Breach of Contract Cases

LONG v CHELSEA COMMUNITY HOSPITAL Docket No. 182219. Submitted June 11, 1996, at Lansing. Decided October 25, 1996, at 9:15 a.m. Reuel S. Long, M.D., and his wife, Judith A. Long, brought an action in the Washtenaw Circuit Court against Chelsea Community Hospital and the members of the private hospital’s board of trustees, alleging breach of contract, promissory estoppel, loss of consortium, and liability under MCL 331.531; MSA 14.57(21) concerning the termination of Dr. Long’s employment by the hospital after he related various accusations of misconduct by the hospital’s president to the board of trustees. The court, William E Ager, J., granted summary disposition to the defendants. The plaintiffs appealed. The Court of Appeals held-. 1. MCL 331.531; MSA 14.57(21), which provides immunity from civil and criminal liability to a person, organization, or entity that acts without malice in the reporting to or by a peer review entity information relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health-care provider, does not provide a private cause of action. The statute does not expressly create a private cause of action, nor must a cause of action be inferred on the basis that the statute does not provide adequate means to enforce its provisions. The statute was designed to protect persons and entities from liability, not to create a right of action for malicious reporting to or by a peer review entity. 2. Where, as here, no violation of civil rights or state statute is asserted along with the claim of breach of contract for the termination of a medical staff member’s employment by a private hospital, the private hospital’s decision to terminate employment is not subject to judicial review in Michigan. 3. The claim of promissory estoppel is akin to a contractual claim, and judicial review of the claim of promissory estoppel is precluded by judicial nonintervention with a private hospital’s decisions concerning medical staffing in the absence of an allegation of a violation of civil rights or state statute. 4. The claim of loss of consortium, being derivative of the primary claims, fails along with the primary claims in this case. Affirmed. 1. Health — Peer Review Entities — Immunity from Civil and Criminal Liability. The statute that provides immunity from civil and criminal liability to a person, organization, or entity that acts without malice in the reporting to or by a peer review entity information relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualification, competence, or performance of a health-care provider does not provide a private cause of action for malicious reporting (MCL 331.531; MSA 14.57[21]). 2. Hospitals — Medical Staffing — Judicial Review. A claim of breach of contract relating to a decision concerning medical staffing by a private hospital, when not accompanied by a claim of a civil rights or statutory violation, is not subject to review by a Michigan court. Goodman, Eden, Millender & Bedrosian (by Richard A. Soble and Elizabeth A. Stafford), for the plaintiffs. Kitch, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman and Brian R. Garres'), for the defendants. Before: Young, P.J., and Corrigan and M. J. Callahan JJ. Circuit judge, sitting on the Court of Appeals by assignment. Corrigan, J. In this action alleging that a private hospital revoked medical staff privileges with malice, plaintiffs appeal by right the order granting defendants’ motion for summary disposition under MCR 2.116(C)(8) and (C)(10). This case raises an issue of first impression: whether MCL 331.531; MSA 14.57(21) creates a private cause of action for malice. Because no such cause of action exists, we affirm. In 1979, plaintiff Reuel S. Long, M.D., accepted defendant Chelsea Community Hospital’s offer to become the Director of Anesthesia and Operating Room Services, a staff position. Defendant hospital is a nonprofit Michigan corporation and a private hospital. After Long joined the staff, he related various accusations to the hospital board (the individual defendants comprise the hospital’s board) about purported misconduct of defendant Willard H. Johnson, then the hospital’s president. In response, Johnson allegedly sought to have Long removed from the staff by changing the anesthesia services at the hospital. The board ultimately voted to award an exclusive contract for anesthesia services to Anesthesia Associates of Ann Arbor. Plaintiff was not associated with the Ann Arbor anesthesiologists. Following that award, the board voted to terminate plaintiff’s position in 1991. Plaintiff then sued the hospital for, among other things, wrongful discharge and breach of contract. While that litigation was pending, the board voted to terminate plaintiff’s staff privileges at the hospital. The hospital settled with plaintiff for $150,000; the settlement specifically excluded any claims arising from the termination of plaintiff’s staff privileges. Plaintiffs then filed a second action, alleging breach of contract, promissory estoppel, loss of consortium, and that defendants acted with malice under MCL 331.531; MSA 14.57(21) (hereinafter § 531). Defendants moved for summary disposition rather than answering plaintiffs’ complaint. The court determined that the statute upon which plaintiff relied did not give rise to a private cause of action for malice and noted that plaintiff had failed to support his allegation that defendants acted with malice. The court also declined to review plaintiff’s breach of contract and promissory estoppel claims because it would interfere with the hospital’s staffing decisions. The court granted defendants’ motion, and plaintiff appeals. Defendants brought their motion in part under MCR 2.116(C)(8). A summary disposition motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the pleadings alone. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). If no cause of action exists under the statute, then plaintiff has failed to state a claim for which relief may be granted, and summary disposition is appropriate because that count would be unenforceable as a matter of law and because no amount of factual development could possibly justify a right to recovery. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992). Plaintiff first asserts that defendants are not immune from liability because they acted with malice and contends that Michigan statutory law creates a private cause of action for malice under such circumstances. Whether a plaintiff has a cause of action under the statute presents a question of statutory interpretation. Grand Traverse Co v Michigan, 450 Mich 457, 463-464; 538 NW2d 1 (1995). Statutory interpretation is a question of law, which we review de novo. Dekoning v Dep’t of Treasury, 211 Mich App 359, 361; 536 NW2d 231 (1995). When coürts construe statutes, their primary goal is to ascertain and give effect to legislative intent. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993); State Treasurer v Schuster, 215 Mich App 347, 351; 547 NW2d 332 (1996). This Court should first look at the specific statutory language to determine the intent of the Legislature. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The Legislature is presumed to intend the meaning plainly expressed in the statute. In re Austin Estate, 218 Mich App 72; 553 NW2d 632 (1996). Judicial construction of a statute is not permitted 'where the plain and ordinary meaning of the language is clear. Id.; Dep’t of Treasury v Comerica Bank) 201 Mich App 318, 322; 506 NW2d 283 (1993). The statute át issue, MCL 331.531; MSA 14.57(21), provides: (1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider. (2) As used in this section, “review entity” means 1 of the following: (a) A duly appointed peer review committee of the state, of a state or county association of health care professionals, of an officially constituted health care facility, or of a health care association. * * * (3) A person, organization, or entity is not civilly or criminally liable: (a) For providing information or data pursuant to subsection (1). (b) For an act or communication within its scope as a review entity. (c) For releasing or publishing a record of the proceedings, or the reports, findings, or conclusions of a review entity, subject to [MCL 331.532; MSA 14.57(22) and MCL 331.533; MSA 14.57(23)]. (4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice. Plaintiff argues that the statute creates a private right of action for malice under the present circumstances. The common law recognizes no cause of action for malice on these facts. If the common law provides no right to relief, and the right to such relief is instead provided by statute, then plaintiffs have no private cause of action for enforcement of the right unless-. (1) the statute expressly creates a private cause of action or (2) a cause of action can be inferred from the fact that the statute provides no adequate means of enforcement of its provisions. Bell v League Life Ins Co, 149 Mich App 481, 482-483; 387 NW2d 154 (1986). It follows that courts must dismiss a private cause of action under a statute creating a new right unless the statute expressly created the private cause of action or the cause of action may be inferred because the statute does not provide adequate means to enforce its provisions. Forster v Belton School Dist, 176 Mich App 582, 585; 440 NW2d 421 (1989). The statute does not expressly create a private cause of action for malice. Accordingly, the second condition is in question here: whether a private cause of action may be inferred because the statute does not provide adequate means to enforce its provisions. As evidenced by the statutory language, § 531 provides immunity to entities unless they act with malice. The statute’s implicit purpose is to protect the participants in the peer review process. Indeed, the statute offers immunity to entities for their actions involving peer review. The statute is not designed to provide a comprehensive scheme of enforcement of the rights and duties it creates for the simple reason that it creates no right of action for malice. The statute is designed to protect entities from liability, not to create a new right of a private cause of action for malice. Accordingly, whether the statute provides adequate means to enforce its provisions regarding malice is not at issue here. Moreover, recognition of a private cause of action for malice under the statute would frustrate and undermine the legislative propose of providing immunity. A court’s decision regarding private rights of action must be consistent with legislative intent while furthering the Legislature’s purpose in enacting the statute. Gardner v Wood, 429 Mich 290, 301; 414 NW2d 706 (1987). The Legislature plainly did not intend to create a private cause of action. Its intent to confer certain immunities would be frustrated if this Court distorted its careful choice of language by recognizing a private cause of action for malice. We decline to recognize such a private cause of action under the statute. Accordingly, plaintiff has no cause of action for malice, and the circuit court correctly granted summary disposition to defendants. Plaintiff next alleges that this Court previously has reviewed such malice claims, citing Veldhuis v Allan, 164 Mich App 131; 416 NW2d 347 (1987), and Regualos v Community Hosp, 140 Mich App 455; 364 NW2d 723 (1985). Plaintiff contends that those cases support the availability of private causes of action under § 531. Contrary to plaintiffs argument, neither case held that a private cause of action exists. In Veldhuis, this Court ruled that the plaintiff failed to present evidentiary support for the malice allegations. Veldhuis, supra at 137. Similarly, in Regualos, this Court found that the plaintiff had not provided clear and convincing proof needed to establish a genuine issue of material fact regarding actual malice. Regualos, supra at 462-463. The above rulings do not establish that the statute permits a private cause of action for malice. Accordingly, those cases do not constitute a basis for plaintiffs claim in this case. Plaintiffs reliance on BF Farnell Co v Monahan, 377 Mich 552; 141 NW2d 58 (1966), is likewise misplaced. Farnell applies to statutes that set forth criminal penalties; the statute at issue here does not invoke criminal penalties. Plaintiff next asserts that the court prematurely granted summary disposition to defendants under MCR 2.116(C)(10), contending that he was entitled to conduct discovery before the court granted the motion. Given the above reasoning, we need not address this issue. Plaintiff next asserts that the court did not accept his factual allegations as true. A review of the circuit court’s opinion, however, indicates that the court did accept plaintiff’s allegations as true. Plaintiff’s claim on this issue is thus without merit. Additionally, the court rule requires the moving party to substantiate its allegations. MCR 2.116(G). Therefore, the court correctly found that plaintiff’s “bald assertion” that defendants’ true motivation was to retaliate and to silence him was insufficient to survive defendants’ motion for summary disposition. Additionally, plaintiff states that defendants had a binding contractual obligation to hold a hearing and to find that plaintiff was incompetent before terminating his employment. In their motion for summary disposition, defendants produced the affidavit of defendant Johnson, who averred that the hospital is a private hospital. Courts may not review a private hospital’s staffing decisions. Sarin v Samaritan Health Center, 176 Mich App 790, 795; 440 NW2d 80 (1989); Regualos, supra at 461; Hoffman v Garden City Hosp, 115 Mich App 773; 321 NW2d 810 (1982); Muzquiz v WA Foote Memorial Hosp, Inc, 70 F3d 422, 430 (CA 6, 1995). A private hospital is empowered to appoint and remove its members at will without judicial intervention. Sarin, supra at 792-793; Hoffman, supra at 778. A private hospital has the right to exclude any doctor from practicing within it. Hoffman, supra at 778-779. The above law is limited to disputes that are contractual in nature. We decline to articulate a broad principle that a private hospital’s staffing decisions may never be judicially reviewed. Indeed, in doing so, we reiterate the proposition from Sarin that, under some circumstances, a court may consider a hospital’s decisions without violating the nonreviewability principle. Sarin, supra at 795. Private hospitals do not have carte blanche to violate the public policy of our state as contained in its laws. Had plaintiff in this case asserted that defendants violated state or federal law, we may have chosen to review his claim. In this case, however, plaintiff did not assert a violation of civil rights or a violation of a state statute. The same is true in some of the cited cases. Further, previous decisions support this reasoning. In Hoffman, supra, this Court quoted with approval the proposition that hospital authorities may refuse to appoint a physician to its medical staff, may decline to renew an expired contract, and may exclude a physician from practicing in the hospital — all without judicial review of those decisions. Hoffman, supra at 779. That principle does not, however, permit hospital authorities to act contrary to state or federal law. Moreover, although the Hoffman Court refused to review the hospital’s staffing decisions, the Court nonetheless examined the plaintiffs’ claims of restraint of trade under MCL 445.762; MSA 28.62. Id. at 779. Likewise, in Muzquiz, the Court refused to review the plaintiff’s breach of contract claim under the nonreviewability standard in Sarin, but separately reviewed his claims of discrimination contrary to state and federal law. Muzquiz, supra at 429-430. Plaintiff further argues that his claim is not a constitutional due process argument, but rather is based on a breach of defendants’ bylaws, and thus this Court should review it. Plaintiff’s claim on this issue fails in light of Sarin. A breach of contract and breach of bylaws claim would necessarily invoke a review of the hospital’s decision to terminate its employees. Sarin, supra at 794. This Court in Sarin determined that the review of such claims would intervene in a hospital’s decisions and would interfere with the peer review process. Thus, this Court refused to review the claims of the Sarin plaintiff, reiterating that judicial review of a private hospital’s decision to deny staff privileges to a physician was not available. Id. at 795. Plaintiff next argues that his circumstances fall within the exception outlined in Sarin: “[T]here may be some situations where a court should be able to consider a hospital’s action without violating the principle of nonreviewability . . . .’’Id. Because plaintiff failed to provide a copy of the bylaws required under MCR 2.113(F)(1), this Court has no way of reviewing whether the exception applies. This Court is limited to reviewing the record presented to the lower court. MCR 7.210(A); Amorello v Monsanto Corp, 186 Mich App 324, 330; 463 NW2d 487 (1990). Regarding plaintiff’s promissory estoppel claim, a claim of promissory estoppel is akin to a contract claim. State Bank of Standish v Curry, 442 Mich 76, 83-84; 500 NW2d 104 (1993). Therefore, the rules from Sarin, supra, and Hoffman, supra, where this Court has expressed its reluctance to review a private hospital’s staffing decisions, preclude review of this claim. Plaintiff finally claims that the circuit court should not have dismissed Judith Long’s loss of consortium claim. A derivative claim for loss of consortium stands or falls with the primary claims in the complaint. Moss v Pacquing, 183 Mich App 574, 583; 455 NW2d 339 (1990). Because plaintiff’s other claims failed, the loss of consortium claim must likewise fail. Affirmed. Because plaintiff Judith Long’s claims are derivative, “plaintiff” will refer to Reuel S. Long, M.D., only. Defendants are referred to collectively in this opinion unless otherwise noted. We note, however, that at oral argument, defendants’ counsel conceded that defendants had made an agreement with plaintiff not to advance discovery until after the court heard their motion under MCR 2.116(C)(8). In view of the parties’ agreement, plaintiff should not be faulted for not conducting discovery. For example, in Regualos, supra, the plaintiff asserted that the defendant hospital should not have terminated his staff privilege to interpret pulmonary function tests and argued that the hospital did not follow proper procedure in doing so. The plaintiff did not raise issues in addition to his contract claims. The Sarin plaintiff raised strictly breach of contract claims, alleging a violation of hospital bylaws, tortious interference with his contract, and tortious interference with advantageous business relationships. Sarin, supra at 791-792.

