdoing occurring within company entitled to recover when discharged for making such report). On the other hand, we have held that other reasons for termination do not warrant recovery by an at-will employee. See King v. Driscoll, supra at 583 (participation in shareholder derivative suit); Folmsbee v. Tech Tool Grinding & Supply, Inc., supra at 394-395 (failure to comply with employer’s internal policy of mandatory drug testing); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 475-476 (1992) (nurse made internal reports of problems to high-ranking officials within hospital organization); Korb v. Raytheon Corp., 410 Mass. 581, 584 (1991) (employee hired as corporation’s spokesperson publicly expressed views which conflicted with corporation’s economic interests); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 151 (employee expressed disagreement with employer’s reorganization plan — “[a]n employee, even one in a socially important occupation, who simply disagrees with her employer’s policy decisions, may not seek redress in the courts”); Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988) (employee reported false damage claims which were internal company matters). See also Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994) (discharge of at-will employee in retaliation for her internal complaints regarding company’s trade practices, which she claimed were in violation of G. L. c. 93A). The plaintiff seeks to recover for a termination that was not, on its face, made because she did something that public policy strongly encourages (such as serving on a jury) or because she refused to engage in conduct that public policy strongly discourages (such as refusing to lie on behalf of her employer). There is no clearly established public policy which requires employers to refrain from demanding that their adult employees work long hours. Nor is any public policy directly served by an employee’s refusal to work long hours. Because no public purpose is served by the conduct for which the plaintiff asserts she was discharged, this case is unlike those cases in which we have held that the employer may be liable for the discharge of an at-will employee. To advance her claim that her termination violated public policy, the plaintiff relies on the Commonwealth’s strong policy favoring the care and protection of children. Her theory is that an employer may not properly discharge an employee whose refusal to work long hours is based on her sense of obligation to be with her young child. She argues that meeting the defendant’s demands regarding work hours would cause her to neglect her child in contravention of public policy. The plaintiff asserts that cases involving eligibility for unemployment compensation directly support her theory. The judge correctly concluded that the Commonwealth’s broad policies of protecting the family unit and promoting the best interests of children do not transform the discharge of an at-will employee who cannot work particular hours required by her employer into a discharge in violation of a well-defined public policy. The judge noted that, although the Legislature has established rights to unemployment compensation (G. L. c. 151 A) for certain former employees, compensation is not available in every instance in which an at-will employee experiences a conflict between job requirements and parental responsibilities. A policy that says that, if domestic responsibilities limit a person’s availability to work, unemployment compensation may nevertheless be available does not translate into a policy that an employer is liable to a former employee for discharging her in comparable circumstances. The Legislature has directed that unemployment compensation should be available to such a person, but it has not provided that such an employee has an action for wrongful discharge. The Legislature has not announced a public policy position in the area of unemployment compensation that is as broad as the one that the plaintiff urges us to identify. Nor has any court to our knowledge allowed recovery against an employer who terminated an at-will employee who refused to work newly imposed hours due to an irreconcilable conflict between her new work schedule and the obligations of parenting. There is no public policy which mandates that an employer must adjust its expectations, based on a case-by-case analysis of an at-will employee’s domestic circumstances, or face liability for having discharged the employee. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989). Construing the public policy exception to cover terminations of employees in the plaintiff’s situation would tend to convert the general rule “into a rule that requires just cause to terminate an at-will employee.” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra. Liability to an at-will employee for a discharge in violation of public policy must be based on general principles, and not on the special domestic circumstances of any particular employee. The plaintiff argues briefly that the defendant was estopped from firing her because she relied to her detriment on the defendant’s representations regarding her expected hours of work. To avoid the entry of summary judgment against her, an at-will employee asserting estoppel would have to show that she reasonably relied on an unambiguous promise. See Rhode Island Hosp. Trust Nat’l Bank v. Varadian, 419 Mass. 841, 848 (1995). The summary judgment record shows no such promise, only that the plaintiff asked about regular work hours and was so told. No promise in a contractual sense is shown. Id. at 850. We sympathize with the difficulties of persons in the position of the plaintiff who face the challenge of reconciling parental responsibilities with the demands of employment. However, employer liability under common-law principles is not an appropriate means of addressing the problem in the at-will employment context. Judgment affirmed. In Conlon v. Director of the Div. of Employment Sec., 382 Mass. 19, 19 (1980), a woman sought to continue to receive unemployment benefits in circumstances in which she had “restricted her availability for work to a daytime shift which was consistent with her fulfilment of responsibilities to her children.” We remanded the proceeding to the agency so that it could determine whether the employee had “good cause” to decline to seek or accept employment at any other time of day and, if she did have a valid reason for doing so, whether she so limited her availability that “she effectively removed herself from the labor force.” Id. at 25. See Zukoski v. Director of the Div. of Employment Sec., 390 Mass. 1009 (1984); Manias v. Director of the Div. of Employment Sec., 388 Mass. 201, 204 (1983). The Legislature has included within the functions, powers, and duties of the Massachusetts Commission Against Discrimination complaints “alleging discrimination because of . . . children.” G. L. c. 151B, § 3. This case does not appear to involve unlawful discrimination, and, in any event, the reference to “children” was added to G. L. c. 151B, § 3, after the plaintiff’s discharge. St. 1991, c. 323, § 1.

LYTLE v MALADY Docket No. 102515. Argued January 16, 1997 (Calendar No. 16). Decided July 31, 1997. Rehearing granted post, 1202. Nancy Lytle brought an action in the Muskegon Circuit Court against Michael Malady, her supervisor, and Howmet Corporation, her employer, after she was discharged from her employment, alleging 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., EJ., and Murphy and J. C. Kingsley, JJ., reversed (Docket No. 157627). The defendants appeal. In an opinion by Justice Riley, joined by Chief Justice Mallett, an opinion by Justice Cavanagh, joined by Justice Kelly, an opinion by Justice Boyle, joined by Justice Weaver, and an opinion by Justice Brickley, the Supreme Court held: Even when an employer’s decision to reduce its work force is determined to be bona fide, an employee still may establish a genuine issue of material fact that the employer’s justification for the discharge was not the true reason for its decision. In order to establish a genuine issue of material fact when an employer contends that its decision to discharge the employee was based on a work-force reduction, a discharged employee may not rely merely on unsubstantiated allegations or denials in the pleadings, but, rather, must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute that the employer’s articulated reason was merely a pretext to discrimination. 1. Employment contracts for an indefinite duration are presumed to be terminable at the will of either party. To overcome the presumption, any verbal assurances or statement of policy and procedure regarding job security must be clear and unequivocal. A just-cause policy may be changed unilaterally to one of employment at will by giving reasonable notice to all affected employees. In this case, the method of notification instituted was not reasonably calculated to uniformly assure awareness of the change from termination only for just cause to employment at will for all the affected employees. Thus, the plaintiff’s legitimate expectation of just-cause employment was left undisturbed. 2. A reduction in work force for economic reasons constitutes termination for just cause; however, layoffs that are conducted must be bona fide, i.e., necessitated by business conditions. To establish a genuine issue of material fact that the employer’s decision was not bona fide, the employee may not rely merely on unsubstantiated allegations or denials in the pleadings, but, rather, must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute. 3. The plaintiff’s relief, if any, rests in the Civil Rights Act. Under the act, to survive a motion for summary judgment, once an employer articulates a legitimate, nondiseriminatory reason for laying off a plaintiff, the plaintiff must introduce sufficient evidence to support two findings: that the employer’s articulated reason for laying off the plaintiff is a pretext, and that the true reason is discriminatory. Under some circumstances, a plaintiff may not need to introduce additional evidence because the plaintiff’s prima facie case may establish that the employer’s articulated reason for its adverse employment action is a pretext and, in so establishing, the plaintiff may have created a question of fact regarding whether the true reason is discriminatory. A plaintiff will not always present a triable question of pretext simply by disputing the employer’s stated reasons. Simply disproving the employer’s articulated reason will suffice if, and only if, disproving the employer’s reason also proves discrimination. In other instances, simply disproving an employer’s articulated reason will not establish discrimination, and the plaintiff would then have to introduce additional evidence. In all actions involving claims of discrimination, there must be evidence upon which reasonable minds could conclude that discrimination was the true motive for the employer’s adverse conduct against the plaintiff. That there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination. 4. The plaintiff need not show that age was the determining factor in the defendant’s decision to discharge her; rather, she need only prove that it was a determining factor. Despite the defendant’s claim that it based its decision on economic necessity, the plaintiff produced evidence that would permit reasonable persons to conclude that age more likely than not was a determining factor in the adverse employment action the defendant took against the plaintiff. This evidence suggests that the defendant’s reason for discharging the plaintiff was only a pretext for favoring the younger hirees over the older plaintiff. 5. Viewing the evidence in a light most favorable to the plaintiff and drawing every reasonable inference in her best regard, the plaintiff created a genuine issue of material fact whether the defendant considered her sex in its decision to discharge her. Justice Cavanagh, joined by Justice Kelly, concurring in part and dissenting in part, stated that it is premature to decide whether defendants’ alleged reduction in work force was bona fide because it is clear that discovery in this matter was not complete. Thus, remand to the trial court is required for the completion of discovery and to afford the plaintiff an equal opportunity to present further evidence. In order for a defendant to show that it discharged a plaintiff for bona fide economic reasons, it must demonstrate that adverse business conditions existed and that the elimination of the plaintiff’s position was necessitated by those conditions. Where a plaintiff’s proofs show that the elimination of the position was not motivated by the alleged reduction in work force, but rather by some other illegal reason, summary disposition should be precluded. Justice Boyle, joined by Justice Weaver, concurring in part and dissenting in part, stated that the plaintiff is not entitled to assert a legitimate expectation of just-cause employment where the handbook on which she relies disclaims any intent on the part of the employer to bind itself to the contents of the handbook. In conjunction with the disclaimer of contractual obligation, the policy language is insufficient to overcome the presumption of at-will termination. If the disclaimer were found to be inapplicable because it does not expressly mention plaintiff’s department, then the entire handbook must be found inapplicable. Because the plaintiff did not present evidence sufficient to raise a triable issue of fact that her position would not have been eliminated but for her age, summary disposition for the defendant was appropriate. Justice Brickley, concurring in part and dissenting in part, stated that summary disposition of the wrongful-termination claim was properly awarded to the defendant. Justice Weaver joined Justice Brickley to further state that the lead opinion’s finding with respect to the discrimination claims misapplies the governing law regarding the discrimination claims, and oversimplifies the facts of a complex case. Essentially, it allows a plaintiff to overcome summary disposition if the plaintiff can identify anyone who has less seniority, receives greater compensation, and does not share in the plaintiff’s characteristics. Apparently, it is now irrelevant if the retained person’s job was different than that held by the plaintiff or if that person was qualified for the job. The lead opinion second-guesses the employer’s decisions on the basis of its assumptions concerning which employee was more qualified. Affirmed in part and reversed in part. 209 Mich App 179; 530 NW2d 135 (1995) affirmed in part and reversed in part. Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Vamum, Riddering, Schmidt & Howlett (by Joseph J. Yogan and Paul M. Kara) for the defendants. Riley, J. In the matter now before us, this Court is asked to clarify the evidentiary threshold a discharged employee must satisfy in order to create a genuine issue of material fact when an employer asserts that its decision to discharge an employee was precipitated by business conditions. We are also asked to decide whether a discharged employee may challenge an employer’s decision to reduce its work force charging discrimination, even when the reduction in work force (rif) decision has been deemed bona fide. We hold that even when an employer’s rif decision is concluded to be bona fide, an employee may still establish a genuine issue of material fact that the employer’s justification for discharging him was not the true reason for its decision to discharge. We also hold that in order for a discharged employee to establish a genuine issue of material fact when an employer contends that its decision to discharge the employee was based on a work-force reduction, the employee may not merely rely on unsubstantiated allegations or denials in the pleadings. Rather, he must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute that the employer’s articulated reason was merely a pretext to discrimination. In the instant case, we conclude that defendant’s policy statement could have reasonably created a legitimate expectation of just-cause employment. We also conclude that defendant did have just cause to reduce its work force as a matter of law, but not with respect to this plaintiff. Rather, we hold that plaintiff did sufficiently establish a genuine issue of material fact regarding whether age was a determining factor in defendant’s decision to discharge her. We also conclude that plaintiff presented evidence sufficient to establish a genuine issue of material fact regarding whether defendant considered her sex in its decision to discharge her. We affirm the decision of the Court of Appeals finding that plaintiff could have reasonably had a legitimate expectation of just-cause employment. We also affirm its ruling that plaintiff raised a genuine issue of fact with respect to whether defendant discriminated against her on the basis of her age, as well as its decision concluding that plaintiff raised a genuine issue of material fact regarding her claim of sex discrimination. FACTS AND PROCEEDINGS On January 29, 1973, plaintiff Nancy Lytle was hired by defendant Howmet Turbine Components Corporation as a general clerk in its human resources department, which at that time served all divisions making up the Whitehall operation. Plaintiff received a manual containing a statement of defendant’s policies and procedures regarding employment. In the section containing defendant’s policy regarding the relationship it sought with each of its employees, defendant expressed that a probationary period existed that afforded it time to decide whether it was in its interest as well as the employee’s interest to continue the relationship following the probationary period. In that same section, the manual also stated that “[n]o employee will be terminated without proper cause or reason and not until management has made a careful review of all facts.” The last two paragraphs of the manual stated: 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.] In 1981, defendant placed a disclaimer in its policy manual: “[T]he Company reserves the right to terminate employees without assigning cause; therefore, the employee serves at the will of the employer.” Direct notification of the disclaimer was provided only to new employees, but plaintiff was involved in placing the disclaimer in new employee manuals. At the time of plaintiffs hiring, John Ozar was the human resources director, serving as her immediate supervisor. Under Ozar’s supervision, plaintiff received exemplary performance evaluations and was rewarded with a succession of promotions. In 1979, plaintiff spoke with Ozar about resigning and seeking employment elsewhere. Ozar assured plaintiff that her employment with defendant was secure and that she could expect advancement. Soon after that conversation, plaintiff was promoted to employment manager of the entire human resources department. Additionally, about the same time, Ozar hired Walter Boczkaja. Boczkaja became plaintiffs subordinate trainee. For approximately two years, Boczkaja trained under plaintiff, receiving promotions to various positions within the personnel department, and continued to be one of plaintiffs subordinates until 1989. During the 1984-85 fiscal year, Ozar retired and was replaced by William Roof. In March 1987, Roof determined a need to decentralize the human resources department. He planned for each of the Whitehall divisions to have its own human resources representative. Roof hired defendant Michael Malady to head the Whitehall Machined Products Division and to serve as plaintiffs supervisor. Plaintiff was reassigned to serve as human resources representative for defendant’s Ti-Ingot Division. A personality conflict between Malady and plaintiff soon developed. In June 1987, Malady requested all female employees under his supervision to wear dresses to a company picnic. Plaintiff wore slacks. Shortly thereafter, in September 1987, Malady submitted an unfavorable evaluation of plaintiffs job performance. In January 1989, on Malady’s recommendation and with Roof’s approval, plaintiff’s job title was changed from human resources representative to human resources specialist. Plaintiff’s duties, as well as her