Breach of Contract Cases

KAMALNATH v MERCY MEMORIAL HOSPITAL CORPORATION Docket No. 128108. Submitted April 8, 1992, at Detroit. Decided June 15, 1992, at 9:15 a.m. Leave to appeal sought. Jacintha F. Kamalnath and Prakash J. Kamalnath, for himself and as next friend of Anthea J. Kamalnath, brought an action in the Monroe Circuit Court against Mercy Memorial Hospital Corporation, alleging breach of contract, wrongful discharge, employment discrimination based on gender and race, fraud, misrepresentation, and intentional infliction of emotional distress after the defendant refused to allow Jacintha F. Kamalnath to continue her medical practice at its clinic. The court, Michael W. LaBeau, J., granted the defendant summary disposition of all claims and denied a subsequent motion for rehearing, in which the plaintiffs first asserted a claim of estoppel. The plaintiffs appealed. The Court of Appeals held: 1. The trial court properly dismissed the claim of breach of contract after it determined that there was no written and signed contract between the defendant and Dr. Kamalnath and that she had commenced her services at the clinic despite the absence of a contract. 2. The claims of quantum meruit and equitable estoppel are without merit because the plaintiff received compensation in the amount specified in the defendant’s contractual offers. 3. The trial court correctly dismissed the employment discrimination claims because the plaintiffs offered no evidence to refute the defendant’s contention that Dr. Kamalnath’s poor performance was the reason for discontinuing her services. 4. The trial court properly dismissed the fraudulent misrepresentation claim because the plaintiffs failed to respond to the defendant’s denial of fraudulent intent. Also, the alleged misrepresentations concerned promises of future action or matters of opinion, neither of which may serve as the basis of an action for fraud. 5. The trial court properly dismissed the claim of intentional infliction of emotional distress because the plaintiffs failed to allege outrageous conduct by the defendant or a breach of duty distinct from contract. Affirmed. Hooper, Hathaway, Price, Beuche & Wallace (by David J. Hutchinson), for the plaintiffs. Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by William A. Tanoury, Susan Healy Zitterman, and Linda M. Garbarino), for the defendant. Before: Weaver, P.J., and Sullivan and Corrigan, JJ. Corrigan, J. Plaintiffs appeal a grant of summary disposition of their complaint of breach of contract, wrongful discharge, employment discrimination, fraud, misrepresentation, and intentional infliction of emotional distress. We affirm. In 1986, defendant decided to open an outpatient family practice clinic in Petersburg in Monroe County. Defendant retained a recruiter to identify a private family practitioner who brought plaintiff Jacintha Kamalnath and defendant together. In June 1986, plaintiff, an endocrinologist, first visited the area and discussed the clinic plan with John Iacoangeli, defendant’s director of planning and development. Plaintiff was unfamiliar with Monroe County and also lacked experience in the "business” aspects of medical practice. Iacoangeli allegedly stated that the hospital would assist plaintiff with marketing. On June 20, 1986, Iacoangeli wrote plaintiff as follows: Thank you for visiting this facility and touring the communities of Monroe and Petersburg on Saturday. As discussed at our meeting, I stated that I would present for your consideration an offer relative to the start-up of a physician office in Petersburg and your retention as a private family practitioner. The following offer is subject to receipt and review of your curriculum vitea [sic]. 1. The hospital will provide a net salary guarantee before taxes for one year in an amount not to exceed Sixty Thousand [$60,000] Dollars. The salary guarantee is determined by subtracting office and equipment rental, insurance, including medical liability, salaries, payroll taxes and workers compensation for office staff, office supplies and medical records, dues to medical organizations (ama, Michigan State Medical Society), fees associated with normal business operations (legal and accounting), and telephone. 2. Underwrite the rental of the physician office for the first year of operation. 3. Provide a Fifty-Thousand [$50,000] Dollar line of credit to be used for operational and professional expenses. The interest rate for using these funds will be seven percent. This line of credit will be available for two years. 4. The hospital will assist you with your relocation costs to a home within Monroe County at a cost not to exceed $1,500. As I mentioned, the salary guarantee is associated with the primary care aspect of the Peters-burg Physician Office. Consultation and other fees associated with your speciality in Endocrinology are separate. This offer is based on your availability to serve the Petersburg market area as a primary care physician and maintain regular office hours four [4] full days and two [2] half-days a week. If you have any further questions, please feel free to contact me. /s/ John R. Iacoangeli Plaintiff did not accept this written offer. Instead, she suggested various changes and additions, principally an increase in the term from one year to three years and a provision that the hospital handle marketing. On June 30, 1986, Iacoangeli sent plaintiff a second letter, which provided in part: It was a pleasure speaking with you again regarding the physician opportunity in Petersburg. As I mentioned, the following revisions to my June 20 letter, are outlined as follows: 1. The net salary-guarantee before taxes in an amount not to exceed Sixty Thousand [$60,000] dollars will be offered for three [3] years, subject to an annual performance review. 2. In addition to those expenses that are subtracted from gross receipts as outlined previously, medical education relating to primary care has been added. 3. Cost of relocation will be increased to a cost not to exceed $2,750. 4. The hospital administration will assist in providing coverage for the office when you are on vacation. Also, I have enclosed an application for appointment to the Medical Staff. Please complete this as soon as possible. . . . Defendant subsequently prepared several drafts of a proposed contract, but none of them proved satisfactory to plaintiff, who testified: "[T]here were so many things that was [sic] not acceptable, I saw it [the contract] as not acceptable and that’s the whole thing.” Plaintiff, however, moved to Petersburg and began work, although she had no signed contract and the clinic was not yet completed. Various problems then developed with equipping and staffing the clinic. Defendant allegedly did not provide promised equipment, office staff, and advertising and did not timely bill the patients. In addition, although the hospital arranged a line of credit, plaintiff allegedly was not informed that the Nine of credit” was actually a personal loan. The Petersburg clinic was not as successful as the parties had hoped. Relations between them deteriorated. A white male physician, who is allegedly less qualified than plaintiff, was added to the clinic staff. In November 1987, defendant formally notified plaintiff to vacate the clinic after a breakdown in their relationship. In early 1988, plaintiff filed suit, claiming breach of contract, wrongful discharge, sex and race discrimination in employment, fraud and misrepresentation, negligent misrepresentation, and intentional infliction of emotional distress. Defendant sought summary disposition pursuant to MCR 2.116(C)(8) and (10), asserting that the statute of frauds barred plaintiff’s contract claim, that plaintiff’s sex and race discrimination claims had no factual basis, that the alleged fraud and misrepresentation involved matters of opinion and future promises, that the claim of intentional infliction of emotional distress lacked any basis, and that plaintiff was an independent contractor who could not sue for wrongful discharge. The motion was supported by a detailed affidavit from John Iacoangeli. Plaintiff’s response brief lacked any citations to authority. The support filed by plaintiff’s counsel consisted of an "Affidavit of Unavailability of Affidavits,” the material portions of which read: 2. The Motion was filed while I was on vacation, and my schedule did not permit me to have the necessary communications with potential witnesses that would have been necessary prerequisites to the preparation of specific affidavits. 3. The persons from whom affidavits might have been obtained would include Plaintiffs, who would have been able to support everything contained in the Complaint, as well as the testimony of Dr. Omana Menon relating to damages, the testimony of Dr. Bruce Feyz and Dr. Amba Krishnan regarding the discrimination claim.[] The court granted defendant’s motion, finding that the June 20 and June 30, 1986, letters were mere offers outside the statute of frauds, that plaintiff was not defendant’s employee, that no genuine issue of fact existed as to the discrimination claims, that the fraud and misrepresentation claims involved promises and matters of opinion with no evidence of intent to deceive, and that no "outrageous conduct” supported plaintiff’s claim of intentional infliction of emotional distress. Plaintiff sought rehearing, rearguing her earlier points and newly claiming promissory and equitable estoppel. She also sought for the first time recovery in quantum meruit. The court denied the motion for rehearing. I. THERE WAS NO ENFORCEABLE CONTRACT BETWEEN THE PARTIES. It is hornbook law that a valid contract requires a "meeting of the minds” on all the essential terms. In order to form a valid contract, there must be a meeting of the minds on all the material facts. A meeting of the minds is judged by an objective standard, looking to the express words of the parties and their visible acts, not their subjective states of mind. [Stanton v Dachille, 186 Mich App 247, 256; 463 NW2d 479 (1990), citing Heritage Broadcasting Co v Wilson Communications, Inc, 170 Mich App 812, 818; 428 NW2d 784 (1988).] "Meeting of the minds” is a figure of speech for mutual assent. Goldman v Century Ins Co, 354 Mich 528, 534; 93 NW2d 240 (1958). See also, e.g., Stark v Kent Products, Inc, 62 Mich App 546, 548; 233 NW2d 643 (1975). An offer is a unilateral declaration of intention, and is not a contract. Western Michigan Univ Bd of Trustees v Slavin, 381 Mich 23, 31; 158 NW2d 884 (1968); Eastern Michigan Univ Bd of Control v Burgess, 45 Mich App 183, 187; 206 NW2d 256 (1973). A contract is made when both parties have executed or accepted it, and not before. Brown v Considine, 108 Mich App 504, 507; 310 NW2d 441 (1981), citing Holder v Aultman, Miller & Co, 169 US 81, 89; 18 S Ct 269; 42 L Ed 669 (1898). A counterproposition is not an acceptance. Harper Bldg Co v Kaplan, 332 Mich 651, 655; 52 NW2d 536 (1952). Mere discussions and negotiation, including unaccepted offers, cannot be a substitute for the formal requirements of a contract. Kirchhoff v Morris, 282 Mich 90, 95; 275 NW 778 (1937). A mere expression of intention does not make a binding contract, Hammel v Foor, 359 Mich 392, 400; 102 NW2d 196 (1960): The burden is on plaintiffs to show the existence of the contract sought to be enforced, and no presumption will be indulged in favor of the execution of a contract since, regardless of the equities in a case, the court cannot make a contract for the parties when none exists. In this case, the parties did not have a sufficient "meeting of the minds” regarding the essential terms of the contract. Plaintiff rejected the June 20 offer, as the June 30 offer makes plain. Plaintiff herself admitted that she did not approve any of the proposed contracts after her move to Peters-burg. Important differences remained between the parties as to basic contractual duties such as the responsibility for certain major expenses. The parties had exchanged a series of offers and counteroffers, not an offer and an acceptance. Even if the June 20 and 30 letters were considered a binding contract, defendant reserved the right to terminate plaintiff. She had no guarantee of continuation after the first year. The June 30 letter expressly provided that "[t]he net salary-guarantee . . . will be offered for three [3] years, subject to an annual performance review.” [Emphasis supplied.] Plaintiff’s performance was subjected to an annual performance review and found deficient. Iacoangeli averred that defendant terminated plaintiff’s employment "based on her poor performance in operating the Petersburg Clinic in terms of her office hours, patient relations, patient charges, accounting and general management responsibilities.” As noted, plaintiff never countered the Iacoangeli affidavit. Further, under the statute of frauds, MCL 566.132(a); MSA 26.922(a), "[a]n agreement that, by its terms, is not to be performed within 1 year from the making thereof’ must be in writing and "signed by the party to be charged.” The proposed contract was for three years. The only document signed by defendant’s agent that refers to a three-year term is the June 30 letter. That letter, however, is not a contract; the author refers to "revisions to my June 20 letter.” The June 20 letter was merely "an offer relative to the start-up of a physician office in Petersburg and your retention as a private family practitioner.” Thus, plaintiff’s claim is defeated by the statute of frauds. Plaintiff cannot avoid the effect of the statute by claiming partial performance of the terms of the purported contract. In Michigan, the partial-performance doctrine does not apply to employment contracts for more than one year. McMath v Ford Motor Co, 77 Mich App 721, 725; 259 NW2d 140 (1977). Plaintiffs alternative argument, seeking compensation under some other theory, was presented to the court below only on plaintiffs motion for rehearing. The trial court did not rule on it. Generally, questions not ruled on below cannot be presented to or considered by a reviewing court, absent a miscarriage of justice. Bajis v Dearborn, 151 Mich App 533, 536; 391 NW2d 401 (1986); Petrus v Dickinson Co Bd of Comm’rs, 184 Mich App 282, 288; 457 NW2d 359 (1990). We see no miscarriage of justice here. Nevertheless, we find plaintiffs alternative argument to have no merit. Because she has been compensated, she cannot seek recovery in quantum meruit. She was paid for her services at the clinic in 1986 and 1987 at the proposed contract rate of $60,000 a year. The doctrine of quantum meruit allows a party to recover the reasonable value of services rendered. A contract, though void under the statute of frauds, may be admissible to show the value placed on a plaintiffs services by the parties. Ordon v Johnson, 346 Mich 38, 49; 77 NW2d 377 (1956). Plaintiff is not entitled to any additional payment under a quantum meruit analysis. Nor does the doctrine of equitable estoppel support plaintiff. "[A]s an equitable remedy, [estoppel] is employed to alleviate an unjust result of strict adherence to established legal principles.” Ass’n of Hebrew Teachers v Jewish Welfare Federation, 62 Mich App 54, 60; 233 NW2d 184 (1975). Defendant has not been unjustly enriched at plaintiffs expense. Even assuming a three-year contract for plaintiffs services, plaintiffs contractual rate of compensation ($60,000 a year) was identical to what she was actually paid. Plaintiffs apparent suggestion that clinic revenues increased because of her activity lacks any merit since her compensation was not tied to clinic income. She would not have received any more than $60,000 a year from defendant had she remained at the Petersburg clinic longer than she did. Had defendant refused to pay plaintiff at all for services rendered or paid her at a lower rate, the case might be different. But plaintiff herself admitted that she was paid appropriately. Moreover, to support a claim of estoppel, a promise must be definite and clear. McMath, supra at 726, citing Ass’n of Hebrew Teachers, supra at 59. The promises upon which plaintiff allegedly relied are certainly not definite and clear. The only promise mentioned in the complaint was defendant’s "promise to use business expertise and experience.” The doctrine of estoppel should be applied only where the facts are unquestionable and the wrong to be prevented undoubted. Commercial Union Ins Co v Medical Protective Co, 136 Mich App 412, 421; 356 NW2d 648 (1984), rev’d in part on other grounds 426 Mich 109; 393 NW2d 479 (1986). This vague promise does not qualify. ii. plaintiff’s remaining claims do not warrant REVERSAL. Plaintiff’s remaining allegations require minimal discussion. A. EMPLOYMENT DISCRIMINATION Plaintiff alleges violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., because defendant engaged a white male physician to replace her, a female of Indian origin. MCL 37.2202; MSA 3.548(202) prohibits "discriminat[ion] . . . because of . . . national origin . . . [or] sex.” Plaintiff failed to adduce any evidence whatsoever to support this claim in response to defendant’s properly supported motion for summary disposition. As noted, Iacoangeli averred that he terminated defendant’s relationship with plaintiff solely on the basis of her poor performance. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her. [Emphasis supplied; MCR 2.116(G)(4).] Plaintiff did not come forward with any facts at all. Instead, counsel presented the previously described "Affidavit of Unavailability of Affidavits.” A mere promise to offer factual support at trial is insufficient. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115, n 4; 469 NW2d 284 (1991). Summary disposition was properly granted pursuant to MCR 2.116(G)(4). Further, plaintiffs employment discrimination claim fails because plaintiff was not defendant’s employee. The trial court properly found that plaintiff was an independent contractor, not an employee. An independent contractor is one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished. [Parham v Preferred Risk Mut Ins Co, 124 Mich App 618, 622-623; 335 NW2d 106 (1983), citing Marchand v Russell, 257 Mich 96; 241 NW 209 (1932).] The proposed agreement renders plaintiff an independent contractor rather than an employee. The clinic staff were to be plaintiff’s employees, not defendant’s. Plaintiff would be required to pay all expenses from clinic receipts, including insurance, supplies, most business expenses, transportation, and depreciation. Plaintiff would also be liable for rent to defendant. We find no error. B. FRAUD AND MISREPRESENTATION We affirm the lower court’s dismissal of the counts of fraud and misrepresentation because plaintiff did not comply with MCR 2.116(G)(4). She failed to produce any affidavits or other evidence to counter lacoangeli’s affidavit denying any intent to defraud or mislead plaintiff. Moreover, an action for fraudulent misrepresentation must be predicated upon a statement relating to a past or an existing fact. Future promises cannot constitute actionable fraud. State Bank of Standish v Curry, 190 Mich App 616, 623; 476 NW2d 635 (1991), citing Hi-Way Motor Co v Int'l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). The actions plaintiff complained of principally relate either to promises of future action (e.g., the division of expenses between plaintiff and d