CHMIELEWSKI v XERMAC, INC Docket No. 162968. Submitted October 17, 1995, at Lansing. Decided May 21, 1996, at 9:05 A.M. Leave to appeal sought. Gary P. Chmielewski brought an action in the Oakland Circuit Court against Xermac, Inc., alleging violation of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and breach of an employment contract. The plaintiff’s employment was terminated by the defendant after he had undergone a liver transplant for cirrhosis of the liver caused by alcoholism and had returned to work. The court, Francis X. O’Brien, J., dismissed the wrongful discharge claim. The jury returned a verdict for the defendant with regard to the discrimination claim, and the trial court entered a judgment consistent with the jury verdict. The plaintiff appealed. The Court of Appeals held: 1. The trial court did not err in admitting evidence of the plaintiff’s alcoholism. Because evidence of alcohol use is a consideration in determining whether the plaintiff fell within the statutory definition of handicapped, evidence of the plaintiff’s alcohol use was relevant and more probative than prejudicial. The evidence was also relevant and more probative than prejudicial with regard to the issue of damages. 2. The trial court did not abuse its discretion in admitting evidence of the defendant’s financial condition. Evidence that the decision to terminate the plaintiff’s employment was motivated by economic considerations directly controverted the element of a prima facie case of handicap discrimination that the employer must have discharged the plaintiff because of a handicap. Therefore, the claim that the plaintiff’s employment was terminated for economic reasons did not constitute an affirmative defense that was waived when it was not raised in a responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading. 3. The trial court properly instructed the jury. An instruction requested by the plaintiff did not accurately state the law and was properly refused. The act provides that, to fall within the definition of a handicap, an individual’s condition, whether being treated or not, must substantially impair the person’s major life activities. The instruction requested by the plaintiff, which leaps to the conclusion that if a condition requires medication it constitutes a substantial impairment per se, is unreasonable and incompatible with the purpose of the act. Affirmed. Fitzgerald, J., dissenting in part, stated that the trial court should have granted the plaintiff’s request that the jury be instructed that a condition that limits a life activity is a handicap even if the condition is controlled with medication or medical care. The instruction sought by the plaintiff did not leap to the conclusion that a condition that requires medication constitutes a substantial impairment per se. Rather, the instruction provided that an individual who suffers a determinable physical characteristic that is brought under control by medication may still suffer a substantial limitation of major life activity to the extent that the condition, even though controlled, affects the individual’s employability. The proposed instruction was applicable and accurate under the facts of this case and may have enhanced the ability of the jurors to decide the case intelligently, fairly, and impartially. The trial court abused its discretion in refusing the requested instruction. The failure to give the instruction resulted in substantial injustice. The case should be reversed and remanded for a new trial. 1. Civil Rights — Handicappers’ Civil Rights Act — Employment Discrimination — Alcoholism. The Michigan Handicappers’ Civil Rights Act expressly excludes alcoholism, and determinable physical or mental characteristics caused by the use of alcohol, as a handicap with respect to employment discrimination when the condition prevents the employee'from performing the duties of the job (MCL 37.1103[f][ii]; MSA 3.560[103] [f] [ii]). 2. Pleading — Affirmative Defenses. An affirmative defense is a defense that does not controvert the establishment of a prima facie case but that otherwise denies relief to the plaintiff. 3. Civil Rights — Handicap Discrimination — Employment Discrimination — Prima Facie Case. The plaintiff in a handicap discrimination case who alleges wrongful discharge from employment has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of a handicap; evidence that the decision to terminate the plaintiff’s employment was motivated by economic considerations directly controverts this element and therefore does not constitute an affirmative defense. 4. Civil Rights — Handicappers’ Civil Rights Act — Words and Phrases — “Handicap.” To fall within the definition of a handicap in the Michigan Handicappers’ Civil Rights Act, an individual’s condition, whether being treated or not, must substantially impair the person’s major life activities; the concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in the search for satisfactory employment (MCL 37.1103[e][i][A]; MSA 3.650[103][e][i][A]). Muth & Fett, P.C. (by James K. Fett), for the plaintiff. Kerr, Russell & Weber (by Daniel G. Beyer), for the defendant. Before: Mackenzie, P.J., and Fitzgerald and J. P. O’Brien, JJ. Recorder’s Court judge, sitting on the Court of Appeals by assignment. Mackenzie, P.J. Plaintiff appeals as of right a jury verdict for defendant in this handicap discrimination case. We affirm. Plaintiff worked as a salesperson for defendant from November 1985 until June 29, 1990. He underwent a liver transplant in June 1989 for cirrhosis of the liver caused by alcoholism and was off work for approximately six weeks before being released to return to work by his physician. His employment was terminated approximately seven months later, allegedly because of his failure to meet sales quotas. In October 1990, plaintiff instituted this action against defendant for violation of the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) el seq., claiming that defendant terminated him because of the high health insurance costs attributable to his condition. A claim of breach of an employment contract was subsequently added to the complaint. Defendant moved for summary disposition of both counts. The trial court denied defendant’s motion in part and granted it in part, dismissing plaintiff’s wrongful discharge claim but finding a material issue of fact remained regarding the discrimination claim. At trial, plaintiff argued that the carrying of a transplanted liver and the side effects thereof, without the use of medication, constituted a handicap. Defendant argued that plaintiff was not handicapped because (1) with medication, he does not have a determinable physical characteristic that substantially limits a major life activity, and (2) he is an alcoholic. A jury returned a verdict for defendant with regard to the discrimination claim. Plaintiff first claims that the trial court erred in admitting at trial evidence of his alcoholism. We disagree. Evidence that tends to make the existence of a fact at issue more probable or less probable is relevant and, therefore, admissible. MRE 401, 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; McDonald v Stroh Brewery Co, 191 Mich App 601, 605; 478 NW2d 669 (1991). The fact that evidence is damaging and harms the opposing party does not indicate that it is unfairly prejudicial. Sclafani v Peter S Cusimano, Inc, 130 Mich App 728, 735; 344 NW2d 347 (1983). Further, error requiring reversal may not be predicated upon a ruling that admits evidence unless a substantial right was affected. MRE 103(a); Temple v Kelel Distributing Co, Inc, 183 Mich App 326, 329; 454 NW2d 610 (1990). The HCRA expressly excludes alcoholism, and determinable physical or mental characteristics caused by the use of alcohol, as a handicap with respect to employment discrimination when the condition prevents the employee from performing his job duties. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii); Gazette v Pontiac, 212 Mich App 162, 168-169; 536 NW2d 854 (1995). Plaintiff contends that this restriction is not applicable to the present, case because defendant conceded that alcoholism did not affect his job performance. However, defense counsel argued during closing arguments that plaintiff’s poor work performance when he returned from his leave of absence resulted from plaintiff’s failure to fully recover from the injuries caused by his alcoholism. In its instructions, the trial court cautioned the jury regarding the manner in which the evidence of plaintiff’s alcoholism should be used in determining whether plaintiff could be considered handicapped: Now, ladies and gentlemen, if the history of the physical characteristic was caused by the use of alcoholic liquor but the physical characteristic did not prevent the Plaintiff from performing his job, then you are to disregard the fact that use of alcohol caused the physical characteristic. On the other hand, if you find that the Plaintiff has a determinable physical characteristic caused by the use of alcoholic liquor and that characteristic prevented the Plaintiff from performing the duties of his job, then the Plaintiff is not handicapped under the law. A person, ladies and gentlemen, cannot have a history of [a] determinable physical characteristic to be construed as a handicap if the physical characteristic was caused by the use of an alcoholic liquor which prevented the person from performing the duties of his job. Because evidence of alcohol use is a consideration in determining whether the plaintiff fell within the definition of handicapped, evidence of plaintiff’s alcohol use was relevant and more probative than prejudicial. Thus, the court did not abuse its discretion in admitting the evidence of plaintiff’s alcohol use. Further, the evidence was relevant and was more probative than prejudicial with regard to the issue of damages. According to the testimony of plaintiff’s physician, serious risks exist for patients who continue to consume alcohol after a liver transplant. Consequently, plaintiff’s alcohol use could affect his life expectancy and, therefore, defendant’s liability for damages. Plaintiff next contends that the trial court erred in admitting evidence of defendant’s financial condition because defendant did not raise economic necessity as a defense. Under MCR 2.111(F)(3), affirmative defenses must be raised in the responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, and the failure to do so constitutes a waiver of the defense. Stanke v State Farm Mutual Automobile Ins Co, 200 Mich App 307, 311; 503 NW2d 758 (1993). An affirmative defense is a defense that does not controvert the establishment of a prima facie case, but that otherwise denies relief to the plaintiff. Id. at 312. In a handicap discrimination case, the plaintiff has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of the handicap. Dzierbowicz v American Seating Co, 209 Mich App 130, 132; 530 NW2d 158 (1995), rev’d on other grounds 450 Mich 966 (1996). Evidence that the decision to terminate the plaintiff was motivated by economic considerations directly controverted this element of the prima facie case and, therefore, by definition did not constitute an affirmative defense. Stanke, supra. Accordingly, the trial court did not abuse its discretion in admitting evidence of defendant’s financial condition. Last, plaintiff contends that reversal is required because of instructional error. Again, we disagree. Subsection 103(e)(i)(A) of the hcra, MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A), defines a handicap as (i) 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. [Emphasis added.] On the basis of this language, plaintiff contends that he was entitled to a supplemental jury instruction defining a handicapped person as one who has a determinable physical characteristic which substantially limits one or more life activities . . . even if the determinable characteristic is controlled with medication or medical care. [Emphasis added.] When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, in its discretion, give additional, concise, understandable, conversational, and nonargumentative instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Wengel v Herfert, 189 Mich App 427, 431; 473 NW2d 741 (1991). The requested instruction does not accurately state the law, and thus was properly refused. The alleged handicap at issue in this case is characterized by plaintiff as carrying a transplanted organ. However, it is undisputed that plaintiffs status as an organ donee in no way affected his major life activities or his ability to perform his job duties, as long as plaintiff took antirejection medication. Viewed in this context, plaintiffs condition is akin to that of a person whose high blood pressure or allergies are controlled by medication, or who receives hormone replacement therapy, or whose poor eyesight requires corrective lenses. In each instance, the chronic “handicapping” condition is ameliorated by medical means with relative ease. Under the plain language of subsection 103(e)(i)(A) of the HCRA, to fall within the definition of a handicap, an individual’s condition-whether being treated or not-must substantially impair the person’s major life activities. The instruction requested by plaintiff does not state that proposition. Instead, it leaps to the conclusion that if a condition requires medication, then it constitutes a substantial impairment per se. We find that conclusion to be unreasonable and incompatible with the purpose of the hcra. As stated in Forrisi v Bowen, 794 F2d 931, 934 (CA 4, 1986): It would debase this high purpose [of protecting the disabled from discrimination in employment] if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment. In the final analysis, plaintiffs claimed handicap is that he must take medication to control a chronic condition. This “handicap” is shared by countless other individuals in the workplace and in society as a whole. To automatically label the condition as one that substantially impairs major life activities, as the requested instruction would do, is inconsistent with the HCRA and, as pointed out by the Forrisi court, does a gross disservice to the truly handicapped. Accordingly, we hold that the instruction was inconsistent with the HCRA and that it was properly withheld from the jury. Affirmed. J. P. O’Brien, J., concurred. Accord Joyce v Suffolk Co, 911 F Supp 92 (ED NY, 1966) (employee not handicapped; poor eyesight corrected by eyeglasses and high blood pressure controlled with medication are not physical impairments that substantially limit major life activities); Walker v Aberdeen-Monroe Co Hosp, 838 F Supp 285 (ND Miss, 1993) (employee not handicapped; sarcoidosis and poor vision controlled with medication do not substantially limit employee’s m^jor life activities); Cadelli v Fort Smith School Dist, 852 F Supp 789 (WD Ark, 1993) (employees not handicapped; anxiety panic disorder and high blood pressure treated with medication do not substantially limit employee’s ability to work); Davis v Frank, 1992 US Dist LEXIS 10402; 59 Empl Prac Dec (CCH) p 41,744 (employee not handicapped; high blood pressure and “nervousness” controlled with medication pose no restriction on worker’s life activities). Fitzgerald, J. (concurring in part and dissenting in part). I respectfully dissent from the majority’s conclusion that the trial court did not err in denying plaintiff’s request that the jury be instructed that a condition that limits a life activity is a handicap even if the condition is controlled with medication or medical care. The determination whether an instruction is accurate and applicable based on the characteristics of a case is within the sound discretion of the trial court. Williams v Coleman, 194 Mich App 606, 623; 488 NW2d 464 (1992). When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, at its discretion, give additional, concise, understandable, conversational, and nonargumentative instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Wengel v Herfert, 189 Mich App 427, 431; 473 NW2d 741 (1991). A supplemental instruction need not be given if the instruction would neither add anything to an otherwise balanced and fair jury charge nor enhance the ability of the jurors to decide the case intelligently, fairly, and impartially. Houston v Grand Trunk W R Co, 159 Mich App 602, 608; 407 NW2d 52 (1987). The failure to give a properly requested, applicable, and accurate instruction does not require reversal unless failure to vacate the jury verdict would be inconsistent with substantial justice. Johnson v Corbet, 23 Mich 304, 326; 377 NW2d 713 (1985). Before its amendment in 1990, the Michigan Handicappers’ Civil Rights Act (hcra) defines the term handicap as a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic: (i) .. . is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. [MCL 37.1103(b)(i); MSA 3.550(103)(b)(i).] The Legislature amended the definitional language in 1990 to define a handicap as (i) 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. [MCL 37.1103(e)(i)(A); MSA 3.550(103)(eXi)(A).] Under both of these definitions, a condition related to an individual’s ability to perform the duties of a job is not a handicap within the meaning of the hcra. Koester v Novi, 213 Mich App 653, 661-662; 540 NW2d 765 (1995). Here, plaintiff’s physician testified that as long as plaintiff continued to take antirejection medication, plaintiff did not suffer any limitations on his major life activities or his ability to perform his job duties. Given this testimony, plaintiff, relying on Hines v Grand Trunk W R Co, 151 Mich App 585, 595-596; 391 NW2d 750 (1985), requested a supplemental jury instruction as follows: A person that has a determinable physical characteristic which substantially limits one or more life activities is handicapped even if the determinable physical condition— physical characteristic is controlled with medication or medical care. The trial court refused to give the instruction on the ground tha

FINN MORTENSEN v. MAGNETI MARELLI U.S.A., INC., f/d/b/a WEBER U.S.A., INC. No. COA95-350 (Filed 21 May 1996) Labor and Employment § 63 (NCI4th)— employment at will— no breach of contract The relationship between plaintiff and defendant was terminable at the will of either party for any reason, and the trial court did not err in granting summary judgment for defendant on plaintiff’s breach of contract claim since the terms of the employment agreement did not expressly state or imply that the employment was to be permanent or that the plaintiff could be discharged only for cause. Am Jur 2d, Master and Servant §§ 27-33. Modern status as to duration of employment where contract specifies no term but fixes daily or longer compensation. 93 ALR3d 659. Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 ALR4th 1221. Right to discharge allegedly “at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. Appeal by plaintiff from order entered 2 November 1994 in Wake County Superior Court by Judge Robert H. Hobgood. Heard in the Court of Appeals 27 March 1996. John C. Hunter for plaintiff-appellant. Womble, Carlyle, Sandridge and Rice, by Charles A. Edwards and F. Bruce Williams, for defendant-appellee. GREENE, Judge. Finn Mortensen (plaintiff) appeals an order granting summary judgment for Magneti Marelli U.S.A., Inc., f/d/b/a Weber U.S.A., Inc. (defendant). In 1988 defendant advertised for a Product Manager in Remanufacturing in its Sanford, North Carolina plant. After an interview at defendant’s Sanford plant, plaintiff was offered the job by letter from defendant dated 17 January 1989. The letter stated in pertinent part: “I am very pleased to offer you the position of Project Manager-Remanufacturing .... This offer is contingent upon obtaining your visa. Your annual salary will be $56,000.” On or about 20 January 1989 plaintiff called defendant and accepted the offer and informed defendant that it would be “very easy” for him to get his labor certification and other necessary documents that would allow him to work permanently in the United States. On or about 27 January plaintiff notified his other employer, CAPCO, that he would be leaving that employment on 1 March 1989. Although plaintiff was not able to secure his visa and other necessary documents by 1 March 1989, defendant employed plaintiff as a consultant pending plaintiff’s receipt of the required documents that would allow him to permanently work and live in the United States. Prior to obtaining the visa, plaintiff and his family, in 1989, bought a house in Cary, North Carolina, and relocated to Cary. Although the permanent visa was obtained in October 1992, defendant informed the plaintiff that he would not be hired as a full-time employee until 1 January 1993. Defendant, however, later informed plaintiff that he would not be employed full time and his last day of part-time employment would be 31 May 1993. Plaintiff’s complaint alleges that he has an “enforceable contract for employment” with the defendant and that defendant breached that contract. Defendant denied the allegations and moved for summary judgment on the grounds that the “relationship between the parties was terminable at will.” The issue is whether the relationship between the plaintiff and the defendant was terminable-at-will. The general rule is that an “employee without a definite term of employment is an employee at will and may be discharged without reason.” Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 446 (1989). This general rule, however, is subject to several statutory exceptions which “proscribe the discharge of an at-will employee in retaliation for certain protected activities.” Id. Furthermore, the employer does not have the right to terminate an at-will employee for an “unlawful reason or purpose that contravenes public policy.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 351, 416 S.E.2d 166, 168 (1992) (quoting Coman, 325 N.C. at 175, 381 S.E.2d at 447). The plaintiff, while conceding that he was not terminated in violation of any statute or for an unlawful reason, argues that his at-will status was “converted into an enforceable . . . obligation” because he provided “consideration for the employment contract in addition to his mere rendering of the services contemplated by the employment agreement.” We disagree. 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); Tattle, 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. In this case we need not decide whether the plaintiffs relinquishment of his legal rights as a resident of Canada, his resignation from his former employment, and his relocation from Canada to North Carolina qualifies as additionál consideration. See Humphrey v. Hill, 55 N.C. App. 359, 362, 285 S.E.2d 293, 296 (1982) (waiving right to pursue other employment does not constitute additional consideration). The terms of the employment agreement do not expressly state, or imply, that the employment was to be permanent or that the plaintiff could be discharged only for cause. It thus follows that the relationship between the plaintiff and the defendant was terminable at the will of either party for any reason and the trial court did not err in granting summary judgment for the defendant on the plaintiffs breach of contract claim. In so holding, we also reject plaintiffs argument that even if the defendant had the right to terminate the relationship after the employment began, it had no right to terminate that relationship prior to the first day of employment. The time of termination is immaterial when the relationship between the parties is within' the at-will doctrine. Thus the relationship was properly terminated prior to the day the plaintiff was to begin employment. See Tatum v. Brown, 29 N.C. App. 504, 505, 224 S.E.2d 698, 699 (1976) (Court upheld termination of prospective employee before she began the job). Affirmed. Judges JOHN and MARTIN, Mark D., concur.