salary, remained the same. Malady suggests that the change was necessary to reduce the number of direct reports he had to address, in addition to “centraliz[ing] the total employment function under one person instead of having it split with two different people doing part of it.” He also asserts that he had “some performance concerns . . . with [plaintiff’s] supervisory abilities],” as reflected in his latest performance evaluation. Plaintiff held her new position from January 1989, until her discharge on November 1, 1991. Plaintiff contends defendant’s policy manual created an expectation that her employment would not be terminated unless there was sufficient cause to do so. Also, she claims that she relied on verbal assurances by Ozar that her employment with defendant was secure. Defendant argues that plaintiff was terminated pursuant to a company-wide reduction in work force. Defendant asserts that as a result of declines in military spending and a downturn in the commercial airline industry between 1988 and 1991, it was forced to institute a series of reductions in its work force. Defendant suggests that it initially sought to cut costs in the 1992 budget without terminating any employees. In an August 21, 1991, intracompany memorandum to all the personnel support departments, Dr. Thomas Wright, vice president in charge of the Whitehall operations, directed all department supervisors to cut their respective 1992 budgets by fifteen percent. At the same time reductions were being sought, defendant was embarking on a plan that would use work cells as the primary facility structure, where employees would be working in teams instead of in the traditional hierarchical order. Notwithstanding the fact that he had to eliminate fifteen percent of his projected 1992 budget, Roof was told by the Operhall management to somehow compile a list of employees from the human resources department to head an independent department. From that list someone was to be selected to oversee the development of the work-cell plan. After reviewing the qualifications of those listed, Operhall management identified Malady and Boczkaja as the two most promising candidates. Malady was not available and Boczkaja, who was interviewed by Operhall management, later decided to stay on in his current position. Then Roof went to the private sector and found Andrea Achterhoff. She was thirty-one years old and had previous experience as a production supervisor, personnel manager, and human resources manager. Plaintiff never was interviewed for the position. By November 1, 1991, in an effort to comply with Wright’s mandate, Roof had eliminated approximately $300,000. Roof needed to cut $439,950 in costs in order to meet Wright’s directive of a fifteen-percent reduction in expenditures for the human resources department’s 1992 operating budget. Roof eliminated four positions in the human resources department, which included two plant medical staff, the employee assistance program assistant, and plaintiff’s position as human resources specialist. Roof contended that in terminating these four individuals, he focused on “functions” rather than “individuals or relative qualifications.” He suggested that the decision was based on who was absolutely critical and what they could get by without. Roof claimed that he terminated plaintiff because the primary function of her position involved hourly employees, where a substantial portion of the reduction in work force had already occurred, and the fact that little, if any, hiring was forecasted in the near future. The same day plaintiff was discharged, defendant hired Jeff Billingsley to work in the training program for the work-cell project. As far as plaintiff understood, Billingsley “worked for the corporate office” and was merely assigned to take an office where plaintiff previously worked so that he would have a place to work. Moreover, plaintiff admitted that she had no idea how Whitehall’s operation budget and personnel were allocated among all the Pechiney subsidiaries. On November 22, 1991, Boczkaja completed a final performance evaluation on plaintiff, which Malady accepted, indicating that she would be rehired in the event a nonsupervisory, administrative position became available. When plaintiff was finally discharged, her duties were assigned to other persons within the human resources department. On January 7, 1992, plaintiff filed a complaint in the Muskegon Circuit Court against defendant How-met, alleging: (I) breach of a contract providing for termination for just cause only, (II) age discrimination, and (III) sex discrimination. Following some discovery, defendants Howmet and Malady moved separately for summary disposition pursuant to MCR 2.116(C)(10), which the circuit court granted on all counts. The Court of Appeals reversed, and this Court granted defendant’s application for leave to appeal. A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim or defense. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); General Motors Corp v Detroit, 372 Mich 234, 239-240; 126 NW2d 108 (1964). The affidavits, pleadings, depositions, admissions, and other material supporting and opposing the motion must be considered, so that it may be decided whether “ ‘it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.’ ” Stevens v McLouth Steel Products Corp, 433 Mich 365, 370; 446 NW2d 95 (1989), quot

TOWN v MICHIGAN BELL TELEPHONE COMPANY McCONNELL v ROLLINS BURDICK HUNTER OF MICHIGAN, INCORPORATED Docket Nos. 102845, 103476. Argued January 15, 1997 (Calendar Nos. 10-11). Decided July 31, 1997. Rehearing denied in Town, 456 Mich 1202. Veronica Town brought an action in the Wayne Circuit Court against Michigan Bell Telephone Company, alleging constructive discharge and age and sex discrimination. The plaintiff had declined to accept a transfer when her position was consolidated, and, instead, resigned and accepted early retirement. The court, James E. Mies, J., directed a verdict for the defendant. The Court of Appeals, Michael J. Kelly and W. J. Caprathe, JJ. (White, P.J., dissenting), in an unpublished opinion per curiam, affirmed, concluding that although the plaintiff had been constructively discharged, she had not proven that age was a determining factor (Docket No. 144980). The plaintiff appeals. Ted McConnell brought an action in the Wayne Circuit Court against Rollins Burdick Hunter of Michigan, Incorporated, and Miller, Mason & Dickenson, Inc., alleging breach of employment contract, promissory estoppel, and age discrimination after being discharged from his employment. The court, William J. Giovan, X, granted summary disposition for the defendant. The Court of Appeals, Marilyn Kelly, P.J., and Shepherd and L. P. Borrello, JX, affirmed in an unpublished opinion per curiam (Docket No. 146449). On rehearing, the Court, Marilyn Kelly, P.J., and L. P. Borrello, X (Shepherd, X, not participating), affirmed in an unpublished opinion per curiam, but remanded the case for trial of the plaintiff’s age-discrimination claim (Docket No. 146449). The defendants appeal. In an opinion by Justice Brickley, joined by Justices Boyle and Weaver, and an opinion by Justice Riley, the Supreme Court held: The plaintiffs failed to present sufficient evidence that discrimination was a determining factor in their employers’ decisions to terminate their employment. 1. A claim of age discrimination may be shown by the use of direct or indirect evidence. Alternatively, in evaluating age-and sex-discrimination claims, courts have used the prima facie test articulated in McDonnell Douglas Corp v Green, 411 US 792 (1973), requiring a showing that the employee was a member of a protected class, was subject to an adverse employment action, and was qualified for the position, and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. The purpose of the prima facie test is to remove the most common nondiscriminatory reasons for the employer’s action, such as poor employee performance, and to force the employer to articulate a nondiscriminatory reason for the discharge. Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. 2. After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions. However, elimination of the presumption does not imply that the trier of fact no longer may consider evidence previously introduced to establish a prima facie case. To prevail, the employee must submit admissible evidence that the employer’s nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age was a motivating factor in the employer’s decision, i.e., the employee must prove that the employer’s explanation was a pretext for discrimination. The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. When viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. That there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination. 3. In McConnell, the plaintiff did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. In Town, the plaintiff failed to introduce sufficient evidence for a reasonable jury to conclude that age or sex discrimination was a determining factor in Michigan Bell’s decision to transfer her. Town, affirmed. McConnell, reversed. Justice Brickley, joined by Justices Boyle and Weaver, would further hold that under McDonnell Douglas an employee who was performing a job at a level that met the employer’s legitimate expectations is qualified for the job. In McConnell, rather than evaluating the plaintiffs case at the prima facie stage, it may be presumed that the plaintiff established a prima facie case. The purpose of the prima facie case is to force the defendant to provide a nondiscriminatory explanation for the adverse employment action. That purpose was served. However, under the circumstances, the plaintiff did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. In Town, the defendant presented sufficient evidence to sustain its burden of production and dissolve the plaintiff’s prima facie case. The comparison was not between an unqualified employee and a qualified employee, but instead between two qualified employees. The plaintiff’s proofs, at most, merely raise questions about the defendant’s business judgment. The plaintiff did not create an issue of fact regarding whether the defendant’s nondiscriminatory explanation for the plaintiff’s transfer was a pretext, much less a pretext for discrimination. Further, the plaintiff never overcame the defendant’s allegation that she had taken too long to develop her staff and had not spent adequate time visiting customers at their places of business. Justice Riley, concurring, would further hold that employers should be given wide discretion in setting job standards and requirements and in deciding whether employees meet those standards. The job standards and requirements, however, are to be reasonable and consistently applied. Qualification obviously depends on the nature of business at any given time. To ignore the shifting nature of qualification from time to time would make the qualification requirement meaningless and would encourage the harassment of small businesses having informal personnel practices, with unfounded suits. Therefore, when evaluating its employees, employers are to evaluate them on the basis of their merits, in conjunction with the nature of their businesses at the time of the evaluation, and not on the basis of any discriminatory criterion. In McConnell, reviewing the plaintiff’s proofs and drawing any reasonable inferences in his favor, it may be concluded that he presented evidence establishing a question of fact regarding whether he was minimally qualified. He established a prima facie case of age discrimination. However, there is no evidence that the employer’s proffered explanation is unworthy of credence. The record amply demonstrates that the plaintiff had a full and fair opportunity to prove age discrimination. Justice Cavanagh, joined by Chief Justice Malleit, and by Justice Kelly in Town only, concurring in part and dissenting in part, stated that in McConnell, the defendant’s reason for firing the plaintiff was that he was not performing well, not that he was unqualified. The same-actor inference should not be used by the defendant as a shield from liability, but as mere evidence in support of the defendant’s claim. Inference of nonbias is an evidentiary matter for the finder of fact, and should not provide a basis for decision as a matter of law. In Town, the plaintiff presented sufficient evidence to permit reasonable minds to conclude that a motivating factor in involuntarily transferring her was age, as evidenced by the jury verdict in her favor. It was up to the jury to decide whether the defendant discriminated against plaintiff. The majority has improperly assumed the role of the jury by concluding that the defendant, as a matter of law, did not discriminate against plaintiff. Sommers, Schwartz, Silver & Schwartz, P.C. (by Donald J. Gasiorek and Patrick Burkett), for plaintiff Town. Pitt, Dowty & McGehee, P.C. (by Michael L. Pitt), for plaintiffs McConnell. Dickinson, Wright, Moon, Van Dusen & Freeman (by Thomas G. Kienbaum, Robert W. Powell, and Jennifer A. Zinn) for the defendant-appellee in Town. Dickinson, Wright, Moon, Van Dusen & Freeman (by Elizabeth Hardy and Julia Turner Baumhart) for the defendants-appellants in McConnell. Amicus Curiae: Clark, Hill, P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Brickley, J. The issue presented in these consolidated cases is whether the plaintiffs, McConnell and Town, have presented sufficient evidence of age or sex discrimination to surmount a motion for summary disposition and a motion for a directed verdict, respectively. We conclude in both cases that the plaintiffs failed to present sufficient evidence that discrimination had been a determining factor in their employers’ decisions. i McCONNELL v. ROLLINS BURDICK HUNTER In July of 1988, Ted McConnell accepted a job as a sales representative with Rollins Burdick Hunter (rbh). Rbh sold health insurance and provided insurance-related consulting services. At the time that he was hired, McConnell was fifty-five years old. In January of 1989, the plaintiff was informed that he needed to improve his sales production. The plaintiff’s next review was in September of 1989. Because the plaintiff’s sales revenue had not significantly improved by that time, he was informed that if his revenue did not increase that “there will have to be some adjustment made.” The plaintiff was unable to improve his production. Rbh discharged McConnell in January of 1990. At that time, the plaintiff was fifty-seven years old. The plaintiff brought suit against defendants RBH and Miller, Mason, and Dickenson, Inc., alleging breach of employment contract, promissory estoppel, and age discrimination. The trial court granted summary disposition for the defendants on each of the plaintiff’s claims. On appeal, the Court of Appeals initially affirmed the decision of the trial court. The plaintiff then moved for a rehearing on the age discrimination claim which was granted. On rehearing, the Court affirmed, but remanded the case for trial of the plaintiff’s age discrimination claim in an unpublished opinion per curiam. The defendants appealed that decision in this Court. We granted leave and consolidated this case with Town v Michigan Bell. TOWN v MICHIGAN BELL TELEPHONE COMPANY In 1980, Veronica Town sought a departmental transfer from her position of product-line manager with the Michigan Bell Telephone Company. She was interviewed by the assessment center and was offered á position. She turned it down, however, when she learned of the assessment center’s schedule, which consisted of a four-day work week, with twelve-hour shifts. This schedule was unacceptable to her because she needed to be home in the evenings to care for her husband, who was suffering from severe health problems. Instead, the plaintiff accepted a position as manager of market administrators. After one year, the plaintiff’s supervisor notified her that she was being transferred to the assessment center because her position was being consolidated with that of another manager. The person who held the other position was leaving the company. A thirty-five-year-old male, James Aveck, assumed the consolidated position. Still under the impression that the assessment center’s schedule was incompatible with her husband’s needs, the plaintiff resigned and accepted early retirement. The plaintiff was forty-nine years old at the time she resigned. The plaintiff filed suit against Michigan Bell in 1983, alleging constructive discharge and age and sex discrimination. After removal to federal court, reinstatement in state circuit court, summary disposition motions, and mediation, the case was tried by a jury in April, 1991. At the close of the plaintiff’s proofs, the defendant moved for a directed verdict, which was taken under advisement by the trial court. After the jury returned a verdict for the plaintiff, defendant renewed its motion for directed verdict, which the trial court granted. The Court of Appeals affirmed the trial court’s directed verdict. Although it concluded that the plaintiff had been constructively discharged, it agreed with the trial court that the plaintiff had not proven that age was a determining factor in the defendant’s decision. One judge dissented, arguing that the plaintiff had presented adequate evidence of discrimination by discrediting the defendant’s explanation of its decision. Citing St Mary’s Honor Center v Hicks, the dissenting judge argued that, once the employer’s explanation was discredited, the jury could, but was not required to, find that the real explanation for the employer’s decision was discriminatory. We granted leave to appeal and consolidated this case with McConnell v Rollins Burdick Hunter. n A claim of age discrimination may be shown under ordinary principles of proof by the use of direct or indirect evidence. Alternatively, many courts, including this one, have used the prima facie test articulated by the United States Supreme Court in McDonnell Douglas Corp v Green as a framework for evaluating age-discrimination claims. Originally applied to cases of race discrimination, the test has been modified to accommodate cases of age and sex discrimination. The modified McDonnell Douglas prima facie approach requires an employee to show that the employee was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. The purpose of the prima facie test is to 1) remove the most common nondiscriminatory reasons for the employer’s action, such as poor employee performance, and 2) to force the employer to articulate a nondiscriminatory reason for the discharge. Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions. However, elimination of the presumption does “not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case.” As the United States Supreme Court explained: A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextaal. Indeed, there may be some cases where the plaintiff’s initial evidence, combined with the effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation. [] Therefore, “the evidence and inferences that properly can be drawn from the evidence presented during the plaintiff’s prima facie case may be considered in determining whether the defendant’s explanation is pretextual.” Once the presumption drops out of the case, the plaintiff retains the ultimate burden of proving discrimination. Plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the discrimination was defendant’s true motive in making the adverse employment decision. To prevail, the employee must submit admissible evidence to prove that the employer’s nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age was a motivating factor in the employer’s decision. Thus, the employee must prove that the employer’s explanation was a pretext for discrimination. The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. “The strength of the prima facie case and the significance of the disbelieved pretext will vary from case to case depending on the circumstances. In short, everything depends on the individual facts.” Ultimately, the plaintiff will have the burden of producing evidence, whether direct or circumstantial, that proves that discrimination was a determining factor in the employer’s decision. Although the majority decision in Hicks appeared to be unambiguous, “many readers have found it to be otherwise.” The effect of Hicks on employer-brought summary judgment motions has been a matter of particular debate. Some employers have argued that, in order to defeat an employer’s motion for summary judgment, Hicks requires plaintiffs to offer substantial evidence both that the employer’s articulated reason was false and that the employer’s true reason was discriminatory — i.e., a “pretext-plus” standard. Some plaintiffs, on the other hand, have argued that once a prima facie case of discrimination is put forward, summary judgment for the employer never is appropriate, even if no evidence is put forward to refute the employer’s articulated nondiscriminatory reason, because the factfinder’s disbelief alone should be enough to permit a finding of pretext.[] We decline to adopt either extreme, and, instead, favor an intermediate position, which is the predominant view among the federal circuits. We would hold that when viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. Thus, plaintiff will not always present a triable issue of fact merely by rebutting the employer’s stated reason(s); “put differently, that there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination.” Furthermore, we note that in accordance with nine other federal circuits, “evidence sufficient to discredit a defendant’s proffered nondiscriminatory reasons for its actions, taken together with the plaintiff’s prima facie case, [may be] sufficient to support (but not require) a finding of discrimination.’’ “Where . . . either direct or circumstantial evidence from which a fact-finder could rationally conclude that the employer’s stated reason is a pretext for discrimination, summary judgment normally should be denied.” m In light of these principles, we turn to McConnell’s case. Defendants RBH and MMD argue that the plaintiff was not qualified to perform his job, and is therefore unable to satisfy the qualification element of the prima facie case. An employee is qualified if he was performing his job at a level that met the employer’s legitimate expectations. By all accounts, the plaintiff’s performance was less than stellar. Indeed, the plaintiff failed to generate enough revenue to pay his own salary. In his first full year, 1989, the plaintiff generated $70,505.11 in revenue while drawing a salary of $84,351.25 during the same period. He was terminated at the end of that year. Rather than evaluate plaintiff’s case at the prima facie stage, h