SCHULTES v NAYLOR Docket No. 129828. Submitted May 7, 1992, at Detroit. Decided June 2, 1992; approved for publication September 3, 1992, at 9:15 A.M. Karen L. Rapp Schultes brought a wrongful discharge action in the Wayne Circuit Court against Michael A. Naylor, General Motors Corporation, and others, alleging breach of contract, intentional infliction of emotional distress, and unlawful sexual discrimination. The court, Richard P. Hathaway, J., granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals held: 1. Both the written employment contract between the plaintiff and General Motors and the employee handbook clearly indicated that the plaintiff’s employment was to be month to month. Therefore, her employment was terminable at will, as opposed to for just cause only, and her discharge for insubordination, which was preceded by reprimands for excessive tardiness, inability to work with fellow employees, and abuse of telephone privileges, was consistent with the terms of employment. 2. The plaintiff failed to establish a prima facie case of sexual discrimination in the absence of a showing of disparate treatment or intentional discrimination. None of the male employees with whom the plaintiff compared herself refused, as did the plaintiff, to reimburse General Motors for the cost of personal telephone calls. The plaintiff failed to show that the reasons stated for her discharge were mere pretext for intentional discrimination. Affirmed. 1. Master and Servant — Employment Contracts — Employee Handbooks. An employment relationship is terminable at will by either party where the employee signs an agreement that employment will be month to month and receives an employee handbook so stating. References Am Jur 2d, Civil Rights §§ 154 et seq.; Job Discrimination §§ 138 et seq.; Master and Servant §§ 27 et seq.. See the Index to Annotations under Discharge From Employment or Office; Equal Employment Opportunity; Sex Discrimination. 2. Civil Rights — Sexual Discrimination — Disparate Treatment. A prima facie case of sexual discrimination is established on the basis of disparate treatment upon a showing that the plaintiff is a member of a class deserving of protection under the Civil Rights Act and that, for the same conduct, the plaintiff was treated differently than a person of the opposite sex (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Sexual Discrimination — Intentional Discrimination. A prima facie case of intentional sexual discrimination in the termination of employment is established upon a showing that the plaintiff was a member of an affected class, that the plaintiff was discharged, that the defendant was predisposed to discriminate against persons in the class, and that the defendant actually acted upon that disposition in deciding to terminate employment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Christensen & Bannigan, P.C. (by Thomas H. Bannigan), for the plaintiff. Bodman, Longley & Dahling (by Joseph A. Sullivan and Martha B. Goodloe), for the defendants. Before: Sawyer, P.J., and Neff and Fitzgerald, JJ. Per Curiam. Plaintiff appeals from a May 24, 1990, order dismissing her claims of sexual discrimination, breach of contract, and intentional infliction of emotional distress. MCR 2.116(C)(10). We affirm. This appeal arises out of an employment relationship between plaintiff and defendant, General Motors Corporation. In November 1982, plaintiff was hired by gm and placed in the Risk Management Department. Initially, management was dissatisfied with plaintiff’s job performance becáuse of her consistent tardiness, inability to deal with other workers effectively, and failure to complete work in a timely fashion. In 1985, plaintiff applied for a new position in the Corporate Strategic Planning Group of gm. Notwithstanding the interviewers’ concerns about her past job performance, plaintiff was given a transfer to the cspg, and worked there until her termination. In August 1987, plaintiff took a leave of absence in order to have a child. When she returned to work, she was consistently reprimanded for tardiness. In February and March 1988, plaintiff’s absences and tardiness became excessive. When the supervisors’ efforts to reconcile the problem failed, they consulted with the personnel department to seek a solution. As part of the investigation into plaintiff’s performance, an employee in personnel requisitioned plaintiff’s phone records for her office extension. These phone records revealed that plaintiff made nearly $1,700 in phone calls at gm’s expense. Gm management sent plaintiff a letter informing her that she would be billed for the phone calls that were not related to her employment responsibilities with gm. The letter also reprimanded plaintiff for her excessive tardiness, inability to deal with her co-workers, and abuse of her phone privileges. Management sent an additional letter to plaintiff asking that she submit a payment plan for her personal phone calls by the following day. Plaintiff responded to the letter with a note that stated, in part, as follows: I have discontinued efforts to review the bills. For the following reasons, my plan for repayment of the phone bills of [plaintiff’s extension] is as follows: I will pay zero amount of such telephone bills. Plaintiff was subsequently discharged from her duties with gm and thereafter filed this action. Plaintiff first argues that it was error for the trial court to summarily dismiss count i of her complaint, which alleged breach of contract. We disagree. When she was hired, plaintiff was interviewed by Wayne Morrison, a gm employee. Plaintiff alleged that Morrison told her that she would remain at gm as long as she did her job. However, on the day she was hired, plaintiff signed an employment agreement stating that she was employed month to month only. The agreement contains a total integration clause and indicates that oral modifications are not permitted. Plaintiff also signed a number of subsequent compensation statements that acknowledged that the terms of the original employment agreement controlled her relationship with gm. Finally, the employee handbook, a copy of which plaintiff received, describes the employment terms as month to month. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), stands for the proposition that employment contracts terminable only for cause are enforceable to the same degree as other contracts. Id. at 610. See also Valentine v General American Credit, Inc, 420 Mich 256, 258; 362 NW2d 628 (1984). It is clear from Toussaint that an employer who makes oral representations that employment may be terminated only for cause may be bound contractually if those representations are supported by company policy. Toussaint, supra at 598. Our Supreme Court has held that oral manifestations by an employer that an employee’s job is secure must be clear and unequivocal. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991). The representation must be based upon more than just an employer’s statement regarding hopes for a long relationship. Id. at 640. This Court has evaluated the same form contract and gm handbook involved in this case and concluded that they create an at-will employment relationship. See Singal v General Motors Corp, 179 Mich App 497, 504-505; 447 NW2d 152 (1989) (relying on Taylor v General Motors Corp, 826 F2d 452 [CA 6, 1987]). Plaintiff has not produced any evidence corroborating her claim that gm made oral manifestations regarding a just-cause employment relationship. Accordingly, plaintiff has failed to rebut the clear indication in her employment agreement that she was terminable at will. Count ii of plaintiffs complaint alleges sexual discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. This claim is based on plaintiffs comparison of herself with male employees who also "abused” their phone privileges. The trial court concluded that "this is a case where it really is not one that centers on sexual discrimination but, rather, it is one without any factual dispute and I believe it is one of insubordination.” We agree with the trial court. A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the claim at issue. Marsh v Dep’t of Civil Service (After Remand), 173 Mich App 72, 77; 433 NW2d 820 (1988). Under MCR 2.116(G)(5), the court must consider the affidavits, pleadings, depositions, and other documentary evidence presented by the parties. The benefit of doubt is to be given to the nonmoving party. If the trial court determines that there is a significant deficiency in the claim that cannot be cured by a full development of the factual record, then summary disposition under MCR 2.116(0(10) is appropriate. In order to avoid summary disposition in this case, plaintiff had to establish a genuine issue of material fact regarding whether a prima facie case of discrimination exists. See Meeka v D & F Corp, 158 Mich App 688, 694; 405 NW2d 125 (1987). To establish a prima facie case of sexual discrimination under the disparate-treatment theory, a plaintiff must show that she was a member of a class deserving of protection under the statute, and that, for the same conduct, she was treated differently than a man. Marsh, supra at 79. The crux of the sexual discrimination case is that there are similarly situated individuals who have been treated differently because of their sex. Id. It is plaintiff’s burden to establish a prima facie case of sexual discrimination with evidence that is legally admissible and sufficient to state a prima facie claim. Id. at 80. Our review of plaintiff’s proofs reveals a factual deficiency that cannot be overcome. None of the male employees to whom plaintiff compared herself refused to reimburse gm for their phone usage. If plaintiff had shown that these men did refuse to pay, but were not terminated, her case would be much stronger. In light of her failure to make this showing, none of the men were similarly situated and, thus, the trial court properly dismissed this claim. Finally, plaintiff contends that she was not terminated for insubordination. Specifically, plaintiff contends that defendants’ insubordination justification was merely a pretext for discriminating against her on the basis of sex. We disagree. A second way to make a prima facie showing of discrimination based upon sex is to prove that the discrimination was intentional. Hickman v W-S Equipment Co, Inc, 176 Mich App 17, 21; 438 NW2d 872 (1989). In order to succeed under this theory, a plaintiff must show that she was a member of an affected class, that she was discharged, that the defendant was predisposed to discriminate against persons in the class, and that the defendant actually acted upon that disposition when the termination decision was made. Id. In this case, plaintiff is obviously a member of a protected class and was discharged. The only question is whether she has made the requisite showing of a pretext for intentional discrimination in order, to sustain the action. This question must be answered in the negative. All the incidents to which plaintiff points are actions taken by defendants in order to extract from plaintiff compliance with the rules under which all employees of gm were expected to work. Plaintiff did not produce any evidence at the hearing on the motion for summary disposition that indicated a pattern of discrimination against women within gm. Rather, plaintiff made unsubstantiated allegations of discrimination against her that were insufficient to create a genuine issue of material fact regarding intentional discrimination. Affirmed. A good portion of the calls were made to plaintiff's relatives in Rhode Island and New Jersey. In addition, the records revealed that plaintiff used her GM-issued phone credit card to make calls from California while she was on vacation. It is also clear that none of the individuals named as defendants are liable because they were not parties to either the express or implied contract plaintiff alleges was formed on the day she was hired. Plaintiff’s contention that she followed gm’s directive to submit a plan for reimbursement for the phone calls is without merit. Plaintiff’s letter, which indicated that her plan was to pay zero, was nothing more than an enticement for gm to take action.

FEATHERLY v TELEDYNE INDUSTRIES, INC Docket No. 126875. Submitted April 21, 1992, at Grand Rapids. Decided May 18, 1992, at 9:50 a.m. Norman Featherly, Stanley Way, and Leroy Gannon brought an action in the Muskegon Circuit Court against Teledyne Industries, Inc., and its president, Thomas Keenan, alleging that their permanent layoffs following a work-force reduction were the result of employment discrimination based on age and were breaches of implied contracts of employment providing for termination only for just cause. The court, Michael E. Kobza, J., granted summary disposition for the defendants with respect to the age discrimination claims of Featherly and Way, but not Gannon, and with respect to the contractual claims of all the plaintiffs. Featherly appealed the dismissal of his age discrimination claim, Way appealed the dismissal of both his claims, and the defendants cross appealed the denial of summary disposition of Gannon’s age discrimination claim. The Court of Appeals held: 1. Featherly and Gannon, but not Way, each established a prima facie case of age discrimination. Accordingly, the trial court erred in summarily dismissing Featherly’s age discrimination claim, but did not err in denying summary disposition of Gannon’s claim or in granting summary disposition of Way’s claim. 2. The trial court did not err in dismissing the contractual claims of the plaintiffs. Their employment was terminable at the will of either the employer or the employees. Even if, as the plaintiffs asserted, certain oral representations by the defendants gave rise to expectations of employment terminable only for just cause, just cause is established where, as in this case, termination results from a work-force reduction based on economic reasons. Affirmed in part and reversed in part. References Am Jur 2d, Civil Rights §§226 et seq., 507; Job Discrimination §§ 102-105, 2109-2111, 2178; Master and Servant §§ 27-29, 32-34. Proving that discharge was because of age, for purposes of Age Discrimination in Employment Act (29 USCS §§ 621 et seq.). 58 ALR Fed 94. 1. Civil Rights — Discrimination — Burden of Proof. The plaintiff in a case alleging discrimination initially has the burden of proving a prima facie case by a preponderance of the evidence; if the plaintiff is successful, the burden shifts to the defendant to articulate some legitimate, nondiscriminatbry reason for its action; once the defendant articulates a legitimate reason, the plaintiff then has the burden of showing by a preponderance of the evidence that the reason was merely a pretext for discrimination. 2. Civil Rights — Employment Discrimination — Age — Prima Facie Case. A prima facie case of employment discrimination based on age in the discharge of an employee is established upon a showing that the employee was a member of a protected class, was discharged, was qualified for the position, and was replaced by a younger person. 3. Civil Rights — Employment Discrimination — Age. A plaintiff who alleges employment discrimination based on age must present evidence of possession of qualifications comparable to that of the person ultimately selected, and demonstrate that age was the determining factor in the defendant’s decision. 4. Civil Rights — Discrimination — Summary Disposition. A plaintiff who alleges discrimination, in order to survive a motion for summary disposition brought after the defendant presents a legitimate, nondiscriminatory reason in rebuttal of the plaintiff’s prima facie case, must allege facts that raise a triable issue concerning whether .the proffered reason was a mere pretext. 5. Master and Servant — Termination of Employment — Just Cause — Work-Force Reduction. Just cause for termination of employment is established when termination results from a work-force reduction based on economic reasons. Libner, Van Leuven, Kortering, Evans & Portenga, P.C. (by John A. Braden), for the plaintiffs. Butzel Long (by Robert J. Battista and Mark T. Nelson), for the defendants. Before: Hood, P.J., and Shepherd and K. N. Sanborn, JJ. Former circuit judge, sitting on the Court of Appeals by assignment. Shepherd, J. This case involves claims of employment discrimination and breach of contract under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), in which the trial court granted defendants’ motion for summary disposition pursuant to MCR 2.116(C) (10) with respect to the age discrimination claims of plaintiffs Norman Featherly and Stanley Way, denied defendants’ motion with respect to the age discrimination claim of plaintiff Leroy Gannon, and granted defendants’ motion with respect to the Toussaint claims of all three plaintiffs. Plaintiffs Featherly and Way appeal as of right the dismissal of their age discrimination claims, plaintiff Way appeals the dismissal of his Toussaint claim, and defendants cross appeal the denial of their motion with respect to the age discrimination claim of plaintiff Gannon. As a result of a business downturn, Teledyne laid off 250 people, including both salaried and union personnel, in December 1987. After consultations with the company’s finance department in the fall of 1987, defendant Thomas Keenan, Teledyne’s president, approved the layoff plan and instructed each vice president in the various departments of the plant to lay off a certain number of employees. The selection of which employees to lay off was made by the immediate supervisor with the concurrence of the manager or vice president of the department or area. Each plaintiff is a former supervisor of Teledyne who was laid off in December 1987 and claims that his layoff was in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and in breach of an implied contract of employment. It was undisputed that each plaintiff was a competent and capable supervisor in his respective area, and that Teledyne claimed to have laid them off because of economic necessity. There is also no dispute that layoffs of numerous employees were, in fact, mandated by economic necessity. The primary issue in this case is whether, in choosing which employees to lay off, the defendants made their selection by using age as a determining factor. We begin with the assumption that although there may be justification for economic layoffs, an employer may not decide which employees to lay off on the basis of considerations that are prohibited by law, such as race, gender, or age. See King v Michigan Consolidated Gas Co, 177 Mich App 531; 442 NW2d 714 (1989), where the plaintiffs federal civil rights claim based on race was permitted to go to trial even though the employer was faced with an economically necessitated reduction in force. Subsequently, his claim of racial discrimination in violation of state law was also allowed to stand. See also Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981), in which the plaintiffs Toussaint and age discrimination claims were treated separately. Both cases taken together implicitly stand for the proposition that where an employer has a legitimate reason to terminate (e.g., economic necessity or a contract for employment at will), it may not do so for illegal reasons such as unlawful discrimination. Since 1975, Norman Featherly had been the production supervisor of the crankshaft departments (Departments Nos. 313 and 316). As a result of the 1987 reduction, the crankshaft departments and "Gears” (Department No. 311) were consolidated. Production Superintendent Harvey Myers, Featherly’s immediate supervisor, and Robert Bramer, the manufacturing manager, decided that Featherly should be laid off because they concluded that he did not have the versatility to supervise both departments. Consequently, Featherly’s duties were added to those of Robert Gilbert, the production supervisor of "Gears.” At the time of his layoff, Featherly was fifty-eight years old and had approximately twenty-five years’ seniority, whereas Gilbert was forty-one years old and had twelve years of supervisory experience. Leroy Gannon was the supervisor of "non-productive stores” and "cutter grinds” from 1976 until his layoff in 1987. His duties involved maintenance, repair, and operations, as well as resharpening and testing tools. His position was eliminated and his duties were assigned to Thomas Karafa and Harry Mikesell. Karafa is a toolmaker, who was the supervisor of the model shop and tool repair at the time of the layoffs. Mikesell is a manufacturing engineering analyst, whose job is to prepare budgets for the Manufacturing Engineering Department. At the time of his layoff, Gannon was sixty-three years old, whereas Karafa and Mikesell were forty-one and sixty years old, respectively. From May, 1966 until his layoff in 1987, Stanley Way was a production control supervisor whose duties involved shipping and receiving. After his position was eliminated in the 1987 reduction, his duties were added to those of Bill Ford, the "Master Scheduler.” Ford was retained because Way had no experience with or knowledge of