Mary C. O’Brien vs. New England Telephone & Telegraph Company & another. Hampden. December 5, 1995. May 17, 1996. Present: Liacos, C.J., Wilkins, Abrams, Lynch, O’Connor, & Fried, JJ. Employment, Termination, Personnel manual. Contract, Employment, Interference with contractual relations. Labor, Grievance procedure. Damages, Attorney’s fees. Practice, Civil, Attorney’s fees, Costs. Evidence in a civil action warranted a finding that the defendant unlawfully and intentionally interfered with the plaintiffs employment relationship, that the defendant’s conduct towards the plaintiff was motivated by actual malice unrelated to the employer’s legitimate corporate interests and that the defendant’s treatment of the plaintiff caused her to commit the misconduct that led to her discharge. [687-688, 690] Discussion of the holdings of Jackson v. Action for Boston Community Development, Inc., 403 Mass. 8 (1988), and of cases from other jurisdictions, considering whether the terms of a personnel manual are part of an express or implied employment contract. [690-694] In the circumstances of an employer-employee relationship, the employer’s personnel manual, distributed to employees from time to time and which . contained no reservation of rights or disclaimer of obligations, granted the employee rights beyond those of an at-will employee, specifically with respect to rights under the disciplinary procedures set forth therein. [694-695] An employee who did not follow an applicable grievance procedure set forth in her employer’s personnel manual was not entitled to maintain an action against the employer for wrongful termination of employment, asserting a right under the personnel manual against unfair treatment. [695-696] A plaintiff who prevailed on a claim for intentional interference with her contractual relations with her employer was not entitled to an award of attorney’s fees and costs in pressing that claim; nor was that defendant, in the circumstances, liable for counsel fees incurred by the plaintiff in pursuing a contract claim against the employer, where the plaintiff had had another remedy and did not demonstrate that she was required to bring the action against the employer to vindicate her rights. [696-697] Civil action commenced in the Superior Court Department on March 2, 1990. The case was tried before Constance M. Sweeney, J. The Supreme Judicial Court granted an application for direct appellate review. Pamela A. Smith for the defendants. Edward J. McDonough, Jr. (William C. Flanagan with him) for the plaintiff. Stephen S. Ostrach, for New England Legal Foundation, amicus curiae, submitted a brief. Edwin H. Hurley, Jr. Wilkins, J. Mary C. O’Brien was awarded judgment against Edwin H. Hurley, Jr., for intentional interference with her contractual relations with her employer, New England Telephone & Telegraph Company (NET). She was also awarded judgment against NET for wrongful termination of her implied contract of employment. We allowed the defendants’ application for direct appellate review. Hurley, who was O’Brien’s supervisor in NET’S marketing department in Springfield, argues that the judge should not have submitted the claim against him to the jury. We shall determine that the jury could reasonably have concluded that Hurley’s treatment of O’Brien maliciously interfered with O’Brien’s rights and precipitated her discharge. Although NET contends that O’Brien was only an at-will employee and, therefore, could be discharged without cause, we shall conclude that NET’S personnel manual granted O’Brien rights beyond those of an at-will employee. Those rights, however, had to be asserted first through the grievance procedure set forth in the manual. Because O’Brien did not pursue that course, she lost whatever rights that the personnel manual provided her. Judgment must be entered in favor of NET. We shall first explain why the verdict against Hurley for intentional interference with contractual relations should be upheld. Next, we shall explain why O’Brien may not recover against NET. 1. We reject Hurley’s argument that the evidence did not warrant a finding that he unlawfully and intentionally interfered with O’Brien’s employment relationship. We have little difficulty in concluding that the jury were warranted in finding that Hurley’s conduct toward O’Brien was motivated by “actual malice” and was not related to NET’s legitimate corporate interests. See Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992); Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663-664 (1981), S.C., 391 Mass. 333 (1984). Although the question is a closer one, the jury were also warranted in finding that Hurley’s treatment of O’Brien caused her to commit the misconduct that led to her discharge. The jury could have found the following facts. O’Brien first went to work for NET in 1956 as a general clerk in the division traffic office in Springfield, where she worked for twenty-two years, had a good relationship with fellow workers, and was never reprimanded or disciplined. Thereafter she worked in two other NET departments without adverse incident. In December, 1982, she joined the marketing department headed by Hurley. In 1983, Hurley rated O’Brien’s performance as satisfactory in an evaluation, although he indicated that she could use her time more effectively. In 1984, Hurley asked O’Brien to fill out a transfer form because there was a surplus of clerks in the department, and he wanted her to be transferred. O’Brien, who believed that her seniority would protect her from being transferred against her will, refused Hurley’s request and filed a grievance. A NET personnel manager upheld the grievance on the basis that the terms of NET’s personnel manual protected O’Brien from involuntary transfer in the circumstances. After O’Brien’s grievance was upheld, Hurley became very hostile toward O’Brien. He screamed and yelled at her over small things every day, often in front of other people in the office. He called her stupid, the “nitwit in the north end,” “the Blessed Mother,” and “loony tunes.” A witness heard Hurley scream at O’Brien and call her a “whore,” “prostitute,” and “slut.” He described Hurley’s outbursts toward O’Brien as temper tantrums. One could hear Hurley yelling at her all over the building. Hurley would persist until O’Brien started shaking and crying. When Hurley made O’Brien cry, “that was like his victory.” Hurley wanted O’Brien out of the department. He gave her work to other people and refused to let her do work that she had been trained to do. He also refused to give her a key to the supply closet to obtain supplies, although the junior clerk was given a key, and, in the past, O’Brien always had been given access. Hurley refused to discuss with O’Brien why he had ceased to give her work. In his performance evaluation of O’Brien in 1985, after she had successfully grieved the attempted transfer, Hurley reported that O’Brien’s performance was “unsatisfactory” and that she “has been told of her deficiencies. Her overall skills do not let her perform in a satisfactory manner.” He also reported that “she procrastinates, is unable to prioritize, needs constant direction, and is much too deliberate in her duties.” O’Brien refused to sign this evaluation. One day in October, 1985, while O’Brien was typing her notes regarding her relationship with Hurley, pursuant to a direction by a NET personnel manager, Hurley came out of his office, took her notes (which she seized back), and told her to leave and to leave everything on her desk. Hurley suspended O’Brien for three days without pay. Upon her grievance of the suspension, a NET personnel manager rescinded the three-day suspension; changed the discipline to one day off without pay; ordered that the discipline letter be rewritten to eliminate any reference to a suspension; and promised O’Brien that all memos and correspondence regarding the suspension would be removed from her file. In 1987, after O’Brien had obtained payroll training, Hurley refused to give her any opportunity to practice doing the payroll work. One time when he asked her to do the payroll he yelled at her because she expressed some concern about her lack of practice. When she grieved this issue, Hurley was directed to allow O’Brien to do the payroll occasionally so she could get some practice. Hurley did not fully comply with this directive. Hurley’s harassment of O’Brien continued. Some days O’Brien had no work to do. Hurley gave secretarial work to a salesperson in the department who was not a clerk. Toward the end of 1989, O’Brien believed that Hurley and the salesperson were spending time together and confirmed her suspicions by making telephone calls to Hurley’s office, to his home, to the salesperson’s office, and once to her home. O’Brien never said anything during any of the telephone calls. She simply hung up. O’Brien was concerned that the salesperson was taking over her job. At Hurley’s request, NET traced the “hang-up calls” to O’Brien. She admitted making them and that it was wrong to do so. She was immediately suspended. About one week later, NET terminated her employment on the stated ground that annoyance calls were a violation of criminal laws and a violation of NET’s Code of Business Conduct. O’Brien did not file a grievance concerning her termination. Although Hurley argues that his treatment of O’Brien was consistent with his supervisory responsibilities, the jury were warranted in finding that Hurley’s conduct exceeded his rightful role as O’Brien’s supervisor and was prompted by his resentment of O’Brien’s successful challenges to his decisions and her refusal to transfer out of his department. Screaming at an employee repeatedly to humiliate her in front of other employees, calling her names, and denying her work to do when work is available could be found both to exceed the protected conduct of a supervisor and to constitute malicious conduct unrelated to an employer’s legitimate business interests. Hurley has suggested in his brief that the jury could not reasonably have found that his treatment of O’Brien caused her to make the “hang-up” telephone calls that caused NET to discharge her. Certainly a finding was warranted that O’Brien would not have made the “hang-up” telephone calls if Hurley had not treated her as he did. 2. Next, we come to O’Brien’s claim that NET violated her contract of employment by discharging her without cause. O’Brien, who had no written contract, was an at-will employee unless the provisions of NET’s personnel manual, entitled “Personnel Practices,” altered her status. There was nothing in O’Brien’s other dealings with NET that gave her greater rights than those that we conclude she had under NET’s personnel manual. O’Brien contended at trial that NET’s personnel manual provided her protection from dismissal without cause. NET, in turn, argued that, because the manual granted O’Brien no enforceable rights, there was no jury issue as to whether NET had cause to discharge O’Brien. NET also contended that, even if the manual did grant O’Brien contractual rights, O’Brien’s claim also failed because (1) she did not pursue the grievance procedures of the personnel manual and (2) in any event, O’Brien’s admittedly improper conduct provided just cause for her discharge. We conclude that NET’s motion for a directed verdict (or at least its motion for judgment notwithstanding the verdict) should have been allowed. The principle that promises made in a personnel manual may be binding on an employer is accepted in a clear majority of American jurisdictions. See Comment, Unilateral Modification of Employment Handbooks: Further Encroachments on the Employment-at-Will Doctrine, 139 U. Pa. L. Rev. 197, 208-209 n.76 (1990) (citing cases from thirty-three States and the District of Columbia). There are differences among the States as to the theory of liability (unilateral contract or promissory estoppel), id. at 209, and there are differences as to what circumstances justify a finding that the provisions of a personnel manual are binding on an employer. The idea that an employer may ignore promises made in a personnel manual is in increasing disfavor in this country. See Small v. Spring Indus., Inc., 292 S.C. 481, 485-486 (1987). Since our opinion in Jackson v. Action for Boston Community Development, Inc., 403 Mass. 8 (1988), in which we last considered the question of personnel manuals, some confusion has arisen. In that opinion, we held that the summary judgment evidence demonstrated that the parties had not entered into an implied contract on the basis of a personnel manual that the defendant employer had distributed to its employees. Id. at 14. Principles stated in the Jackson opinion remain sound. A personnel manual may form the basis for an express contract. Id. at 13. Surely, if the parties agree in advance of employment that a personnel manual will set forth relative rights and obligations of employer and employee, the manual becomes part of the employment contract. A similar result would be obtained if, during the course of at-will employment, the parties agree, orally or in writing, that thereafter their rights and obligations would include the provisions of an employee manual. An employee remaining with the employer after receiving a manual provides the consideration necessary to support the contract. Id. at 14. It is also apparent that the circumstances of a particular employment relationship could warrant a finding of an implied contract that includes the terms of a personnel manual. Id. If an employer adheres to the procedures set forth in its manual, that would be some evidence that the terms of the manual were part of the employment contract. Id. The Jackson opinion has led to confusion because certain facts that were stated to be present or not present in that case (id. at 14-15) have been viewed as constituting a list of conditions that must exist in order to justify a ruling that the terms of a personnel manual are part of an express or implied employment contract. See Pearson v. John Hancock Mut. Life Ins. Co., 979 F.2d 254, 256-257 (1st Cir. 1992); Biggins v. Hazen Paper Co., 953 F.2d 1405, 1423-1424 (1st Cir. 1992), vacated on other grounds, 507 U.S. 604 (1993); Cadrin v. New England Tel. & Tel. Co., 828 F. Supp. 120, 122 (D. Mass. 1993). Cf. O’Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993) (manual played no part in employment agreement because employee did not read manual until after she began her employment); Mullen v. Ludlow Hosp. Soc’y, 32 Mass. App. Ct. 968, 969 (1992) (no contract because terms of manual were not negotiated, manual was received after employee began working, employer could change manual unilaterally, and manual said it was not a contract). The various circumstances discussed in the Jackson opinion are not a rigid list of prerequisites, but rather explain factors that would make a difference or might make a difference in deciding whether the terms of a personnel manual were at least impliedly part of an employment contract. For example, one of the Jackson factors is whether there had been negotiations over the terms of the personnel manual. Jackson, supra at 15. If there had been negotiations leading to an agreement, that fact alone would justify the conclusion that more than an at-will employment contract existed. The fact that the NET manual was not the subject of negotiation is neither significant nor surprising. Negotiation of the terms of a company-wide manual for nonunion employees is not likely and is not an essential precondition of the enforceability of the employer’s obligations stated in the manual. Of course, if a manual furnished to an employee stated a term of employment, the employee would not be an at-will employee. Id. The Jackson opinion thought significant, in support of its result, that the employer retained the right unilaterally to modify the terms of the manual because that made any offer in the manual illusory. Id. at 14-15. On the other hand, if an employee reasonably believed that the employer was offering to continue the employee’s employment on the terms stated in the manual, the employee’s continuing to work after receipt of the manual would be in the nature of an acceptance of an offer of a unilateral contract (see Pine River State Bank v. Mettille, 333 N.W.2d 622, 626-627 [Minn. 1983]), and the promise would not be illusory. The fact that the employer did not intend to make such an offer, and that there was no explicitly bargained-for exchange, does not matter if employees in general would reasonably conclude that the employer was presenting the manual as a statement of the conditions under which employment would continue. See Restatement (Second) of Contracts § 24 (1979) (“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it”). The Jackson opinion also indicates that a finding that the terms of a personnel manual are part of an employee’s contract would be supported if the employee signed the manual, manifested assent to it, or acknowledged understanding of its terms, or if the employer called special attention to the manual. Jackson, supra at 15. Although O’Brien did not sign the personnel manual (the document that contains whatever contractual rights that she may have beyond those of an at-will employee), there was evidence that she received a new copy of the manual annually. Of course, the provisions of a personnel manual on analysis may grant no rights. The Jackson opinion noted that, if the manual states that it provides only guidance as to the employer’s policies (id.), it may not create any enforceable rights. Other language in the manual or employment practices may demonstrate otherwise. The NET manual of personnel practices states that it applies to all nonmanagement employees not covered by collective bargaining agreements. In no place does it state that NET reserves the right unilaterally to change the provisions of the manual or to discharge any employee without cause. It does, however, provide more than general guidance as to the employer’s policies. Management distributes personnel manuals because it is thought to be in its best interests to do so. Such a practice encourages employee security, satisfaction, and loyalty and a sense that every employee will be treated fairly and equally. See Toussaint v. Blue Cross & Blue Shield of Mich., 408 Mich. 579, 613 (1980). Management expects that employees will adhere to the obligations that the manual sets forth. Courts recently have been reluctant to permit management to reap the benefits of a personnel manual and at the same time avoid promises freely made in the manual that employees reasonably believed were part of their arrangement with the employer. Management voluntarily offers, and defines the terms of, any benefit set forth in its unbargained for personnel manual. The employees may have a reasonable expectancy that management will adhere to a manual’s provisions. “Without minimizing the importance of its specific provisions, the context of the manual’s preparation and distribution is, to us, the most persuasive proof that it would be almost inevitable for an employee to regard it as a binding commitment, legally enforceable, concerning the terms and conditions of his employment.” Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 299, modified on other grounds, 101 N.J. 10 (1985). In the circumstances of this case, an affected employee’s reliance on the manual would be reasonable, and O’Brien, as one of those employees, is entitled to whatever rights that the manual sets forth. We need not now define the extent to which management may effectively reserve its right to change or withdraw a manual, or some part of it, or the extent to which management may successful