HERWEYER v CLARK HIGHWAY SERVICES, INC Docket No. 103802. Argued April 8, 1997 (Calendar No. 3). Decided July 8, 1997. Jack Herweyer brought an action for wrongful termination in the Missaukee Circuit Court against Clark Highway Services, Inc., alleging breach of an employment contract, age and handicap discrimination, and retaliatory discharge for filing a worker’s compensation claim. The court, Charles D. Corwin, J., granted summary disposition for the defendant, citing the contract’s saving clause to provide a period of limitation to bring an action shorter than the applicable statutory period. The Court of Appeals, Sawyer, P.J., and Griffin, J. (Neff, J., dissenting), affirmed (Docket No. 171720). The plaintiff appeals. In a unanimous opinion by Justice Kelly, the Supreme Court held: When the period of limitation in an employment contract is unreasonably short, the applicable period is that established by statute. 1. A statutory period of limitation provides a defense that bars a plaintiffs cause of action because of an undue lapse of time since the cause of action arose. Parties may contract for a period of limitation shorter than the applicable statute of limitations, but that period must be reasonable. A limitation period is reasonable if the claimant has sufficient opportunity to investigate and file an action, the time is not so short as to work a practical abrogation of the right of action, and the action is not barred before the loss or damage can be ascertained. 2. Employer and employee often do not deal at arm’s length when negotiating contract terms. Where one party has less bargaining power than another, the contract might be, but is not necessarily, one of adhesion, and at the least deserves close judicial scrutiny. In this case, the plaintiff had little or no negotiating leverage. The saving clause is vague and ambiguous, and must be construed against the defendant. It does not call for an alternate limitation period. Instead, it uses the terminology “as far as legally possible.” A legal period has already been determined by the Legislature. The defendant has not stated a convincing argument why the objective indicator should be abandoned and nonspecific contractual periods of limitation authorized. By enacting a statute of limitation, the Legislature determines the reasonable maximum period a plaintiff can take to file a claim. Courts should defer to the statutory period unless the period in the parties’ contract is specific and reasonable. A contractual saving clause providing for enforcement “as far as legally possible” cannot be construed to allow imposition of uncertain, varying periods of limitation case by case. Reversed and remanded. 212 Mich App 105; 537 NW2d 225 (1995) reversed. Bott & Spencer, P.C. (by Timothy J. Botf), for the plaintiff-appellant. Warner, Norcross & Judd (by Douglas E. Wagner, Robert J. Chovanec, and Melvin G. Moseley, Jr.), for the defendant-appellee. Amici Curiae: David A. Kotzian, Kenneth Watkins, and Jan C. Leventer for Wolverine Bar Association. Stark & Gordon (by Sheldon J. Stark and Carol A. Laughbaum) for Michigan Trial Lawyers Association, American Civil Liberties Union of Michigan, Michigan State AFL-CIO, and International Union UAW. Amberg, McNenly, Zuschlag, Firestone & Lee, P.C. (by Joseph H. Firestone), for Michigan Education Association. Kelly, J. In this wrongful termination case, the single issue is what limitation period for filing suit is appropriate where the period written into the employment contract is unreasonably short. Defendant, Clark Highway Services, Inc., asks that we interpret a saving clause in the contract to allow the courts to establish the period. The interpretation would require legal action be brought by a date earlier than that set by the applicable statute of limitations as long as it is reasonable. We hold that, when the period of limitation in an employment contract is unreasonably short, the applicable period is that established by statute. i The pertinent facts of this case are not in dispute. Plaintiff, Jack Herweyer, was hired by defendant in June, 1987, to operate a truck that paints the center and edge lines on state highways. Because the work is seasonal, plaintiff’s employment ran from May to November. In May, 1989, defendant asked plaintiff to sign an employment contract. The agreement stated in pertinent part: I will not commence any action or suit relating to my employment with the Company (or termination of the employment) more than six (6) months after the termination of my employment, and I agree to waive any statute of limitations to the contrary. I understand that this means that even if the law would give me the right to wait a longer time to make a claim, I am waiving that right, and that any claims not brought within six (6) months after my employment will be barred. I agree to the above terms of employment. I agree that if any of the above commitments by me is ever found to be legally unenforceable as written, the particular agreement concerned shall be limited to allow its enforcement as far as legally possible. Plaintiff signed the agreement. On November 7, 1989, he was injured while in the course of his employment. Nevertheless, he continued working until November 13, 1989, the last day of the season. After treating plaintiff for his injury, plaintiff’s doctor placed a fifty-pound lifting restriction on his work. In January, 1990, he increased the restriction to seventy pounds. Nonetheless, defendant did not ask plaintiff to work again the following season. In May, 1990, when plaintiff contacted defendant, he learned that he had no job. In December, 1992, plaintiff filed suit alleging breach of the written employment contract, age discrimination, handicap discrimination and retaliatory discharge for filing of a worker’s compensation claim. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the action was barred by the six-month period of limitation contained in the employment contract. Plaintiff responded that the six-month period was unenforceable as unreasonably short, given the applicable statute of limitation governing the claims. The trial court granted defendant’s motion for summary disposition. It expressed reservations about enforcing the six-month period of limitation. Nevertheless, it concluded that, even if the six-month period were unreasonable, plaintiff was not entitled to file suit as late as thirty-one months after the alleged breach. The court found that the contract’s saving clause should be interpreted to mean that suit must be filed within a minimally reasonable time. A reasonable time in this case was a period shorter than the thirty-one months that plaintiff waited to file. Without determining what period would have been minimally reasonable, the trial court concluded that the action was time-barred. The Court of Appeals affirmed. 212 Mich App 105, 108; 537 NW2d 225 (1995). It stated: The savings clause in the contract can be read as providing that the period of limitation shall be the minimum reasonable time in excess of six months. Furthermore, like the trial court, we agree that thirty-one months is in excess of the minimum reasonable time. While we do not draw a bright line with respect to what the minimum reasonable time is, we are not persuaded that plaintiff required thirty-one months in which to investigate and file the action, nor would a period of less than thirty-one months operate as a practical abrogation of the right to sue and certainly did not bar the bringing of the action before the loss or damage could be ascertained. See Camelot [Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 127; 301 NW2d 275 (1981)]. Therefore, whatever the minimum reasonable time is, it is less than thirty-one months. Accordingly, the action was barred by the provisions of the contract at the time plaintiff brought the action. Thus, the trial court properly granted summary disposition in favor of defendant. The Court also rejected plaintiff’s argument that allowing employers to shorten the statutory period of limitation for employment actions is contrary to public policy. Although the argument may have merit, we do not address it because of the constraints in our order granting leave to appeal. Also, we express no opinion regarding the reasonableness of any shortened period agreed to by the parties. We granted plaintiff’s application in order to determine whether the contract’s saving provision can be read to require any claims to be brought within the minimum reasonable period. n A statutory period of limitation provides a defense that bars a plaintiff’s cause of action because of an undue lapse of time since the cause of action arose. 51 Am Jur 2d, Limitation of Actions, § 2, p 592. There are several policy reasons underlying the adoption of statutes of limitation. They protect defendants’ rights by eliminating stale claims, shielding defendants from protracted fear of litigation, and ensuring that they have a fair chance of defending themselves. Chase v Sabin, 445 Mich 190, 199; 516 NW2d 60 (1994); Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974). Statutes of limitation are also constructed to give plaintiffs a reasonable opportunity to bring suit. Chase, supra. This Court has discussed the use of contracts to shorten the period of limitation. Camelot, supra. In Camelot, a general plumbing contractor, Priestley, contracted with an insurance company, St. Paul, for a labor and materials payment bond. Id. at 125. Priestly entered into a subcontract with Camelot Excavating Company for excavation work. Camelot completed its work under the contract. In April, 1974, Priestly abandoned the project without paying monies it owed to Camelot. Id. In August, 1976, Camelot sued St. Paul on the bond. St. Paul asserted in defense that the suit was barred by a one-year limitation clause contained in the bond. Id. at 126. We held that parties may contract for a period of limitation shorter than the applicable statute of limitation. Id. at 125. The limitation period must be reasonable. Id. at 126. It is reasonable if (1) the claimant has sufficient opportunity to investigate and file an action, (2) the time is not so short as to work a practical abrogation of the right of action, and (3) the action is not barred before the loss or damage can be ascertained. Id. at 127. Courts have held that limitation periods written into certain insurance, shipping, and bond contracts were valid although they shortened legislatively prescribed limitation periods. See, generally, anno: Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 ALR3d 1197. In Camelot, Justice Levin expressed concerns about the development of a rule authorizing contractually shortened periods of limitation. Camelot, supra at 141 (Levin, J., concurring). He reasoned: The rationale of the rule allowing parties to contractually shorten statutory periods of limitation is that the shortened period is a bargained-for term of the contract. Allowing such bargained-for terms may in some cases be a useful and proper means of allowing parties to structure their business dealings. In the case of an adhesion contract, however, where the party ostensibly agreeing to the shortened period has no real alternative, this rationale is inapplicable. We share Justice Levin’s concerns. Employment contracts differ from bond contracts. An employer and employee often do not deal at arm’s length when negotiating contract terms. An employee in the position of plaintiff has only two options: (1) sign the employment contract as drafted by the employer or (2) lose the job. Therefore, unlike in Camelot where two businesses negotiated the contract’s terms essentially on equal footing, here plaintiff had little or no negotiating leverage. Where one party has less bargaining power than another, the contract agreed upon might be, but is not necessarily, one of adhesion, and at the least deserves close judicial scrutiny. In this case, neither the trial court nor the Court of Appeals upheld the six-month period of limitation in the contract. Defendant argues, notwithstanding, that both courts properly interpreted the saving clause as requiring that plaintiff’s claims must be brought within the minimum reasonable time in excess of six months. We find the interpretation unworkable. A The saving clause is vague and ambiguous. It does not call for an alternate limitation period of two, three, four, or five years. Instead, it uses the terminology “as far as legally possible.” The Court of Appeals found that the term could be interpreted to mean suit should be brought in the minimum reasonable time beyond the six-month limitation period. However, it could as easily be read to mean that, if the contractual period of limitation is found unreasonable, the statutory period governs. A legal period has already been determined by the Legislature. As the contract period under consideration is ambiguous, it must be construed against the drafter, the defendant. Lichnovsky v Ziebart Int’l Corp, 414 Mich 228, 239; 324 NW2d 732 (1982). B For reasons of policy, courts should not determine periods of limitation on a case-by-case basis. We agree with the observation in the Court of Appeals dissent that claimants are entitled to certainty in their legal dealings. Statutes of limitation embody the important public policy considerations of stimulating business activity, punishing negligence, and giving security and stability to human affairs in general. 51 Am Jur 2d, Limitation of Actions, § 18, p 603, citing Kyle v Green Acres at Verona, Inc, 44 NJ 100; 207 A2d 513 (1965). A statutory limitation period provides peace of mind to a potential defendant. A defendant can be certain that, once the period expires, extensive defense of a new lawsuit will be unnecessary. A plaintiff, also, is entitled to certainty in legal dealings. Allowing courts to fashion arbitrary periods of limitation depending on the facts of each case sometimes would force claimants to file suit prematurely, lending further instability to employment relations. In many cases, suit would have to be brought before adequate investigation had been completed. The public policy considerations underlying limitation periods are not advanced, either, by encouraging uncertain periods of limitation. We agree with the Court of Appeals dissent that the applicable statutory limitation period is a straightforward and objective indicator of what period is reasonable. Lothian v Detroit, 414 Mich 160, 165; 324 NW2d 9 (1982). In the case before us, defendant has not stated a convincing argument why we should abandon the objective indicator and authorize nonspecific contractual periods of limitation. c Historically, courts have relied on the Legislature to establish limitation periods. As we stated over a century ago: Every suitor must have a reasonable time in which to commence an action to enforce his rights, and it is for the Legislature to provide a general rule applicable to all cases falling within a class, and not for the judiciary to declare what is or should be a reasonable time varying with the circumstances of each case as it arises. Important legal and property rights depend upon the rule within which such right must be asserted, or, failing to do it, will be lost; and the necessity of a fixed, certain, and definite rule established by legislative authority is manifest. [McKisson v Davenport, 83 Mich 211, 215; 47 NW 100 (1890).] Similarly, where the Legislature has not provided a statutory period of limitation governing a particular claim, this Court has not allowed lower courts to apply differing periods on a case-by-case basis. Instead, we have adopted the period of limitation of analogous statutes. See Hart v Detroit, 416 Mich 488; 331 NW2d 438 (1982). Federal decisions follow the same principle. Where no federal statute of limitation applies to a particular suit, the court does not assume that no time limit applies, nor does it determine a reasonable time. Rather, the most suitable statute or other established rule of timeliness is “borrowed.” DelCostello v Int’l Brotherhood of Teamsters, 462 US 151, 158; 103 S Ct 2281; 76 L Ed 2d 476 (1983). By enacting a statute of limitation, the Legislature determines the reasonable maximum period a plaintiff can take to file a claim. Nielsen v Barnett, 440 Mich 1, 8; 485 NW2d 666 (1992). Courts should defer to the statutory period unless the period in the parties’ contract is specific and reasonable. m In conclusion, a contractual saving clause providing for enforcement “as far as legally possible” cannot be construed to allow imposition of uncertain, varying periods of limitation case by case. As a consequence, the limitation period for each of plaintiff’s claims is the applicable statutory period. The decision of the Court of Appeals is reversed. We remand this case to the trial court for further proceedings. Mallett, C.J., and Brickley, Cavanagh, Boyle, Riley, and Weaver, JJ., concurred with Kelly, J. The period of limitation for plaintiffs breach of contract claim is six years. MCL 600.5807(8); MSA 27A.5807(8). For the rest of his claims, the period is three years. MCL 600.5805(8); MSA 27A.5805(8). The trial court was concerned that shortening the limitation period to six months might foster premature lawsuits because of a lack of investigation time. Also, plaintiff did not have a realistic choice in deciding to sign the agreement. If he did not sign, he would have risked discharge. The transaction was not at arm’s length. Finally, there are public policy reasons for prohibiting the shortening of the limitation periods in discrimination lawsuits. 453 Mich 915 (1996). The contract in Camelot provided as follows: “No suit or action shall be commenced hereunder by any claimant: Ms * * “After the expiration of one (1) year following the date on which principal ceased work on said contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” [Id. at 128.]