scheduling systems. At the time of Way’s layoff, he was fifty-nine years old and had thirty-seven years’ seniority, whereas Ford was fifty-six years old. In addition, the clerical work related to Way’s position was assigned to Virginia Settler, a sixty-year-old union clerk who had forty-three years’ seniority with Teledyne. A motion for summary disposition pursuant to MCR 2.116(0(10) may be granted when, except for the amount of damages, there is no genuine issue with regard to any material fact and the moving party is entitled to judgment or partial judgement as a matter of law. A motion for summary disposition tests whether there is factual support for a claim. The trial court must consider the affidavits submitted, pleadings, depositions, admissions, and documentary evidence. Amorello v Monsanto Corp, 186 Mich App 324, 329-330; 463 NW2d 487 (1990). The party opposing the motion has the burden of showing that a genuine issue of material fact exists. Ewers v Stroh Brewery Co, 178 Mich App 371, 374; 443 NW2d 504 (1989). Giving the benefit of reasonable doubt to the nonmovant, the trial court determines whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Amorello, supra, p 330. The court may not make findings of fact or weigh credibility in deciding a motion for summary disposition. Paul v US Mutual Financial Corp, 150 Mich App 773, 779; 389 NW2d 487 (1986). Plaintiffs’ claims of age discrimination are based upon the Civil Rights Act, which provides: (1) An employer shall not: (a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age .... [MCL 37.2202; MSA 3.548(202).] Michigan courts have considered federal law when reviewing claims of age discrimination based on state law. See Matras v Amoco Oil Co, 424 Mich 675, 683-685; 385 NW2d 586 (1986); Meeka v D & F Corp, 158 Mich App 688, 692; 405 NW2d 125 (1987); Dixon v W W Grainger, Inc, 168 Mich App 107, 113-114; 423 NW2d 580 (1987). Reaffirming the holding of McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), the United States Supreme Court in Texas Dep’t of Community Affairs v Burdine, 450 US 248, 252-253; 101 S Ct 1089; 67 L Ed 2d 207 (1981), set forth the order and allocation of the burden of proof in employment discrimination cases as follows. First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff is successful in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its actions. Third, if the defendant meets this burden, the plaintiff then has the burden of proving by a preponderance of the evidence that the legitimate reason offered by the defendant was merely a pretext. Id.; Dubey v Stroh Brewery Co, 185 Mich App 561, 563-564; 462 NW2d 758 (1990). To establish a prima facie case of age discrimination, the plaintiff must show that (1) he was a member of a protected class, (2) he was discharged, (3) he was qualified for the position, and (4) he was replaced by a younger person. Ewers, supra, pp 379-380. Age discrimination may also be established by ordinary principles of proof without resort to any special judicially created presumptions or inferences. Matras, supra, p 683. In an age discrimination claim, the plaintiff must present evidence that (1) he had skills, experience, background, or qualifications comparable to the retained employee and (2) his age was a determining factor in the adverse employment decision. Id., pp 683-684; Meeka, supra, p 692. Evidence that a competent older employee was terminated and a younger employee was retained, standing alone, is insufficient to establish a prima facie case when the employer reduces his work force because of economic necessity. Matras, p 684. Viewing the evidence in a light most favorable to plaintiffs, we conclude that plaintiffs Featherly and Gannon, but not Way, established a prima facie case of age discrimination. In the case of Featherly, there was evidence presented that he was qualified for the position of supervisor of the consolidated departments. The record reveals that Featherly was the production supervisor of two departments with nine different lines, whereas Gilbert supervised one department containing two lines. Moreover, Featherly had more experience, as measured in years of seniority, than Gilbert. Featherly also presented sufficient evidence showing that age was a determining factor in his layoff. All the plaintiffs cite an article about the future of Teledyne in the Muskegon area published by the magazine West Michigan Proñle in November 1987, wherein Keenan was quoted as saying: We intentionally went with a small start in a new product so that we could get our feet wet, build some credibility, get some of the younger kids in here under the special arrangement, get them working and make them a core. Although defendant Keenan stated in his deposition that he meant that there was enough work for existing employees and that Teledyne would seek to provide employment to future generations in the Muskegon community, his remark is evidence that age was a determining factor in the 1987 layoff insofar as defendants sought to retain a younger work force. Because plaintiff Featherly, age fifty-eight, was replaced by Gilbert, age forty-one, defendant Keenan’s statement provides factual support that age was a determining factor in Featherly’s layoff. Additional evidence that age was a determining factor in the layoffs was presented in previous litigation arising from the December 1987 layoffs. In John Harris v Teledyne Industries, unpublished opinion per curiam of the Court of Appeals, decided October 8, 1990 (Docket No. 116087), Lloyd Lindland, Teledyne’s vice president of operations, allegedly told Harris, a production supervisor like plaintiff Featherly, that he was laid off because the retained employee was younger and better. Although Lindland, who oversaw the departments to which all the plaintiffs belonged, did not make a similar remark to any plaintiff in the instant case, the statement nevertheless presents some evidence that age may have been a determining factor in Teledyne’s decision to lay off plaintiffs in December 1987. Moreover, plaintiffs put forward some statistical evidence indicating that the oldest supervisors within each department were the employees most affected by the 1987 layoffs. Plaintiffs allege that whereas the median age of the laid-off supervisors was fifty-five, the median age of those retained was forty-four, and that no supervisor under the age of fifty-one was laid off. Defendants assert that plaintiffs’ average-age analysis distorts the evidence. In particular, defendants allege that there is no persuasive evidence of age discrimination in the case of Featherly, because the average age of the retained production supervisors dropped by only one year after the 1987 layoffs. Although the statistical evidence presented in this case may provide only weak circumstantial evidence of age discrimination, it nonetheless constitutes some factual support for the claim, especially when conjoined with the other facts evidencing age discrimination. Gannon also established a prima facie case of age discrimination with proof that his position was eliminated and his duties were assigned to Karafa and Mikesell. Alleging that his tool-making and budgeting experience was comparable to that of the retained employees, Gannon presented evidence showing that he was as qualified as Karafa. Further, Gannon presented evidence that age was a determining factor in his layoff. In addition to relying on the statements of defendant Keenan and Lindland, and the statistical evidence, Gannon alleges that remarks made to him by Engineering Manager Gary Tidball before and after the layoff provide evidence that age may have been a determining factor in his layoff. A month or two before the 1987 layoffs were announced, Tidball asked him how long he planned to work. Gannon told him another four to five years. After the announcement of the layoffs, Tidball asked Gannon how old he was and later remarked to Gannon that the layoff would not hurt him much because he could retire. Although the statements attributable to Tidball do not evidence an age discrimination claim as clearly as the remark allegedly made by Lindland in Harris, they support Gannon’s claim that age was a determining factor in his layoff. Unlike Featherly and Gannon, Way did not present a prima facie case of age discrimination. Although Way provided some evidence that he had qualifications comparable to those of the retained employees, Ford and Settler, he failed to present evidence that age was a determining factor in his layoff. Of the retained employees, Ford, age fifty-six, was only three years younger than plaintiff Way, whereas Settler, age sixty, was one year older and had six years more seniority than Way. Notwithstanding the foregoing evidence showing that age was a factor in Teledyne’s decision to lay off employees in December 1987, the record does not reveal that age was a determining factor in plaintiff Way’s case. Accordingly, we conclude that the trial court did not err in granting defendants’ motion for summary disposition of plaintiff Way’s age discrimination claim. Because plaintiffs Featherly and Gannon established prima facie cases of age discrimination, the burden shifts to defendants to articulate some legitimate, nondiscriminatory reason for their action. In the present case, defendants maintain that plaintiffs’ layoffs were caused by a business downturn that required the reduction of Teledyne’s work force. In addition, defendants presented evidence that Featherly was laid off because he was not as versatile as the retained employee, Gilbert. Defendants also presented evidence that Gannon’s position was eliminated and his duties assigned to Karafa and Mikesell because Gannon did not possess the retained employees’ respective tool-making and budgetary skills. Thus, plaintiffs have the burden of showing that this reason was merely a pretext. As this Court observed in Clark v Uniroyal Corp, 119 Mich App 820, 826; 327 NW2d 372 (1982), to avoid a motion for summary disposition after the defendant presents a legitimate, nondiscriminatory reason that rebuts the plaintiffs prima facie case of discrimination, the plaintiff must put forth factual allegations to raise a triable issue of fact as to whether the proffered reasons were mere pretext. Thus, a plaintiff must present factual allegations allowing the inference that the defendant had a discriminatory reason that was more likely its true motivation or factual allegations that show the def

SCHIPPERS v SPX CORPORATION (ON REMAND) Docket No. 147499. Submitted January 16, 1992, at Lansing. Decided May 4, 1992, at 9:00 a.m. Leave to appeal sought. Joseph Schippers brought an action in the Muskegon Circuit Court against SPX Corporation and Ryder Truck Rental, Inc., claiming wrongful discharge and negligent evaluation. The court, Michael E. Kobza, J., granted summary disposition in favor of SPX Corporation, ruling that there were no genuine issues of material fact and that spx was entitled to judgment as a matter of law. The plaintiif appealed. The Court of Appeals, Neff, P.J., and Mahek and Murphy, JJ., reversed and remanded, holding that the grant of summary disposition was improper because a material issue of fact existed regarding whether an employment contract providing for termination only for just cause existed between the plaintiff and spx. 186 Mich App 595 (1990). The Supreme Court, in lieu of granting leave to appeal, vacated the judgment of the Court of Appeals and remanded to the Court of Appeals for reconsideration in light of Rowe v Montgomery Ward & Co, Inc, 437 Mich 627 (1991). 439 Mich 891 (1991) On remand, the Court of Appeals held: The grant of summary disposition was improper. There are facts and circumstances that are contradicted and upon which reasonable minds can differ. There is a genuine issue of material fact regarding the existence of an employment contract providing for termination only for just cause. 1. The plaintiff’s concerns about job security were met with assurances from three spx employees that raise a question of fact concerning whether he reasonably believed he could be fired only for just cause. 2. The employee handbook issued by spx offers objective support for the oral representations allegedly made to the plaintiff with regard to his concerns about job security. 3. Other factors indicating that a question of material fact existed sufficient to send the case to a jury are that the plaintiffs position was unique and that there were alleged references to the duration of his employment in response to his concerns about job security. Reversed and remanded. McCroskey, Feldman, Cochrane & Brock, P.C. (by John P. Halloran), for the plaintiff. Culver, Lague & McNally (by William F. Mc-Nally and Kevin B. Even), for SPX Corporation. ON REMAND Before: Neff, P.J., and Michael J. Kelly and Reilly, JJ. Neff, P.J. This case is before us for a second time after our Supreme Court, in lieu of granting leave to appeal, vacated our prior judgment and remanded to us for reconsideration in light of the decision in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). 439 Mich 891 (1991). In our original opinion we reversed an order granting summary disposition in favor of defendant SPX Corporation (hereafter defendant) and remanded to the trial court for trial. Schippers v SPX Corp, 186 Mich App 595; 465 NW2d 34 (1990). We now reevaluate whether, under the standards expressed in Rowe, there is a genuine issue of material fact regarding the existence of an employment contract between plaintiff and defendant providing for termination only for just cause. i We start from the premise that there is a presumption of employment at will that plaintiff has the burden to overcome by convincing the court that it should supply an omitted term or that the circumstances are such that the jury is entitled to do so. Rowe, supra, pp 638-639._ In Rowe, the Supreme Court took pains to explain what it was not holding: We do not decide that the words and conduct of parties cannot, as a matter of law, create an issue submissible to a jury regarding the existence of a contract implied in fact. Moreover, we do not suggest that a contract of employment is too indefinite to be enforced where the employee’s consideration is the work performed in response to a unilateral offer. [Id., p 638.] As noted, this case was decided in the trial court on defendant’s motion for summary disposition. When ruling on a motion for summary disposition made pursuant to MCR 2.116(C)(10), courts are liberal in finding that a genuine issue exists, drawing all inferences in favor of the nonmovant and granting the motion only when the court is satisfied that it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 371; 207 NW2d 316 (1973); Langeland v Bronson Methodist Hosp, 178 Mich App 612, 615-616; 444 NW2d 146 (1989). When we examine this case within this framework, we are led to the same conclusion we reached initially, to wit, material issues of fact exist on the basis of defendant’s employee handbook and testimony concerning oral representations made by spx personnel to plaintiff. ii According to plaintiff’s deposition testimony, he was hired by the defendant’s Sealed Power Division in 1973 as an over-the-road truck driver. At the time he transferred to the Hy-Lift Division, there were six over-the-road truck drivers at Sealed Power and he was second in seniority. At Hy-Lift, there was only one truck and one driver, plaintiff. When plaintiff was approached by his superiors to transfer from Sealed Power to Hy-Lift, he was concerned about job security because Hy-Lift had only one truck and he would be the only driver in that division. Plaintiff was worried because if the one truck at Hy-Lift were to be eliminated for any reason, he would be out of work. He therefore sought assurances of continued availability of work and of his own job security. According to his testimony, plaintiff received assurances from three of defendant’s employees, including plaintiff’s immediate supervisor, that his job was secure, as long as they had a truck and until plaintiff was ready for retirement. m Careful review of the opinion in Rowe leads us to the conclusion that this case is more nearly consonant with Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), the seminal Michigan case in the law of employment contracts. As in Toussaint, plaintiff in this case expressed concerns about job security and engaged in discussions about his concerns before accepting the transfer to Hy-Lift. His concerns were met with assurances that raise a question of fact concerning whether he had a reasonable belief that he could be fired only for cause. This conclusion is further bolstered by the existence of the employee handbook that, as we noted in our original opinion, at the very least, raised the possibility of an illusory promise of an employment contract providing for termination only for just cause meant to benefit the employer by inferring job security while retaining the benefit of denying such security at the whim of the employer. Rowe, supra, p 655; Schippers, supra, pp 598-599; Diggs v Pepsi-Cola Metropolitan Bottling Co, Inc, 861 F2d 914 (CA 6, 1988). While the handbook issued by defendant in this case does not contain the same type of language specifically providing for termination only for just cause as the one at issue in Toussaint, it does offer objective support for the oral representations allegedly made to plaintiff with regard to his concerns involving job security. Like in Toussaint, plaintiff engaged in preemployment discussions concerning job security and he specifically inquired about that issue. On the other hand, the handbook in this case did not, as did the handbook in Rowe, clearly and unambiguously notify plaintiff of any policy of termination at will. Another way in which this case more closely resembles Toussaint than Rowe is that the position into which plaintiff transferred was unique. He was the only driver of the only truck in the division. These factors, according to the opinion in Rowe, are important considerations in determining whether a question of material fact exists sufficient to send the case to a jury. Rowe, supra, p 643. The concurring opinion of Justice Boyle, which agrees with the bulk of the reasoning in the plurality opinion of Justice Riley, also contains some language that we believe supports the conclusions we reach here. There was reference to a "durational term” to plaintiff’s employment with the mention that plaintiff would be employed until retirement. Rowe, supra, p 664. This further bolsters the argument that a fact question exists concerning whether there was a commitment that could reasonably be understood to be a promise of employment in which termination would be only for just cause, because plaintiff testified that defendant’s employees told him his job was safe until he was ready to retire. As Justice Boyle noted in footnote 5 to the concurring opinion on p 664: Where the parties’ intention is not apparent and the facts and circumstances advanced by the plaintiff are sufficient to show it is more likely than not that a reasonable promisee would believe that the employer was making a commitment that amounted to a promise of job security, the court will conclude, as a threshold matter, that the presumption has been overcome. Where facts and circumstances are contradicted and reasonable minds can differ, the jury will determine the facts and circumstances that actually obtained, whether there was a commitment amounting to a promise, and whether the promise was breached. Where the facts and circumstances produced would not warrant a reasonable juror in finding a promise of job security, the question cannot be put to the jury, Leslie v Mendelson, 302 Mich 95, 104; 4 NW2d 481 (1942). IV We specifically find that there are facts and circumstances that are contradicted and upon which reasonable minds can differ. As a result, it is for the jury to determine the facts and circumstances that actually occurred, whether there was a commitment amounting to a promise, and whether the promise was breached. Accordingly, we reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Reversed and remanded. This presumption is "a rule of construction rather than a substantive limitation.” Rowe, supra, p 638.