Robert J. Fairneny & another vs. Savogran Company. Norfolk. March 4, 1996. April 17, 1996. Present: Liacos, C.J., Wilkins, Abrams, Lynch, & Greaney, JJ. Practice, Civil, Motion to dismiss. Employee Retirement Income Security Act. Federal Preemption. Statute, Federal preemption. Employment, Termination. Contract, Implied contract, Employment. Libel and Slander. This court concluded that plaintiffs’ State claims of wrongful discharge from employment in retaliation for carrying out their fiduciary obligations as trustees of an employee stock ownership plan were preempted by the Federal Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1144, where the claims “relate[d] to” the plan and where ERISA itself contained civil enforcement provisions for fiduciaries such as the plaintiffs, who sought to remedy the breach of fiduciary duty of another plan trustee. [471-476] Where a corporation’s adoption of an employee stock ownership plan was not separable from certain communications by the company’s president, who was also a trustee of the plan, a defamation claim arising from the communications was “relatefd] to” the plan and was thus preempted by the Federal Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1144. [476] Civil action commenced in the Superior Court Department on December 31, 1990. The case was heard by Charles F. Barrett, J., on a motion to dismiss. Leave to appeal was granted in the Appeals Court by Edith W. Fine, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael Sobol (Samuel M. Shafner with him) for the defendant. Robert S. Potters for the plaintiffs. Robert J. Zawacki. Greaney, J. We transferred the case to this court on our own motion to decide whether the plaintiffs’ claims of wrongful discharge and defamation are preempted by § 514 (a), 29 U.S.C. § 1144, of the Federal Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 (1994). A judge in the Superior Court concluded that any connection between the plaintiffs’ claims and the provisions of ERISA was “too tenuous and peripheral to warrant a finding that the plaintiffs’ cause of action ‘relates to’ an employee benefit plan,” and denied the defendant’s motion to dismiss for lack of subject matter jurisdiction. See Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974). A single justice of the Appeals Court properly allowed the defendant to pursue an interlocutory appeal of the denial of its motion to dismiss. See Leavitt v. Mizner, 404 Mass. 81, 87-88 (1989). We conclude that the plaintiffs’ claims are preempted by ERISA, and that the defendant was entitled to judgment on the basis of its motion to dismiss. For purposes of deciding a motion to dismiss, we accept as true the allegations in the complaint, and draw all reasonable inferences in favor of the party whose claims are the subject of the motion. See C.M. v. P.R., 420 Mass. 220, 221 (1995). The complaint, including various exhibits attached to it and incorporated by reference, makes the following allegations. The plaintiffs are former officers and directors of Savogran Company (company), a Massachusetts corporation which manufactures paint remover and other chemical-based products. On December 16, 1988, the company’s directors voted to adopt an employee stock ownership plan (plan) and to appoint the plaintiffs and Robert Lenk (then the company’s president) as the trustees of the plan. As employees of the company, the plaintiffs also were participants in the plan. Since the plan was subject to ERISA regulation, the plaintiffs and Lenk, as trustees, assumed fiduciary responsibilities for the administration of the plan. See 29 U.S.C. §§ 1101-1114. The nature and extent of these newly created duties was set out at length in a March 10, 1989, letter from counsel, addressed to the plaintiffs and Lenk. Among other things, the letter pointed out that a plan fiduciary has a responsibility to take reasonable corrective measures when he is aware that a cofiduciary has failed, or is failing, to comply with his fiduciary obligations. Compelled by their fiduciary responsibilities, the plaintiffs began to scrutinize Lenk’s conduct, and to confront him with instances of misconduct that violated his fiduciary obligations to the company and the plan. For example, during 1989 and 1990, Lenk failed to justify or document expenditures of company funds under his control, exposing the company to possible tax liability; used company funds to cover personal expenditures; and directed corporate counsel to perform personal legal services for him. Lenk also failed to make restitution for improper expenditures he had caused the company to make before the plan went into effect. In retaliation, and to avoid detection of additional misconduct on his part, Lenk accused the plaintiffs of misconduct, which resulted in their termination without cause by the company’s board of directors. In addition, Lenk circulated false and defamatory letters about the plaintiffs to a professional search finn retained by the board to seek Lenk’s replacement, and to a vice president of the United States Trust Company. 1. Wrongful termination claims. An essential premise of the complaint is that State law provides a remedy when an ERISA fiduciary is terminated in retaliation for carrying out fiduciary obligations because, under State law, that is a discharge in violation of a clearly defined public policy. Because the defendant does not argue otherwise, we assume, without deciding, that we would recognize as wrongful the termination of an employee who is discharged in retaliation for carrying out a fiduciary duty in connection with a plan governed by ERISA. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 33 (1995), and cases cited therein. See also Authier v. Ginsberg, 757 F.2d 796, 798 (6th Cir.) (concluding that Michigan would recognize as protected activity employee’s compliance with ERISA fiduciary obligations), cert. denied, 474 U.S. 888 (1985). Nonetheless, we conclude that the plaintiffs may not pursue their wrongful termination claims because those claims are preempted by ERISA. In view of existing decisional law, the conclusion that the claims are preempted would be difficult to avoid. See Kelly v. Fort Dearborn Life Ins. Co., ante 15, 16-17 (1996). Contrast Pace v. Signal Technology Corp., 417 Mass. 154, 157-158 (1994) (noting split in authority as to whether State common law claim of misrepresentation is preempted by ERISA; claim did not relate tó plan). In the case of Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990), the United States Supreme Court held that ERISA preempts a State law claim of wrongful discharge premised on an employer’s interference with an employee’s attainment of rights under an employee benefit plan. In the Ingersoll-Rand case, the Court observed, “[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. . . . Pre-emption is also not precluded simply because a state law is consistent with ERISA’s substantive requirements.” (Citations omitted.) Id. at 139. Where the “existence of a pension plan is a critical factor in establishing liability,” id. at 139-140, a State law claim will be preempted. In addition, the Court noted, the claim brought by the plaintiff in Ingersoll-Rand conflicted directly with an existing ERISA cause of action. This fact provided an independent basis for a finding of preemption by implication. Id. at 142-145. The United States Supreme Court has not considered whether a wrongful discharge claim brought by a person in the plaintiffs’ circumstances, rather than by a plan beneficiary or participant claiming entitlement to benefits under an ERISA-governed plan, is preempted by ERISA. However, other Federal and State courts have considered the issue, and have concluded uniformly that wrongful discharge claims similar to those brought by the plaintiffs are subject to ERISA preemption. See Anderson v. Electronic Data Sys. Corp., 11 F.3d 1311, 1313-1315 (5th Cir.), cert. denied, 115 S. Ct. 55 (1994); Hashimoto v. Bank of Hawaii, 999 F.2d 408, 410-411 (9th Cir. 1993); Authier v. Ginsberg, supra at 799-802. See also McLean v. Carlson Cos., 777 F. Supp. 1480, 1483 (D. Minn. 1991) (claim by whistleblower); Andrews v. Alaska Operating Eng’rs-Employers Training Trust Fund, 871 P.2d 1142, 1144-1147 (Alaska) (same), cert. denied, 115 S. Ct. 201 (1994). These cases reason that claims, like those brought by the plaintiffs, “relate to” an employee benefit plan because such claims (1) depend on the existence of an ERISA plan, see Anderson v. Electronic Data Sys. Corp., supra at 1314; Authier v. Ginsberg, supra at 800; (2) would involve at least some inquiry at trial into the character and extent of the fiduciary duties imposed by ERISA, see Hashimoto v. Bank of Hawaii, supra at 411; McLean v. Carlson Cos., supra at 1483; and (3) would introduce inconsistency into the administration of ERISA plans because not all of the States recognize, or treat uniformly, claims of retaliatory discharge. See Authier v. Ginsberg, supra at 802. The plaintiffs’ retaliatory discharge claims clearly are subject to ERISA’s preemption provision on these bases. The plaintiffs, described in the complaint as employees at will, claim no protection from termination apart from their status as fiduciaries of an ERISA plan whose performance of their duties should be protected from adverse employment action. See Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988) (as general rule, an employee at will may be terminated “for almost any reason or for no reason at all”). Their retaliatory discharge claims, therefore, depend on the existence of an ERISA plan and their status as fiduciaries of that plan. According to the allegations in the complaint, the parties’ motivations would be at issue in a trial of this case. It must be inferred, therefore, that the character and scope of the fiduciary duties mandated by ERISA would be an issue at trial on which a jury would require instructions. As the United States Court of Appeals for the Sixth Circuit observed in the Authier case, allowing a State court to “define the scope of a fiduciary’s duties under ERISA and the [remedies available to an aggrieved plaintiff] . . . runs contrary to Congress’s desire to establish a uniform federal law regulating pension plans.” Authier v. Ginsberg, supra at 802. In addition, ERISA’s “detailed and carefully balanced remedy provisions,” Anderson v. Electronic Data Sys. Corp., supra at 1314, provide remedies for fiduciaries and plan participants (as previously noted, the plaintiffs were both) seeking to remedy a breach of fiduciary duty by a plan trustee. Under ERISA, a fiduciary must, among other duties, provide “proper management, administration and investment of [plan] assets . . . and avoid[ ] . . . conflicts of interest.” Mertens v. Hewitt Assocs., 508 U.S. 248, 251-252 (1993), quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 142-143 (1985). “Section 409 (a), 29 U.S.C. § 1109 (a), makes fiduciaries liable for breach of these duties, and specifies the remedies available against them: the fiduciary is personally liable for damages . . . , for restitution . . . , and for ‘such other equitable or remedial relief as the court may deem appropriate,’ including removal of the fiduciary.” Id. In turn, a cofiduciary may bring a civil action to enforce the provisions of § 409 (a), 29 U.S.C. § 1109 (a). Id. at 252-253. See 29 U.S.C. § 1132 (a) (2). See also Crawford v. Lamantia, 34 F.3d 28, 31 (1st Cir. 1994) (§ 1132 [a] [2] of 29 U.S.C. authorizes participant, beneficiary or fiduciary to bring civil action for breach of fiduciary duty proscribed by 29 U.S.C. § 1109 [a]), cert. denied, 115 S. Ct. 1393 (1995). To the extent the plaintiffs were motivated by concern about misconduct on Lenk’s part affecting the value of the plan, they could have sought relief under these provisions. Had they done so, they also might have been able to claim protection from, or redress for, termination under ERISA’s “whistleblower provision,” 29 U.S.C. § 1140, which “provides a remedy for a fiduciary [or a plan participant] who is discharged because [he or] she ‘has given information or has testified or is about to testify in any inquiry or proceeding relating to [ERISA].’ ” Hashimoto v. Bank of Hawaii, supra at 411, quoting 29 U.S.C. § 1140. Because ERISA’s civil enforcement scheme provides a remedy for persons situated as the plaintiffs were, recognition of a State law claim based on these facts would conflict impermissibly with ERISA’s civil enforcement scheme. See Ingersoll-Rand Co. v. McClendon, supra at 144; Anderson v. Electronic Data Sys. Corp., supra at 1314. The plaintiffs’ other claims of wrongful discharge also are preempted by ERISA. Both plaintiffs maintain that their termination violated an implied contractual obligation of good faith and fair dealing. An at-will employee generally does not have an enforceable claim for discharge in breach of the implied covenant of good faith unless he can establish that his discharge is contrary to a well-defined public policy. See King v. Driscoll, 418 Mass. 576, 582-583 (1994); Siles v. Travenol Labs., Inc., 13 Mass. App. Ct. 354, 358 (1992). The only such policy inferable from the complaint would be the protection of an ERISA fiduciary. Thus, the plaintiffs’ claims of discharge in breach of an implied covenant of good faith and fair dealing cannot be differentiated from the claims previously discussed, and also are preempted. See Andrews v. Alaska Operating Eng’rs-Employers Training Trust Fund, supra at 1148-1149. Faimeny’s claims of promissory estoppel and breach of an implied contract of employment for a term of years suffer from the same defect. The essential allegation in these counts is that the terms of the plan, which were devised and implemented by Faimeny, gave rise to a reasonable expectation on Faimeny’s part that he was guaranteed employment with the company for a minimum of seven years so that he would realize the full benefit of the plan. Litigation of these claims would require interpretation of the terms of the ERISA plan. Moreover, these claims are, in essence, claims by a plan participant to benefits under an ERISA-governed plan, which would have to be brought under the civil enforcement provisions of ERISA, if at all. See Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889, 896-897 (9th Cir. 1990) (State law claim of implied contractual obligation preempted by ERISA). 2. Defamation claims. The question with respect to the plaintiffs’ defamation claims is much closer. Damage to a plaintiff’s reputation in the business community is not a matter closely related to core concerns of the ERISA legislation. In this case, however, the company’s adoption of the plan and the communications giving rise to the defamation claims appear inseparable. Establishing the defamatory nature of Lenk’s communications, see note 5, supra, would put in issue the reason for the plaintiffs’ confrontation with him. Thus, any trial of the defamation claim inevitably would involve testimony about the provisions of the plan, the precise nature of the plaintiffs’ duties as fiduciaries, and Lenk’s alleged breach of his fiduciary obligations. These claims of defamation are inextricably bound up with the existence and content of the plan. See Ingersoll-Rand v. McClendon, supra at 140. We conclude, therefore, that these claims also “relate to” an employee benefit plan, and are preempted by ERISA. 3. Disposition. The case is remanded for entry of a judgment in favor of the defendant, Savogran Company, as to all of the remaining counts in the plaintiffs’ complaint. So ordered. Counts I through III of the plaintiffs’ amended complaint asserted a derivative action for dissipation of corporate assets, a claim of breach of fiduciary duty by Robert Lenk, the former president of the Savogran Company, and a class action claim on behalf of the participants and beneficiaries of Savogran’s Employee Stock Ownership Plan. The plaintiffs stipulated to the dismissal with prejudice of these claims. In addition, the plaintiffs stipulated to dismissal without prejudice of claims against five individual defendants, including claims against Lenk. Section 514 (a) provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. The term “State law” encompasses “all laws, decisions, rules, regulations, or other State action having the effect of law.” 29 U.S.C. § 1144 (c) (1994). This letter was attached as an exhibit to the complaint and incorporated into it by reference. Copies of the correspondence which forms the basis of the defamation claims were attached to the complaint and incorporated by reference. In a May 29, 1990, letter to the vice president of the United States Trust Company, Lenk accused the company’s “Junior Officers” (the plaintiffs) of entering into an “unholy alliance” with members of the board of directors that “was not infact [sic] serving the employees [sic] best interests.” In a July 3, 1990, letter to the professional search firm, Lenk asserted that “two officer directors [the plaintiffs] and two attorney directors [ ] aligned against me to hire my replacement.” At oral argument, counsel for the plaintiffs suggested that, as directors of the company, the plaintiffs had a fiduciary duty to guard company assets independent of ERISA, and that the complaint should be read to state a claim on this basis. The complaint, however, asserts that the plaintiffs’ obligation to police Lenk’s conduct arose with, and was attributable entirely to, the adoption of the plan. We reject as inconsistent with the complaint the plaintiffs’ contention that their wrongful discharge claims are not preempted because the facts on which the claims are based occurred prior to the adoption of the plan. The complaint asserts that the plaintiffs were discharged for confronting Lenk about his alleged misconduct after the company’s adoption of the plan, precisely because they had assumed the role of plan fiduciaries. Moreover, as we have noted, the plaintiffs, as at-will employees, claim protection from adverse employment action on the basis of their status as plan fiduciaries whose function warrants legal protection. The wrongful discharge claims cannot logically be described as claims which arose prior to the adoption of the plan. We are not concerned in this case with an allegation that the plaintiffs were discharged so that the company, their employer, could appropriate commissions already earned and due to them. See Gram v. Liberty Mat. Ins. Co., 384 Mass. 659, 671-672 (1981); Fortune v. National Cash Register Co., 373 Mass. 96, 105-106 (1977).

QUINN v POLICE OFFICERS LABOR COUNCIL Docket No. 179266. Submitted March 19, 1996, at Lansing. Decided April 5, 1996, at 9:25 A.M. Robert A Quinn filed charges of unfair labor practice in the Michigan Employment Relations Commission against the Police Officers Labor Council (polc) and the Police Officers Association of Michigan (poam) after neither the polc nor the poam pursued a grievance originally filed by the polc concerning the termination of Quinn’s employment. While the grievance was pending, an election had resulted in the decertification of the polc and the certification of the poam as the collective bargaining agent for the bargaining unit of which Quinn had been a member. The commission decided that the polc, and not the poam, was obligated by the duty of fair representation to continue pursuing the grievance. The polc appealed. The Court of Appeals held: A union’s duty of fair representation is coterminous with its authority to act as the exclusive agent of the represented employees. Accordingly, when the polc was decertified, its duty of fair representation, including the duty to pursue the grievance relating to Quinn, ended. The poam must assume control over the grievance and decide how best to proceed. Reversed and remanded. Labor Relations — Unions — Duty op Fair Representation. A union’s duty to fairly represent its members is coterminous with its authority to act as the exclusive agent of the represented employees; following decertification of a union as exclusive agent, its duty of fair representation ends and it is under no further duty to continue to pursue a grievance it filed before decertification. John A. Lyons, P.C. (by John A. Lyons and Barton J. Vincent), for Police Officers Labor Council. Stephen P. Whitaker, for Police Officers Association of Michigan. Before: Holbrook, P.J., and Taylor and W. J. Nykamp, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Taylor, J. Respondent Police Officers Labor Council (polc) appeals as of right the decision and order of the Michigan Employment Relations Commission (MERC) ordering it to process charging party Robert A. Quinn’s grievance. We reverse and remand. The POLC argues that its duty of fair representation of its union members is coterminous with its authority to act as exclusive representative of the employees. We agree with this proposition and, accordingly, agree that, when the POLC was decertified as the union of the employees, its duty of fair representation ended at that time.* Quinn worked as a communications operator in the Port Huron Police Department. In 1991, the POLC represented Quinn’s bargaining unit. The collective bargaining agreement between the polc and the police department expired on June 30, 1991, but the parties continued to negotiate toward a new agreement. The police department discharged Quinn on August 25, 1992, and a grievance concerning the discharge was filed by the POLC on August 26, 1992. On October 27, 1992, an election was held pursuant to a representation petition filed earlier, and the Police Officers Association of Michigan (poam) replaced the polc as the certified representative of communications operators on November 23, 1992. At this point, a dispute arose between the polc and the poam concerning which union had a duty of fair representation with regard to Quinn. On April 2, 1993, Quinn filed unfair labor charges against both the polc and the poam for failure to pursue his grievance. The hearing referee held a hearing on these charges and issued a decision and order on May 17, 1994, finding that the polc did not violate the public employment relations act (pera), MCL 423.201 et seq.; MSA 17.455(1) et seq., but that the POAM violated its duty of fair representation under § 10(3)(a) of the PERA, MCL 423.210(3)(a); MSA 17.455(10)(3)(a), by failing to process plaintiff’s grievance. In essence, the referee held that the duty to represent unit employees shifts at the time a new union is certified. In a two-to-one decision, the merc declined to follow the referee’s recommendation and issued a decision and order on September 15, 1994, finding that the poam did not violate the pera, but that the polc violated its duty of fair representation by not continuing to process Quinn’s grievance. Accordingly, it ordered the polc to cease and desist from refusing to represent Quinn and to process the grievance and keep Quinn apprised of his status. The rationale of the merc was that the polc had this duty because the events giving rise to the grievance occurred while the polc was the exclusive bargaining representative. This court reviews a merc decision to determine if it is authorized by law and if the merc’s findings are supported by competent, material, and substantial evidence on the whole record. Michigan Educational Support Personnel Ass’n v Evart Public Schools, 125 Mich App 71, 73; 336 NW2d 235 (1983). In construing state labor statutes, Michigan looks to constructions by federal courts of analogous provisions of the National Labor Relations Act. Demings v City of Ecorse, 423 Mich 49, 56; 377 NW2d 275 (1985). Under federal law, a union’s duty of fair representation arises out of its power as the exclusive bargaining representative of the employees. Adcox v Teledyne, Inc, 21 F3d 1381, 1386 (CA 6, 1994); Pratt v UAW, Local 1435, 939 F2d 385, 388 (CA 6, 1991). The elected representative is the exclusive bargaining representative of public employees. MCL 423.211; MSA 17.455(11). In this case, the poam became the exclusive bargaining representative upon certification. It was also, of course, at that time that the polc lost such status. Therefore, under Adcox and Pratt, the poam, not the POLC, owed a duty of fair representation to Quinn once the poam was certified. Accordingly, the polc could not have breached a duty to continue pursuing Quinn’s grievance after the poam’s certification because it owed no such duty to Quinn. Finally, the poam has advanced a policy concern that it should not be bound to pursue grievances filed by the POLC. This concern is easily met inasmuch as, upon certification, the new union must evaluate and decide the proper course of action with respect to pending grievances. A union has the authority to consider the merits of pending grievances and decide how best to proceed. “In the area of grievances, the courts have held that the union has considerable discretion to decide which grievances shall be pressed and which shall be settled. It has been said that the union has latitude to investigate claimed grievances by members against their employers, and has the power to abandon frivolous claims.” “[T]he union “obviously” is not required to carry every grievance to the highest level, but must be permitted to assess each with a view to individual merit.” [Goolsby v Detroit, 419 Mich 651, 663; 358 NW2d 856 (1984), quoting Lowe v Hotel & Restaurant Employees Union, Local 705, 389 Mich 123, 145-147; 205 NW2d 167 (1973).] In summary, then, the POLC did not have a duty to continue Quinn’s grievance after decertification, and the poam had a duty to assume control over the grievance once it was certified. The merc erred as a matter of law in holding otherwise. We reverse the decision of the MERC and remand to the merc for such further proceedings as are appropriate in light of the poam’s status with regard to Quinn. This Court has previously issued conflicting unpublished opinions per curiam regarding this question. See Burns v Michigan AFSCME, issued April 5, 1989 (Docket No. 97420), and Tucker v Michigan Ass’n of Public Employees, issued December 15, 1995 (Docket No. 166914).