TONY JENNINGS JOHNSON, Plaintiff-Appellant v. MAYO YARNS, INC., Defendant-Appellee No. COA96-772 (Filed 20 May 1997) 1. Labor and Employment § 70 (NCI4th)— refusal to remove Confederate decal — termination of employment — not wrongful discharge Plaintiff’s dismissal from private employment for refusing to remove a Confederate flag decal from his toolbox used at work did not constitute wrongful discharge in violation of public policy based on his free speech rights because plaintiff’s conduct carried out in private employment was not constitutionally protected speech and expression. Am Jur 2d, Employment Relationship §§ 30, 40-43, 45. 2. Labor and Employment § 54 (NCI4th)— implied contract— employee handbook — claim properly dismissed The trial court properly dismissed plaintiff employee’s claim for breach of implied contract based on defendant employer’s failure to follow the employee handbook in terminating him where plaintiff failed to allege how defendant’s employee handbook was made part of his employment contract. Am Jur 2d, Employment Relationship §§ 10-30, 39. Right to discharge allegedly “at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. Judge Greene concurring. Appeal by plaintiff from order entered 21 May 1996 by Judge William C. Gore, Jr. in Bladen County Superior Court. Heard in the Court of Appeals 26 February 1997. Barrington, Jones &Pikul, P.A., by Carl A. Barrington, Jr.; and Jack E. Carter; for plaintiff-appellant. Womble Carlyle Sandridge & Rice, PLLC, by Charles A. Edwards and Jeffrey M. Hahn, for defendant-appellee. WALKER, Judge. On 1 February 1996, plaintiff filed suit seeking damages from his former employer for his alleged wrongful termination. He alleged five claims for relief against defendant who moved to dismiss the complaint pursuant to Rule 12(b)(6) of the N.C. Rules of Civil Procedure, on the grounds that it failed to state a claim upon which relief could be granted. The trial court granted the motion dismissing all claims. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 165-66 (1970). Therefore, we must look to the allegations included in plaintiff’s complaint to determine if dismissal was proper under Rule 12(b)(6). Plaintiff alleged the following facts in his complaint: Plaintiff began working in the Bladenboro yam plant on 5 June 1988. On 1 May 1992, defendant acquired the plant and plaintiff continued to work there as a shift technician whose responsibility was to repair the textile spinning frames used in the plant. Plaintiff kept and maintained a toolbox, which he purchased at his own expense, for performing these repairs. On this toolbox, plaintiff had attached a 2 X 3 inch decal of a Confederate naval flag before defendant acquired the plant. During this time, plaintiff had never received a complaint about the decal nor had anyone ever asked him to remove it until 8 August 1994. On this date, plaintiff’s supervisor, Curley Edwards, told him that Ed Harris, the plant manager, had told Edwards to ask plaintiff to remove the decal. Plaintiff did not work on Saturday 13 August 1994 and when he returned to work the following day, he found that the flag decal had been removed from the toolbox and put back upside down. Plaintiff returned the decal to its original position. The next day, plaintiff arrived at work to find the flag decal missing from his toolbox. He replaced it with a similar flag decal the next day. Later that week, plaintiff was told by Edwards, that he should meet with Harris. At the meeting, Harris told plaintiff to write out a statement explaining why he wanted the flag decal on his toolbox and why he refused to remove it. Plaintiff wrote a statement explaining that the flag was part of his Southern heritage and he displayed the flag decal to show his pride. After providing his explanation, plaintiff was again asked to remove the flag decal. Plaintiff again refused and was issued a warning for violation of defendant’s harassment policy. The following Monday plaintiff was again instructed to remove the flag decal and was told specifically that if he did not do so, he would be fired. Plaintiff refused and was subsequently terminated for being in violation of the harassment policy. Plaintiff argues that the trial court erred by granting the defendant’s motion to dismiss his complaint. In his brief, plaintiff only argues the sufficiency of the complaint as to his claims for wrongful discharge in violation of public policy and breach of implied contract. No arguments are brought forward regarding the three additional claims for relief. Therefore, we do not consider the assignment of error relating to these three claims. Plaintiff first contends his complaint is sufficient to state a claim for wrongful discharge in violation of public policy. Plaintiff asserts that his rights to “freedom of speech and to freedom of expression...protected by the First Amendment of the United States Constitution, as well as the Constitution and laws of the State of North Carolina...ris[es] to the level of public policy within the workplace” and that “ [defendant's acts... off end the public policy of the State of North Carolina. . . .” Plaintiff cites 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); Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989); and Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992), in support of what he contends is a growing prohibition against discharging employees for engaging in conduct that is protected by “public policy.” In each of the above cases, our State has recognized an exception to the employment-at-will doctrine by identifying a cause of action for wrongful discharge in violation of public policy. In Sides, the plaintiff was terminated in retaliation for her refusal to testify falsely or incompletely in a medical malpractice case. This Court in reversing the lower court’s dismissal of the plaintiffs claim, stated “. . . while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy.” Sides, 74 N.C. App. 342, 328 S.E.2d 826. In Coman, our Supreme Court adopted the public policy exception to employment-at-will when it reversed the Court of Appeals’ decision affirming the trial court’s dismissal of the plaintiff’s claim for wrongful discharge in violation of public policy. In that case, the plaintiff was terminated for his refusal to violate U.S. Department of Transportation regulations by operating his vehicle excessive hours and by falsifying records. The Court found that it was the public policy of this State to protect the safety of persons or property on public highways due to the fact that “[o]ur legislature has enacted numerous statutes regulating almost every aspect of transportation and travel on the highways in an effort to promote safety.” Coman, 365 N.C. 176, 381 S.E.2d 447. Our Supreme Court again examined the contours of the public policy exception in Amos. There, the Court held that the dismissal of the plaintiffs claim for wrongful discharge in violation of public policy was error where the plaintiff alleged she was terminated for her refusal to work for less than the statutory minimum wage. Moreover, the Court stated that “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.” Amos, 331 N.C. 353, 416 S.E.2d 169. From these decisions, a definition of “public policy” has evolved which connotes 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. Therefore, we must determine whether the constitutional protections of free speech and expression, in a workplace setting, would constitute a “public policy” so as to prevent defendant from discharging the plaintiff. Defendant contends that the right of free speech and expression does not extend to the workplace where a private employer must have flexibility in adopting and enforcing its employment policies and practices. As such, plaintiff has no support for extending the public policy exception to prohibit his discharge. Plaintiff also relies on Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992) to support his contention that our State Constitution can serve as the source of public policy in his wrongful discharge claim. In Lenzer, the wrongful discharge in violation of public policy claim was brought by a state employee against state officials alleging she was terminated for exercising her free speech rights in reporting possible patient abuse. Id. at 500, 418 S.E.2d at 279. We find the facts in Lenzer to be distinguishable from the facts in the case at hand. In Lenzer, this Court stated: As to plaintiff’s claim for wrongful discharge, the facts of this case fit within the public policy exception to the employment-at-will doctrine as that exception has recently been delineated by our Supreme Court. In Amos... the Court declared that “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.” That observation, in our view, applies with equal force to rights guaranteed by the State Constitution such as Plaintiff’s free speech claim. Id. at 514-15, 418 S.E.2d at 287. In reversing summary judgment for the defendants, our Court concluded that “public speech about suspected patient abuse in State facilities merits legal protection.” Id. at 508, 418 S.E.2d at 284. We conclude that the plaintiffs conduct carried out in private employment is not constitutionally protected activity. Therefore, plaintiff has failed to allege facts sufficient to support a claim of wrongful discharge based on his activity being protected speech and expression by our Constitution. The trial court did not err in granting defendant’s motion to dismiss the claim of wrongful discharge in violation of public policy. Plaintiff next assigns as error the trial court’s dismissal of his claim for breach of implied contract. He asserts in his complaint that “the statements and promises made by the defendant ... to its employees, as contained in the Employee handbook, create an implied contract as between the parties, and that the failure of the defendant to honor these promises in terminating this plaintiff gives rise ... to a cause of action for . . . breach of implied contract.” This Court has previously rejected claims that an employee termination violated a contract allegedly embodied in an employment handbook, holding that such policy documents do not constitute a contract unless expressly made part of the employment contract. See Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 412 S.E.2d 97 (1991), disc. review denied, 331 N.C. 119, 415 S.E.2d 200 (1992); Rucker v. First Union Nat. Bank, 98 N.C. App. 100, 389 S.E.2d 622, disc. review denied, 326 N.C. 801, 393 S.E.2d 899 (1990); Rosby v. General Baptist State Convention, 91 N.C. App. 77, 370 S.E.2d 605, disc. review denied, 323 N.C. 626, 374 S.E.2d 590 (1988). In this case, plaintiff has failed to allege how defendant’s employee handbook was made part of his employment contract with defendant. Thus, the trial court correctly dismissed plaintiff’s claim for breach of implied contract. Affirmed. Judge GREENE concurs with separate opinion. Judge McGEE concurs. . The Harassment Policy provides: “It is the policy of Mayo Yarns, Inc., to promote an atmosphere that is free of harassment in any form in all levels of employment. The Company’s goal is to provide a workplace free of tensions created by racial, ethnic, sexist, religious, age-based remarks or animosity, unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature. Such actions or conduct are viewed as creating an intimidating, harmful, and offensive environment and will not be tolerated.” Judge Greene concurring. The discharge of an at-will employee is wrongful if the reason for the termination contravenes public policy. E.g. Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). The plaintiff argues that his discharge was based on his refusal to remove a Confederate naval flag decal from his toolbox he used at work and that because the display of the decal was an exercise of his First Amendment rights, his discharge is wrongful because any action by his employer limiting his First Amendment rights contravenes public policy. There is no question that if the display of the decal at the plaintiff’s place of employment was an exercise of his First Amendment rights, any discharge based on the display of that decal would be violative of the public policy of this State and support an action for wrongful discharge. See Lenzer v. Flaherty, 106 N.C. App. 496, 515, 418 S.E.2d 276, 287 (1992). In this case, however, the plaintiff’s First Amendment rights are not implicated because the United States Constitution (Constitution) does not secure rights to individuals against other individuals. Pub. Util. Comm’n v. Pollak, 343 U.S. 451, 461, 96 L. Ed. 1068, 1077 (1952). It is only the officials of the State “that are obligated to conduct themselves in accordance with the Constitution.” Thus because there is no evidence in this record that the employer was acting for or on behalf of the State, the First Amendment rights of the plaintiff were not implicated when he was discharged for displaying the decal. It follows that there has been no violation of the public policy of this State and the trial court correctly dismissed the wrongful discharge claim.