WOLFF v AUTOMOBILE CLUB OF MICHIGAN Docket No. 120283. Submitted December 5, 1991, at Detroit. Decided April 21, 1992, at 9:25 a.m. Leave to appeal sought. Robert F. Wolff brought an action in the Wayne Circuit Court against the Automobile Club of Michigan and the Auto Club Insurance Association, claiming wrongful discharge from employment. The jury returned a verdict for the plaintiff, finding breach of contract and age discrimination, and the court, Lucile A. Watts,. J., granted the defendants’ motion for remittitur, finding that the jury’s verdict did not reflect the plaintiff’s failure to mitigate damages. The defendants appealed, and the plaintiff cross appealed. The Court of Appeals held: 1. Viewed in a light most favorable to the plaintiff, the evidence was sufficient to support the jury’s verdict. The trial court properly denied the defendants’ motion for a judgment notwithstanding the verdict. 2. The trial court did not abuse its discretion in admitting the testimony of four former' employees of the defendants concerning the circumstances under which each was hired. Any prejudicial effect was outweighed substantially by its probative value. 3. Whether the plaintiff was constructively discharged from the member advisor position he took after he had been terminated from his position as a commissioned sales representative was a question for the jury. Accordingly, the trial court properly denied the defendants’ motion for a judgment notwithstanding the verdict with respect to this issue. 4. Whether the defendants proved that the plaintiff was unreasonable in not seeking other employment was a question the jury; accordingly, it was an abuse of discretion for the trial court to enter remittitur, because the jury properly could have found that the plaintiff did not act unreasonably. References Am Jur 2d, Civil Rights §§ 226 et seq.; Constitutional Law § 770; Job Discrimination §§ 98 et seq., §§ 1337 et seq., §§ 2076 et seq., § 2112, §§ 2171 et seq. See the Index to Annotations under Age Discrimination; Equal Employment Opportunity. Affirmed in part and reversed in part. Civil Rights — Employment Discrimination — Age Discrimination — Disparate Treatment — Evidence. The finder of fact in an action for wrongful discharge in which age discrimination based on disparate treatment is alleged may consider whether the transfer of the plaintiff’s work to another job classification evidences age discrimination where the members of the two job classifications perform similar duties but the average age of persons with the job classification to which the plaintiff’s work was transferred is significantly less than the average age of persons with the job classification from which the work was transferred. Law Offices of John W. Mason, P.C. (by John W. Mason), for the plaintiff. Fox & Grove, Chartered (by Kalvin M. Grove and Steven L. Gillman), and Finkel, Whiteñeld & Selik (by Robert J. Finkel), for the defendants. Before: Holbrook, Jr., P.J., and Brennan and Cavanagh, JJ. Per Curiam. Plaintiff brought this wrongful discharge suit against his former employers, Automobile Club of Michigan and the Auto Club Insurance Association (which hereinafter will be treated as a single defendant). Following trial, the jury returned a verdict in favor of plaintiff on claims of breach of contract, age discrimination, and mental distress, for a total award of $300,500. The trial court granted defendant’s motion for remittitur and reduced the award by $80,000. Defendant appeals as of right from the jury verdict. Plaintiff cross appeals as of right from the order of remittitur. Plaintiff worked for defendant for thirty-one years, from 1952 until 1983, as a commissioned sales representative (csr) before he was terminated for failing to meet defendant’s sales quota. He then worked for defendant for approximately IV2 months as a member advisor before taking an early retirement. Plaintiff was fifty-seven years old when he retired. In 1951, Park Zickel, the general manager of defendant at that time, approached plaintiff and offered him a job as a csr. Zickel told plaintiff that in the thirty-six years that Zickel had worked for defendant, he had been paid a seven-percent commission on all new sales of auto insurance and a seven-percent commission on all renewals. Zickel never said anything about reserving the right to change the method of compensation, and plaintiff never expected the method to be changed. Zickel also said that the only people that were ever fired were those who withheld company funds. When plaintiff was hired by defendant, the sales manual characterized the csr position as a "well-paid career position.” It also stated that "though the major portion of [a csr’s] income comes from the creditable handling of existing accounts, he is expected to prospect and solicit new business and establish and maintain an acceptable ratio of new business to the existing business he is assigned.” There was no express statement that a csr was terminable at will. Plaintiff started working for defendant in 1952. He immediately began to sell automobile insurance and memberships to the Auto Club, and his "book of business” began to grow. A book of business is the list of customers to whom a csr sold an insurance policy. Plaintiff received a seven-percent commission on the original sale of an automobile insurance policy and seven percent each time it was renewed. As plaintiff’s book of business grew, so did his income. In 1978, defendant instituted a new system of pay for the csrs. Instead of paying on a commission basis, defendant paid csrs a fixed sum of money for each sale, or "unit compensation.” Plaintiffs income began to decline. In 1980, defendant established a new category of workers, called member advisors, who performed many of the same functions as the csrs. Like csrs, member advisors sold automobile insurance, other insurance, and memberships. Member advisors serviced their customers in the same manner as did csrs. Member advisors were different from csrs in that they worked regular hours, were paid a salary, were not required to recruit new customers, and were not subject to a production quota. In September 1981, defendant implemented a new minimum production system that required selling specified numbers of new memberships and life insurance policies each month. Failure to meet the new quota resulted in an oral warning, a written warning, probation, and then termination. Plaintiff did not meet the quota in the final months of 1981. Plaintiff then expressed his interest in the new position of general agent developed by defendant. The general agent position would have permitted plaintiff to establish his own office and to service his own book of business without being subject to the quota system. However, plaintiff eventually turned down the general agent position because of start-up costs, defendant’s requirement that he waive any legal action against defendant, his uncertainty of what the job responsibilities were, and his lack of trust of defendant. After plaintiff turned down the general agent position, he received a letter terminating his employment as a csr, effective January 15, 1983. The letter also offered him a job as a member advisor n at a salary of $26,000, which was approximately $6,000 less than his 1982 salary as a csr. Despite his reservations about the job, plaintiff accepted the member advisor position, pending notice of the details of defendant’s early retirement program. Plaintiff received information of the retirement plan in January 1983, and he chose to retire. In his complaint, plaintiff alleged breach of contract, age discrimination, unjust enrichment, promissory estoppel, and conversion. The jury awarded plaintiff $300,000 damages for loss of income due to age discrimination and breach of contract, and $500 for mental distress. i The dispositive issue on appeal is whether the trial court erred in denying defendant’s motion for judgment notwithstanding the verdict with respect to plaintiff’s claim of age discrimination. Defendant argues that plaintiff failed to establish as a matter of law the disparate treatment theory of age discrimination. Defendant maintains that the production standards were applied equally to all csrs. Defendant claims that it is inappropriate to prove disparate treatment by comparing the csrs to the member advisors, because of the differences in the responsibilities of the positions. Plaintiff, on the other hand, states that a reasonable jury could conclude that he was discharged because of his age. We agree with plaintiff. We examine the testimony and all legitimate inferences that may be drawn in a light most favorable to the plaintiff when reviewing a trial court’s failure to grant a defendant’s motion for judgment notwithstanding the verdict. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986); Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186; 466 NW2d 717 (1991). If reasonable minds could differ concerning whether the plaintiff has met his burden of proof, a judgment notwithstanding the verdict is inappropriate. Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176, 179; 475 NW2d 854 (1991). We will not disturb a trial court’s decision on a motion for judgment notwithstanding the verdict absent a clear abuse of discretion. Michigan Microtech, supra, pp 186-187. A prima facie case of age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., can be made by showing either intentional discrimination or disparate treatment. Schipani v Ford Motor Co, 102 Mich App 606, 617; 302 NW2d 307 (1981). Because plaintiff attempted at trial to prove disparate treatment, he was required to show that he was a member of a protected class and that he was treated differently than persons of a different class for the same or similar conduct. Reisman v Wayne State University Regents, 188 Mich App 526, 538; 470 NW2d 678 (1991). A prima facie case of age discrimination can also be made by showing that plaintiff (1) was a member of the protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by a younger person. Ewers v Stroh Brewery Co, 178 Mich App 371, 380; 443 NW2d 504 (1989). Because defendant failed to claim that it was making cutbacks because of economic necessity, plaintiff did not have a greater burden of proof. Compare Matras, supra, p 684. Viewing the evidence in a light most favorable to plaintiff, we find that he established a prima facie case of age discrimination under the Reisman standard. Plaintiff was a member of a protected class, because he was fifty-seven years old when he was discharged. The parties differ regarding whether there was sufficient evidence that plaintiff was treated differently than persons of a different class who were engaged in the same or similar conduct. Defendant argues that plaintiff was treated no differently than other csrs. Although this might be true, we believe that the member advisors were the comparable group of employees for age discrimination purposes. First, the average age of the member advisors was more than twelve years less than the average age of the csrs. Second, the csrs were treated differently than the member advisors for the same or similar conduct. Although both groups sold insurance and memberships and serviced customers, and the member advisors typically performed the duties of the csrs when the csrs left the company, including handling the books of business of the former csrs, the member advisors, unlike the csrs, worked regular hours, were paid a salary, and were not required to recruit new customers. Nevertheless, from the similarity of job responsibilities, it may be legitimately inferred that the member advisors and the csrs were comparable groups for determining whether the csrs were treated differently for the same or similar conduct. Evidence was presented at trial that showed that the csrs were treated differently than the member advisors. Even though the member advisors and the csrs both sold insurance, the csrs were subject to a quota and were demoted to member advisor n positions if they failed to meet it. We believe that reasonable minds could differ concerning whether the plaintiff met his burden of proof. Alternatively, plaintiff met his burden of proof under the Ewers standard of a prima facie case of age discrimination. Plaintiff was a member of a protected class. Plaintiff was discharged (see Issue iv). A reasonable juror could conclude that plaintiff was qualified for the position, having built a considerable book of business. Plaintiff was then replaced by a younger person working as a member advisor. Age might not have been the main reason for plaintiff’s discharge, but a reasonable jury could find that age was one of the reasons that made a difference in defendant’s determining whether to discharge plaintiff. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion for judgment notwithstanding the verdict. ii Because we find that sufficient evidence was presented at trial to justify sending the age discrimination claim to the jury, we need not address the contract issues raised by defendant. The jury awarded plaintiff damages for loss of income on the basis of age discrimination and breach of contract. Even if we were to find merit in defendant’s arguments concerning the breach of contract claim, the age discrimination claim would still support the jury’s award of damages for loss of income. iii We next consider whether the trial court improperly admitted the testimony of four former employees concerning the circumstances of how each individual was hired by defendant. Defendant moved to exclude the testimony of these four individuals, contending that any testimony about oral statements made to them at their own times of hire was irrelevant because it did not shed light on plaintiffs hiring experience. The trial court summarily denied defendant’s motion. Defendant argues on appeal that this testimony was prejudicial, confusing, and misleading regarding the issue whether a contract existed between plaintiff and defendant. We disagree. The decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Reisman, supra, p 543; Brunson v E & L Transport Co, 177 Mich App 95, 104; 441 NW2d 48 (1989). Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible. MRE 402. Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; Dunn v Nundkumar, 186 Mich App 51, 55; 463 NW2d 435 (1990). In this case, the testimony of the other employees concerning the promises made to them when they were hired, if substantially similar to what plaintiff testified he was promised, would have the tendency to corroborate plaintiffs testimony. See Schippers v SPX Corp, 186 Mich App 595, 597; 465 NW2d 34 (1990). Any danger of prejudice in admitting this evidence, because what was promised to these witnesses was not necessarily promised to plaintiff, did not substantially outweigh its probative value. Defense counsel had the opportunity to highlight the differences between plaintiffs hiring experience and those of the other employees by pointing out that they were hired at different times by different people. Thus, the trial court did not abuse its discretion in admitting the testimony of the four former employees. IV Defendant further contends that the trial court erred in denying its motion for judgment notwithstanding the verdict with respect to plaintiffs claim of constructive discharge. Defendant argues that plaintiff submitted insufficient evidence to establish that defendant made plaintiffs working conditions so intolerable that he was forced to leave the job. Plaintiff responds that the issue was a proper question for the jury. Plaintiff states that the fact that defendant offered and he accepted a lesser job does not preclude the jury from finding constructive discharge. We utilize the standard of review set forth in Issue i. In Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985), this Court ruled that constructive discharge may be found where working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. A finding of constructive discharge depends on the facts of each case. Id. In Jenkins, the plaintiff was told to either accept a new position or resign. The new position not only paid the same salary as plaintiffs former job, but also included a car and an expense account. Nevertheless, this Court held that a reasonable factfinder in that case could find constructive discharge because the new job was not the substantial equivalent of the position from which the plaintiff was discharged. The new position was a demotion and the job responsibilities were severely reduced. In the present case, plaintiff was terminated from his position as a csr and then offered a job as a member advisor. Viewing the evidence again most favorably toward plaintiff, we note that accepting the member advisor position required plaintiff to relinquish his book of business and receive $6,000 less than what he earned the previous year. The member advisor position carried less status than the csr position. Under these circumstances, a reasonable jury could find that plaintiff was constructively discharged. Moreover, the fact that plaintiff initially accepted the member advisor position for IV2 months does not preclude him from claiming constructive discharge, especially because he accepted the position on a temporary basis so as to take advantage of the early retirement program. After receiving details of the program, he decided to retire. Consequently, the trial court did not abuse its discretion in denying defendant’s motion for judgment notwithstanding the verdict against plaintiff’s claim of constructive discharge. v Turning to the issue before us on cross appeal, we next consider whether the trial court abused its discretion in granting defendant’s motion for remittitur. The trial court reduced the jury verdict by $80,000 and ruled that the jury’s verdict did not reflect plaintiff’s failure to mitigate his damages. The trial court determined that plaintiff could have earned wages over the eight-year period before he turned sixty-five years old, and thereby reduced the jury verdict $10,000 for each year. MCR 2.611(E)(1) authorizes a trial court to reduce a jury verdict when the amount awarded is greater than the highest amount of damages that the evidence at trial would support. A trial court’s decision on a motion for remittitur is reviewed for an abuse of discretion. Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d 354 (1989); Byrne, supra, p 183. The jury awarded plaintiff $300,000 in lost wages. Unlike the trial court, we find that this amount is not greater than the highest amount of damages that the evidence at trial supported. Plaintiff’s expert testified that plaintiff suffered damages in the amount of $696,056. Defendant’s expert calculated that plaintiff could have earned $353,188 if he had worked until he reached sixty-five years of age. Although it is undisputed that plaintiff did not seek employment after leaving defendant’s employ, the question whether defendant carried its burden of proving plaintiff was unreasonable in not seeking other employment was within the province of the jury. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989). Defendant argues that plaintiff should have accepted either the member advisor ii position or the general agent position to mitigate his damages. However, the member advisor position could reasonably be considered a demotion (see Issue iv). Mo

William S. Reilly vs. Massachusetts Bay Transportation Authority & another. No. 90-P-1098. Suffolk. December 9, 1991. April 16, 1992. Present: Dreben, Fine, & Ireland, JJ. Labor, Fair representation by union, Action against labor union, Judicial relief, Arbitration, Collective bargaining. Practice, Civil, Motion in limine. Administrative Law, Primary jurisdiction. Jurisdiction, Labor case, Primary jurisdiction. Arbitration, Scope of arbitration, Authority of arbitrator, Parties. Damages, Fair representation by union. At the jury-waived trial of an employee’s claims against his employer and a labor union, arising from his discharge pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union,” the judge appropriately admitted evidence of the union’s prior unfair actions toward the plaintiff. [414-415] An employee seeking judicial relief from an arbitrator’s order that he be discharged pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union” was not precluded either by his failure to participate in the arbitration between the union and his employer, where the agreement gave him no such right, or, in the circumstances, by his not having pursued administrative or internal union remedies. [415-417] A judge was not clearly in error in finding that a labor union’s treatment of a certain employee, who was seeking reinstatement to union membership as a condition of employment under the applicable collective bargaining agreement, was unfair and constituted wrongful exclusion from membership. [417] Where a labor union’s bad faith actions in excluding from full membership an employee within its collective bargaining unit led to arbitration between the union and his employer, culminating in the employee’s discharge pursuant to a requirement in the collective bargaining agreement requiring employees to “become and remain members of the Union,” the employee had standing to challenge the arbitrator’s award in an action against the union and the employer. [417-418] Where a labor union’s wrongful exclusion of an employee from full membership had resulted in the employee’s discharge pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union,” a judgment ordering the employee’s reinstatement was clearly appropriate [418-419]; the union was to be liable for intervening wage loss [419]; and the union was to be ordered to refrain from further action against the employee before giving him the opportunity of full membership and benefits upon payment of back dues [419-420], Civil action commenced in the Superior Court Department on February 27, 1986. The case was heard by John C. Cratsley, J. Phinorice J. Boldin for Massachusetts Bay Transportation Authority. John McMahon for Boston Carmen’s Union, Division 589, Amalgamated Transit Union. Richard W. Murphy {Jon R. Maddox with him) for the plaintiff. Local 589, Amalgamated Transit Union. Dreben, J. This is the third time that a dispute among William S. Reilly; Local 589, Amalgamated Transit Union (union); and the Massachusetts Bay Transportation Authority (Authority) has reached this court. See Reilly v. Local 589, Amalgamated Transit Union, 22 Mass. App. Ct. 558 (1986) (Reilly I), and Reilly v. Local 589, Amalgamated Transit Union, 31 Mass. App. Ct. 633 (1991) (Reilly II). Footnote 27 of Reilly I, supra at 580, describes the beginning of the present controversy. Both prior appeals grew out of the 1972 discharge of Reilly by the Authority and the union’s refusal to represent his interests in arbitration. Ultimately, the union acknowledged that its refusal was “for reasons other than the merits of his cases,” and, by order of the Superior Court, the matter was sent to arbitration. The arbitrator ruled Reilly’s discharge inappropriate and ordered that he be “made whole for all benefits lost” as a result of the Authority’s actions. Reilly II, supra at 635. On March 20, 1981, a Superior Court judge confirmed the arbitrator’s award and ordered the Authority to reinstate Reilly to his position as a motorman “forthwith.” Reilly was reinstated in 1981. Section 101C of the collective bargaining agreement between the union and the Authority required all employees to “become and remain members of the Union” and also provided that any employee who “fails to maintain membership in the Union to the extent of paying regular membership dues and assessments shall not be retained in the employ of the Authority. . . .” Beginning with his reemployment, Reilly and the union could not agree on the terms of his reinstatement as a union member. Reilly wanted full reinstatement with all benefits, but the union refused to consider him a member in good standing since 1975, the time when Reilly had previously stopped paying dues. When they failed to reach agreement, the union insisted that he be fired for failure to pay dues, the Authority refused, and the union brought the matter to arbitration on December 18, 1985. Reilly, although given notice of the impending arbitration, did not participate in the proceedings. The Authority did not present evidence to the arbitrator, and an award was made which upheld the union’s position and ordered Reilly discharged. The Authority complied with the arbitral award in 1986. Reilly then brought this action in the Superior Court, alleging that he should have been made a party to the arbitration and that his discharge was in violation of the March, 1981 court order reinstating him as an employee. After a jury-waived trial, the trial judge found that the union, rather than accepting responsibility for Reilly’s suspension from membership in 1975, *refused to offer him full and unqualified membership. In particular, while the union gave Reilly the option of paying all back dues or joining as a new member, it also, citing the constitution of the international union, insisted that Reilly could not run for union office until he was again a member in good standing for two years. Reilly rejected both options and did not pay dues. The judge found the action of the union to be a “slavish adherence to formal requirements at the expense of fair play,” that waivers of the rule requiring membership for the preceding two years before seeking union office were possible, and that there was no evidence that the union even tried to seek from the international union permission to waive the rule. The judge ruled “that in the highly unusual circumstances of this case — where the union’s own failure to represent Mr. Reilly brought about the very problem, cessation of Reilly’s membership, of which the union now complains — the union’s failure to reinstate Reilly ‘whole’ constitutes wrongful exclusion from membership on its part. . . . [I]ts invocation of the Authority’s contractual obligation to adhere to the requirements of Section 101C of the Agreement effectively calls upon the Authority to legitimize the union’s own unjust treatment of Reilly.” The judge, after citing Vaca v. Sipes, 386 U.S. 171, 186 (1967), and Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. 