MELVINDALE-NORTHERN ALLEN PARK FEDERATION OF TEACHERS, LOCAL 1051 v MELVINDALE-NORTHERN ALLEN PARK PUBLIC SCHOOLS (AFTER REMAND) Docket Nos. 152208. Submitted January 25, 1995, at Lansing. Decided March 22, 1996, at 9:00 A.M. Leave to appeal sought. Melvindale-Northem Allen Park Federation of Teachers, Local 1051, filed with the Michigan Employment Relations Commission unfair labor practices charges against Melvindale-Northem Allen Park Public Schools, alleging, among other claims, that the respondent’s refusal to bargain with it during a strike that it had called was an unfair labor practice. The merc dismissed the charges. Local 1051 appealed. The Court of Appeals, Corrigan, P.J., and J. B. Sullivan and N. O. Holowka, JJ., affirmed in part, but remanded the matter to the merc for clarification and explanation of its determination that a public employer’s duty to bargain is suspended during the pendency of an illegal strike by public employees. Unpublished opinion per curiam of the Court of Appeals, issued August 10, 1994 (Docket No. 152208). The merc held that it had overruled the long-established precedent that the failure of a public employer to bargain during an illegal strike was an unfair labor practice because it found that to require a public employer to bargain during an illegal strike would be contrary to the intent of the public employment relations act, MCL 423.201 et seq.) MSA 17.455(1) et seq., to prohibit strikes by public employees. After remand, the Court of Appeals held: 1. The merc, as an administrative agency, may reexamine its prior decisions and depart from precedents. If the departure from a precedent is explained, appellate review is limited to whether the rationale for the departure is so unreasonable as to be arbitrary and capricious. 2. The merc’s stated rationale for departing from the precedent in this case cannot be said to be arbitrary and capricious. The merc rejected the precedent and adopted its present determination on the basis of its determination of the Legislature’s intent as expressed in the pera. The merc did not abuse its discretion in ruling that a public employer does not commit an unfair labor practice by refusing to bargain with the representative of its employees who are engaged in an illegal strike during the pendency of that strike. Affirmed. 1. Administrative Law — Precedent ■— Judicial Review. An administrative agency may reexamine its prior decisions and depart from precedents; if a departure from precedent is explained, appellate review is limited to whether the rationale is so unreasonable as to be arbitrary and capricious. 2. Labor Relations — Public Employers — Unfair Labor Practices — Illegal Strikes. A public employer may, but has no duty to, bargain with the representative of its employees when they are engaged in an illegal strike; a public employer’s refusal to bargain with the representative of its employees during the pendency of those employees’ illegal strike is not an unfair labor practice under the public employment relations act (MCL 423.210[l][e]; MSA 17.455[10][l][e]). Mark H. Cousens, for charging party. Allen, James, Tanner & Foley, PC (by Kevin J. Foley), for respondent. Amici Curiae: Mark H. Cousens, for Michigan Federation of Teachers and School Related Personnel. White, Beekman, Przybylowicz, Schneider & Baird, PC. (by Thomas A. Baird), for Michigan Education Association. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, PC. (by Theodore Sachs and Eileen Nowikowski), for Detroit Federation of Teachers and Michigan State AFL-CIO. Before: Corrigan, P.J., and J.B. Sullivan and N. O. Holowka, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Administrative Order No. 1993-6. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Melvindale-Northem Allen Park Federation of Teachers, Local 1051, appealed as of right the decision of the Michigan Employment Relations Commission affirming the dismissal of its claim against the Melvindale-Northem Allen Park Public Schools, which alleged unfair labor practices under the public employment relations act, MCL 423.201 et seq.-, MSA 17.455(1) et seq. In an unpublished decision, we affirmed in substantial part, but remanded for clarification and explanation of merc’s determination that an employer’s duty to bargain is suspended during the pendency of an illegal strike. In an expanded opinion on remand, MERC reaffirmed its earlier holding. We now affirm. Section 10(l)(e) of the pera provides: It shall be unlawful for a public employer or officer or agent of a public employer ... to refuse to bargain collectively with the representatives of its public employees, subject to the provisions of section 11. [MCL 423.210(l)(e); MSA 17.455(10)(l)(e).] At the time in question, § 15 provided: A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. [MCL 423.215; MSA 17.455(15).] The Legislature enacted the pera in 1965. Merc first considered whether the employer’s duty to bargain continues during the pendency of an illegal strike in 1970. In Saginaw Twp Bd of Ed v Saginaw Twp Ed Ass’n, 1970 MERC Lab Op 127, the majority opinion held that the duty continues and that an employer may be found to have committed an unfair labor practice if it refuses to bargain in good faith while its employees are engaged in an illegal strike. Neither the Supreme Court nor this Court subsequently addressed the issue in a published opinion. Until this case, merc followed the rule in Saginaw Twp. In its original decision in this case, merc held that it had incorrectly decided Saginaw Twp. Merc failed, however, to fully develop its reasons for reaching this conclusion. After remand from this Court, merc rectified its omission: The [dissenting opinion prior to remand] first raises the question of why we decided to change our well established rule that a public employer must meet with the union during a strike, even though that strike is illegal under pera. Melvindale-Northern Allen Park Public Schools, 1992 MERC Lab Op 400, 410. We acknowledge that our original decision clearly, although perhaps too summarily, overruled Saginaw Twp, supra. Why change a rule which has been in existence since 1970? We share with the dissent a respect for the value of established precedent. However, after serious consideration, we find the reasoning of the majority opinion in Saginaw Twp to be erroneous. As discussed in detail below, we conclude that the principle established by Saginaw is inconsistent with the purposes of the Act and therefore should not be allowed to continue to stand. Our conclusion here has nothing to do with public satisfaction or dissatisfaction with the rule, but is based solely on our analysis of the statute. The preamble to pera reads as follows: “An act to prohibit strikes by certain public employees; to provide review from disciplinary action with respect thereto; to provide for the mediation of grievances and the holding of elections; to declare and protect the rights and privileges of public employees; and to prescribe means of enforcement and penalties for the violation of the provisions of this act.” The dissent states, at pg 411, that “the Public Employment Relations Act was adopted to create a balance between the public employer and the public employee in the matter of labor-management relations to foster an equitable adjustment of interests, and to ensure fundamental fairness for ail concerned.” This statement is true, but it only partially describes the Legislature’s intent. As indicated by the preamble, it is also the purpose of pera, like the Hutchinson Act which preceded it, to prohibit public employee strikes. Indeed, the language of the preamble, carried over from the Hutchinson Act, suggests that prohibition of strikes is a primary purpose of the Act. We agree with the dissent that one of the purposes of the statute is to preserve a “balance” between public employers and public employees and their representatives. However, unlike bargaining under the nlra [National Labor Relations Act], the system of collective bargaining contemplated by pera is founded on the premise that public employees will not strike. In return for depriving employees of the right to strike, essential under the nlra, the Legislature in pera provided employees with a fact finding procedure to help resolve disputes. Moreover, because of the strike prohibition, the Commission and the Courts have construed Section 15 of pera more expansively than its nlra counterpart to require mandatory bargaining on a wider range of subjects. Van Buren [Public] School District v Wayne Circuit Judge, 61 Mich App 6, 27 [232 NW2d 278] (1975). Whether or not these measures actually achieve their aim of preserving the balance between the parties is beside the point. We conclude that to force an employer to the negotiating table while its employees are engaged in an illegal strike would be contrary to the intent of the statute. Moreover, we conclude that the mutual obligation to negotiate in good faith cannot occur during the pendency of an illegal strike. The dissent, at pg 411, goes on to point out that “parties to a public sector labor dispute can never resolve their differences unless they talk.” This is obvious. Many employers, when faced with public pressure to quickly end the strike, may voluntarily continue to bargain. However, the question here is whether when an illegal strike occurs we can legitimately force an employer to the bargaining table under Sections 10(l)(e) and 15 simply because doing so will result in a faster resolution of the dispute. We conclude that under the statute an employer should not be found guilty of bargaining in bad faith if it chooses to suspend bargaining until the employees comply with their statutory obligation to return to work. Merc held that a public employer may, but has no duty to, bargain with the representative of its employees when they are engaged in an illegal strike. A public employer’s duty to bargain is inextricably interwoven with a public employee’s duty to refrain from striking. Thus, when public employees breach that duty, the suspension of the employer’s duty neither penalizes the union or the employees nor provides a remedy to the employer. The suspension of the public employer’s duty to bargain is a consequence of the illegal strike not a penalty for it. Merc held that the union’s duty to bargain in good faith continues during the strike and left for future consideration whether an illegal strike provoked by the employer’s own actions, commonly called an unfair labor practice strike, would require a different result. Merc’s opinion overruling Saginaw Twp reinterprets the statute by relating the duty to bargain to other obligations imposed by the pera. This case, therefore, implicates principles regarding the administrative construction of a statute. The courts are obliged to give great deference to the construction placed upon a statute by the agency legislatively chosen to enforce it. Breuhan v Plymouth-Canton Community Schools, 425 Mich 278, 282-283; 389 NW2d 85 (1986), citing Magreta v Ambassador Steel Co, 380 Mich 513, 519, 158 NW2d 473 (1968). Generally, an administrative agency may reexamine its prior decisions and depart from precedents. As our Court noted in AFSCME, Council 25 v Wayne Co, 152 Mich App 87, 98; 393 NW2d 889 (1986): The decision of an agency to promulgate law through rule-making or through adjudication rests within the sound discretion of that agency even where a rule breaks from past decisions or where previously established rules are reconsidered. NLRB v Bell Aerospace Co, 416 US 267, 297-295; 94 S Ct 1757; 40 L Ed 2d 134 (1974), dicta overruled in NLRB v Hendricks Co Rural Electric Membership Corp, 454 US 170, 186-188; 102 S Ct 216; 70 L Ed 2d 323 (1981). If the departure from precedent is explained, appellate review is limited to whether the rationale is so unreasonable as to be arbitrary and capricious. Michigan v Thomas, 805 F2d 176, 184 (CA 6, 1986); West Coast Media, Inc v FCC, 224 US App DC 423, 426-427; 695 F2d 617 (1982). Applying an abuse of discretion standard, we cannot conclude that merc’s stated rationale is arbitrary and capricious. In the instant case, the MERC held that it improperly decided Saginaw Twp because it had failed to accord sufficient weight to one purpose of the pera, i.e., the prohibition of public employee strikes. Merc concludes that “to force an employer to the negotiating table while its employees are engaged in an illegal strike would be contrary to the intent of the statute.” One purpose of the pera is to prohibit strikes. The pera presumably accomplishes that purpose by making such strikes illegal, by exposing striking employees to discipline up to and including discharge, and by authorizing injunctions ordering employees to return to work. Merc’s rationale for rejecting the precedent stems from concerns related to the appropriate construction of legislative intent. We hold that MERC has adequately articulated its rationale for overruling its 1970 decision. Merc’s decision has not freed employers from the duty to bargain in good faith at reasonable times. Merc has instead concluded that a public employer acts reasonably and in good faith by suspending bargaining while public employees are illegally striking. In essence, merc has held that an employer may determine, without committing an unfair labor practice, that it is unreasonable to bargain while employees are illegally striking. When a union calls a strike of public employees contrary to the pera, it is guilty of a failure to bargain in good faith. Cf. United Electrical, Radio & Machine Workers, Local 1113 v NLRB, 96 US App DC 46, 52; 223 F2d 338 (1955): The next point concerns the refusal of the Company to bargain with ue after the strike had been called. As to such a refusal on February 28th, the Board reasoned that, even if ue was still the bargaining representative of the employees, the Company was under no obligation to bargain in the absence of notification that the illegal strike had been terminated. This has been the policy of the Board. In the Times Publishing Company case the Board held that a union’s refusal to bargain in good faith may remove the possibility of negotiation and thus preclude a finding of a violation by an employer of his duty to bargain. The Report of the House Committee specifically cited that case as obviously correct. As we have indicated, when UE, seeking modification of an existing contract by proposing wage adjustments into the agreed scale, called a strike in flat violation of the contract and of the explicit terms of Section 8(d) of the Act [29 USC 158(d)], it was guilty of failure to bargain in good faith as that term is defined in Section 8(d). The statute has in it many provisions valuable to labor organizations, and protects them in the exercise of their rights, but it does not give them authority to violate the Act wantonly and at the same time to insist upon full measure of the privileges afforded them when proceeding properly. Merc did not abuse its discretion in ruling that public employees who are engaged in an illegal act of striking may not be heard to complain that their employer has committed an unfair labor practice by refusing to bargain with them during the pendency of their illegal strike. Affirmed. Before the pera, public employees in Michigan did not have the right to bargain collectively. That right was granted with the clear understanding that public employees, unlike their private counterparts, had no right to strike. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 116; 252 NW2d 818 (1977). Public employees obtained organizational and bargaining rights, but they were required to forfeit the right to strike, unlike persons covered by the nlra, under which a strike can be a permissible economic weapon. To require a public body to bargain with illegally striking employees thus really disturbs rather than fosters the delicate balance between the public employer and public employees that the pera seeks to foster. If the legislative preamble and purpose of the pera is to be given any meaning, illegally striking public employees should not be permitted to reap the benefits of their illegal conduct. Resolution of a labor dispute between public employees and their employers is not, under our legislative scheme, to be resolved by a work stoppage, but rather through fact finding following mediation, i.e., the governing statutory scheme. In other words, the Legislature in the pera envisioned a scheme in which a factfinder’s recommendation would create public pressure on the recalcitrant party to accept the factfinder’s nonbinding recommendation. That scheme is rendered superfluous if the employer is required to bargain during a strike-induced crisis. The Legislature’s wisdom in prohibiting strikes is lost by allowing a union to profit through undermining the carefully wrought legislative scheme. Higgins, Inc, 90 NLRB 184 (1950); United Elastic Corporation, 84 NLRB 768 (1949); Dorsey Trailers, Inc, 80 NLRB 478 (1948), affirmed in relevant part, 170 F2d 589 [(CA 5, 1950)]; Charles E Reed & Co, 76 NLRB 548 (1948). 72 NLRB 676 (1947). HR Rep No 245, 80th Cong, 1st Sess 27 (1947).