D’AVANZO v WISE & MARSAC, PC Docket No. 177756. Submitted May 15, 1996, at Detroit. Decided April 25, 1997, at 9:40 A.M. Leave to appeal denied, 456 Mich 864. Jerry D’Avanzo brought an action in the Wayne Circuit Court against Wise & Marsac, P.C., his former employer, alleging breach of contract and misrepresentation after the defendant’s group disability insurer denied the plaintiff’s claim for benefits for a disability that occurred after separation from employment but within the period for which the defendant, in the severance agreement, agreed to “pay [the plaintiff’s] salary ... together with all insurance and other benefits.” The court, Sharon Tevis Finch, J., granted partial summary disposition for the plaintiff with respect to the claim of breach of contract and denied summary disposition of both claims for the defendant, which had argued that the claims are preempted by the Employee Retirement Income Security Act (erisa), 29 USC 1001 et seq., or, if not preempted, that it had not breached the severance agreement because its obligation under the agreement was to continue to pay the insurer the plaintiff’s disability insurance premiums and that it had done so. The defendant appealed by leave granted. The Court of Appeals held: 1. The trial court erred in granting summary disposition for the plaintiff with respect to the claim of breach of contract. The terms of the severance agreement are ambiguous with respect to the defendant’s obligation in terms of providing disability insurance or benefits to the plaintiff. The trial court should not have construed the agreement as a matter of law in the presence of a question of fact for the jury concerning the parties’ intent with regard to the defendant’s obligation to provide disability insurance or benefits. 2. The trial court correctly rejected the defendant’s contention that the plaintiff’s claims are preempted by the erisa. Whether the plaintiff’s state-law claims bear a relationship to an erisa plan and therefore are preempted by the erisa cannot be determined until the intent of the parties concerning the disability insurance or benefits promised in the severance agreement is resolved by the trier of fact. 3. The record is inadequate for meaningful review of the rest of defendant’s claims on appeal. Affirmed in part, reversed in part, and remanded. 1. Contracts — Judicial Construction — Ambiguities The construction of a contract is generally a question of law determined by the court; however, where the meaning of a contract is obscure and its construction depends upon other and extrinsic facts in connection with what is written, the question of interpretation is one of fact for the jury to decide as the trier of fact. 2. Labor Relations — Employee Retirement Income Security Act — Preemption. The Employee Retirement Income Security Act (erisa) does not preempt state laws or actions under state law whose effect on employee benefit plans that are subject to the erisa are merely tenuous, remote, or peripheral (29 USC 1144[a]). Morris & Doherty, P.C. (by E. Michael Morris and Steven W. Samosiuk,), for the plaintiff. Brady Hathaway, P. C. (by Daniel J. Bretz), for the defendant. Before: Wahls, P.J., and Young and H. A. Beach, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Young, J. Defendant was granted leave to file this interlocutory appeal of the trial court’s orders denying defendant’s motion for summary disposition and granting plaintiffs motion for partial summary disposition. We reverse in part, affirm in part, and remand. This dispute arises from a severance agreement negotiated by plaintiff and defendant at the conclusion of plaintiff’s employment. Plaintiff claims that defendant breached a contractual obligation (or alternatively, made a misrepresentation) concerning the provision of long-term disability benefits referenced in the severance agreement. The core legal questions on appeal involve the closely related issues: (1) whether the severance agreement unambiguously created á separate contractual obligation on defendant’s part to provide the disability benefit, (2) whether the severance agreement created only the obligation to provide plaintiff with benefits under defendant’s long-term disability plan, and (3) whether the Employee Retirement Income Security Act (erisa), 29 USC 1001 et seq., preempts plaintiff’s claims. We conclude that the agreement is ambiguous and that the preemption question cannot be determined until the intent of the párties concerning the disability benefit promised in the severance agreement is resolved by the trier of fact. I. FACTS AND PROCEEDINGS Plaintiff is a former associate with defendant law firm, Wise & MarSac, PC. Plaintiff’s employment with defendant formally ended on April 1, 1991. On May 31, 1991, plaintiff and defendant negotiated a severance agreement that provided that defendant would “pay [plaintiff’s] salary . . . together with all insurance and other benefits provided to associates of the Firm from April 1, 1991 through September 30, 1991, the severance period.” Following plaintiff’s separation, defendant continued to pay premiums on plaintiff’s behalf to UNUM Life Insurance Company, defendant’s long-term disability insurance carrier. In October 1992, plaintiff filed a claim for disability benefits with UNUM, alleging that the disability arose on June 18, 1991, a date within the severance period. UNUM denied the claim, suggesting that plaintiff’s claim was not timely. When plaintiff inquired further, UNUM informed him that his coverage had ceased on April 1, 1991, when plaintiff ceased active employment with defendant. UNUM eventually credited defendant for the premiums paid on plaintiffs behalf for the period between April 1, 1991, and September 1, 1991. Following UNUM’s denial of his disability claim, plaintiff brought this action against defendant, claiming breach of contract and misrepresentation: Both parties moved for summary disposition. Plaintiff argued that he was entitled to partial judgment as a matter of law on the breach-of-contract claim. He argued that the severance agreement unambiguously required defendant to provide him with disability benefits irrespective of how defendant chose to obtain such benefits — through its group insurance carrier, UNUM, or otherwise. Defendant argued in response that it was entitled to summary disposition because plaintiff’s claims were preempted by the ERISA, or if those claims were not preempted, that defendant did not breach the severance agreement. The trial court granted plaintiff’s motion, but denied defendant’s cross motion. From these orders, defendant appeals by leave granted by this Court. II THE SEVERANCE AGREEMENT Central to this dispute is the following paragraph of the severance agreement. 4. The Firm further will pay [plaintiff] in the usual twice a month intervals a salary . . . together with all insurance and other benefits provided to associates of the firm for the period between April 1, 1991 through September 30, 1991. Each party has attached its own interpretation to the phrase “insurance and other benefits provided to associates of the firm.” A. DEFENDANT’S INTERPRETATION Defendant argues that, according to the clear language of the agreement, it agreed only to “pay” for the same benefits that defendant “pays” for the firm’s associates. Defendant contends that it complied with this agreement by continuing to pay premiums for plaintiff on the disability policy that insures the firm’s associates. Defendant further argues that plaintiff was denied coverage by the insurance carrier because he was ineligible for coverage under the policy language, not because defendant breached the severance agreement. Consequently, defendant suggests that plaintiff’s claims are, in essence, a challenge to the carrier’s reasons for denying disability coverage and, thus, are preempted by the erisa. B. PLAINTIFF’S INTERPRETATION By contrast, plaintiff contends that the severance agreement clearly obligated defendant to provide disability coverage from April 1 through September 30, 1991, and that the agreement does not specify the particular manner by which defendant was to satisfy this obligation. Consequently, plaintiff argues that the agreement did not expressly subject plaintiff to the terms of defendant’s UNUM group policy. Inasmuch as the insurance company denied plaintiff’s claim on the basis that plaintiff was not insured during the severance period, this fact establishes that defendant breached its promise to provide disability benefits to plaintiff during this period. In sum, plaintiff contends that his entitlement to a disability benefit is contractual only and entirely independent of defendant’s UNUM group policy and the erisa. m THE CONTRACT LANGUAGE IS AMBIGUOUS The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties. Goodwin v Orson E Coe Pontiac, Inc, 392 Mich 195, 209; 224 NW2d 53 (1974), citing McIntosh v Groomes, 227 Mich 215, 218; 198 NW 954 (1924). Although the construction of the terms in a contract is generally a question of law for the court to determine, “ ‘where [a contract’s] meaning is obscure and its construction depends upon other and extrinsic facts in connection with what is written, the question of interpretation should be submitted to the jury, under proper instructions.’ ” Hewett Grocery Co v Biddle Purchasing Co, 289 Mich 225, 236; 286 NW 221 (1939), quoting O’Connor v March Automatic Irrigation Co, 242 Mich 204; 218 NW 784 (1928) (citations omitted). Hence, in the context of a summary disposition motion, a trial court may determine the meaning of the contract only when the terms are not ambiguous. SSC Associates Ltd Partnership v General Retirement System of City of Detroit, 192 Mich App 360, 363; 480 NW2d 275 (1991). A contract is ambiguous if the language is susceptible to two or more reasonable interpretations. Petovello v Murray, 139 Mich App 639, 642; 362 NW2d 857 (1984). In an instance of contractual ambiguity, factual development is necessary to determine the intent of the parties and summary disposition is inappropriate. SSC Associates, supra, p 363. The trial court adopted plaintiff’s interpretation of the disputed language. Yet, as noted above, both parties have set forth reasonable interpretations of the same language. As such, we conclude that the disputed interpretations presented render the contract terms at issue ambiguous. Because this ambiguity creates a question of fact for the jury, the meaning of the disputed language cannot be construed as a matter of law. Hewett, supra, p 236; SSC Associates, supra, p 363. Therefore, we conclude that the lower court erred in granting summary disposition for plaintiff because factual development is necessary to ascertain the parties’ intent. See id., p 363. IV. ERISA PREEMPTION OVER STATE CLAIMS Defendant also challenges the trial court’s ruling that plaintiff’s common-law claims of breach of contract and misrepresentation against defendant were not preempted by the erisa. Because defendant’s erisa preemption argument would provide an independent basis for disposing of this case, we must now decide whether plaintiff’s claims are preempted. A. THE SCOPE OF THE ERISA PREEMPTION Section 514(a) of the erisa, 29 USC 1144(a), provides: Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in [29 USC 1003(a)] and not exempt under [29 USC 1003(b)], This section shall take effect on January 1, 1975. [Emphasis supplied.] The basic objective of the erisa preemption is to avoid a multiplicity of regulation in order to permit national uniformity in the administration of employee benefit plans. New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins Co (NYBCBS), 514 US 645, 657; 115 S Ct 1671, 1677-1678; 131 L Ed 2d 695 (1995). Under § 514(a), a state law “ ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Ingersoll-Rand Co v McClendon, 498 US 133, 139; 111 S Ct 478; 112 L Ed 2d 474 (1990). “A state law may ‘relate to’ a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” Id. A state law indirectly affects an erisa plan if it produces “acute, albeit indirect, economic effects, by intent or otherwise, as to force an erisa plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers.” NYBCBS, supra, p 668. The phrase “relates to” has been broadly construed to preempt state common-law causes of action as well as state statutes. IngersollRand, supra, pp 139-140; Pilot Life Ins Co v Dedeaux, 481 US 41, 48; 107 S Ct 1549; 95 L Ed 2d 39 (1987). Notwithstanding its breadth, the scope of the erisa preemption is not without limits. Ingersoll-Rand, supra, p 139. Both the United States Supreme Court and the Michigan Supreme Court have rejected reading § 514(a) to include every possible relation to the erisa. NYBCBS, supra, p 656 (“infinite relations cannot be the measure of pre-emption”); Teper v Park West Galleries, Inc, 431 Mich 202, 215-216; 427 NW2d 535 (1988) (holding that reference to an erisa plan in order to calculate damages in a wrongful discharge claim did not preempt the state-law claim). State laws or state-law claims whose effect on employee benefit plans are merely tenuous, remote, or peripheral are not preempted. Shaw v Delta Airlines, Inc, 463 US 85, 100, n 21; 103 S Ct 2890; 77 L Ed 2d 490 (1983); Cromwell v Equicor-Equitable HCA Corp, 944 F2d 1272, 1276 (CA 6, 1991). For example, the brisa does not preempt state laws generally regulating employee benefits that neither establish nor require an employer to maintain an employee benefit plan. Fort Halifax Packing Co, Inc v Coyne, 482 US 1, 11; 107 S Ct 2211; 96 L Ed 2d 1 (1987). Similarly, the brisa does not preempt a state-law claim whose only relationship to the erisa is predicated upon the method used in calculating the damages recoverable for claims that allow an amount that represents the loss of benefits that may have been provided under an erisa plan. Teper, supra, pp 215-216; see also Rozzell v Security Services, Inc, 38 F3d 819, 822-823 (CA 5, 1994). This is especially true in cases where the judgment is awarded against the employer, rather than the plan or plan administrator. Teper, supra, pp 215-216; see also Hill v Ford Motor Co, 183 Mich App 208, 214; 454 NW2d 125 (1989). B. DO PLAINTIFF’S CLAIMS “RELATE TO” AN ERISA PLAN? To establish preemption, defendant must prove that plaintiffs state-law claims bear a relationship to an ERISA plan. Fort Halifax, supra, pp 7-8. However, the ambiguity of the language in the severance agreement precludes a determination whether a relationship exists. As stated above, the severance agreement does not specify the means by which defendant agreed to provide plaintiff disability benefits, and only plaintiff and defendant are parties to the severance agreement. Facially, the severance agreement does not specify that an erisa plan was intended as a vehicle to provide plaintiff disability benefits. Compare Fort Halifax, supra, p 11 (state law does not relate to the erisa if it does not require the maintenance or establishment of an erisa plan). Thus, the express language of the agreement does not establish a direct relationship to an erisa plan. Defendant nonetheless maintains that the plaintiffs claims are indirectly related to an ERISA plan. Defendant argues that, irrespective of the parties’ agreement, the recovery being sought by plaintiff establishes the link to an erisa plan. Defendant contends that, because plaintiff’s claims were precipitated by the denial of his disability claim, plaintiff is essentially seeking the recovery of an erisa plan benefit. In support, defendant relies on Cromwell, supra, p 1272. In Cromwell, a health-care provider brought suit against a disability insurance carrier, claiming, inter alia, that the carrier breached an oral agreement to pay for services provided to the insured. Id., p 1275. The Cromwell court observed that the provider’s claims essentially sought the recovery of benefits due the insured under the ERISA plan. Id., p 1276. As such, the court reasoned that if the provider could sue for these benefits, it would not only affect the relationship between plan principals but also expand the scope of coverage beyond the plan’s terms. Id., p 1276. Consequently, the court held that the provider’s claims were preempted. Id. Unlike the Cromwell plaintiff, plaintiff here does not contest the reasons why his disability claim was denied by UNUM, nor does he allege that he is entitled to recover benefits under that policy. Compare Hill, supra, pp 214-215 (a contractual claim seeking benefits under a specific ERISA plan would be preempted). Instead, plaintiff argues that defendant breached its contractual obligation to provide the benefit in the first instance. Thus, the factual dispute regarding the specific nature of defendant’s obligation under the severance agreement must first be resolved before defendant’s preemption claim can be assessed. Alternatively, defendant argues that plaintiff’s claims relate to the ERISA because the amount of benefits provided by the UNUM policy must be referenced in calculating the plaintiff’s damages, relying on Cefalu v BF Goodrich Co, 871 F2d 1290, 1294 (CA 5, 1989). However, the damages generally recoverable for breach of contract are limited to the monetary value of the contract had the breaching party fully performed under it. Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 414-415; 295 NW2d 50 (1980). Here again, without knowing what the parties intended the obligation to be, it is unclear how plaintiffs alleged damages will be measured. As the foregoing analysis illustrates, the record is insufficient to resolve the ambiguity concerning the means intended to supply plaintiff the benefit under the severance agreement. Therefore, the preemption issue cannot be resolved on the record before us, and the trial court properly denied defendant’s motion for summary disposition. V. REMAINING ISSUES Defendant appeals several issues that were raised, but not decided, below. First, defendant claims that the plaintiff’s true claim is against UNUM for denial of coverage under the policy and that UNUM’s decision should be reviewed for an abuse of discretion. Plaintiff responds that defendant’s failure to provide benefits is the basis for his claims, not UNUM’s denial of benefits. Second, defendant argues that plaintiffs misrepresentation count cannot be maintained as a matter of law, because a misrepresentation claim cannot be based upon a broken promise. Compare Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). Because plaintiffs misrepresentation claim revolves around ambiguous language in the severance agreement, there remain disputed issues of material fact regarding whether defendant made any false statement and whether plaintiff detrimentally relied on that statement. This Court will not address an issue that was not decided below unless it is one of law for which all the necessary facts were presented. Providence Hosp v Nat’l Labor Union Health & Welfare Fund, 162 Mich App 191, 194-195; 412 NW2d 690 (1987). The record is inadequate for a meaningful review of these issues. Defendant will be free to raise these issues when this case returns to the trial court on remand. We affirm the trial court’s denial of defendant’s motion for summary disposition, but reverse the order granting plaintiff’s motion for partial summary disposition, and remand for further proceedings consistent with this opinion. We do not retain jurisdict