283, 286 (1976), both cases discussing a union’s violation of its duty of fair representation, ruled “[i]t is impermissible for the Authority to discharge Reilly for no other reason than that he has not paid his union dues when the union had failed, after a judicial determination of its own wrongful actions, to reinstate fully its former member, thereby causing that non-payment. Under these circumstances, the discharge of Reilly essentially constitutes a violation of [the] order that Reilly be re-employed by the Authority as if he never were terminated.” A judgment was entered ordering that (1) the arbitration award be vacated; (2) the Authority reinstate Reilly forthwith with all the rights and benefits he held at the time of his discharge; (3) the Authority restore to Reilly “all salary and benefits lost, plus interest, from the daté of his discharge in 1986 to the date of his reinstatement”; and (4) the union “refrain from any further action against [Reilly] based on the fact that he is not, as yet, a dues-paying member of Local 589.” Before us are appeals by the union and the Authority. We are in basic agreement with the judge’s rulings but deem it appropriate to modify the remedy. Our discussion will first consider certain procedural claims of the appellants before turning to the merits. 1. Denial of motion in limine. The union and the Authority claim error in the introduction by Reilly of evidence of the union’s actions which took place before his 1981 reinstatement. This evidence, they urge, allowed Reilly’s action to encompass a claim of wrongful expulsion from union membership. Prior to trial, the union and the Authority moved to limit Reilly’s evidence to the two claims alleged in his complaint, namely (1) whether Reilly should have been made a party to the 1985 arbitration and (2) whether the 1986 award that Reilly be discharged violated the 1981 order that the Authority reinstate Reilly. A trial court has wide discretion to determine the relevancy of evidence. Commonwealth v. Tobin, 392 Mass. 604, 613 (1984). Commonwealth v. Good, 409 Mass. 612, 621-622 (1991). Even where the issues raised are not within the scope of the pleadings, a judge, in the absence of prejudice (that is, an inability by the opposing party to prepare an adequate case or defense), is encouraged by the Massachusetts Rules of Civil Procedure freely to allow amendments to the pleadings to conform to such evidence as serves the merits of the action. See Mass.R.Civ.P. 15(b), 365 Mass. 761-762 (1974). Moreover, here the evidence could reasonably be viewed as within the matters pleaded. The unfair treatment by the union of Reilly’s earlier grievance led to his ceasing to pay dues in 1975. The resulting break in continuous union membership underlay Reilly’s claim that the union unfairly deprived him of union benefits including the provision of the international union’s constitution, see note 5, supra, and thus procured his wrongful discharge in 1986. His 1986 firing was alleged to be a violation of the 1981 court order. 2. Failure to exhaust administrative remedies. Pointing to the fact that Reilly knew of the time, place and purpose of the arbitration, the union and the Authority argue that Reilly’s failure to participate in the arbitration proceedings precludes him from challenging its results. If his claim was that § 101C of the collective bargaining agreement (requiring maintenance of union membership) did not apply because he was excluded from the union (§ 101D of the agreement), they urge that he was required to participate in the proceedings once arbitration had been invoked by the parties to the collective bargaining agreement. Reilly did not have a statutory right to intervene, nor was he given such a right by the collective bargaining agreement. Indeed, § 104 of the agreement provided that the grievance procedure “shall apply to all disputes between the Union and the Authority, whether any such dispute occurs as the result of a complaint by an individual member of the Union or a complaint by the Union itself’ (emphasis supplied). There is nothing in the collective bargaining agreement requiring Reilly to intervene or lose his legal rights. Moreover, as the judge was warranted in finding, the notice given to Reilly was inadequate. It did not explicitly invite him to attend nor did it inform him of his rights in the arbitration process. It did not tell him whether he could have a lawyer, bring witnesses, or cross-examine the parties. That in some other instances, involving other issues, employees had participated in arbitration proceedings did not require a finding that there was a waiver by Reilly or an obligation binding on him to attend. The Authority’s additional argument that Reilly, if not required to arbitrate, was obliged by G. L. c. 161 A, § 19, “to submit his grievance to the state board of conciliation and arbitration or other board having similar powers and duties” does not appear to have been made to the judge prior to the Authority’s postjudgment motion for reconsideration. It is doubtful that the State board has the same authority as given to the Labor Relations Commission in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341 (1987). See Massachusetts Bay Transp. Authy. v. Labor Relations Commn., 356 Mass. 563, 567 (1970). See also G. L. c. 161 A, § 19A, which makes applicable to the Authority and its employees only c. 150A, § 5. Moreover, even if the legislative scheme of G. L. c. 161 A, § 19, were interpreted to give the State Board of Conciliation and Arbitration such authority, where, as here, the case was brought prior to the decision in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, supra, Reilly is entitled to rely “on Federal and State precedent indicating that the courts had concurrent jurisdiction [with administrative agencies] over cases concerning the duty of fair representation.” Id. at 350-351. Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 611 (1990). Vaca v. Sipes, 386 U.S. at 181-183. Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. 67, 73-84 (1989). See also Pattison v. Labor Relations Commn., 30 Mass. App. Ct. 9, 10, 21 (1991). Reilly also did not need to exhaust internal union procedures. The dispute between Reilly and the union remained unresolved from 1981 to 1985. To have prolonged it further would, in our opinion, have “unreasonably delay [ed] [his] opportunity to obtain a judicial hearing on the merits of his claim.” Clayton v. International Union, United Auto., Aerospace, & Agric. Implement Wkrs. of America, 451 U.S. 679, 689 (1981). The union procedure also may have been inadequate to award full relief. Ibid. 3. Wrongful exclusion from union membership. Urging that it was bound by the constitution of the international union, which was not a party to this proceeding, see Donahue v. Kenney, 327 Mass. 409, 413 (1951), the union claims the judge’s finding of wrongful exclusion is plain error. In view of the international union’s determination that the one-year limitation on reinstatement rule was inapplicable under the “highly unusual” facts applicable to Reilly, see note 6, supra, and in view of the evidence of earlier hostility by some union members to Reilly’s election attempts, see also Reilly I, 22 Mass. App. Ct. at 563 n.7, the judge’s finding — that the failure by the union even to request from the international union a determination of inapplicability or waiver of the two-year “good standing” rule for eligibility for election was unfair and constituted wrongful exclusion from membership — was not clearly erroneous. 4. Duty of fair representation and claim that Reilly cannot challenge the 1986 arbitration award. Under both State and Federal law, a union has the responsibility and duty of fair representation. Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. at 348. Vaca v. Sipes, 386 U.S. at 177. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564 (1976). Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. at 73. Even if not required by statute, “the courts would infer [such a duty] as a constitutional requirement.” Leahy, supra. McCormick v. Labor Relations Commn., 412 Mass. 164, 169 n.9 (1992). See generally A Judicial Guide to Labor and Employment Law § 18-4.1 (Walsh ed. 1990). Where the union has breached this duty, the foregoing authorities permit an employee, at least in cases brought prior to Leahy, to bring directly an action against his employer. See Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. at 286. “The union’s breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union’s breach also removes the bar of the finality provisions of the contract.” Hines v. Anchor Motor Freight, Inc., 424 U.S. at 567. The circumstances of this case are unusual: Reilly offered to pay all back dues; the union’s previous violation of the duty of fair representation had reasonably led Reilly to cease paying dues in 1975, causing him to lose his status as a member “in good standing”; despite its earlier wrongful behavior, the union refused to seek full benefits for Reilly upon his reinstatement; and union membership and payment of dues under the collective bargaining agreement was required as a condition of employment. We hold that the union, by excluding Reilly from full union membership, was in breach of its duty of fair representation in administering § 101C, the discharge provision of the collective bargaining agreement. In wielding the power of obtaining a discharge for failure to pay dues, the union had a duty to exercise that power fairly. See Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. at 82-83. This it has not done. Accordingly, the argument that Reilly lacks standing to challenge the award has no merit. See the cases previously cited discussing the duty of fair representation. We need not consider whether the arbitrator’s decision also superseded the prior court order. It is enough that the union’s bad faith actions in representing Reilly led to the arbitration decision and Reilly’s wrongful discharge. 5. Remedy against the Authority. Since Reilly was wrongfully discharged, the order requiring -the Authority to reinstate him was clearly appropriate. The assessment against the Authority of back pay from the time of the “tainted decision” of the arbitrator to the date of the judicial determination that the discharge was wrongful, however, presents difficulty. “If an employer relies in good faith on a favorable arbitral decision, then his failure to reinstate discharged employees cannot be anything but rightful, until there is a contrary determination. ... To hold an employer liable for back wages for the period during which he rightfully refuses to hire discharged employees would be to charge him with a contractual violation on the basis of conduct precisely in accord with the dictates of the collective agreement.” Hines v. Anchor Motor Freight, Inc., 424 U.S. at 572-573 (Stewart, J., concurring). For the reasons set forth by Justice Stewart in the Hines case, and implicitly by the Court in Bowen v. United States Postal Serv., 459 U.S. 212, 225-228 (1983), we vacate that portion of the judgment which assessed the Authority with an award of. back pay for the period prior to the judgment of the Superior Court. 6. Remedy against the union. The concurring opinion of Justice Stewart in Hines v. Anchor Motor Freight, Inc., supra, also sets forth the appropriate remedy against the union. “Liability for the intervening wage loss must fall not on the employer but on the union. Such an apportionment of damages is mandated by Vaca’[ ] holding that ‘damages attributable solely to the employer’s breach of contract should not be charged to the union, but increases if any in those damages caused by the union’s refusal to process the grievance should not be charged to the employer.’ 386 U.S. at 197-198.” 424 U.S. at 573. We again agree with Justice Stewart’s reasoning, see also Bowen v. United States Postal Serv., 459 U.S. at 223, and hold that the union is responsible for Reilly’s back pay from the time of the arbitrator’s decision to the date the judgment was entered in the Superior Court. The trial judge explained in his memorandum that, because the international union was not a party, see Donahue v. Kenney, 327 Mass. at 413, and because the union cannot unilaterally contravene a rule in the international union’s constitution, McDermo

FEELEY v ACCIDENT FUND OF MICHIGAN Docket Nos. 129699, 140116. Submitted March 11, 1992, at Lansing. Decided April 6, 1992, at 9:20 A.M. Frank M. Feeley, O. William Rye, and Lee McAllister brought an action in the Court of Claims against the Accident Fund of Michigan, alleging wrongful discharge and breach of employment contracts. The court, Peter D. Houk, J., granted summary disposition for the Accident Fund, finding the contracts not legally enforceable. The plaintiffs appealed. The plaintiffs also filed an action in the Ingham Circuit Court against the Accident Fund, seeking an order compelling arbitration of the contract dispute under the arbitration clause in the contracts. The court, Peter D. Houk, J., granted summary disposition for the Accident Fund, concluding that the state could not be compelled to submit to arbitration. The plaintiffs appealed. The appeals were consolidated. The Court of Appeals held: 1. Neither the advisory board of the Accident Fund nor its manager were authorized to hire employees. Therefore, the contracts, which were executed by the manager and authorized by the advisory board, were not enforceable. 2. The Commissioner of Insurance did not delegate hiring ■ authority to the manager. The mere appointment of a manager does not imply the delegation of authority specifically vested by statute in the commissioner. 3. The commissioner’s authority to hire Accident Fund employees is restricted to hiring employees into positions within the classified civil service pursuant to the rules of the Civil Service Commission. Not even the commissioner could enter into the contracts at issue because they did not appoint the plaintiffs to positions within the classified civil service. References Am Jur 2d, Arbitration and Award §§ 11, 19; Civil Service §§ 8, 13, 14, 27; Master and Servant §§ 43 et seq. Damages recoverable for wrongful discharge of at-will employee. 44 ALR4th 1131. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 4. The plaintiffs did not have implied contracts providing for termination only for just cause. 5. Because the contracts were invalid, the arbitration clause of the contracts also was invalid. Therefore, the issue whether the state can be compelled to arbitrate is moot. Affirmed. 1. Civil Service — Accident Fund — Commissioner of Insurance. Only the Commissioner of Insurance has the authority to hire employees of the Accident Fund of Michigan; employees of the Accident Fund must be classified in the civil service, unless hired into positions exempt from civil service classification as provided in the constitution (Const 1963, art 11, § 5). 2. Master and Servant — Breach of Contract of Employment. An employee who is never lawfully hired cannot be unlawfully fired. Adkins & Garcia (by James D. Adkins and Richard J. Garcia), for the plaintiffs. Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and George H. Weller, Assistant Attorney General, for the defendant. Before: Shepherd, P.J., and Sawyer and Con-nor, JJ. • Sawyer, J. In this consolidated appeal, plaintiffs appeal from an order of the circuit court (Docket No. 129699) that granted summary disposition in favor of defendant of plaintiffs’ claim to compel arbitration under an employment contract and from an order of the Court of Claims (Docket No. 140116) that granted summary disposition in favor of defendant of plaintiffs’ breach of contract claim. We affirm. This case has its roots in action by the Attorney General to regain state control of the Accident Fund of Michigan. The Accident Fund was created by statute in 1912. Sometime between then and 1976, it began to act as if it were a private, mutual insurance company that was merely authorized by statute and, at some point, believed that to be true. In 1976, the Attorney General issued an opinion that concluded that the Accident Fund was, in fact, a state agency. OAG, 1975-1976, No 5147, p 695 (December 7, 1976). Thereafter, the Attorney General (and the Commissioner of Insurance) endeavored to regain control of the Accident Fund as a state agency under the control of the Commissioner of Insurance and to have the Accident Fund’s employees classified into the state civil service. This culminated with an opinion by this Court affirming the circuit court’s determination that the Accident Fund was, in fact, a state agency subject to the control of the Commissioner of Insurance and that the fund’s employees were state employees required to be classified into the state civil service. Comm’r of Ins v Advisory Bd of the Michigan State Accident Fund, 173 Mich App 566; 434 NW2d 433 (1988). On September 21, 1989, the day after the Supreme Court denied the advisory board leave to appeal from this Court’s decision, the Attorney General and the Commissioner of Insurance arrived at the Accident Fund and assumed control pursuant to this Court’s decision. Thereafter, on November 2, 1989, plaintiffs, who held various positions with the Accident Fund, walked off their jobs, claiming that they had been constructively discharged. The basis of their claim of constructive discharge lies in statements by officials of the offices of the Attorney General, Commissioner of Insurance, and Department of Civil Service concerning plaintiffs’ future pay cuts, transfers, and reduction in job responsibilities. While the original dispute between the Commissioner of Insurance and the advisory board was pending before this Court, plaintiffs entered into employment contracts with the Accident Fund that provided for termination only for just cause and that contained "golden parachute” clauses. These clauses provided for severance pay in the amount of two years’ salary upon discharge. After leaving their jobs at the Accident Fund, plaintiffs instituted an action in the Court of Claims claiming wrongful discharge and breach of employment contracts. The trial court granted summary disposition in favor of defendant, concluding that the employment contracts were not legally enforceable. Although plaintiffs were permitted to amend their complaints to add an implied-contract claim, the trial court granted summary disposition in favor of defendant of the amended complaint as well. Meanwhile, plaintiffs had also filed an action in the circuit court seeking an order compelling arbitration of the contract dispute under an arbitration clause in the contracts. The trial court granted summary disposition in favor of defendant, concluding that the state could not be compelled to submit to arbitration. Separate appeals were filed with regard to these disputes. The matters have been consolidated. As will be explained below, resolution of the appeal from the Court of Claims decision will be dispositive and render the circuit court decision moot. Plaintiffs first claim that their written contracts with the Accident Fund are enforceable and have been breached, and, therefore, they are entitled to severance pay in the amount of two years’ salary, which ranges from $138,100 to $209,000. Defendant takes the position that the trial court correctly determined that the employment contracts at issue were not legally enforceable. In light of the procedural posture of this case, this Court must assume that plaintiffs were, in fact, discharged and that their employment contracts, if enforceable, were breached. Thus, the crux of the question is, Are plaintiffs’ employment contracts legally enforceable? That question must be answered in the negative. The question that must be answered is whether the advisory board or the manager of the Accident Fund who entered into the contracts on behalf of the Accident Fund had the authority to do so and thus legally bind the Accident Fund (i.e., the State of Michigan). The contracts were entered into in the