Mary E. Garrity vs. United Airlines, Inc. Suffolk. May 2, 1995. August 2, 1995. Present: Liacos, C.J., Lynch, O’Connor, & Greaney, JJ. Federal Rehabilitation Act. Anti-Discrimination Law, Prima facie case, Burden of proof, Termination of employment, Handicap. Employment, Discrimination, Termination. Practice, Civil, Summary judgment. Words, “Otherwise qualified.” On a claim of employment discrimination on account of handicap, in violation of G. L. c. 15IB, the judge correctly entered summary judgment in favor of the defendant where the defendant demonstrated that the plaintiff could not reasonably expect to prove that, in spite of her handicap, she was otherwise qualified for the position she had held. [59-63] On a claim for breach of an employment contract providing that employment would be terminated only for cause, summary judgment was correctly entered for the defendant where the plaintiff could not reasonably expect to prove that her employment was terminated without cause. [63] Civil action commenced in the Superior Court Department on July 30, 1990. The case was heard by Patti B. Saris, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transiferred the case from the Appeals Court. Susan F. Horwitz for the plaintiff. Jay M. Presser for the defendant. O’Connor, J. In her complaint, filed in the Superior Court, the plaintiff, Mary E. Garrity, alleges that the defendant, United Airlines, Inc. (United), fired her from her position as customer service representative. Garrity alleges in one count that the firing constituted handicap discrimination in violation of G. L. c. 15IB (1994 ed.), and in a second count she alleges that the firing was a violation of her employment contract. A judge allowed United’s motion for summary judgment as to both counts, and Garrity appealed. We transferred the case here on our own initiative. We affirm. In her memorandum of decision relative to the motion for summary judgment, the judge set forth the following facts, which are taken from the summary judgment materials, see Mass. R. Civ. P. 56, 365 Mass. 824 (1974), and appear to be undisputed. “Garrity began her employment with United in 1974 in a position covered by a collective bargaining agreement. In 1987 she took the position of Customer Service Representative (“CSR”). ... At the time of her initial employment in 1974, she signed an application which included ‘Terms and Conditions of Employment.’ Within that section, United states it agrees to employ plaintiff, and then it states, inter alia: ‘The employee shall devote his entire working time and his best efforts to the discharge of his duties and to the promotion of the interests of the employer, and shall comply with the company’s rules and regulations in effect from time to time.’ “United’s regulations state: ‘These regulations do not constitute a contract of employment and are subject to unilateral change by the company.’ Defendant unilaterally altered the regulations and provided plaintiff with copies. “Plaintiff received a copy of the company handbook in the internal company mail, did not sign it, and never read it during the course of her employment at United. She was not involved in any negotiations that went into the handbook which states: ‘This handbook does not constitute a contract of employment.’ “Neither the regulations nor the handbook specify any term of employment. The regulations do provide a grievance procedure. U “The events which led to Garrity’s termination occurred on January 27, 1990. At that time, Garrity was drinking on a daily basis. She was an alcoholic with a psychological addiction. As a result of her alcoholism, Garrity experienced many ‘black outs,’ but was able to hide her alcoholism from others. On that morning of January 27th, Garrity was assigned to work the international desk. As part of a promotion, she gave out packets containing chits to international passengers at the time of check-in: These chits could be exchanged on the flight for a free drink or headset. However, some of the passengers gave the chits back to Garrity. Rather than returning the chits to stock for later use, Garrity kept them for her personal use. Garrity thought she could take the chits because there was no company procedure for accounting for the chits if a customer returned them. Because of her addiction to alcohol, she was unable to resist the drink chits. “After her shift that morning, Garrity and another CSR, Karen Mathews (‘Mathews’), left for Hawaii. They were traveling to Honolulu via Chicago and Los Angeles. As United Airlines Employees they were traveling on pleasure passes which entitled them to travel at a reduced ratel Garrity took the chits with her and used them to purchase drinks on the flight. She became intoxicated and began drawing attention to herself and to the fact that she was a United Airlines employee. En route from Los Angeles to Honolulu, the flight attendants stopped serving her alcoholic beverages because of her behavior. “When Garrity arrived in Honolulu, she located a supervisor and filed a report that the flight attendants had failed to do a seat belt check upon the descent into Honolulu, resulting in a safety violation. The flight attendants also filed a report regarding Garrity’s behavior. They reported that Garrity demanded excessive service and attention. On one occasion, when a passenger wanted to take an empty seat in her row to smoke, she [Garrity] made a comment about ‘what a pain premiers [frequent fliers] are.’ She also went up to the bar and started complaining about how United ‘screws us.’ Garrity used airline jargon on these occasions, which indicated to the surrounding passengers that she was a United employee. “Garrity does not recall much of what happened on the Chicago-Los Angeles flight, and has no recollection of what occurred on the flight from Los Angeles to Honolulu. She believes that she blacked out, although she does not recall when she blacked out. On two prior occasions, one in the late 1970’s and the other in 1985, Garrity became intoxicated and misbehaved while traveling on pleasure passes which resulted in her pass privilege being suspended. However United did not rely on these prior incidents in its termination decision. <6 “Upon her return from Hawaii, Garrity met with her supervisor, Ellen Rizzo (‘Rizzo’) regarding the flight attendants’ reports. On February 5, 1990, the day after meeting with Rizzo, Garrity contacted United Employee Assistance Program (‘EAP’) seeking help for her alcohol problem. EAP referred her to Dr. Gofstein, who evaluated Garrity and diagnosed her as being an alcoholicé.[] “On February 22, 1990, a disciplinary hearing took place to decide disciplinary action based on Garrity’s failure to comply with United’s employee handbook, ‘Articles of Conduct . . . Your Responsibility’ in You and United, which [describes the following activities as misconduct]: “A. Page 48, # 5 — Unauthorized possession or removal of Company property or records or confidential information — or the property of employees, customers, or others with whom the Company does business. “B. Page 51, # 5 — Engaged in any conduct, whether on or off duty, which is or could be detrimental to the Company, or which could negatively affect the Company’s relationship with customers, travel agents, suppliers, employees or the public. “C. Page 52, # 13 — misconduct of employees and/or their eligibles while traveling on a pass or reduced fare. “Robert Thomas, the General Manager of Customer Services at Logan [Airport] presided at this hearing. Garrity’s attorney stated that Garrity had a drinking problem, that she had consulted with EAP and was receiving treatment for her alcoholism. “On February 23, 1990, Garrity was terminated from her employment for allegedly violating company policies by accepting ‘drink chits’ from customers, using those chits while flying on a United pass on Garrity’s off duty time and for becoming intoxicated while on these flights. Garrity filed an appeal through United’s grievance procedure which was heard by Gary Jefferson, Vice President of the Northeast Region, on March 13, 1990. Again in attendance was Garrity’s attorney Susan Horwitz, who was able to present Garrity’s position. However her termination was upheld. “On April 27, 1990 the appeal was heard by John Samolis, Vice President of Employee Relations and Mark S. Liberman, Vice President of Reservations. On May 11, 1990, United again upheld the termination.” In construing and applying the Commonwealth’s employment discrimination statute, G. L. c. 15IB, we are helped by case law construing the analogous Federal statute, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988). Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995). Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 382-386 (1993). Appellate decisions in this jurisdiction and elsewhere have recognized a distinction between disparate “treatment” cases and cases involving disparate “impact.” Cox v. New England Tel. & Tel. Co., supra at 384-386. This is a disparate treatment case. “Typically, such cases involve alleged intentional discrimination resulting from racial, gender, or other social bias.” Id. at 385. To prove her claim of employment discrimination in violation of G. L. c. 15IB, a plaintiff in a case such as this must first establish a prima facie case by producing evidence that she is a handicapped person, that, in spite of her handicap she is qualified for the position from which she was fired, and that she was fired solely because of her handicap. Tate v. Department of Mental Health, supra at 361. See Cox v. New England Tel. & Tel. Co., supra at 383. Cf. Pushkin v. Regents of the Univ. of Colo., 658 F.2d 1372, 1385-1386 (10th Cir. 1981). Since this is an appeal from the allowance of the defendant’s motion for summary judgment, the question before us is whether the defendant, United, has demonstrated, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the plaintiff, Garrity, has no reasonable expectation of proving an essential element of her case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). We conclude that United has made that demonstration. Based on the materials before her, the judge effectively concluded that Garrity could reasonably expect to prove that she was a handicapped person by reason of alcoholism and that she was fired solely because of that handicap. However, based on those materials, the judge also concluded that Garrity could not reasonably expect to prove that, in spite of her handicap, Garrity was qualified for the position of customer service representative. Because we agree with the judge on that matter (Garrity’s qualification for the position) we shall limit our discussion to that subject. The plaintiff in Little v. FBI, 1 F.3d 255 (4th Cir. 1993), had been a Federal Bureau of Investigation (FBI) agent for several years until the FBI terminated his employment following his being intoxicated one day while on duty. The termination notice to Little stated that he was terminated because of his “inability to conform to the FBI’s established standards that special agents must remain mentally and physically fit for duty at all times.” Id. at 257. Little sued and, pursuant to the FBI’s motion, a judge dismissed his claims, including his claim for violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701-797b. The Court of Appeals affirmed. We set forth selected relevant statements in the court’s opinion: “At the heart of this appeal, the parties are sharply divided in their views of the reason for Little’s termination. The appellant alleged in his complaint and now asserts on appeal that his employment with the FBI was terminated because of his alcoholism. ... On the other hand, the appellee claims that Little was fired because he was intoxicated while on duty. In other words, the appellee maintains that Little was fired because of misconduct, not alcoholism. Indeed, in our view, the case turns on whether Little was terminated because of his alcoholism or because of his misconduct. Only if Little has alleged facts to support his claim that he was terminated because of his alcoholism has he stated a claim under the Rehabilitation Act. . . . [T]o be entitled to the protection of the Rehabilitation Act, the handicapped person must be ‘otherwise qualified.’ 20 U.S.C. § 794. It is settled that alcoholism is a handicapping condition within the meaning of the Act. Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989). “The phrase ‘otherwise qualified’ has been interpreted by the Supreme Court on several occasions. In Southeastern Community College v. Davis, 442 U.S. 397, 406 . . . (1979), the Supreme Court said that ‘[a]n otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.’ In a more recent case, the Supreme Court revisited the issue and stated that ‘[i]n the employment context, an otherwise qualified person is one who can perform “the essential functions” of the job in question.’ [School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987)]. Moreover, even if a handicapped employee is not able to perform the essential functions of this job, ‘the court must also consider whether any “reasonable accommodation” by the employer would enable the handicapped person to perform those functions.’ Id. at 287 n.17. . . . Finally, the employer must make reasonable accommodation for a handicapped employee unless reasonable accommodation would impose ‘undue hardship’ on the employer.” Little, supra at 257-258. The court in Little went on to discuss in some detail the agency regulations implementing the Rehabilitation Act, the provisions of the FBI’s Manual of Administrative Operations and Procedures, and several judicial opinions, and then said, “Based on the foregoing authority . . . and based on no lesser authority than common sense, it is clear that an employer subject to the Rehabilitation Act must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped.” Id. at 258-259. The Little court concluded that the only permissible inference from the complaint was that Little was fired because of his conduct and not because of his handicap even though there was a causal connection between the two. In addition, the court concluded that, as a result, Little “was not ‘otherwise qualified’ to be an FBI special agent” and therefore fell “outside the protection of the Rehabilitation Act.” Id. at 259. “A disabled individual cannot be ‘otherwise qualified’ for a position if he commits misconduct which would disqualify an individual who did not fall under the protection of the statute. The Rehabilitation Act mandates nondiscrimination against disabled individuals; it does not waive basic prerequisites to service. . . . The Rehabilitation Act is designed to put individuals with disabilities on equal footing with non-disabled people in regards to the hiring, promotion, and discharge decisions of the federal government and its grantees. It is not designed to insulate them from disciplinary actions which would be taken against any employee regardless of his status.” Wilbur v. Brady, 780 F. Supp. 837, 840 (D.D.C. 1992). The courts’ reasoning with respect to the Rehabilitation Act in Little, supra, and Brady, supra, applies with equal force to the interpretation and application of G. L. c. 151B in the circumstances of the present case. Nothing in c. 151B suggests a legislative intent that a lower standard of qualifying conduct should apply to handicapped employees than applies to those without handicap. We follow the lead taken by the Court of Appeals for the Fourth Circuit, in Little v. FBI, when that court announced that a handicapped employee who engages in conduct significantly inimical to the interests of his employer and in violation of the employer’s rules is not an “otherwise qualified” person within the meaning of the Rehabilitation Act. We conclude that such a person is not a “qualified handicapped person” within the meaning of G. L. c. 151B and therefore is not entitled to the protection of that statute. We also are satisfied that the summary judgment material before the judge in this case clearly demonstrated Garrity’s conduct to be such that Garrity could not reasonably expect to prove that she was a “qualified handicapped person” entitled to c. 151B’s protection. Summary judgment on the count alleging handicap discrimination was properly entered. The other count in Garrity’s complaint is for breach of an alleged contract which provided that Garrity’s employment would be terminated only for cause. Based on our reasoning above, Garrity could not reasonably expect to prove that her employment was terminated without cause. United was entitled to summary judgment on both counts because United showed that Garrity has no reasonable expectation of proving that she was qualified for or entitled to continued employment. Judgment affirmed. In the statement of facts in her brief filed in this court, the plaintiff focuses on Dr. Gofstein’s observations as follows: “Dr. Gofstein explained during his deposition that the basis of this conclusion was that there was ‘a pattern of events that would occur where there would be some crisis, some difficulty in her life enabling the drinking, and it was clear that drinking and obsessing about drinking and preoccupation with drinking was very much a part of her behavior.’ Dr. Gofstein prepared a letter describing his evaluation of Garrity. In that letter, Dr. Gofstein explained that ‘[l]ike most alcoholics, Mary has lived a life of denial with regard to seeing alcohol as a problem. Because of her alcoholism she could no more be held responsible for use of drink chits than a cocaine addict could be expected to reject available cocaine, or a gambler to resist one last chance at restoring a financial loss.’ When questioned about this during his deposition Gofstein explained that there was ‘no question that Ms. Garrity was addicted to alcohol.’ He went on to explain that ‘addiction implies an irresistible compulsion . . .’ and that she was unable to resist the chits because she was addicted to alcohol. ‘It’s like putting the drink in her hand.’ ”

HERWEYER v CLARK HIGHWAY SERVICES, INC Docket No. 171720. Submitted March 15, 1995, at Grand Rapids. Decided July 11, 1995, at 9:10 a.m. Leave to appeal sought. Jack Herweyer brought an action in the Missaukee Circuit Court against Clark Highway Services, Inc., alleging breach of an employment contract, discrimination, and retaliatory discharge. The court, Charles D. Corwin, J., granted summary disposition for the defendant, ruling that the action, which had been brought thirty-one months after the discharge, was not timely under the limitation provisions of the contract. The plaintiff appealed. The Court of Appeals held: 1. A contractual limitation period that is shorter than the applicable statutory period of limitation will be upheld if it is reasonable. A contractual period is reasonable where the claimant has a sufficient opportunity to investigate and file an action, the time is not so short as to be a practical abrogation of the right of action, and the action is not barred before loss or damages can be ascertained. In this case, where the contract provided a six-month limitation period and a saving clause stating that any term found to be legally unenforceable as written is to be limited in application so as to allow the enforcement of the term as far as legally possible, the trial court did not err in concluding that, even if the six-month period was unreasonable, the limitation period could be saved by reading it as providing for an unspecified minimum reasonable time that is less than thirty-one months. 2. The question whether it is against public policy to allow employers to shorten by contract limitation periods for actions brought by employees is best addressed by the Legislature, not the Court of Appeals. Affirmed. Neff, J., dissenting, stated that the six-month limitation period under the contract was unreasonable, that the saving clause was vague and ambiguous and should be stricken from the contract, that the statutory three-year period of limitation should apply, and that the case should be remanded for trial. Alternatively, the matter should be remanded for a hearing to determine whether thirty-one months was a reasonable contractual period of limitation. References Am Jur 2d, Limitation of Actions §§ 64, 65. See ALR Index under Contracts; Limitation of Actions. Limitation of Actions — Contracts — Statutes of Limitation. A contractual limitation period that is shorter than the applicable statutory period of limitation will be upheld if it is reasonable; a contractual period is reasonable where the claimant has a sufficient opportunity to investigate and file an action, the time is not so short as to be a practical abrogation of the right of action, and the action is not barred before loss or damages can be ascertained. Bott & Spencer, P.C. (by R. Dillon McCormick), for the plaintiff. Warner, Norcross & Judd (by Robert J. Chovanec, Douglas E. Wagner, and Rodrick W. Lewis), for the defendant. Before: Sawyer, P.J., and Griffin and Neff, JJ. Sawyer, P.J. Plaintiff appeals from an order of the circuit court granting summary disposition in favor of defendant on plaintiff’s claim for breach of contract, discrimination, and retaliatory discharge on the basis of the claim not having been timely brought under the provisions of that contract. We affirm. Plaintiff entered into an employment contract with defendant, which contract included provisions that any claims arising from the termination of employment must be brought within six months and that plaintiff specifically waived any applicable statute of limitations to the contrary. Plaintiff was discharged after filing a worker’s compensation claim. Thirty-one months later, plaintiff brought the instant action. Defendant moved to have the action dismissed on the basis of the contractual provision of bringing all claims within six months, and the trial court granted summary disposition. We first jointly consider two of plaintiffs arguments, namely that the trial court erred in granting summary disposition when the applicable statute of limitations had not run and whether the contractual provision of a six-month limitation was unreasonable and, therefore, the full statutory period should be applied. It is settled law in Michigan that the courts will uphold a contractual provision limiting the time to bring suit where that limitation is reasonable, even though the period specified is less than the applicable statute of limitations. Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 126; 301 NW2d 275 (1981). The determination of such reasonableness is made by looking at whether the claimant had a sufficient opportunity to investigate and file an action, the time was not so short as to be a practical abrogation of the right of action, and the action was not barred before the loss or damages could he ascertained. Id. at 127. In the case at bar, the trial court expressed its reservation that the six-month limitation provided for in the contract may not be reasonable, but concluded that in any event a reasonable time would be less than the thirty-one months in which it took plaintiff to commence suit and, therefore, plaintiffs action was barred by the contractual provision. Plaintiff, in essence, argues that if the six-month period is unreasonable, then the statutory provision of a three-year period of limitation must be applied. In concluding that the contract can be read to provide for a reasonable period of limitation less than the three years provided by statute, but nonetheless more than the six months specifically provided in the contract, the trial court looked to a provision in the contract that stated that if any term was found to be legally unenforceable as written, the particular provision would be limited to allow its enforcement as far as legally possible. The trial court interpreted this provision to mean that even if the six-month period provided in the contract was unreasonable, that provision would then be read as providing for the minimum reasonable time. While the trial court did not specifically indicate what the minimum reasonable time was, it did determine that it was less than the thirty-one months that it took plaintiff to bring suit. We agree with the trial court’s interpretation of the contract. 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, supra at 127. 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. Plaintiff also argues that allowing employers to shorten the statute of limitations for employment actions is contrary to public policy. That may or may not be the case, but we believe it presents a public policy question best addressed by the Legislature, not this Court. The Legislature is in a superior position to consider the arguments, consider the ramifications of restricting the right to contract in this area, and determine what is in the public interest. If the Legislature deems such contractual provisions to be contrary to public policy, it may endeavor to enact the appropriate legislation. We, however, decline to impose by judicial fiat such restrictions on the right to contract. Affirmed. Defendant may tax costs. Griffin, J., concurred. Neff, J. (dissenting). The trial court and the majority here reached the conclusion that the six-month limitation period contained in the "application for employment” is unreasonable, and I agree with that conclusion. However, I cannot agree that a further provision in the application to the effect that if the six-month term is found to be unenforceable, then a "minimum reasonable time” is to be determined and enforced "as far as legally possible” can properly be read to support the conclusion that thirty-one months is unreasonably long. . i As a preliminary matter, I note that the language of the contract is vague and ambiguous. It seems obvious that the drafter (presumably defendant or its attorney) contemplated the probability that the six-month limitation period would be attacked in these circumstances and the possibility of a finding that it is unreasonable, as was found to be the case. In anticipation of this result the "minimum reasonable time” and "as far as legally possible” language were added, but without any effort to define these imprecise terms, leaving the parties, and ultimately the courts, with the task of interpretation case by case. This situation leads to an inexact limitation period and, inevitably, to the possibility of different limitation periods arising out of the same contract language. I find this potential to be untenable. Surely, parties are entitled to certainty in their legal dealings to a greater degree than this contract language allows, particularly with regard to the time limits that govern their mutual rights to seek redress against each other in the courts. Because it is ambiguous and might lead to unreasonable results, I would construe this language strictly against the drafter and strike it from the agreement. See DeMello v McNamara, 178 Mich App 618, 623; 444 NW2d 149 (1989). This would restore the parties to reliance on the applicable statutory limitation periods that have been established by the Legislature. This result would serve a number of important purposes. First, it would provide certainty to the determination of the time in which to bring suit. Second, as the legislative articulation of the limitation period, it is a simple, straightforward, and objective measure of what time period is "reasonable.” ii Next, I share the concerns expressed by the trial court with regard to the public policy arguments raised by plaintiff. Shortening the statute of limitations to six months will result in premature litigation because parties will be forced to rush to file suit before they have the opportunity to mitigate damages or fully investigate their claims. This is not in keeping with the purpose of a statute of limitations, that is, to protect defendants against stale or fraudulent claims. See Larson v Johns-Manville Sales Corp, 427 Mich 301, 310; 399 NW2d 1 (1986). In addition, an employee who must choose between signing an agreement such as the one in this case or risking termination does not deal at arm’s length with the employer. This is not a commercial setting where the parties could negotiate the terms of their agreement with regard to the limitation period or even one in which the employee was represented by a labor union that could have negotiated the terms and conditions of employment on his behalf. Where the parties are not on equal footing, the reduction in the limitation period for causes of action pursuant to remedial statutes should not be permitted lightly. hi Further, my review of the record reveals that there is nothing to establish whether the thirty-one-month time period between termination and filing was reasonable. If we assume that the language of the application permits a judicial determination of a limitation period more than six months but less than the period established by the Legislature, then defendant has the burden of showing that the elapsed time was unreasonable and plaintiff should have the opportunity to establish whether the time period in question was reasonable. The determination should, in any event, be measured by some'objective standard of reasonableness. It is not enough to say, as the trial court did, that while we agree that a six-month period is unreasonably short and therefore unenforceable, thirty-one months exceeds the fuzzy "minimum reasonable time,” but without articulating any reasons for that finding and without saying just how much time does fit within the "minimum reasonable time.” At the very least, we should remand this case to give plaintiff the opportunity to establish whether thirty-one months is reasonable within the context of this case. IV Finally, I note that the majority relies for its conclusion on Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118; 301 NW2d 275 (1981). In my view, that case is distinguishable from this one and does not support the result for which it is cited as authority. The Camelot case involved a shortened statute of limitations in a construction bond. Two commercial entities, a general plumbing contractor and an insurance company, were the principal and the surety on the bond, which was a labor and material bond, the purpose of which was to protect the owner of the construction project against claims of those who furnished labor or materials to the contractor. The owner of the project was therefore a third-party beneficiary of the bond contract. There is nothing remotely similar in the fact situation of this case where the employer and an individual employee are parties to the application that shortens the limitation period solely for the benefit of the employer. Ultimátely, I agree with Justice Levin’s concurring opinion in Camelot, supra at 140-143, that the holding there is limited to the narrow circumstances of that case. Specifically, I agree with the following statement: 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. [Id. at 141.] Thus, to the extent this, rule is applicable in other settings, I would require that the parties to the contract, in contrast to the parties here, be more equal with regard to bargaining power. See, e.g., Rowry v Univ of Michigan, 441 Mich 1, 19, n 2; 490 NW2d 305 (1992), concurring opinion of Riley, J. (suggesting that public policy does not prohibit parties to a collectively bargained for agreement from shortening the period of limitation). By allowing this rule to apply in situations involving parties possessing unequal bargaining power, the majority will be allowing one of the contracting parties to unilaterally supplant the period of limitation mandated by the Legislature, a questionable practice from a public policy standpoint. Camelot, supra at 141. Accordingly, I would reverse and remand for trial or, in the alternative, for a hearing to determine if a thirty-one-month time period was reasonable on the basis of the facts of this case.

GARAVAGLIA v CENTRA, INC Docket No. 148153. Submitted October 19, 1994, at Detroit. Decided June 23, 1995, at 9:35 a.m. Leave to appeal sought. Charles Garavaglia brought an action in the Wayne Circuit Court against Centra, Inc., Central Transport, Central Cartage Company, and Manuel J. and Agnes A. Moroun, alleging age discrimination in employment, breach of an employment contract terminable for just cause only, discharge from employment in breach of public policy, tortious interference with contractual relations, and violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. The plaintiff also sought a declaration regarding the existence of a contract and an order providing for the specific performance of the contract. The jury returned a verdict for the plaintiff, and the court, Claudia House Morcom, J., entered a judgment consistent with the verdict. The defendants, except Agnes A. Moroun, appealed from the judgment entered by the trial court. The Court of Appeals held: 1. Defendants’ claim that the plaintiff cannot recover damages for both breach of an employment contract terminable for just cause only and discharge from employment in breach of public policy was not preserved for appellate review. 2. The jury instructions regarding the alleged breach of public policy adequately informed the jury of the applicable law. 3. A claim regarding an alleged breach of public policy may be premised on the alleged violation of a federal statute. An employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state. 4. The National Labor Relations Act, 29 USC 158(b)(1)(B), imposes a duty on a union not to influence or interfere with an emp1 oyer’s choice of a bargaining representative. The plaintiff was entitled to be his employer’s bargaining representative without being pressured to leave by the union involved. References Am Jur 2d, Labor and Labor Relations § 2385; Wrongful Discharge §§ 11, 19, 23-39, 44. See ALR Index under At-Will Relationship; Discharge from Employment or Office; Public Policy; Unfair Labor Practices. 5. The plaintiff presented sufficient evidence of a claim for breach of public policy to withstand the defendants’ motion for a directed verdict. A rational trier of fact legitimately could infer that the union pressured the defendants into firing the plaintiff in order to achieve labor peace. 6. The trial court’s order taxing costs must be affirmed. Affirmed. 1. Labor Relations — Unfair Labor Practices — Labor Relations Representatives. It is an unfair labor practice for a union to coerce an employer regarding the selection of the employer’s labor relations representative; the National Labor Relations Act confers a right upon an employee to be the employer’s bargaining representative without being pressured to leave by the union (29 USC 158[b][l][B]). 2. Labor Relations — At-Will Employees — Discharge — Breach of Public Policy — Federal Statutes. An employee at will may not be discharged when the reason for the discharge is the employer’s intention to contravene the public policy of this state; a claim regarding a breach of public policy may be premised on the alleged violation of a federal statute. 3. Labor Relations — Employment At Will — Exceptions — Public Policy. An exception to the employment at will doctrine is recognized on the basis of the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable; another exception exists where there are explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty (however, a public policy claim is sustainable only where there is no applicable statutory prohibition against discharge in retaliation for the conduct at issue); a third exception exists where the alleged reason for the discharge was the employee’s failure or refusal to violate a law in the course of employment; a fourth exception exists where the alleged reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. Gottlieb & Goren, P.C. (by Charles Gottlieb), for the plaintiff. Plunkett & Cooney, P.C. (by Ernest R. Bazzana and Kelly A. Freeman), for the defendants. Before: Wahls, P.J., and Jansen and J. P. Noecker, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Jansen, J. Defendants Centra, Inc., Central Transport, Central Cartage Company, and Manuel J. Moroun (hereafter defendants), appeal as of right from a jury verdict for plaintiff in the amount of $197,500 in this action alleging wrongful discharge. We affirm. Plaintiff filed his complaint in the Wayne Circuit Court, alleging age discrimination, breach of an employment contract terminable for just cause only, discharge in breach of public policy, tortious interference with contractual relations, violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq., and seeking a declaratory judgment (specific performance). A jury found for plaintiff with regard to the claim of breach of an employment contract terminable for just cause only (awarding $60,000), the claim of breach of public policy (awarding $100,000), and the declaratory judgment claim (awarding $37,500 for breach of a written retainer fee contract). Defendants now contest the verdict with regard to the claim of breach of public policy. Plaintiff alleged that his employment was terminated in breach of public policy on the bases that defendants submitted to union demands that they fire plaintiff to achieve "labor peace,” that plaintiff failed to obey defendants’ request to destroy documents subpoenaed by a federal grand jury, and that plaintiff blocked an offer by the union to dismiss a lawsuit by refusing to agree not to countersue the union. Defendants admitted in their trial brief that they terminated plaintiffs employment because of union pressure that there would be no labor peace unless plaintiff was removed. It was plaintiffs contention that it was a violation of the National Labor Relations Act (nlra) for the union to influence defendants in their choice of a bargaining representative. 29 use 158(b)(1)(B). i Defendants first contend that the jury verdict regarding the claim of breach of public policy must be vacated because plaintiff cannot recover damages for both breach of an employment contract terminable for just cause only and discharge in breach of public policy. We find that this issue is not properly preserved for appellate review. Defendants never argued below that breach of an employment contract terminable for just cause only and breach of public policy are alternative theories and that plaintiff cannot recover under both. Issues raised for the first time on appeal ordinarily are not subject to review. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). Because this issue was never raised below, we decline to review it. See Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994) (it is a "time-honored rule that, absent unusual circumstances, issues not raised at trial may not be raised on appeal”). ii Defendants next contend that the trial court erred in denying their motion for a directed verdict with regard to the claim of breach of public policy. Plaintiffs claim regarding breach of public policy was based on the nlra. Specifically, plaintiff alleged that defendants breached public policy by yielding to union demands to fire plaintiff. Pursuant to 29 USC 158(b)(1)(B), it is an unfair labor practice for a union to coerce an employer regarding the selection of the employer’s labor relations representative. Defendants contend that plaintiffs claim is legally insufficient because Michigan does not recognize an implied cause of action for breach of public policy when an employer violates federal law. Defendants also contend that the nlra does not confer rights on plaintiff and, because he is not protected by the nlra, he cannot receive a remedy for the alleged violation. We first note that the question regarding legal sufficiency raised by defendants was not raised in the trial court in their motion for a directed verdict. Rather, defendants raised this issue by objecting to the trial court’s instructions regarding the alleged breach of public policy. Thus, with regard to the issue concerning legal sufficiency, we review the trial court’s instructions as a whole. The question is whether the instructions as given adequately informed the jury of the applicable law reflecting the various evidentiary claims in the particular case. Riddle v McLouth Steel Products Corp, 440 Mich 85, 101; 485 NW2d 676 (1992). We find that the jury instructions adequately informed the jury of the applicable law. In Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982), the Supreme Court stated that an exception to the employment at will doctrine will be recognized on the basis of the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. First, an exception exists where there are explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty. Id. Second, such a cause of action has been found to be implied where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment. Id. Finally, a cause of action has also been found to be implied where the alleged reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. Id., p 696. To some extent, the first of the three grounds in Suchodolski has been limited in Dudewicz v Norris Schmid, Inc, 443 Mich 68, 80; 503 NW2d 645 (1993), where the Court held 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. The trial court instructed the jury in pertinent part as follows: Now, you are instructed that if you find the plaintiff was dismissed from his employment or from performing the obligations, the duties and demands of his office or release from his employment service, or moved from a greater job to a lesser job that you may find that plaintiff was wrongfully discharged. You are further instructed that an employer is not free to discharge, discipline or otherwise adversely treat an employee who acts in accordance with the statutory right or duty, or where the employee fails or refuses to violate the law in the course of his employment; nor can the employer discharge the employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of Michigan or the United States. Now, you are further instructed that it is against public policy to restrain or coerce an employer in the selection of its representative for collective bargaining or adjustment of grievances or; secondly, to refuse to bargain with an employer based on the employers’ selection of its representative. We find that the trial court’s instructions adequately informed the jury of the law. We agree with plaintiff that a claim regarding a breach of public policy may be premised on the alleged violation of a federal statute. Other jurisdictions have also recognized a wrongful discharge action based on a clearly articulated federal policy. Sherman v St Barnabas Hosp, 535 F Supp 564 (SD NY, 1982); D’Agostino v Johnson & Johnson, Inc, 133 NJ 516; 628 A2d 305 (1993). Further, the fact that the nlra does not specifically confer rights upon plaintiff is not dispositive. As this Court has stated, "the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.” Sventko v Kroger Co, 69 Mich App 644, 647; 245 NW2d 151 (1976). Thus, it is the fact that the employer discharged plaintiff in contravention of the public policy of this state that permits plaintiff’s claim regarding the breach of public policy. In any event, plaintiff was entitled to be the employer’s bargaining representative without influences from the union. Under the nlra, a duty is imposed on the union not to influence or interfere with an employer’s choice of a bargaining representative. Accordingly, the nlra did confer a right upon plaintiff to be the bargaining representative without being pressured to leave by the union. Under these circumstances, the third prong of Suchodolski is satisfied because a cause of action may be had where the alleged reason for the discharge is the employee’s exercise of a right conferred by a well-established legislative enactment. Next, defendants contend that plaintiff failed to prove a prima facie case of breach of public policy and that the trial court, therefore, erred in denying their motion for a directed verdict. When evaluating a motion for a directed verdict, the court must consider the evidence in a light most favorable to the nonmoving party, making all reasonable inferences in the nonmoving party’s favor. Locke v Pachtman, 446 Mich 216, 223; 521 NW2d 786 (1994). Directed verdicts are appropriate only when no factual question exists upon which reasonable minds may differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). We find that plaintiff presented sufficient evidence at trial of a claim for breach of public policy. Plaintiff alleged that defendants terminated his employment by yielding to union demands that terminating his employment was the only way of achieving labor peace. Plaintiff testified that he was told that he would be removed from labor relations because he had been rendered neutral with the union during the many "snowballs” with other transportation companies. According to plaintiff, defendants were taking over the bankruptcies of other transportation companies, closing out the operations and creating confrontations with the unions in the bankruptcy courts. Plaintiff met with Manuel Moroun and it was reiterated that defendants’ actions put plaintiff in the position that he had problems with the unions. Moroun made clear to plaintiff that plaintiff’s work was satisfactory and that he knew that plaintiff was loyal. Further, defendants admitted in their opening statement that the union made clear to Moroun that it did not want to deal with plaintiff. Taking this evidence in a light most favorable to plaintiff and drawing all legitimate inferences therefrom, we find that plaintiff presented sufficient evidence regarding his claim of breach of public policy to withstand a motion for a directed verdict. A rational trier of fact legitimately could infer that the union pressured defendants into firing plaintiff in order to achieve labor peace. m Last, defendants argue that the trial court’s order taxing costs should be reversed if this Court vacates the jury verdict or grants a new trial. Because we are affirming the jury’s verdict, we also affirm the trial court’s order taxing costs pursuant to MCR 2.625(A) and (B). Affirmed.