LEWIS KURTZMAN, Plaintiff v. APPLIED ANALYTICAL INDUSTRIES, INC., Defendant No. COA96-50 (Filed 4 February 1997) 1. Labor and Employment § 65 (NCI4th)— employment at will — additional consideration exception — sufficient evidence The “additional consideration” exception to the employment-at-will doctrine was applicable in plaintiffs action for breach of an employment contract where plaintiffs evidence tended to show that plaintiff, who had a secure position with another company, was actively recruited by defendant employer and was persuaded to sell his home in New England and relocate to North Carolina; negotiations between plaintiff and defendant were extensive; and plaintiff was told by defendant’s top management that the job was a career position with tremendous long-term growth potential for him, that he had a job as long as he did his job, that plaintiff would be part of a team making valuable contributions toward the future growth of defendant, and that plaintiffs job was a secure position in which plaintiff could not lose and for which the long-term gain would outweigh the short-term losses. Plaintiff’s recovery was not barred because an employment application which he signed eight days after beginning work for defendant contained language that “employment can be terminated for any reason” where plaintiff was not asked to complete an employment application before he began working for defendant; plaintiff did not consider the language applicable to him because of the numerous assurances he had received from defendant’s top management; and, at the time he signed the application, plaintiff had already resigned his former position and had temporarily relocated in this state while his wife attempted to sell their home in New England. Am Jur 2d, Employment Relationship §§ 10 et seq. 2. Labor and Employment § 72 (NCI4th)— breach of contract — damages—future income — sufficient evidence Evidence of plaintiff’s future income was not too speculative to support the jury’s award of $350,000 to plaintiff for defendant employer’s breach of an employment contract where plaintiff testified he was a capable employee who planned to work until retirement; plaintiff offered proof of his age and salary at the time of his termination by defendant; plaintiff presented evidence showing the efforts he made to find other employment and the wages he was able to earn upon termination by defendant; and expert testimony was offered to illustrate plaintiffs past and future losses. Am Jur 2d, Employment Relationship §§ 52 et seq. Elements and meansure of damages in action by schoolteacher for wrongful discharge. 22 ALR3d 1047. Damages recoverable for wrongful discharge of at-will employee. 44 ALR4th 1131. 3. Judgments § 652 (NCI4th)— breach of contract — prejudgment interest Plaintiff was entitled to prejudgment interest from the date of defendant employer’s breach of his employment contract. N.C.G.S. § 24-5(a). Am Jur 2d, Employment Relationship §§ 10 et seq. Appeal by defendant and cross appeal by plaintiff from judgments and orders entered by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. • Defendant appeals from (1) the judgment and amended judgment entered 26 June 1995 and 3 August 1995 respectively; (2) the 4 August 1995 order denying defendant’s motion to set aside verdict and judgment and alternative motion for new trial; and (3) all other orders and rulings adverse to defendant by the trial court during the trial and post-trial motion phases of the litigation. Cross appeal by plaintiff is from the Superior Court’s 3 August 1995 amended judgment denying prejudgment interest. Heard in the Court of Appeals 26 September 1996. Shipman & Umbaugh, L.L.P., by Gary K. Shipman, Jennifer L. TJmbaugh and Carl W. Hodges, II, for plaintiff-appellee/ appellant. Robinson, Bradshaw & Hinson, P.A., by John R. Wester and Frank H. Lancaster, for defendant-appellant/appellee. McGEE, Judge. This is an employment contract dispute in which plaintiff, Lewis Kurtzman, brought several claims against defendant, Applied Analytical Industries, Inc. (AAI) including his claim for breach of employment contract. AAI is a company based in Wilmington, North Carolina that provides scientific services to assist clients in securing FDA approval of pharmaceutical products. Although there was conflicting testimony at trial, there was evidence of the following employment arrangement between plaintiff and defendant. In late 1991, AAI contacted plaintiff about leaving his position as national sales manager of E.M. Separations Technology, a Rhode Island company. After some initial reluctance and extensive negotiations which included job security assurances from AAI, plaintiff accepted a position as director of sales for AAI with a minimum yearly salary of $125,000. Plaintiff found temporary housing in Wilmington and began his employment with AAI on 30 March 1992. A few months later, he and his wife sold their home in Massachusetts and made a permanent move to Wilmington. Eight days after beginning his employment with AAI, plaintiff was asked to complete an employment application which included language that employees could be terminated for any reason deemed sufficient by AAI. Plaintiff signed the application, but considered it a simple formality since he had (1) already engaged in extensive negotiations which included assurances as to job security; (2) already accepted a position with AAI; (3) resigned from his employment with E.M. Separations Technology; and (4) relocated from Massachusetts to Wilmington. On 2 November 1992, AAI terminated plaintiff. Despite extensive efforts, plaintiff was unable to secure different employment, so he started a consulting business which paid substantially less than the salary he received while working at AAI. On 2 February 1993, plaintiff filed suit against AAI alleging breach of employment contract, tor-tious interference with contractual relations, intentional infliction of emotional distress and by amendment, negligent misrepresentation. All claims except the breach of contract action were dismissed either voluntarily or by summary judgment. The remaining claim for breach of contract proceeded to a jury trial. On 1 June 1995, the jury returned a verdict in plaintiffs favor and awarded him $350,000.00 in damages. The trial court entered judgment on the jury verdict on 26 June 1995 and subsequently amended judgment on 3 August 1995 to include an award of post-judgment interest. AAI moved the trial court to set aside the verdict or, in the alternative, for a new trial. These motions were denied. Both plaintiff and AAI have appealed to this Court. AAI contends the trial court erred (1) in denying its motion for directed verdict and (2) in allowing the $350,000.00 award to stand because it is too speculative. Plaintiff has appealed the trial court’s denial of prejudgment interest from the date of the breach of contract. I. Denial of the Directed, Verdict The question this Court must consider with a motion for directed verdict is whether the evidence was sufficient to entitle plaintiff to have a jury pass on the matter. Smith v. Price, 74 N.C. App. 413, 418, 328 S.E.2d 811, 815 (1985), aff’d in part and rev’d in part on other grounds, 315 N.C. 523, 340 S.E.2d 408 (1986). The evidence is to be reviewed in a light most favorable to the non-moving party and the non-movant is entitled to every inference which may legitimately be drawn from the evidence. Id. All conflicts are resolved in favor of the non-movant. Id. In arguing the trial court erred in denying its motion for directed verdict, AAI contends North Carolina is an employment-at-will state with relatively few exceptions. AAI argues plaintiffs heavy reliance on 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) as allowing an exception to employment-at-will in cases where the employee gives special consideration such as removing his residence from one place to another in order to accept employment is misguided and that under these facts, Sides is inapplicable. AAI contends this Court’s holding in Sides is narrow and creates an exception to employment-at-will for public policy reasons in cases where the employee is asked to engage in unlawful behavior. Furthermore, AAI argues any reference in Sides to “removal of residence” is dicta and not part of the Court’s holding. AAI urges “the ‘removal of residence’ concept would be an unsound basis on which to base an exception to the principle of employment-at-will [and] further, such an exception would be contrary to precedent.” We disagree. North Carolina is an employment-at-will state. An employee who is not offered employment for a definite term is considered “an employee at will and may be discharged without reason.” Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 446 (1989). This rule is subject to several exceptions including an “additional consideration” exception. Mortensen v. Magneti Marelli U.S.A., 122 N.C. App. 486, 488, 470 S.E.2d 354, 356, disc. review denied, 344 N.U 438, 476 S.E.2d 120 (1996). In Mortensen we said: The providing of additional consideration by the employee does not convert every employment-at-will agreement into an enforceable contract. If, however, the employment agreement expressly or impliedly provides that the employment will be permanent, for life or terminable only for cause and the employee gives an independent valuable consideration other than his services for the position, see Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985); Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 658-59, 412 S.E.2d 97, 101 (1991), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992); Tuttle v. Lumber Co., 263 N.C. 216, 219, 139 S.E.2d 249, 251 (1964); John D. Calamari & Joseph M. Perillo, The Law of Contracts § 2-9 at 60-63 (3d ed. 1987); see also 30 C.J.S. Employer-Employee § 43, at 83 (1992), the employment can be terminated only for cause until the passage of a reasonable time. See 3A Arthur L. Corbin, Corbin on Contracts § 684 (1960 & Supp. 1994); Tuttle, 263 N.C. at 219, 139 S.E.2d at 251; 30 C.J.S. Employer-Employee § 43, at 83 (1992). After the passage of a reasonable time the employment relationship can be terminated without cause. Id. at 488-89, 470 S.E.2d at 356. This Court has recognized that additional consideration can include the removal of an employee’s residence from one location to another in order to accept employment. See Salt v. Applied Analytical, Inc. 104 N.C. App. 652, 659, 412 S.E.2d 97, 101 (1991), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992); Sides, 74 N.C. App. at 345, 328 S.E.2d at 828; Burkhimer v. Gealy, 39 N.C. App. 450, 454, 250 S.E.2d 678, 682, disc. review denied, 297 N.C. 298, 254 S.E.2d 918 (1979). In this case, there was evidence that plaintiff, who had a secure position with another company, was actively recruited by AAI and eventually was persuaded to relocate from New England to North Carolina to accept the sales director position with AAI. Negotiations between plaintiff and AAI were extensive and plaintiff testified he received numerous verbal assurances of job security from top management at AAI. Plaintiff was told the job was a career position with tremendous, long-term growth potential for him and that “[a]s long as I did my job, I had a job.” Other assurances included almost a dozen statements that plaintiff would be part of a team making valuable contributions toward the future growth of AAI; it was a secure position in which plaintiff could not lose and that the long-term gains would outweigh any short-term losses. Plaintiff was told the company was prepared to pay temporary living expenses and the company contributed to the costs of selling plaintiff’s Massachusetts residence. We agree with plaintiff that collectively, these statements constitute specific assurances that plaintiff would not be discharged unless his performance was inadequate. AAI’s argument that plaintiff’s recovery is barred because the employment application which he signed eight days after beginning work for AAI contained language that “employment can be terminated for any reason deemed sufficient by AAI” is without merit. Plaintiff testified he never saw the employment application prior to beginning work for AAI and that when he was asked to sign the form eight days after he became employed, he did not consider the language applicable to him because of the numerous assurances he had already received from top management at AAI. Additionally, by the time plaintiff signed the application, he had already resigned from E.M. Separations and temporarily relocated to Wilmington while his wife was trying to sell their home in New England. Furthermore, AAI’s Director of Personnel testified that during his interviews with plaintiff, he never asked him to complete a job application. He explained that management employees generally used resumes as the method of conveying their prior work experience and employment applications for these people were typically completed after employment and were kept on file for personnel record purposes. II. Damage Award AAI contends the jury’s award of $350,000.00 cannot stand because the calculation of damages was too speculative as to plaintiff’s future income. We disagree. In calculating the damages for this breach of contract claim, plaintiff was entitled to recover the difference between his salary as opposed to his total earnings during the contract period. Thomas v. College, 248 N.C. 609, 615, 104 S.E.2d 175, 179 (1958). Plaintiff presented solid evidence of the damages he suffered as a result of this breach of contract. He testified he was a capable employee who planned to work until retirement. He offered proof of his age and his salary at the time of his termination. Other evidence was introduced showing the efforts plaintiff made to find different employment and the wages he was able to earn upon termination by AAI. Finally, expert testimony was offered to illustrate plaintiff’s past and future losses. As plaintiff noted in his brief, a determination of damages in this case is no more speculative than is an award for loss of future earnings in a personal injury claim. We conclude there was sufficient concrete evidence upon which the jury could calculate plaintiffs damages with a reasonable degree of certainty. III. Prejudgment Interest In plaintiffs cross appeal, he argues the trial court erred in denying his petition for prejudgment interest from the date of AAI’s breach of contract. We agree. In Metromont Material Corp. v. R.B.R. & S.T., 120 N.C. App. 616, 463 S.E.2d 305 (1995), disc. review denied, 342 N.C. 895, 467 S.E.2d 903 (1996), we said: The legislature amended G.S. § 24-5(a) in 1985 to provide that “[i]n an action for breach of contract, . . . the amount awarded on the contract bears interest from the date of the breach.” Subsequently, in Steelcase, Incorporated v. The Lilly Company, this Court noted that, as amended, G.S. § 24-5(a) “clearly provides for interest from the date of breach in breach of contract actions.” Steelcase, Inc. v. The Lilly Co., 93 N.C. App. 697, 703, 379 S.E.2d 40, 44, disc. review denied, 325 N.C. 276, 384 S.E.2d 530 (1989). Here, both parties tailor their arguments to the case law developed prior to the 1985 amendment and the rule quoted from General Metals. However, it is clear to this Court that resort to that rule, developed only to determine the date from which to apply interest, is no longer necessary. When the legislature amended the statute, and provided a time from which to apply interest, it obviated any need for the rule. In doing so, it removed the confusing questions of ascertainment and certainty that so often muddled the statute’s application. Because this case falls under the amended version of the statute, plaintiff’s arguments do not apply, and the trial court did not err in awarding prejudgment interest. Id. at 618, 463 S.E.2d at 307. Our holding in Metromont is clearly dis-positive of this case. To the extent the trial court’s judgment is inconsistent with N.C. Gen. Stat. § 24-5(a), which states that interest shall be paid from the date of breach in breach of contract actions, we reverse and remand the matter for entry of judgment including prejudgment interest. Affirmed in part, reversed in part and remanded. Judges WYNN and JOHN concur.