name of the Accident Fund by Edwin B. Lancaster, the putative manager and chief executive officer of the Accident Fund. As might be expected, plaintiffs contend that Lancaster had the actual authority to run the Accident Fund, including the power to enter into employment contracts, while defendant maintains that Lancaster did not. This issue may be resolved by reference to this Court’s decision in Comm’r of Ins, supra. In Comm’r of Ins, this Court concluded that, except to the extent that a position within the Accident Fund may be exempt from civil service classification as provided in the constitution, employees of the Accident Fund must be classified in the civil service. Id. at 582. More directly to the point, this Court specifically stated: In the case at bar, the disability act does not grant the Advisory Board . . . the authority to hire employees .... The hiring authority is granted to the Commissioner of Insurance, subject to the authorization of the Advisory Board, under MCL 418.741; MSA 17.237(741). . . . Simply put, the Advisory Board has no authority other than to authorize the hiring of employees by the commissioner and to advise the commissioner in the administration of the affairs of the fund. [Id. at 586.] It is thus clear that the Commissioner of Insurance, not the advisory board or the fund manager, had the authority to hire employees. Plaintiffs do not allege, however, that they were hired by the Commissioner of Insurance or that the commissioner had entered into the contracts with plaintiffs. Rather, plaintiffs specifically state in their brief on appeal that this action is based upon "contracts executed by the then Manager of the Accident Fund and authorized by the Advisory Board.” Because the statutory authority to hire employees is vested in the Commissioner of Insurance, not the manager or the advisory board, the employment contracts at issue were not legally enforceable against the Accident Fund because the Commissioner of Insurance was not a signatory to them. Plaintiffs do, however, argue that the putative manager of the Accident Fund, Lancaster, had the authority to act on behalf of the Commissioner of Insurance because he had been appointed by the commissioner to the position of manager. This argument must fail for a number of reasons. First, and foremost, plaintiffs make no showing that the commissioner had ever delegated to the fund manager the statutory authority to hire employees. While, arguably, the Commissioner of Insurance could delegate his statutory authority, it is necessary to show that that has been done. The mere appointment of a manager does not imply the delegation of authority specifically vested by statute in the commissioner. Second, Lancaster himself has previously disavowed that he is an agent of the commissioner. In an April 3, 1986, letter to the commissioner, Lancaster stated that he does not recognize the commissioner’s authority over the Accident Fund or the employment of its manager: I have been designated Manager of the Accident Fund by the Advisory Board. ... You should further be advised that the Advisory Board of the Accident Fund has not authorized you to employ a manager for the Accident Fund which, as you know, is a statutory prerequisite to any involvement on your part. We will proceed on the basis that your memorandum is a request for such authorization and will make that request known to the Advisory Board on the occasion of its next meeting. Even more to the point, in an April 24, 1986, letter, Lancaster specifically disavowed that the commissioner had appointed him, or had authority to appoint him: For purposes of the record, I must again take issue with your statement that you orally appointed me to the position of "acting manager” of the Accident Fund. To my knowledge, no such action, either oral or written, was ever taken by you. I was employed manager of the Accident Fund by action of the Advisory Board and serve at its pleasure. It is our current mutual expectation that I will continue to so serve through December of 1987. Any action you might take to appoint a new manager for the Accident Fund, or any other employee for that matter, without authorization of the Advisory Board, would be illegal and in violation of Section 741 of the Accident Fund enabling statute. Thus, even if the commissioner had endeavored to delegate authority to Lancaster, it is clear that Lancaster refused to accept that delegation from the commissioner and that he exercised only that authority that was delegated by the advisory board. Because, as discussed above, the advisory board had no authority to hire employees, it could not delegate such authority to Lancaster. Finally, even if this Court were to reach the conclusion that the Commissioner of Insurance delegated to Lancaster the authority to hire the commissioner had no authority to hire plaintiffs on the terms expressed in the contracts. More specifically, the contracts do not appoint plaintiffs to civil service positions. As explained in Comm’r of Ins, Const 1963, art 11, § 5 requires that all state executive branch employees be classified into the civil service, except for a limited number of employees that may be exempted from the civil service. Those exempted from civil service classification include heads of departments, members of boards and commissions, and the principal executive officer of boards and commissions heading principal departments. None of the plaintiffs fall within these categories. Const 1963, art 11, § 5 also authorizes two exempt positions within each department as requested by the department head and three exempt positions within each department as authorized by the Civil Service Commission. There is no indication that plaintiffs fall into this latter group. Thus, as explained in Comm’r of Ins, supra at 582, employees of the Accident Fund, such as plaintiffs, had to be classified into the state civil service. Further, the commissioner’s authority to hire Accident Fund employees is restricted to hiring employees into the classified civil service pursuant to the rules of the Civil Service Commission. Id. at 583-584. Thus, even the commissioner could not lawfully enter into the contracts at issue because they did not appoint plaintiffs into positions within the classified civil service. In sum, plaintiffs look to the advisory board as the hiring authority who entered into the employment contracts with plaintiffs. The advisory board had no such authority to hire. Furthermore, although the Commissioner of Insurance did have the authority to hire, plaintiffs have made no showing that the commissioner, or his duly authorized subordinate, exercised that authority with respect to plaintiffs. Finally, even the commissioner lacked the authority to hire plaintiffs under the terms of the contracts at issue because those contracts do not constitute an appointment to a position within the classified civil service, which is the limit of the commissioner’s authority. Plaintiffs next argue that, at a minimum, they had an implied contract of employment that provided for termination only for just cause. However, this argument does not overcome the deficiencies of their argument under the express-contract issue above. Plaintiffs point to the written contracts, the Personnel Policy Manual, and the verbal assurances given by Lancaster as the basis for their reasonable expectation that their employment could be terminated only for cause. Plaintiffs’ argument, however, does not address the fact that they were never lawfully hired into their positions. As discussed above, only the commissioner had the authority to hire employees of the Accident Fund, and plaintiffs have not shown that the commissioner hired them. In fact, plaintiffs take the position that they were hired by the advisory board. Second, at most they could have been hired into a classified civil service position, which never occurred because they left their jobs before being classified into the civil service. An employee who is never lawfully hired cannot be unlawfully fired. Turning to the specifics of plaintiffs’ allegations of an implied contract, it can be seen that plaintiffs had no reasonable basis for believing that they were anything other than employees at will. First they point to the written contracts. However, as discussed above, these contracts are invalid and, thus, cannot give rise to any employment expectations. Second, plaintiffs point to the Personnel Policy Manual, yet this actually defeats plaintiffs’ position. By plaintiffs’ own statement in their brief, the policy manual provided that all Accident Fund employees were employees at will unless they had a written contract to the contrary. Because the written contracts at issue are invalid, plaintiffs had no such contracts and were, even under the terms of the Personnel Policy Manual, employees at will. Finally, plaintiffs point to representations by Lancaster. However, as discussed at length above, Lancaster had no authority to hire employees or to deviate from the civil service requirements. Moreover, the date of the contracts, April 15, 1988, is illuminating. The contracts were entered into after the entry of the circuit court’s decision on October 5, 1987, in the litigation between the advisory board and the Commissioner of Insurance at issue in Comm’r of Ins, supra. In the circuit court decision, Judge Stell held, inter alia, as follows: The Court declares that the Michigan State Accident Fund is a state agency, and its employees are subject to Civil Service classification under Const 1963, art 11, sec 5. Thus, at the time of the making of the contracts, the circuit court had opined that Accident Fund employees had to be classified into the civil service, a finding that was upheld on appeal. Certainly plaintiffs cannot claim that they had any reasonable expectation of termination only for just cause emanating from the written contracts and related representations when, several months before the signing of the contracts at issue, the circuit court had declared that they were required to be classified civil service employees. For the above reasons, we conclude that summary disposition was properly granted. Turning to the appeal from the circuit court decision, plaintiffs sought injunctive relief in circuit court to compel arbitration of the breach of contract dispute under an arbitration clause contained in the contracts. The trial court ruled that a state agency could not be compelled to arbitrate. However, this issue need not be addressed because it has been determined above that the contracts at issue were invalid. Because the contracts were invalid, the arbitration clause was invalid and it matters not whether the state can be compelled to arbitrate. The issue is moot. Affirmed. Defendant may tax costs. In fact, the employment contracts at issue provide that the employee would be deemed to have been "involuntarily and constructively discharged” if, inter alia, there was an "involuntary and material reduction in duties, compensation, or benefits” that, plaintiffs allege, was threatened. Even more to the point, plaintiffs would be considered constructively discharged in the event of a final resolution by "court decision . . . pursuant to which the Accident Fund of Michigan is finally determined to be subject to control or regulation by any agency of the State of Michigan, except as is customary for casualty insurance carriers doing business in Michigan.” Thus, under the terms of the contract, plaintiffs were constructively discharged when the Supreme Court declined to review this Court’s decision in the earlier appeal.

SNELL v UACC MIDWEST, INC Docket No. 138335. Submitted March 10, 1992, at Grand Rapids. Decided March 30, 1992; approved for publication June 10, 1992, at 9:00 a.m. Robert Snell brought an action in the Kent Circuit Court against UACC Midwest, Inc., alleging wrongful termination from employment. The court, Donald A. Johnston, J., entered judgment consistent with a jury verdict for the plaintiff and denied the defendant’s motions for judgment notwithstanding the verdict, a new trial, and remittitur. The defendant appealed. The Court of Appeals held: 1. The court properly denied the defendant’s motion for a directed verdict with regard to the issue whether the plaintiff was employed pursuant to an express or implied contract of employment providing for termination only for just cause. A genuine issue of material fact existed regarding the existence of an employment contract provided for termination only for just cause. 2. Denial of the defendant’s motion for judgment notwithstanding the verdict was proper. The plaintiff presented sufficient evidence to justify submitting to the jury the issue of the existence of an employment contract providing for termination only for just cause. 3. The court properly denied the defendant’s motion for judgment notwithstanding the verdict, which had alleged erroneous factual findings by the jury. 4. The plaintiff presented sufficient evidence to create an issue for the jury with regard to whether he failed to mitigate his damages. Denial of the motion for judgment notwithstanding the verdict in this regard was proper. 5. There were questions of fact with regard to the issues concerning just cause for termination and mitigation of damages. The trial court therefore did not abuse its discretion in denying the defendant’s motion for a new trial with regard to these issues. 6. The jury’s award is supported by the evidence. The trial court did not abuse its discretion in denying the defendant’s request for remittitur. 7. The court did not abuse its discretion in granting the plaintiffs motion to sever the defendant’s counterclaims for trial. Affirmed. Buchanan & Bos (by Bradley K. Glazier), for the plaintiff. Keywell & Rosenfeld (by Gary W. Klotz, Denise S. Gold, Elaine A. Parson, and Eric B. Gaabo), for the defendant. Before: Fitzgerald, P.J., and Hood and Cavanagh, JJ. Per Curiam. Defendant appeals as of right from a circuit court order granting judgment consistent with a jury verdict in favor of plaintiff and from the court’s denial of defendant’s motions for judgment notwithstanding the verdict, a new trial, and remittitur. We affirm. i Defendant first argues that the trial court erred in failing to grant its motion for a directed verdict with regard to the issue whether plaintiff was employed pursuant to an express or implied contract of employment that prohibited his termination except for just cause. We disagree. Oral contracts of employment for an indefinite term are presumed to be terminable at the will of either party. This presumption can be overcome, however, by the existence of an express agreement to the contrary, or by the employee’s legitimate expectations of continued employment absent "just cause” for termination arising from the employer’s established policies and procedures. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). To infer that an employment contract provides for termination only for just cause, the employee must have an objective expectation of continued employment, not merely a subjective one. Grow v General Products, Inc, 184 Mich App 379, 382-384; 457 NW2d 167 (1990). Whether an employer’s policies and procedures constitute sufficient bases for the creation of an objective expectation of employment terminable only for just cause is a question for the jury. Toussaint, supra, pp 620-621. See also Renny v Port Huron Hosp, 427 Mich 415, 417; 398 NW2d 327 (1986). Further, in determining whether a reasonable finder of fact can conclude that a promise of job security is implied, this Court must look at all the facts and circumstances to evaluate the intent of the parties. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 639; 473 NW2d 268 (1991). With respect to oral statements, this requires a determination of the meaning that reasonable persons might have attached to the language given the circumstances presented. Id., p 640. The statements must "clearly permit a construction which supports the asserted meaning.” Id., p 641. We have carefully reviewed the record and remind defendant that plaintiff has not based his claim solely on the preemployment statements made by Alan Bigelow. Rather, plaintiff points to other statements made by Bigelow as well as the apparent practice of progressive discipline engaged in by Bigelow and other supervisors. Viewing all the evidence in a light most favorable to plaintiff, and according plaintiff all reasonable inferences, we conclude that a genuine issue of material fact existed upon which reasonable minds could differ regarding the existence of an employment contract providing for termination only for just cause. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). The trial court, therefore, did not err in denying defendant’s motion for a directed verdict. ii Defendant next argues that the trial court should have granted its motion for judgment notwithstanding the verdict because (1) plaintiff failed to prove he was employed pursuant to an employment contract providing for termination only for just cause, (2) defendant had just cause for terminating plaintiff, (3) defendant did not have a policy requiring three warnings before discharging for "really screwing up,” (4) plaintiff received at least three warnings before termination, (5) defendant had the right to terminate plaintiff without further warning for his dishonesty, and (6) plaintiff failed to mitigate his damages. A motion for judgment notwithstanding the verdict should be granted only where the evidence presented is insufficient to create an issue for the jury. Wilson v General Motors Corp, 183 Mich App 21, 36; 454 NW2d 405 (1990). As with a motion for a directed verdict, the evidence and all reasonable inferences are to be viewed most favorably to the nonmoving party. Shipman v Fontaine Truck Equipment Co, 184 Mich App 706, 711; 459 NW2d 30 (1990). A As discussed previously, plaintiff presented sufficient evidence of defendant’s statements and procedures to justify submitting to the jury the issue of the existence of an employment contract providing for termination only for just cause. Denial of defendant’s motion for judgment notwithstanding the verdict on this basis was therefore proper. B Once the jury determined that plaintiff was employed pursuant to a contract that entitled him to the protection of termination only for just cause, the question whether his discharge was in breach of that contract was also one for the jury. Toussaint, supra, pp 620-621. In connection with this duty, the jury is permitted to determine the employer’s true reason for the discharge and whether the stated reason amounts to good cause. Id., p 622-623. The various arguments raised by defendant on appeal all focus on factual decisions required to be made by the jury in order to render a verdict. Plaintiff claimed that his employment contract provided for three warnings (possibly written) as part of the progressive discipline policy apparently in effect. Plaintiff offered evidence explaining, in part, his failure to adequately perform his duties on September 16, 1988, and presented the jury with his theory that his discharge was spurious because the job assignment was designed to give defendant the means to the desired end. Whether the employment contract provided for the warnings plaintiff claims and whether he did in fact receive such warnings were clearly issues of fact to be resolved solely by the jury. Further, the jury was entitled to determine defendant’s true motive for discharging plaintiff and whether its stated reason amounted to good cause. Moreover, the jury was able to view the demeanor of the witnesses and assess credibility. The trial court therefore properly denied defendant’s motion for judgment notwithstanding the verdict on the basis of the jury’s factual findings. c Lastly, defendant claims that the trial court should have granted judgment in its favor because plaintiff failed to mitigate his damages. We disagree. Although the principle of mitigation obligates the plaintiff to accept employment of like nature, whether the plaintiff is reasonable in not seeking or accepting particular employment is a question for the trier of fact. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 663; 378 NW2d 558 (1985); Higgins v Kenneth R Lawrence, DPM, PC, 107 Mich App 178, 181; 309 NW2d 194 (1981). Upon review of the record, we are convinced that the trial court properly denied defendant’s motion for judgment notwithstanding the verdict. Plaintiff presented sufficient evidence to create an issue for the jury’s resolution. iii Defendant also contends that the trial court erred in denying its motion for a new trial or remittitur because the evidence overwhelmingly preponderated in its favor. Again, we disagree. A A motion for a new trial may be granted when the jury’s verdict was against the overwhelming weight of the evidence. The trial court’s decision with regard to the motion will not be reversed absent an abuse of discretion. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985); Wilson, supra. The record appears to support defendant’s argument that no reasonable jury could have found that defendant lacked just cause to terminate plaintiff on the basis of his falsification of documents and dishonesty or because plaintiff failed to mitigate his damages. Nevertheless, as the trial court recognized, the standard is not whether the reviewing court would have reached a different result, but whether the evidence was such that reasonable minds could differ. Keeping in mind that the jury was in a position to judge the credibility of the witnesses, our review of the evidence leads us to conclude that a question of fact was created with regard to the issues of just cause and mitigation of damages. The trial court did not abuse its discretion in denying defendant’s motion for a new trial. On appeal, defendant also argues that a new trial should have been granted because of certain statements made by plaintiff’s counsel during closing arguments. However, defendant did not object to any of these statements. Appellate review is thus precluded unless the failure to do so would result in a miscarriage of justice. Upon careful review of the statements in context, we are persuaded that any prejudice defendant now perceives to have occurred could have been corrected by a timely objection and request for a curative instruction. See Reetz v Kinsman Marine Transit Co, 416 Mich 97, 100-103; 330 NW2d 638 (1982). B As for defendant’s request for remittitur, the trial court’s denial will be reversed only if an abuse of discretion has been shown. Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d 354 (1989); Wilson, supra, p 38. The trial court is not to decide whether the award "shocks the conscience,” but whether the jury’s award is supported by the evidence. Id.; MCR 2.611(E)(1). Our review of the record convinces us that the trial court did not abuse its discretion in denying remittitur. iv Finally, we find no abuse of discretion in the trial court’s decision to grant plaintiff’s motion to sever defendant’s counterclaims for trial. Jemaa v MacGregor Athletic Products, 151 Mich App 273, 278-279; 390 NW2d 180 (1986). Affirmed.