Wesley S. Blank vs. Chelmsford OB/Gyn, P.C., & others. Middlesex. February 8, 1995. May 17, 1995. Present: Liacos, C.J., Wilkins, Abrams, Lynch, & Grbanby, JJ. Practice, Civil, Motion to dismiss. Contract, Implied covenant of good faith and fair dealing, Employment, Performance and breach. Corporation, Close corporation, Stockholder, Stock. Fiduciary. Employment, Termination. Discussion of the implied covenant of good faith and fair dealing between parties to an employment contract and the fiduciary duty of good faith and loyalty among stockholders in a close corporation. [407-408] In an action brought by a former employee and shareholder of a close corporation alleging breach of contract, breach of fiduciary duty, intentional infliction of emotional distress and violation of G. L. c. 93A, all arising out of the termination of the plaintiff's employment, the judge correctly dismissed the complaint under Mass. R. Civ. P. 12 (b) (6), where the plaintiff had been terminated without cause on proper notice in accordance with the written terms of the employment contract that the plaintiff had agreed to. [408-409] Civil action commenced in the Superior Court Department on March 16, 1994. The case was heard by Patrick F. Brady, J., on a motion to dismiss. The Supreme Judicial Court granted an application for direct appellate review. Michael J. Stone for the plaintiff. Joan O. Vorster for the defendants. Edward M. Lipman and David W. Merens. Lynch, J. The individual defendants, two of the three shareholders in a close corporation, terminated the employment of the plaintiff, the third shareholder, pursuant to an employment agreement. As a result of this termination, the plaintiff filed this action alleging that the individual defendants were liable on theories of breach of contract, breach of fiduciary duty, conspiracy, intentional infliction of emotional distress, and unfair and deceptive trade acts in violation of G. L. c. 93A (1992 ed.). The plaintiff also alleged that the defendant corporation was liable on theories of breach of contract, deceit, wrongful termination, intentional infliction of emotional distress, and unfair and deceptive trade acts in violation of G. L. c. 93A. The plaintiff sought treble damages and attorney’s fees pursuant to G. L. c. 93A, as well as injunctive relief to prevent his termination. The defendants moved to dismiss the plaintiff’s complaint, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for failure to state a claim on which relief can be granted. A Superior Court judge allowed the defendants’ motion, ruling that the defendants acted within their contractual rights under the employment contract and stock purchase agreement. The judge rejected the plaintiff’s argument that the defendants owed the plaintiff a duty of good faith and fair dealing. The plaintiff filed a timely notice of appeal. We granted the plaintiff’s application for direct appellate review. We affirm the judgment. In 1988, the plaintiff and the individual defendants created the defendant corporation for the purpose of conducting a group medical practice devoted to obstetrics and gynecology. In 1990, the plaintiff entered into a written employment contract with the corporation. The contract defined the period of employment as follows: “2. Employment Period. The Corporation hereby hires the Employee to render services for it from the date set forth above to December 31, 1990 and continuing thereafter from year to year until either party shall have given written notice to the other that he (it) wishes to terminate the contract. Such notice shall be effective to terminate this Contract on the last day of the sixth month following the month in which notice was given. This contract may also be terminated as hereinafter provided.” The contract also contained a termination provision which stated as follows: “10. Termination of Agreement. This Agreement shall terminate upon the disability (as provided in Section 9 hereof), retirement (as provided in Section 11 hereof), entrance into military service or death of the Employee, upon the disqualification of the Employee from the practice of medicine for any reason or upon the discontinuation of the Employee’s policy of insurance insuring the Employee against acts of malpractice and negligence, or until terminated by either party upon serving proper written notice as hereinabove provided. “Upon termination, the Employee shall be paid his salary earned to and including the date of termination and his salary for vacation days earned but not yet taken to the date of termination.” The parties also entered into a stock purchase agreement which provided that, in certain circumstances, the corporation would repurchase a shareholder’s stock at the book value of each share, as determined by the independent accountant of the corporation. According to this Agreement, the obligation of the shareholder to sell and of the corporation to purchase the shares accrues on certain circumstances, including “[u]pan the termination by the Shareholder or by the Corporation of the employment of the Shareholder by the Corporation for any reason whatsoever.” On Friday, January 28, 1994, sometime after 5 p.m., the defendant, Edward M. Lipman, president of the corporation (president), delivered to the plaintiff a written notice stating that there would be a special meeting of the board of directors of the corporation on the following Monday, January 31, 1994. The notice stated that the purpose of the meeting was to consider the termination of the plaintiff’s employment and the repurchase of the plaintiff’s stock. At the board of director’s meeting the president gave the plaintiff a notice, which had been signed by the president on behalf of the corporation, stating that the plaintiff’s employment was being terminated. The notice was effective as of January 31, 1994, and stated, “this notice shall effectively terminate the agreement on July 30, 1994.” The defendants also voted to remove the plaintiff as the corporate treasurer and clerk. Additionally, pursuant to the stock purchase agreement, the plaintiff was required to sell back his shares to the corporation at their book value. The plaintiff objected to his termination and the required repurchase of his stock. In evaluating the allowance of a motion to dismiss, we are guided by the principle that a complaint is sufficient “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.” Nader v. Citron, ill Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Furthermore, we examine the sufficiency of the plaintiff’s claims in light of the principles that the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor, are to be taken as true. Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991), citing Balsavich v. Local 170, Int’l Bhd. of Teamsters, ill Mass. 283, 287 (1976), and Druker v. Roland Wm. Jutras Assocs., 370 Mass. 383, 385 (1976). This case places in stark contrast certain generally accepted principles of contract and corporate law. First, there is an implied covenant of good faith and fair dealing between parties to a contract. Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991). Such a covenant requires “that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Id. at 471-472, quoting Druker, supra, and Uproar Co. v. National Broadcasting Co., 81 F.2d 373, ill (1st Cir.), cert. denied, 298 U.S. 670 (1936). It is clear that an employment contract contains this implied covenant of good faith and fair dealing, and a termination not made in good faith may constitute a breach of the contract. See Fortune v. National Cash Register Co., 373 Mass. 96, 101 (1977). Second, the relationship among stockholders in a close corporation must be one of trust, confidence, and absolute loyalty if the enterprise is to succeed. In this regard, a close corporation resembles a partnership. Donahue v. Rodd Electrotype Co., 367 Mass. 578, 587 (1975). Because of this relationship, stockholders in a close corporation owe one another the same fiduciary duty in the operation of the corporation that partners owe to one another. This fiduciary duty is one of the utmost good faith and loyalty. Id. at 593. Stockholders in close corporations must discharge their management and stockholder responsibilities in conformity with this strict good faith standard. They may not act out of avarice, expediency, or self-interest in derogation of their duty of loyalty to the other stockholders and to the corporation. However, questions of good faith and loyalty with respect to rights on termination or stock purchase do not arise when all the stockholders in advance enter into agreements concerning termination of employment and for the purchase of stock of a withdrawing or a deceased stockholder. See id. at 598 n.24; Evangelista v. Holland, 27 Mass. App. Ct. 244, 248-249 (1989). Third, the fact that a stockholder has entered into an employment agreement or the fact that stockholders execute a valid stock purchase agreement does not relieve stockholders of the high fiduciary duty owed to one another in all their mutual dealings. See King v. Driscoll, 418 Mass. 576, 586 (1994). In this case, however, in contrast to King, there was an employment contract that permitted employment to be terminated by either party on six-months’ notice, and there is no allegation that the defendants are denying the plaintiff his contractual rights or future compensation for past services. Because there is a stock purchase agreement, the method of determining the value of the plaintiff’s shares on proper termination is not subject to question. A duty of good faith and fair dealing exists during the course of events leading up to and including termination, but that duty is to be evaluated in light of an agreement that permits termination by either party without cause on notice. Thus, we are faced with a termination without cause on proper notice, in accordance with the plaintiffs employment contract freely and mutually agreed to at the outset of his employment. The plaintiff received all that he had bargained for, i.e., the book value of his stock and six-months’ notice of his termination. Judgment affirmed. A fourth doctor was also one of the founders of the corporate defendant, but subsequently left the practice and is not a party to this litigation.

CLEMENT-ROWE v MICHIGAN HEALTH CARE CORPORATION Docket No. 155446. Submitted December 15, 1993, at Detroit. Decided March 15, 1995; approved for publication August 2, 1995, at 9:00 a.m. Karen Clement-Rowe brought an action in the Wayne Circuit Court against Michigan Health Care Corporation, alleging wrongful discharge from employment and misrepresentation. The court, John R. Kirwan, J., granted summary disposition for the defendant. The plaintiff appealed. The Court of Appeals held: 1. Statements made by management personnel to employees may create a legitimate expectation of termination for cause only, but the expectation must be based on both a subjective and objective belief that the employee has been hired under a just-cause contract. The plaintiff signed an application form that provided that she was an at-will employee and understood that the defendant could terminate her employment at any time and for any reason. The plaintiff did not have a subjective or objective belief that she had been hired under a just-cause contract. The trial court properly granted the defendant’s motion for summary disposition of the wrongful discharge claim. 2. The plaintiff presented evidence that established the elements of her fraud claim. A question of fact existed with regard to whether the defendant failed to disclose to the plaintiff its financial condition with the intention to induce her to rely on the nondisclosure in accepting employment. The order of summary disposition must be reversed with regard to the misrepresentation claim and the matter must be remanded for a trial regarding that claim. Affirmed in part, reversed in part, and remanded. White, J., dissenting from the decision to reverse and remand with regard to the misrepresentation claim, stated that the plaintiffs deposition testimony and affidavit were insufficient to create a genuine issue of material fact in light of the defendant’s motion and supporting affidavits. References Am Jur 2d, Fraud and Deceit §§146, 216; Master and Servant §§ 27, 43. See ALR Index under Discharge from Employment or Office; Fraud and Deceit. 1. Master and Servant — Wrongful Discharge — Termination for Cause. Statements made by management personnel to employees may create a legitimate expectation of termination for cause only; the expectation must be based on both a subjective and objective belief that the employee has been hired under a just-cause contract. 2. Master and Servant — Wrongful Discharge — Employment at Will. Employment may be terminated for any or no reason where the employee has signed a disclaimer describing the employment as at-will and there has been no subsequent modification of the disclaimer. 3. Fraud — False Material Misrepresentations — Silent Fraud. The false material misrepresentation element necessary to establish a claim of fraud may be established by evidence that the defendant failed to divulge a fact that the defendant had a duty to disclose and intended to induce the plaintiff to rely on its nondisclosure. Golden & Kunz (by Robert H. Golden), for the plaintiff. Butzel Long, P.C. (by John P. Hancock, Jr., and Robert A. Boonin), for the defendant. Before: Marilyn Kelly, P.J., and White and D. F. Breck, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff, Karen Clement-Rowe, appeals as of right from the trial court’s grant of summary disposition in favor of her employer, Michigan Health Care Corporation, in a wrongful discharge action. We affirm in part, reverse in part and remand. Plaintiff accepted an offer to become an employee health nurse with Michigan Health Care Corporation. She sold her home in Saginaw and moved to Detroit. About one month after hiring her, in response to a severe financial crisis, defendant terminated the employment of one hundred fifty of its employees, including plaintiff. Her salary and benefits were continued for two months, through December 31, 1990. In April, 1991, defendant rehired plaintiff in a new position and with a salary increase of $4,800. i In her suit, plaintiff alleged that she had been wrongfully discharged and that, when hiring her, defendant had misrepresented its financial condition to her. While she acknowledged signing an employment contract containing an at-will employment clause, she contended that defendant’s personnel officer modified it through oral representations regarding the company’s financial condition. This Court reviews a grant of summary disposition de novo, examining the record to determine whether a party was entitled to judgment as a matter of law. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993). As a general rule, employment for an indefinite term is presumed to be terminable at the will of either party. Kostello v Rockwell Int'l Corp, 189 Mich App 241, 244; 472 NW2d 71 (1991). An employee may overcome the presumption by proof that there was a promise of employment security implied in fact. Biggs v Hilton Hotel Corp, 194 Mich App 239, 240-241; 486 NW2d 61 (1992). Oral statements of job security must be clear and unequivocal to overcome the presumption that employment is at-will. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991). Statements made by management personnel to employees may create a legitimate expectation of termination for cause only; the expectation must be based on both a subjective and objective belief that the employee has been hired under a just-cause contract. Gonyea v Motor Parts Federal Credit Union, 192 Mich App 74, 83; 480 NW2d 297 (1991). Once a disclaimer describing employment as at-will is signed by an employee, excepting any subsequent modification, the employee may be terminated for any reason or for no reason. Scholz v Montgomery Ward & Co, Inc, 437 Mich 83, 94; 468 NW2d 845 (1991). Here, plaintiff admitted that she had signed an application form which provided that she was an at-will employee. She testified that she understood that the at-will clause permitted defendant to terminate her employment at any time and for any reason. By signing the application and admitting that she understood the clause, she cannot now establish either a subjective or objective belief that she had any degree of job security. Furthermore, even if plaintiff could establish that she was a just-cause employee, bona fide economic reasons for discharge constitute just cause for termination. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 114; 469 NW2d 284 (1991). Plaintiff has not challenged defendant’s proofs that adverse business conditions necessitated the elimination of her position. II Plaintiff also contends that the trial court erred in dismissing her claim of misrepresentation. A A fraud claim may be made in any employment situation under circumstances similar to those involved here if properly supported by the evidence. Brownell v Garber, 199 Mich App 519, 533; 503 NW2d 81 (1993). The Brownell decision sets forth the six elements of a fraud claim: (1) a material representation (2) that is false (3) that defendant made knowing it to be false or that it made recklessly without any knowledge of its truth and as a positive assertion; (4) with the intent that it should be acted upon by the plaintiff, . (5) that it was acted upon by the plaintiff, and (6) resulted in the plaintiffs injury. Viewing the facts in a light most favorable to plaintiff here, the elements of fraud are present and require reversal. According to plaintiffs affidavit of January 22, 1992, defendant’s personnel director, Gary Johnson, told her that money for her position had been allocated. The statement, if made, constitutes a material representation which proved to be false. If Johnson made the statement responding to plaintiffs specific inquiry, he may have known it was untrue or made it without any knowledge of its truth. Presumably, he made it in order to allay plaintiffs hesitancy to accept the job offer because of concern about the financial health of the company. Plaintiff claims to have accepted the position in reliance on the assertion. Finally, while she successfully mitigated some of her damages, she may show she suffered injury. Thus all the elements of a fraud claim are present. B Plaintiff also alleges silent fraud. The false material representation needed to establish fraud may be satisfied by the failure to divulge a fact or facts the defendant has a duty to disclose. Fassihi v Sommers, Schwartz, Silver, Schwartz & Tyler, PC, 107 Mich App 509, 517; 309 NW2d 645 (1981). A claim of silent fraud requires a plaintiff allege that the defendant intended to induce him to rely on its nondisclosure and that defendant had an affirmative duty to disclose. Lowery v Dep’t of Corrections, 146 Mich App 342, 356-360; 380 NW2d 99 (1985). In her complaint, plaintiff alleged that defendant had a duty to disclose its adverse financial conditions and intended to induce her to rely on the nondisclosure in accepting employment. Defendant asserts that it was not aware of the financial difficulties until after plaintiff was hired. However, we believe this is a question of fact sufficient to have withstood defendant’s motion for summary disposition. Today’s employment market is both tenuous and difficult. Nearly all employment is at-will. The economic well-being and financial stability of a potential employer is an important factor in accepting a job offer. Consequently, an employer who succeeds in asserting its economic health to attract qualified employees knowing the assertions are untrue may not later hide behind an at-will employment contract. Neither may it be permitted to avoid liability after omitting to disclose, when asked, known economic instability which later leads to economically-based layoffs. We affirm the trial court’s grant of summary disposition on plaintiff’s wrongful discharge claim. However, we reverse and remand for a trial on her misrepresentation claims. We deny costs to defendant. Several cases on wrongful discharge have not dealt with situations in which the complainant admitted signing a form which contained an at-will clause. Consequently, it is unnecessary to engage in the analysis required in them to determine whether plaintiff could establish that her employment contract was at-will or for just cause. See Rood v General Dynamics Corp, 444 Mich 107; 507 NW2d 591 (1993); Barnell v Taubman Co, Inc, 203 Mich App 110; 512 NW2d 13 (1993); Manning v Hazel Park, 202 Mich App 685; 509 NW2d 874 (1993). White, J. (concurring in part and dissenting in part). I join in the majority’s discussion and disposition of the breach of contract issue. I dissent, however, from the majority’s conclusions regarding the misrepresentation claims. While I agree in principle with the majority’s discussion of the issue, I conclude that plaintiff’s deposition testimony and affidavit were insufficient to create a genuine issue of material fact in light of defendant’s motion and supporting affidavits. I would affirm.