TRANKER v FIGGIE INTERNATIONAL, INC Docket No. 188152. Submitted December 11, 1996, at Grand Rapids. Decided January 3, 1997, at 9:10 A.M. Leave to appeal sought. Paul and Denise Tranker brought an action in the Van Bureau 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 Tranker’s 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 held: 1. The trial court did not err in applying the doctrine of judicial estoppel and finding that because Paul Tranker had successfully represented himself as being totally disabled to the Social Security Administration for purposes of receiving social security disability benefits, he could not be considered handicapped for purposes of his subsequent hcra claim. 2. The trial court did not err in finding that the employment policy relied upon by the plaintiffs did not alter Paul Tranker’s at-will employment to employment terminable for just cause only. The claim is essentially a duplication of the claim under the hcra and is precluded for the same reason. Affirmed. 1. Estoppel — Judicial Estoppel — Administrative Law. The doctrine of judicial estoppel is applied by the courts to estop a party who has successfully and unequivocally asserted a position in a prior administrative proceeding from asserting an inconsistent position in a subsequent proceeding. 2. Civil Rights — Handicappers’ Civil Rights Act — Total Disability — Judicial Estoppel. The doctrine of judicial estoppel precludes a party alleging employment discrimination under the Handicappers’ Civil Rights Act from alleging that the party has a physical or mental condition that is unrelated to the party’s ability to perform the duties of a particular job where the party has successfully represented to the Social Security Administration the inconsistent position that the party is totally and permanently disabled and unable to work and thus entitled to social security disability benefits (42 USC 423[d] [1] [A], [d] [2]; MCL 37.1103[e][i][A], 37.1202[l][b]; MSA 3.550[103][e][i][A], 3.550[202][l][b]). Plaszczak & Bauhof, PC. (by James F. Bauhof), for the plaintiffs. Miller, Canfield, Paddock and Stone, P.L.C. (by Ronald E. Baylor and Scott R. Sikkengd), for the defendant. Before: Hood, P.J., and Neff and M. A. Chrzanowski , JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiffs filed this action against defendant, alleging that defendant violated Michigan’s Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and an employment contract with plaintiff. The trial court granted defendant’s motion for summary disposition, finding that the doctrine of judicial estoppel defeated plaintiffs hcra claim and that defendant’s employment policy did not alter plaintiff’s at-will employment. Plaintiffs appeal as of right. We affirm. Plaintiff began working for defendant in 1970. In 1984, he was seriously injured in an automobile accident and was off work for six months. After the automobile accident plaintiff was, and he remains, physically compromised. He suffered a head injury, causing blindness in one eye, deafness in both ears requiring the use of a hearing aid, partial paralysis of his tongue causing a speech impediment, partial paralysis of his right hand, a ringing in his head, and a short-term memory deficit. Plaintiff also suffered a hip injury, requiring a hip replacement in 1991. When he returned to work following the accident, plaintiff resumed his former position, but after approximately eight to ten months, his position was changed to that of engineering liaison/expediter. This change in job responsibilities was made to accommodate plaintiffs physical limitations. On January 9, 1991, plaintiff went on medical leave because of complications resulting from the 1984 automobile accident. Plaintiff underwent brain surgery in February 1991 and hip replacement surgery in August 1991, and was off work for approximately one year. Plaintiff returned to work on half-day status on February 3, 1992, with some physical restrictions. He was restricted from climbing ladders, squatting, and working on his hands and knees. Most of the duties of plaintiffs position as engineering liaison/expediter were no longer available because of their reassignment to other employees and a reduction in the work force. The new job description involved primarily maintenance responsibilities. On February 14, 1992, approximately two weeks after plaintiff returned to work, he made a comment to his supervisor that his supervisor perceived as a threat. Plaintiff was informed the following day that he was suspended for threatening a supervisor. Through a letter dated March 24, 1992, defendant requested plaintiff to supply, by April 16, 1992, medical information demonstrating either an ability or an inability to work, or plaintiffs employment would be terminated effective that date. Plaintiffs counsel responded by a letter, stating an uncertainty regarding the specific information needed, but some medical records were enclosed. On April 16, 1992, defendant sent a letter to plaintiff indicating that because he had not provided a medical explanation regarding his conduct on February 14, 1992, defendant was terminating plaintiff’s employment, effective April 16, 1992. On August 14, 1991, plaintiff had applied for social security disability benefits. On his application, he had indicated that he claimed total disability as of February 11, 1991. Plaintiff testified in his deposition that he received these benefits. Defendant moved for summary disposition in the trial court, asserting that the doctrine of judicial estoppel should be applied to plaintiff’s claim under the hcra. It argued that because plaintiff successfully represented himself as being totally disabled to the Social Security Administration for purposes of receiving social security disability benefits, he could not be considered handicapped for purposes of the hcra. The trial court agreed. It also held that the employment policy relied upon by plaintiff for purposes of his argument that defendant breached the parties’ employment contract did not establish an employment contract terminable for just cause only. We first address the trial court’s application of the doctrine of judicial estoppel. Plaintiff claims that the trial court erred in applying this doctrine. We disagree. Defendant’s motion was brought pursuant to MCR 2.116(C)(8) and (C)(10). The trial court did not state under which subrule it granted defendant’s motion. Because it referred to evidence outside the pleadings, we assume that summary disposition was granted pursuant to MCR 2.116(C)(10). See MCR 2.116(G)(5). The trial court’s disposition of a motion for summary disposition is reviewed de novo. Sanchez v Lagoudakis (On Remand), 217 Mich App 535, 539; 552 NW2d 472 (1996). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual basis of a claim. Ladd v Ford Consumer Finance Co, Inc, 217 Mich App 119, 124; 550 NW2d 826 (1996). When we review a trial court’s decision regarding a motion for summary disposition under MCR 2.116(C)(10), we consider all relevant affidavits, depositions, admissions, and other documentary evidence submitted by the parties, MCR 2.116(G)(5), in a light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). We must then determine whether there exists a genuine issue of material fact on which reasonable minds could differ or whether the moving party is entitled to judgment as a matter of law. Id.; Sanchez, supra at 539. The HCRA provides that “[a]n employer shall not. . . [discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” MCL 37.1202(l)(b); MSA 3.550(202)(1)(b). To establish a prima facie case of discrimination under the HCRA, a plaintiff must demonstrate that (1) he is handicapped as defined by the HCRA, (2) the handicap is unrelated to his ability to perform the duties of a particular job, and (3) that he was discriminated against in one of the ways described in the statute. Sanchez, supra. “Handicap” is defined in the hcra, MCL 37.1103(e); MSA 3.550(103)(e), as, in part: (¿) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) . . . substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. For purposes of the Social Security Act, “disability” is defined as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 USC 423(d)(1)(A). Furthermore, the act provides: (A) An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. . . . (B) In determining whether an individual’s physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. ... [42 USC 423(d)(2).] Plaintiff admits receiving social security disability benefits, and defendant provided the trial court with a copy of plaintiffs application for benefits. The application, which is dated August 14, 1991, indicates that plaintiff became unable to work on February 11, 1991, because of his disabling condition and that he was still disabled when the application was completed. In his deposition, plaintiff stated that he continued to receive social security disability benefits. Thus, defendant argued, because plaintiff successfully represented that he was disabled, i.e., completely unable to work, the doctrine of judicial estoppel should be applied to preclude him from asserting the inconsistent position that he was handicapped, i.e., has a physical or mental condition that is unrelated to his ability to perform the duties of a particular job, for purposes of a discrimination suit under the hcra. We agree. The doctrine of judicial estoppel is applied by the courts to thwart the efforts of litigants who attempt to play “fast and loose” with the legal system. Paschke v Retool Industries, 445 Mich 502, 509; 519 NW2d 441 (1994), citing Bigelow, Estoppel (6th ed), p 783. Our Supreme Court has adopted the doctrine, as applied in the context of administrative proceedings, under the “prior success” model: “ ‘Under this doctrine, a party who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding.’ ” Paschke, supra at 509, quoting Lichon v American Universal Ins Co, 435 Mich 408, 416; 459 NW2d 288 (1990), citing Edwards v Aetna Life Ins Co, 690 F2d 595, 598 (CA 6, 1982). The particular question before us is one of first impression. In Paschke, the question presented was whether, in order to secure unemployment benefits under the Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq., a representation before the Michigan Employment Security Commission (MESC) that one was willing and able to work could be used to preclude a subsequent claim of total disability under the Worker’s Disability Compensation Act, MCL 418.101 et seq.) MSA 17.237(101) et seq. The Supreme Court concluded that because there was no explicit prohibition of receiving both total disability payments and unemployment benefits during the same period and nothing to indicate that under the statutes the claim that one is ready and able to work is inherently inconsistent with a subsequent total disability claim during the same period, the plaintiff’s receipt of unemployment benefits did not preclude his claim for total disability payments. Paschke, supra at 513. The Supreme Court quoted Professor Larson: “At first glance the two positions may appear mutually exclusive; but the inconsistency disappears when the special meaning of disability in workmen’s compensation is remembered, involving, as we have seen, the possibility of some physical capacity for work which is thwarted by the inability to get a job for physical reasons. Thus, the injured claimant may honestly represent to the Employment Security office that he is able to do some work, and with equal honesty tell the Compensation Board later that he was totally disabled during the same period since, although he could have done some kinds of work, no one would give him a job because of his physical handicaps.” [Paschke, supra at 513-514, quoting 1C Larson, Workmen’s Compensation, § 57.65, p 10-492.50.] The conclusion of the Paschke Court regarding the relationship between unemployment compensation and disability benefits can be distinguished from the situation now before us. To receive social security disability benefits, plaintiff certified that he was “not only unable to do his previous work but [could not] engage in any other kind of substantial gainful work . . . .’’To maintain a claim under the HCRA, plaintiff was required to demonstrate that his physical or mental characteristics were “unrelated to [his] ability to perform the duties of a particular job or position . . . .” These two positions cannot be reconciled as those in Paschke could. As stated in Paschke: In a wage-loss system, in which disability is phrased in terms of a limitation of the worker’s earning capacity, rather than the degree of physical impairment, physical disability is only one factor of the equation. The fact that the mesc may have adjudged plaintiff able and available to perform some work for which he was qualified by training and experience simply does not foreclose the possibility that, during that same period and thereafter, plaintiff actually suffered a limitation of his earning capacity, even one rising to the level of total disability. [Id. at 515, n 11; citations omitted.] Here, however, the receipt of social security disability benefits and a successful claim under the HCRA would require inconsistent findings regarding the claimant’s physical impairment and ability to perform. A claimant simply may not, on the one hand, be completely unable to engage in gainful work, yet at the same time be physically or mentally limited in a way unrelated to the claimant’s ability to perform job duties. We find persuasive the reasoning of the Third Circuit Court of Appeals in McNemar v Disney Store, Inc, 91 F3d 610 (CA 3, 1996). The issue there was quite similar to the instant one. The plaintiff in McNemar was employed by the defendant. After he learned of his status as mv-positive, he took $2 from his cash register without documenting or repaying it. At a loss-prevention interview, the plaintiff admitted his actions, and he was immediately suspended. When he was told by his superior and the loss-prevention supervisor that they would call headquarters to determine whether the plaintiff would be discharged, the plaintiff broke down and told them that he was HIV-positive. The plaintiff was ultimately discharged according to the company’s policy regarding using store money for personal use. Id. at 613-615. After his discharge from his position with the Disney Store, the plaintiff sought and received state disability benefits, social security disability benefits, and an exemption from repayment of an educational loan. To obtain these benefits, the plaintiff and his physicians certified that he had been totally and permanently disabled from approximately five weeks before his discharge. Id. at 615. The plaintiff later filed a complaint against the defendant alleging a violation of the Americans with Disabilities Act (ada) 42 USC 12101 et seq., § 510 of the Employee Retirement Income Security Act, 29 USC 1140, and the New Jersey Law Against Discrimination, NJ Stat Ann 10:5-4.1. The Third Circuit Court of Appeals agreed with the district court’s application of judicial estoppel and concluded that the plaintiff’s representation to the Social Security Administration that he was totally and permanently disabled was clearly inconsistent with his position under the ada, 42 USC 12111(8), 12112(a), that he was “a qualified person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job.” McNemar, supra at 618. We conclude that plaintiff’s representation to the Social Security Administration that he was totally and permanently disabled precludes his claim under the hcra. The trial court did not err in granting defendant’s motion for summary disposition. Next, plaintiff argues that the trial court erred in granting defendant summary disposition of plaintiff’s claim that defendant breached the parties’ employment contract by discriminating against plaintiff, an activity prohibited by defendant’s employment policy no. 105, which addresses equal employment opportunity and affirmative action. The trial court granted defendant’s motion on the basis that the policy relied upon by plaintiff did not alter plaintiff’s at-will employment. We find no error in the trial court’s decision. Generally, a contract of employment for an indefinite term is presumed to be terminable at will. Rood v General Dynamics Corp, 444 Mich 107, 116; 507 NW2d 591 (1993). To overcome the presumption of at-will employment, a party must present evidence of a contract provision for a definite term of employment or one prohibiting discharge absent just cause. Id. at 117. These provisions may be either explicit promises or promises implied in fact. Id. Moreover, “employer policies and procedures may also become a legally enforceable part of an employment relationship if such policies and procedures instill ‘legitimate expectations’ of job security in employees.” Id. at 117-118, quoting Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 615; 292 NW2d 880 (1980). Plaintiff claims that defendant’s policy regarding equal employment opportunity and affirmative action created an employment provision prohibiting plaintiff’s being discharged on the basis of his physical or mental handicap. The policy stated that it was defendant’s policy “to afford equal employment and advancement opportunity for all qualified individuals without distinction or discrimination because of . . . physical or mental handicap . . . .” Plaintiff’s claim arising from this policy is essentially a duplication of his claim under the HCRA. We conclude that for the same