HAMMOND v UNITED OF OAKLAND, INC Docket No. 121694. Submitted August 13, 1991, at Detroit. Decided March 2, 1992, at 9:05 A.M. John Hammond brought a wrongful discharge action in the Oakland Circuit Court against United of Oakland, Inc., and others. The court, Fred M. Mester, J., denied the defendants’ motion for summary disposition of claims of breach of contract, constructive discharge, and breach of a covenant of good faith and fair dealing. The defendants appealed by leave granted. The Court of Appeals held: 1. The trial court, in denying summary disposition of the claim of breach of contract, did not err in ruling that the plaintiff was not required to return the severance pay and the postemployment fringe benefits he received before bringing an action. Where an employee, upon leaving employment and in exchange for consideration, has released the employer from liability for claims arising out of the employment, the employee must return the consideration before commencing any action against the employer relating to the employment. In this case, because the severance pay and postemployment benefits received by the plaintiff were not paid as consideration for his release of the defendants from liability, the plaintiff did not have to return them in order to commence his action. 2. The trial court, in denying summary disposition of the claim of constructive discharge, did not err in ruling that there remains a genuine issue of material fact concerning whether the defendants deliberately made the plaintiffs working conditions so intolerable that he was forced into an involuntary resignation. 3. The court erred in denying summary disposition of the claim of breach of a covenant of good faith and fair dealing. A cause of action for breach of such a covenant has not been recognized in Michigan in cases involving termination of employment, regardless of whether the employment is terminable at will or only for just cause. Affirmed in part, reversed in part, and remanded for further proceedings. Alan R. Miller, P.C. (by Stephen B. Foley), for the plaintiff. Keywell & Rosenfeld (by Gary W. Klotz), for the defendants. Before: Jansen, P.J., and Sullivan and Marilyn Kelly, JJ. Marilyn Kelly, J. This is a wrongful discharge case between plaintiff, John Hammond, and his former employers, defendants United Cable Television of Oakland County and others. Defendants appeal by leave granted from a circuit court order granting in part and denying in part their motion for summary disposition. Defendants argue on appeal that plaintiff is precluded from bringing a breach of contract action, because he failed to tender back severance benefits he received upon resigning. They further contend that the trial court erred in finding a factual issue existed over whether plaintiff was constructively discharged. Lastly, defendants argue error in the court’s recognition of a cause of action for breach of a covenant of good faith and fair dealing. We affirm in part and reverse in part. i Plaintiff was employed by defendants from February, 1983 to April, 1986. At the time he left, plaintiff was manager of programming services. Plaintiff alleged that, when he was hired, Jim Anderson, defendants’ then-general manager, promised him that he would be a long-term employee; he would have a position with defendants as long as he did a good job. Plaintiff also alleged that defendants’ employee handbook established a policy under which he could be discharged only for just cause. In October, 1985, Anderson was replaced by a new general manager, John Gash. Gash dismissed several managers hired by Anderson. On April 20, 1986, after hearing rumors that Gash might fire him, plaintiff asked Gash if his job was secure. According to plaintiff, Gash assured him that, because his performance was good, he would not be discharged. However, the next day, Gash called plaintiff into his office and advised him that his position was being eliminated. Plaintiff alleged that Gash coerced him into signing a resignation document by "brandishing a knife.” Plaintiff further alleged that, after he resigned, his position was not eliminated; other individuals later served as manager of programming services. Plaintiff filed a complaint alleging multiple theories of liability including: breach of contract; breach of covenant of good faith and fair dealing; constructive discharge; discharge in violation of public policy; negligent discharge; fraud; and retaliatory discharge. The trial court granted defendants’ motion for summary disposition except for the claims of breach of contract, constructive discharge and breach of covenant of good faith and fair dealing. MCR 2.116(C)(8) and (10). With respect to the good faith and fair dealing theory, the court explained: [Although Defendant cites numerous cases holding that Michigan does not recognize such a cause of action, all those cases refer to at will employment. Thus, if Plaintiff can prove at trial that his employment was a just cause situation, he may also establish a breach of covenant of good faith and breach in the contract. On appeal, defendants argue that the trial court should have dismissed all of plaintiffs claims. Plaintiff has not filed a cross appeal, and therefore review of the decision regarding those claims which were dismissed is not before us. ii Defendants assert that plaintiffs breach of contract claim should have been dismissed; plaintiff failed to rescind his resignation by tendering back the severance pay and benefits he received as consideration. We disagree. If an employee, upon leaving a job, releases his employer from liability in exchange for consideration, he must tender back the consideration before suing the employer. Stefanac v Cranbrook Educational Community (After Remand), 435 Mich 155, 163; 458 NW2d 56 (1990); Leahan v Stroh Brewery Co, 420 Mich 108, 112; 359 NW2d 524 (1984). The employee must place the employer in the position it was in prior to the settlement. Stefanac, 164 (quoting Kirl v Zinner, 274 Mich 331, 334-335; 264 NW 391 [1936]). A plaintiff is not entitled to retain the benefit of an agreement and at the same time bring suit in contravention of it. Id., 177. For example, in Stefanac, the plaintiff signed a release stating that in exchange for two weeks’ severance pay, she would fully and forever release, acquit and discharge Cranbrook, its agents, servants and representatives of and from any and all claims, demands, actions and causes of action of. every kind, nature and description which Stefanac may have had, may now have or may hereafter have of any matter, cause, act or omission arising out of or in connection with Stefanac’s employment with and/ or resignation from Cranbrook. [Id., 160.] Since Stefanac did not tender back the severance pay prior to, or simultaneous with, the filing of her lawsuit, our Supreme Court held that her complaint was properly dismissed. Id., 176-178. The other cases on which defendants rely contained similar settlement agreements releasing the employer from liability. See, e.g., Leahan, supra, 111; Davis v Bronson Methodist Hosp, 159 Mich App 251; 406 NW2d 201 (1986). In the instant case, the document that plaintiff signed on his last day of work did not release defendants from liability. It simply provided that plaintiff was submitting his resignation and that he understood that he would receive two months’ severance pay plus extended insurance benefits. It stated: I, John Hammond, hereby submit my resignation from United Cable Television of Oakland County, effective immediately. I understand that I will receive two months severance pay. . . . Additionally, I understand that my insurance benefits will expire on June 30, 1986. Since there was no provision in the document releasing defendants from a potential lawsuit, there was no requirement that plaintiff tender back the severance pay before filing a lawsuit. Defendants do not contend that the money was paid in exchange for an agreement that plaintiff not sue. Therefore, defendants remain in the position they were in prior to the signing of the document. Stefanac, 164. Furthermore, plaintiff is not bringing an action in contravention of the document; he never agreed not to sue. Stefanac, 177. iii We also reject defendants’ contention that the trial court erred in finding that a genuine issue of fact remained over whether plaintiff was constructively discharged. A constructive discharge occurs when an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. Mourad v Auto Club Ins Ass’n, 186 Mich App 715, 721; 465 NW2d 395 (1991). In the instant case, plaintiff presented an affidavit stating that, at the time Gash fired him, Gash "was agitated and brandishing a knife and told me that I had no choice but to sign the [resignation] document.” He further alleged that his resignation was not voluntary. Viewing these allegations in the light most favorable to plaintiff, a juror could reasonably conclude that plaintiff was forced to resign. MCR 2.116(0(10); Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991); Mourad, 721. At trial, defendants may introduce the resignation document and the fact that plaintiff received severance pay as evidence that he was not constructively discharged but rather resigned voluntarily. However, the fact that plaintiff received severance pay or that he never returned his severance pay does not, as a matter of law, defeat his constructive discharge claim. iv We turn next to defendants’ argument that plaintiff failed to state a claim for breach of the covenant of good faith and fair dealing. MCR 2.116(C)(8). Initially, we note that neither plaintiff nor defendants define this covenant. It has been said that the covenant of good faith and fair dealing is an implied promise contained in every contract "that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Fortune v National Cash Register Co, 373 Mass 96, 104; 364 NE2d 1251 (1977); see also Dumas v Auto Club Ins Ass’n, 437 Mich 521, 529, n 3; 473 NW2d 652 (1991), (concurring opinion by Boyle, J.) 554-555, n 14; (dissenting opinion by Levin, J.) (citing Fortune, supra); Aragon-Hass v Family Security Ins Services, Inc, 231 Cal App 3d 232, 237; 282 Cal Rptr 233 (1991); Foley v Interactive Data Corp, 47 Cal 3d 654; 254 Cal Rptr 211; 765 P2d 373 (1988); 2 Restatement Contracts, 2d, § 205, p 99. This Court has been unwilling to recognize a cause of action for breach of an implied covenant of good faith and fair dealing in cases involving at-will employment relationships. See Cockels v Int’l Business Expositions, Inc, 159 Mich App 30, 36-37; 406 NW2d 465 (1987), and cases cited therein. Moreover, contrary to the trial court’s holding, we have refused to recognize the cause of action in cases involving just cause employment relationships as well. Dahlman v Oakland University, 172 Mich App 502; 432 NW2d 304 (1988). Accordingly, to the extent that the trial court held that plaintiff properly stated a cause of action for breach of the covenant of good faith, we reverse. MCR 2.116(C) (8). Although Michigan has not recognized the covenant in the employment context, an employer’s attempt to injure an employee’s rights may be highly relevant in a standard breach of contract case. As suggested in the seminal case of Toussaint v Blue Cross & Blue Shield of Michigan, the promise to act in good faith may be encompassed by a just cause contract: Where the employee has secured a promise not to be discharged except for causé, he has contracted for more than the employer’s promise to act in good faith or not to be unreasonable. . . . In addition to deciding questions of fact and determining the employer’s true motive for discharge, the jury should, where such a promise was made, decide whether the reason for discharge amounts to good cause: Is it the kind of thing that justifies terminating the employment relationship? Does it demonstrate that the employee was no longer doing the job? If, in this case, it is established that a just cause employment contract existed, the jury will be required to determine what Gash’s true motive was in discharging plaintiff. If the jury determines that Gash was not acting in good faith when alleging that he was eliminating plaintiff’s position, plaintiff may be entitled to damages for breach of contract. Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. 408 Mich 579, 623; 292 NW2d 880 (1980).

BIGGS v HILTON HOTEL CORPORATION Docket No. 131470. Submitted December 3, 1991, at Detroit. Decided February 20, 1992; approved for publication May 14, 1992, at 9:10 a.m. Raymond Biggs brought an action in the Wayne Circuit Court against the Hilton Hotel Corporation, alleging wrongful discharge and breach of a contract not to terminate his employment except for just cause. The court, John H. Hausner, J., granted summary disposition for the defendant, holding that the plaintiff had failed to plead an adequate factual basis to raise a genuine issue of material fact concerning whether his employment could be terminated only for just cause. The plaintiff appealed. The Court of Appeals held: The trial court correctly held that the pleadings failed to establish the plaintiff’s claim that his employment was permanent and terminable only for just cause. The mere publication by the defendant of a disciplinary policy in an employee manual does not create an employment relationship that can be terminated only for just cause. The employee manual specifically provided that it was not an employment contract. The oral statements made to the plaintiff at the time he was hired did not constitute an offer of permanent employment, but rather were mere expressions of the employer’s hope of a long successful employment relationship. Affirmed. Marilyn Kelly, J., concurring in the result only, stated that there was just cause to discharge the plaintiff and that there was no genuine issue of material fact to prevent summary disposition. Sommers, Schwartz, Silver & Schwartz, P.C. (by Joseph A. Golden and Lionel J. Postic), for the plaintiff. Seyfarth, Shaw, Fairweather & Geraldson (by John W. Powers, Kathleen M. Paravola and Jeffrey C. Kauffman), for the defendant. Before: Sawyer, P.J., and Gillis and Marilyn Kelly, JJ. Per Curiam. Plaintiff appeals from an order of the circuit court granting summary disposition in favor of defendant on plaintiff’s wrongful discharge claim. Summary disposition was granted pursuant to MCR 2.116(0(10) (no genuine issue of material fact). We affirm. Plaintiff was employed by defendant as the director of housekeeping of the Novi Hilton. Plaintiff began his employment on February 19, 1988, and was discharged approximately eight months later, apparently because of poor work performance. Plaintiff contends that the terms of his employment with defendant provided for termination only for "just cause” and that, pursuant to the provisions of an employee policy manual issued by defendant, the appropriate level of discipline would have been a verbal or written warning concerning plaintiff’s deficiencies in performance rather than termination. Defendant maintains that plaintiff was an at-will employee. We agree with the trial court that there is no genuine issue of material fact that plaintiff was other than an at-will employee. This case may be resolved by considering the Supreme Court’s recent decision in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). As the Court explained in Rowe, contracts for permanent employment are for an indefinite period of time and are presumptively construed to provide for employment at will. Id. at 636. The employee may overcome this presumption by proof of an express contract for a definite term or a provision forbidding discharge in the absence of just cause, or by proof that there was a promise implied in fact of employment security, such as employment for a particular period of time or to terminate only for just cause. Id. Plaintiffs reliance in this case on the disciplinary scheme established in the employment manual does not establish a promise of termination for just cause only. Nothing in the employment manual states that an employee would not be terminated except for one of the reasons listed in the disciplinary section. This is similar to the facts in Rowe, where the employment manual listed prohibited conduct that would result in dismissal but did not suggest that the enumerated conduct was the only basis for dismissal. The Court concluded that this was not evidence that would form a reasonable basis for finding a promise of job security. Id. at 645. Furthermore, the employment manual at issue explicitly stated that it was not an employment contract, but only a guideline of the policies and benefits provided by defendant. We do not find it to be of any moment that the manual may not have explicitly stated that employment was at-will and that termination was not limited to those instances where just cause is shown. As stated above, the presumption is that employment is at-will, and the proper inquiry is whether the employer, through its employment manual or otherwise, made representations or promises that termination would be only for just cause. No such representations were contained in this employment manual, and the manual did, in fact, explicitly state that it was not a contract but merely a guideline. The fact that defendant had established a disciplinary system for its employees and, apparently, obligated plaintiff to abide by that disciplinary system in dealing with his subordinates does not establish unequivocally plaintiffs position that he was a just-cause employee rather than an at-will employee. Certainly, it is not unreasonable to expect that an employer, particularly one such as defendant that employs a large number of individuals, would want a systematic method of dealing with its employees and would provide a consistent set of guidelines under which its managers would deal with subordinates. This does not mean that by doing so an employer establishes just-cause employment rather than at-will employment. The concept of at-will employment means not only that the employer, if it so chooses, may provide a disciplinary system and may terminate only for cause, but also that the employer may terminate for any other reason if the employer believes that that is in the best interests of the employer. Indeed, in this respect, we once again return to Rowe and note that even in Rowe the employer had created a disciplinary system for dealing with its employees, but the Supreme Court nevertheless concluded that the employee could not harbor any legitimate expectation of a policy of discharge for cause by the employer. Id. at 651. With respect to any oral representations made during the preemployment interview, we are also unpersuaded that any such representations form the basis for finding a just-cause contract in this case. Oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will. Id. at 644. The oral statements related by plaintiff in his brief were comments made during preemployment interviews by the general manager to the effect that he saw plaintiff as a person who would go places with the Hilton Corporation and that he felt the relationship would be a good one in which there would be an opportunity to grow and maintain some type of long-term relationship. We fail to see how these comments could induce a belief by plaintiff that termination would be for just cause only. Rather, they merely reflect the general manager’s belief that plaintiff would be an appropriate person to hire and that he was optimistic about plaintiff’s future performance and ability to advance with the company. Certainly, one would not expect the general manager to hire as his director of housekeeping someone whom he expected to have poor job performance and to be terminated within a year. Id. at 640 (an orally grounded contractual obligation for permanent employment must be based on more than an expression of a hope for a long-term relationship). For the above reasons, we conclude that plaintiff has failed to bring forth any facts to support his claim that he was a just-cause employee and, therefore, the trial court properly granted summary disposition in favor of defendant. In light of this resolution, we need not consider plaintiff’s other argument, whether there was a question of material fact concerning whether defendant had just cause to discharge plaintiff. Affirmed. Defendant may tax costs. Marilyn Kelly, J. (concurring). I concur in the result only. The trial court should be affirmed on the basis that there was just cause to discharge plaintiff, and no genuine issue of material fact existed to prevent summary disposition.