William F. King vs. Robert F. Driscoll & others. Middlesex. December 6, 1995. December 12, 1996. Present: Wilkins, C.J., O’Connor, Greaney, & Fried, JJ. Employment, Termination. Contract, Employment, Implied covenant of good faith and fair dealing, Damages. Corporation, Stockholder. Law of the Case. A judge of the Superior Court correctly dismissed a claim for breach of the implied covenant of good faith and fair dealing implied in a terminable at-will employment contract, where the plaintiff had offered no evidence that he had been denied compensation for work performed for the employer. [5-7] This court declined to reconsider an issue decided upon an earlier appeal in the same case. [7-8] A Superior Court judge improperly, on remand, undertook to recalculate damages on a certain civil claim and the plaintiff was entitled to the damages assessed by the judge prior to remand plus interest and attorney’s fees. [8] Civil action commenced in the Superior Court Department on June 28, 1990. Following review by this court, 418 Mass. 576 (1994), further proceedings were had before Vieri Volterra, J. The Supreme Judicial Court granted an application for direct appellate review. Morris M. Goldings (John F. Aylmer, Jr., with him) for the plaintiff. Richard L. Neumeier for Robert F. Driscoll & others. Albert Marchant and F.S. Payne Co. O’Connor, J. This case is here on appeal for the second time. See King v. Driscoll, 418 Mass. 576 (1994) (King I). King’s complaint contains four counts. Count I is directed solely at the defendant F.S. Payne Co. (Payne) and sets forth two theories of liability. King alleges that he, as employee, and Payne, as employer, were parties to a terminable at-will employment contract. One theory is that the contract as a matter of law included a covenant of good faith and fair dealing which Payne breached by terminating King’s employment. The other theory is that Payne’s termination of King’s employment violated public policy and for that reason King is entitled to damages from Payne. In count II, King claims that the defendants Robert F. Driscoll and Albert Marchant, as well as two other individuals who are not parties to this appeal, intentionally interfered with King’s employment contract, thereby making them liable to him. Count III states that Driscoll, Marchant, and a third person who is not a party to this appeal, violated the duty of utmost good faith and loyalty they owed to King as their fellow shareholder in a close corporation. Finally, King alleges in count IV that Payne is liable to him because the corporation discharged him in violation of its by-laws. The case was tried jury waived in the Superior Court. A full statement of facts may be found in King I, supra at 577-580. We recite those of the judge’s findings that are most relevant to the issues presented by this appeal. At all relevant times Payne was a closely held Massachusetts corporation. Payne’s upper-level management positions were occupied by individuals who owned relatively large amounts of stock in that corporation until August, 1990, when all Payne’s stock was sold to Northern Elevator of Toronto. Beginning in 1954, Payne employees who purchased Payne stock were required to enter into a “buy-back” agreement that allowed Payne to repurchase the stock of such an employee at the end of his or her employment. King’s employment with Payne began in 1958 and continued until his termination in November, 1987, at which time he was vice-president of the manufacturing division. King was a Payne shareholder when his employment was terminated. His employment was terminated because of his participation in a derivative shareholder suit. The judge concluded that King was entitled to recover from Payne on count I on the two theories expressed therein, breach of the covenant of good faith and fair dealing and violation of public policy. With respect to count II, the judge found Driscoll and another defendant, Michael Martin, who is not involved in this appeal, liable for intentional interference with King’s contract of employment. The judge concluded as to count III that Driscoll and Marchant violated the duty of utmost good faith and loyalty they owed to King as their fellow shareholder in a close corporation and thus were liable to him. The judge determined that King was not entitled to recovery under count IV. The judge concluded that King was “entitled to both contract and tort damages under count I of the complaint against Payne; tort damages under count II which claims interference with a contractual relationship by Driscoll, Marchant and Martin; and tort and contract damages under count III which claims damages for breach of the implied covenant of good faith and [loyalty] against Driscoll and Marchant.” Pursuant to the judge’s order, a final judgment entered “[a]s to Counts I, II and III of the complaint... in behalf of the plaintiff William F. King against the defendants F.S. Payne Co., Robert F. Driscoll, Albert Marchant and Michael Martin, jointly and severally.” The final judgment set forth in detail the items taken into account by the judge in assessing damages, including the specific amount of money assigned to each item. The items included back pay, the monetary value of a company automobile perquisite, fringe benefits, the lost benefit of a company retirement plan, and King’s loss of stock profits that he would have realized from the sale of Payne stock to Northern Elevator of Toronto in August, 1990. The total assessment of damages against Payne, Driscoll, Marchant, and Martin “jointly and severally” as to counts I, II, and III was $528,800.89 plus interest and, in addition, attorney’s fees and costs in the sum of $133,485.81. The judge also assessed damages against Driscoll alone as to counts II and III in the sum of $23,516.64 plus interest. The judge found that Driscoll had realized a benefit of that amount from his wrongdoing. Additional damages in the sum of $2,936.28 were assessed against Martin under count II for the same reason. The defendants appealed, as did King with respect to the judge’s decision adverse to him on count IV. We dealt with those appeals in King I, supra. We held that the judge had erred in finding for King on count I based on King’s violation of public policy theory. Id. at 581-585. With respect to King’s other theory asserted in count I, however, the claim of breach of the covenant of good faith and fair dealing implied in terminable at-will employment contracts, we said, “The judge’s conclusions on each part of count I. . . were independent of each other. The defendants thoroughly argued on appeal their position as to the first part of count I, the public policy exception, but they did not argue the second part, the breach of the covenant described in Fortune [v. National Cash Register Co., 373 Mass. 96, 101 (1977)]. Thus, the issue of the breach of the covenant of good faith and fair dealing is not before us. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). Our conclusion regarding the first part of count I does not affect the judge’s finding on the second part. . . . On remand, the judge should recalculate damages, if any, attributable to the breach of the covenant of good faith and fair dealing owed to King as an employee. See Fortune, supra at 104-105; Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 672 (1981), S.C., 391 Mass. 333 (1984)” (emphasis added). Id. at 585 n.8. Also, in King I, supra, we reversed the judge’s holding, favorable to King, on his claim of intentional interference with contractual relations set forth in count II, and, because the judge’s award of attorney’s fees was based on rulings in favor of King on his claims of wrongful termination of employment in violation of public policy (count I) and intentional interference with contractual relations (count II), which rulings we reversed, we also vacated the award of attorney’s fees .Id. at 588. The final paragraph of the court’s opinion in King I, supra, was this: “Conclusion. The portion of the judgment of the Superior Court finding the defendants hable for wrongful termination in violation of public policy is reversed. The portion of the judgment of the Superior Court finding the defendants hable for intentional interference with contractual relations also is reversed. The award of attorney’s fees is vacated. The remainder of the judgment is affirmed. The case is remanded for further proceedings, including recalculation of damages, in accordance with this opinion.” Id. at 589. Following the order of remand, the judge issued a “Memorandum And Final Order For Judgment After Rescript” in which he expressed his intention to recalculate damages “to reflect the reversal of [his earlier] decision on certain counts.” The judge focused on counts I and III. He dismissed count I on the ground that “the plaintiff has shown no damages.” His reasoning was that “although there was a violation of the implied covenant of good faith and fair dealing owed to an employee” and “[a] plaintiff may recover damages for the denial of earned compensation reflective of work performed prior to termination . . . plaintiff has offered no evidence that he was denied compensation for work performed.” The judge recalculated the damages as to count III by reducing them to $23,516.64 plus interest to be paid by Driscoll and $1,814.20 plus interest to be paid by Marchant. These sums were awarded “to disgorge [Driscoll and Marchant] from unlawful profits lawfully due the plaintiff.” Judgment as to count III was entered accordingly. Judgment entered dismissing the complaint as to counts I, II and IV. King, Driscoll and Marchant appealed. We granted King’s application for direct appellate review. The issues in this appeal relate only to counts I and III. King does not now contend that counts II and IV were improperly dismissed. In King I, supra, this court reversed the judgment that had been entered in the Superior Court as to count I insofar as it was based on a violation of public policy theory. However, in King I, supra, due to the absence of a challenge by the defendant Payne to King’s other theory of liability set forth in count I, that is, that Payne breached the covenant of good faith and fair dealing implied in terminable at-will employment contracts, we stated that that issue, which had been resolved in King’s favor by the judge, was not before us. King I, supra at 585 n.8. Nevertheless, because the appropriate measure of damages in connection with the two theories presented by count I was not the same, we advised, as we have noted above, that “[o]n remand, the judge should recalculate damages, if any, attributable to the breach of the covenant of good faith and fair dealing owed to King as an employee” (emphasis added). Id. In addition, in King I’s concluding paragraph, we remanded the case “for further proceedings, including recalculation of damages, in accordance with this opinion.” Id. at 589. On remand, the judge concluded with reference to the remaining viable claim under count I that King “offered no evidence that he was denied compensation for work performed and, therefore, Count I is to be dismissed.” After considering King’s arguments, we agree with the judge that no such evidence was offered. Therefore, in accordance with our cases discussed below, no breach of the implied covenant of good faith and fair dealing was proved. In Fortune v. National Cash Register Co., 373 Mass. 96, 101 (1977), we held that the defendant employer’s written contract with its employee “contain[ed] an implied covenant of good faith and fair dealing, and a termination not made in good faith constitutes a breach of the contract.” We stated that “[wjhere the principal seeks to deprive the agent of all compensation by terminating the contractual relationship when the agent is on the brink of successfully completing the sale, the principal has acted in bad faith and the ensuing transaction between the principal and the buyer is to be regarded as having been accomplished by the agent. . . . The same result obtains where the principal attempts to deprive the agent of any portion of a commission due the agent.” Id. at 104-105. Subsequently, in Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 672 (1981) (Gram I), we held that breach of the implied covenant of good faith and fair dealing occurs when, despite the employer’s good faith, the discharge of the terminable at-will employee nevertheless results in the employee’s loss of compensation already earned. We remanded the case “for a determination of damages, measured by the amount of renewal commissions Gram reasonably could have expected to receive, reduced to reflect the proportion of his time that would reasonably have been expected to have been devoted to the servicing of those renewal policies.” Id. at 673. Gram, we said, “has made no specific showing of his loss of any other identifiable, future benefit, such as pension rights, reflective of past services to Liberty” (emphasis added). Id. Consistent with our decisions in Fortune and Gram I, supra, the court held in Maddaloni v. Western Mass. Bus Lines, Inc., 386 Mass. 877, 884 (1982), involving a terminable at-will employment contract, that “the judge properly refused to instruct the jury on the issue of lost wages and fringe benefits unrelated to past services,” and in Kravetz v. Merchants Distribs., Inc., 387 Mass. 457, 463 (1982), we said, “We have implied an obligation of good faith and fair dealing in an employment contract terminable at will to prevent an employer from being unjustly enriched by depriving the employee of money that he had fairly earned and legitimately expected, but it was improper for the judge to instruct the jury here that they could consider lost wages if they found that the employment was terminable at will.” Finally, in Gram v. Liberty Mut. Ins. Co., 391 Mass. 333, 334-335 (1984) (Gram II), this court made the following observations: “It is important to recall that Gram served as an employee at will. He is not entitled to damages on the basis of a breach of a contract for life or for a term of years. The recovery allowed Gram in our earlier opinion pressed to the limit the recovery allowed to an at-will employee discharged without cause. . . . We must be careful not to approach allowance of contract damages as if Gram had a contract for life or for a term of years. Our goal is and has been simply to deny to Liberty any readily definable, financial windfall resulting from the denial to Gram of compensation for past services.” In keeping with the rationale of the cases referenced above, we agree that King has not satisfied his burden of proving a breach of the covenant of good faith and fair dealing implied in a terminable at-will employment contract because he has failed to present evidence that he was denied compensation for work performed. The defendant Payne, therefore, is entitled to judgment in its favor on count I. We turn now to count III, and we focus first on the defendants’ (Driscoll and Marchant) contention that we should reconsider our affirmance in King I, supra, of the judge’s determination of the defendant shareholders’ liability for violating the duty of good faith and loyalty they owed to their fellow shareholder in a close corporation. This we decline to do. The “law of the case” doctrine reflects this court’s reluctance “to reconsider questions decided upon an earlier appeal in the same case.” Peterson v. Hopson, 306 Mass. 597, 599 (1940). An issue “once decided, should not be reopened ‘unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.’ White v. Murtha, 377 F.2d 428, 432 (5th Cir. 1967).” United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862 (1991). None of those circumstances is present in this case. We come, then, to the question whether this court’s order in King I contemplated the judge’s recalculation of count III damages on remand. We answer that question in the negative. Quite clearly, the contemplated recalculation of damages was related only to the claim in count I that Payne, as King’s employer, violated the covenant of good faith and fair dealing implied in their employment contract. It must be remembered that two very different theories of recovery, implicating different measures of damages (contract and tort) were asserted in count I. For the purpose of assessing damages, the judge did not distinguish between the two theories, one of which we rejected in King I. It was necessary, therefore, that the judge reconsider the question of damages as it related to the remaining theory. Nothing in King I suggests, however, that, on remand, recalculation of damages as to count III would be appropriate. We affirmed the judgment as to count III, and we did so without discussion of damages or any intimation that the initial assessment was questionable. The remand order did not call for recalculation of all damages. Rather, it called for recalculation of damages “in accordance with this opinion,” which opinion discussed damages in connection with count I, see King I, supra at 585 n.8, but not otherwise. King is entitled to recover damages under count III from the defendants Driscoll and Marchant as assessed by the judge prior to remand plus interest and without attorney’s fees. Judgment for the defendants as to counts I, II, and IV is affirmed. So ordered.