PRYSAK v R L POLK COMPANY Docket No. 119770. Submitted May 7, 1991, at Detroit. Decided February 3, 1992, at 9:35 A.M. Daniel T. Prysak brought an action in the Wayne Circuit Court against the R. L. Polk Company, alleging breach of an employment contract and wrongful discharge, and Crestwood Dodge, Inc., alleging tortious interference with a contractual relationship and libel. Polk terminated the plaintiff’s employment after Crestwood informed it that the plaintiff had allegedly threatened to use information available to him through his employment to contact Chrysler Corporation customers to complain about his car and the service he had received from Crestwood unless Crestwood dropped a small claims matter it had brought against him. The court, Thomas J. Foley, J., granted the defendants’ motions for summary disposition. The plaintiff appealed. The Court of Appeals held: 1. Summary disposition of the claims against Polk was properly granted because no genuine issue of material fact existed regarding the existence of a contract providing for termination only for just cause. The plaintiff did not receive a clear and unequivocal promise of job security from Polk or receive an employee policy manual or information about the contents of the manual. The plaintiff therefore cannot claim an express agreement or legitimate expectation that he would be terminated only for just cause. 2. Because Polk, a private employer, is not bound by the constitutional provisions guaranteeing freedom of speech, the alleged termination of the plaintiff’s employment for exercising his constitutional right to free speech is not actionable under the public policy exception to employment at will. 3. The granting of summary disposition before Polk answered _interrogatories designed to provide the plaintiff with information regarding Polk’s policies or criteria regarding hiring and termination practices was not premature. The plaintiff admitted that he had no knowledge of the policies or criteria and, therefore, could not claim reliance thereon, and further discovery would not have provided a fair chance of uncovering factual support for the existence of a contract providing for termination only for just cause. References Am Jur 2d, Interference §§ 45, 47; Libel and Slander §§ 195-200, 484; Master and Servant §§ 20, 27, 48.7. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 4. Summary disposition of the claim of tortious interference with a contractual relationship against Crestwood was proper. Crestwood’s action was not wrongful conduct per se or lawful conduct that was done with malice, and there is no evidence that Crestwood intended to interfere with plaintiffs contractual relationship with Polk. 5. The trial court correctly determined that a letter Crest-wood sent to Polk was subject to a qualified privilege. Because the plaintiff does not allege that the letter was written with actual malice, he did not overcome the privilege. Summary disposition of the libel claim against Crestwood was proper. Affirmed. Michael J. Kelly, J., dissenting in part, stated that summary disposition for Crestwood was improper because a question of fact existed whether the plaintiff threatened to use Polk’s lists to communicate his grievance to Crestwood’s customers. 1. Master and Servant — Employment at Will — Termination of Employment — Termination for Cause. A contract for permanent employment is for an indefinite period of time and is presumed to provide employment at will; a contract providing for termination for only just cause may be created by an express agreement or as a result of an employee’s legitimate expectations grounded in the policy statements of the employer. 2. Master and Servant — Employment at Will — Oral Contracts. Oral statements of job security must be clear and unequivocal in order to overcome the presumption of employment at will. 3. Master and Servant — Employment at Will — Public Policy Exception — Free Speech — Private Employers. Although employment at will generally may be terminated at any time and for any reason, an exception exists where the grounds for termination are so contrary to public policy as to be actionable; the public policy exception does not apply where an employee at will of a private employer is terminated for exercising the constitutional right to free speech because the private employer is not bound by the constitutional provisions guaranteeing freedom of speech (US Const, Am I; Const 1963, art 1, § 3). 4. Motions and Orders — Summary Disposition. Summary disposition generally is premature if it is granted before discovery on a disputed issue is complete; it may be appropriate, however, if further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion. 5. Torts — Interference With Contractual Relationship. A plaintiff may maintain an action for tortious interference with a contract for employment at will. 6. Torts — Interference With Contractual Relationship — Wrongful Acts Per Se. A plaintiff who alleges tortious interference with a contractual or business relationship, in order to withstand a motion for summary disposition, must allege the intentional doing of an act that is wrongful per se or the doing of a lawful act with malice and unjustified in law for the purpose of invading the plaintiff’s contractual rights or business relationship; an act that is wrongful per se is an act that is inherently wrongful or an act that can never be justified under any circumstances. 7. Libel and Slander — Privilege — Questions of Law. The initial determination whether a privilege exists is one of law for the court. 8. Libel and Slander — Qualified Privilege — Malice. The essential elements of a qualified privilege are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only; a plaintiff may overcome a qualified privilege only by showing that the statement was made with actual malice. Poplar & Kalis, P.C. (by John Poplar and Anrico D. Pinto), for the plaintiff. Clark, Klein & Beaumont (by Fred W. Batten and Nancy J. Gordon), for R.L. Polk Company. Abbott, Nicholson, Quilter, Esshaki & Young- blood, P.C. (by Carl F. Jarboe), for Crestwood Dodge, Inc. Before: Reilly, P.J., and Gillis and Michael J. Kelly, JJ. Reilly, P.J. Plaintiff appeals as of right from circuit court orders granting defendants’ motions for summary disposition pursuant to MCR 2.116(C) (10). We affirm. Plaintiff was employed as a computer operator by defendant R. L. Polk Company (Polk), a publishing and market research company, from November 1985 to March 1988. Plaintiff was discharged from his job in March 1988 for allegedly threatening a customer, defendant Crestwood Dodge. Before his termination, plaintiff had experienced problems with his car and took it to Crestwood for repair. A dispute arose between plaintiff and Crestwood regarding the amount owed for use of a replacement car. Crestwood brought a small claims action to recover this amount. Plaintiff participated in mediation of the action with two representatives of Crestwood. During the course of the mediation, the mediator left the room so that the parties could resolve the matter between themselves. What happened when the mediator left is disputed by the parties. Plaintiff asserts that he told the Crestwood representatives that he would take a day off from work and stand out in front of the dealership to pass out letters indicating that his Dodge Shadow was a "lemon.” The Crestwood representatives asserted that plaintiff stated that he worked for Polk and that if the small claims matter was not dropped he would send letters stating that his car was a "lemon” to all of Chrysler’s customers. The representatives believed that the mailing was to be accomplished by using information available to plaintiff through his employment at Polk. Crestwood sent a letter informing Polk of plaintiffs alleged threat. In the letter, Crestwood expressed concern regarding the improper use of its customer lists and requested assurance from Polk that "Mr. Prysak’s stated plan does not come to fruition.” On the day his employment was terminated, plaintiff was called into the personnel office and was shown the letter. Plaintiff was informed that he was being discharged for threatening a customer. In his complaint, plaintiff alleged that he was employed pursuant to a contract providing for termination for just cause only that was breached by Polk when his employment was terminated. Plaintiff also claimed that his termination was against public policy and constituted an intentional infliction of emotional distress. Additionally, it was alleged that Crestwood had intentionally interfered with the contractual relationship between plaintiff and Polk and that Crestwood’s letter to Polk contained libelous statements regarding plaintiff. Both Polk and Crestwood brought motions for summary disposition pursuant to MCR 2.116(C) (10). The circuit court granted both motions. On appeal, plaintiff asserts that the trial court improperly granted defendants’ motions for summary disposition. A motion for summary disposition premised on MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A party opposing a motion brought under C(10) may not rest upon the mere allegations or denials in the pleadings, but must by affidavit, deposition, admission, or other documentary evidence set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). Panich v Iron Wood Products Corp, 179 Mich App 136, 139; 445 NW2d 795 (1989). This Court is liberal in finding a genuine issue of material fact. St Paul Fire & Marine Ins Co, v Quintana, 165 Mich App 719, 722; 419 NW2d 60 (1988). Nonetheless, where the opposing party fails to come forward with evidence, beyond the allegations or denials in the pleadings, to establish the existence of a material factual dispute, the motion is properly granted. SSC Associates v General Retirement System of the City of Detroit, 192 Mich App 360; 480 NW2d 275 (1991); Morganroth v Whitall, 161 Mich App 785, 788; 411 NW2d 859 (1987); MCR 2.116(G)(4). i Plaintiff first claims that summary disposition was improper in regard to his claims of breach of an employment contract and wrongful discharge because there was a genuine issue of material fact whether plaintiff was employed pursuant' to a contract providing for termination for just cause only. Plaintiff asserts that his claim of a just-cause contract is supported by the employee handbook issued by Polk and statements made to him by a supervisor at Polk. Generally, a contract for permanent employment is for an indefinite period of time and is presumed to provide for employment at will. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 596; 292 NW2d 880 (1980). However, a contract providing for termination for just cause only may be created by an express agreement or as a result of an employee’s legitimate expectations grounded in the policy statements of the employer. Id. at 598. An employee’s legitimate expectations may be based on the employer’s written policy statements set forth in an employee manual or handbook. Id. at 599. While plaintiff argues that the existence of Polk’s employee manual creates an issue of fact regarding the existence of a just-cause contract, he admits in his brief on appeal and in his deposition testimony that he does not recall ever receiving an employee policy manual. Nor does he claim that he was told of its contents. Therefore, we fail to see how plaintiff can assert that his interpretation or understanding of the manual or handbook gave rise to an expectation either subjective or objective, that he would be terminated only for just cause. Compare Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 465; 436 NW2d 389 (1988). Accordingly, we reject plaintiff’s argument that statements made in Polk’s employee manual or handbook create an issue of fact regarding the existence of a just-cause contract. Plaintiff also asserts that oral representations made to him by an agent of Polk create a genuine issue of material fact in regard to the existence of a just-cause contract. In his deposition, plaintiff stated that he had a discussion with a manager at Polk regarding another employee who was not "working out.” Plaintiff testified that the manager told him "you just can’t go firing people for no reason . . . you got [sic] to have a reason.” In order to overcome the presumption of employment at will, oral statements of job security must be "clear and unequivocal.” Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 644; 473 NW2d 268 (1991). The Court in Rowe determined that oral statements made to the plaintiff at her initial interview that as long as she sold, she would have a job at Montgomery Ward did not clearly indicate an intent to form a contract to terminate only for cause. Id. at 645. It was noted by the Court that the statements made to Mrs. Rowe were similar to the statement considered in Toussaint, supra. However, the Court found lacking objective evidence that would permit a reasonable juror to find that a reasonable promisee would interpret the statements as a promise of termination for cause only. Rowe, supra at 643. In making this determination, the Court noted that the statement was not made in response to any inquiry by the plaintiff regarding job security or during the course of negotiating the terms of employment. The statement relied on by plaintiff in this case is not a "clear and unequivocal” promise of job security. Furthermore, the circumstances surrounding the statement do not provide objective evidence that a just-cause contract existed. The statement was not made in the context of negotiating plaintiff’s terms of employment or in response to inquiries regarding his job security. Rather, they were made during the course of a discussion regarding the job performance of another employee. Under these circumstances, a reasonable juror could not find that the statements made to plaintiff could be reasonably interpreted as a promise of termination for cause only. On the basis of the foregoing, we conclude that no issue of fact existed regarding the existence of a just-cause contract. Polk’s motion for summary disposition of the claims of wrongful termination and breach of contract was properly granted. ii Next, plaintiff argues that summary disposition was improper because facts existed to support his claim that the termination of his employment was contrary to public policy. Specifically, plaintiff claims that he was discharged for stating that he was going to exercise his constitutional right to free speech by standing in front of Crestwood Dodge and expressing his dissatisfaction with Crestwood’s product and service. Generally, at-will employment may be terminated at any time, for any reason. Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). However, there is an exception to the general rule based on the principle that some grounds for termination are so contrary to public policy as to be actionable. Id. at 695. These proscriptions have been found in explicit legislative statements that prohibit the discharge, discipline, or other adverse treatment of employees acting in accordance with a statutory right or duty. Id. at 695. See, e.g., MCL 37.2701; MSA 3.548(701) (Civil Rights Act), and MCL 15.362; MSA 17.428(2) (Whistleblowers’ Protection Act). Additionally, courts have implied a prohibition on retaliatory discharge where the reason for the discharge was the employee’s exercise of a statutory right, Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976) (employee discharged in retaliation for filing a workers’ compensation claim), or the employee’s refusal to violate a law. Trombetta v Detroit, T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978). While this Court has recognized that it may be a violation of the First Amendment for a county employer to discipline or discharge an employee for engaging in certain types of speech, Pilarowski v Brown, 76 Mich App 666; 257 NW2d 211 (1977), plaintiff has not cited, and we have not found, any Michigan authority that addresses the issue whether an employee of a private employer who is terminated for exercising his constitutional right to free speech may maintain an action under the public policy exception to at-will employment. Both the United States and Michigan Constitutions guarantee the plaintiff’s right to free speech. However, unlike the statutory provisions that have provided the basis for the public policy exception in the above-noted cases, the federal and the Michigan constitutional provisions guaranteeing free speech do not extend to private conduct, but have been limited to protection against state action. US Const, Am I; Const 1963, art 1, § 3; Hudgens v NLRB, 424 US 507, 513; 96 S Ct 1029; 47 L Ed 2d 196 (1976); Woodland v Michigan Citizens Lobby, 423 Mich 188, 212; 378 NW2d 337 (1985). Because Polk is a private employer, it is not bound by the constitutional provisions guaranteeing freedom of speech. Accordingly, plaintiff has failed to state a claim upon which relief can be granted, MCR 2.116(C)(8), and summary disposition was properly granted with regard to the claim, albeit for the wrong reason. Griffey v Prestige Stamping, Inc, 189 Mich App 665, 669; 473 NW2d 790 (1991). hi Plaintiff’s next argument is that summary disposition was premature because it was granted before Polk answered interrogatories submitted by plaintiff. Plaintiff claims that the interrogatories were vital to discovery because they were designed to reveal Polk’s past employment and termination policies and practices. Generally, summary disposition granted before discovery on a disputed issue is complete is considered premature. Kassab v Michigan Basic Property Ins Ass’n, 185 Mich App 206, 216; 460 NW2d 300 (1990), lv gtd 439 Mich 864 (1991). However, summary disposition may be proper before discovery is complete where further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion. Id. In the present case, Polk’s motion for summary disposition was not granted prematurely. The motion was granted after the discovery period had expired. See MCR 2.301(A). Although plaintiff told the court at the time the motion was granted that Polk had not answered the interrogatories, our review of the lower court record shows that there is no indication that plaintiff ever filed a motion to compel Polk to respond to the interrogatories before or after the expiration of the period for discovery. Furthermore, summary disposition was appropriate because further discovery would not have provided a fair chance of uncovering factual support for plaintiff’s claim. Plaintiff claims that the answers to interrogatories would have provided him with information regarding Polk’s policies regarding hiring and termination practices. However, as was discussed previously, plaintiff’s claim that he had a just-cause employment contract was based on the oral representations made by a superior and the statements of policy made in the employee handbook. However, as we concluded previously, because plaintiff did not remember ever receiving the handbook and he does not claim he was informed of the contents of the handbook, he could not rely on any policy statements made therein. Furthermore, plaintiff stated in his deposition that he did not know Polk’s criteria for firing someone or even if Polk had such criteria. As

SYLVIA ADAIRE FOGL SALT v. APPLIED ANALYTICAL, INC. No. 915SC336 (Filed 17 December 1991) 1. Master and Servant § 10.2 (NCI3d)— employee discharge-violation of personnel manual —no breach of contract The trial court properly granted summary judgment for defendant employer on plaintiff’s claim for breach of her employment contract based on defendant’s failure to follow the disciplinary procedures outlined in its personnel manual when it terminated plaintiff’s employment where the evidence before the court showed that the personnel manual cannot be considered as part of plaintiff’s contract of employment. Am Jur 2d, Master and Servant §§ 48.3, 48.5. Right to discharge allegedly “at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. 2. Master and Servant § 10.2 (NCI3d)— employment handbook — no unilateral contract An employment handbook does not constitute a unilateral contract which will give rise to a breach of contract action. Am Jur 2d, Master and Servant §§ 48.3, 48.5. Right to discharge allegedly “at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. 3. Master and Servant § 10.2 (NCI3d)— wrongful discharge — no additional consideration — employment at will applicable Plaintiff did not contribute additional consideration which would remove her employment from the scope of the employment at will doctrine where she failed to show that her move from Greenville to accept employment by defendant in Wilmington was induced by assurances concerning the duration of her employment or the discharge policies of defendant employer. Am Jur 2d, Master and Servant §§ 32, 33. 4. Master and Servant § 10.2 (NCI3d)— wrongful discharge — bad faith — insufficient allegations Plaintiff’s allegations that defendant breached its covenant of good faith and fair dealing by disregarding its promise of a permanent job and by giving third parties false reasons for discharging plaintiff were insufficient to sustain a claim for wrongful discharge. Am Jur 2d, Master and Servant § 43. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 5. Master and Servant § 10.2 (NCI3d)— wrongful discharge — bad faith — necessity for public policy violation There is no independent tort action for wrongful discharge of an at-will employee based solely on allegations of discharge in bad faith in the absence of a public policy violation. Furthermore, even if prior decisions created a wrongful discharge action based solely on bad faith in failing to follow personnel manual procedures, plaintiff has no cause of action against defendant because the policy manual given to her was not made an express part of her contract or made otherwise applicable to her, and her termination was not governed by the policy manual. Am Jur 2d, Master and Servant §§ 48.3, 48.5, 48.7. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. APPEAL by plaintiff from Order entered 22 January 1991 by Judge Herbert 0. Phillips, III, in NEW HANOVER County Superior Court. Heard in the Court of Appeals in Wilmington on 17 October 1991. Patterson, Harkavy, Lawrence, Van Noppen & Okun, by Martha A. Geer, for plaintiff appellant. Stevens, McGhee, Morgan, Lennon & O’Quinn, by Robert A. O’Quinn, for defendant appellee. COZORT, Judge. Plaintiff employee brought an action for breach of employment contract and for wrongful discharge allegedly based on breach of implied covenant of good faith and fair dealing. The trial court granted summary judgment for defendant employer. We affirm. The depositions and other materials in the record demonstrate that, in 1985, plaintiff was employed at Burroughs Wellcome Company in Greenville, North Carolina, as a chemist testing pharmaceutical products. She held 11V2 years of seniority, earned $22,000 a year, and received many company benefits. An employee of the defendant, Applied Analytical, Inc. (“AAI”), approached plaintiff about taking a chemist’s position with AAI at a salary of $17,500-$18,500 per year. She declined the initial offers, but following negotiations, plaintiff accepted a position with defendant. One of the main topics discussed during the negotiations was plaintiff’s need for job security. She informed defendant that if the job with AAI turned out to be unsatisfactory for either party, she would be unable to return to her job at Burroughs Wellcome, or any other pharmaceutical company, because she did not hold a four-year degree in chemistry. In response, the general manager at AAI discussed career growth with plaintiff and talked of plaintiff’s future with the company in general terms. The letter from AAI’s general manager confirming defendant’s offer of employment stated: This letter is to confirm in writing my verbal offer to you of a Chemist position at Applied Analytical Industries, with an initial annual salary of $17,500.00. All of us at AAI are impressed with your qualifications and believe you can make significant contributions to our company. We hope you will accept our offer and believe you will find the position challenging and rewarding. As I indicated today during our telephone conversation, I believe the position which we are offering you will allow opportunities for your continued career growth in new areas involving method development for pharmaceutical dosage forms and bioanalytical assays for drugs in biological fluids. We would appreciate a response to our offer by April 8, 1985. Plaintiff accepted defendant’s offer and moved to Wilmington, North Carolina, where she began working for defendant in August 1985. In January, 1986, defendant granted plaintiff early tenure in the company, increased her salary by $2,000.00, and made her eligible for profit-sharing and a bonus. Plaintiff received positive evaluations from AAI supervisors after six months of employment, and again after one year with the company. On 14 November 1986, AAI’s president, Frederick Sancilio, called plaintiff into his office and presented her with a letter of termination. The letter stated plaintiff was being discharged for low productivity and for bothering other employees. Plaintiff adamantly protested the grounds for termination, reluctantly signed the letter, packed her personal belongings, and left the same day. Plaintiff filed a complaint against defendant on 9 November 1988, alleging a claim for breach of contract. On 26 July 1989, the North Carolina Supreme Court handed down its decision in Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 381 S.E.2d 445 (1989). Based on the Coman decision, plaintiff moved to amend her complaint on 7 September 1989 to include a tort claim for breach of implied covenant of good faith and fair dealing. Defendant’s responsive pleadings included a motion for summary judgment. The trial court granted summary judgment for defendant on 18 January 1991, and plaintiff filed timely notice of appeal. The question before the Court when reviewing a summary judgment motion is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that a party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990); Meadows v. Cigar Supply Co., 91 N.C. App. 404, 371 S.E.2d 765 (1988). We consider first whether the trial court properly granted summary judgment on plaintiff’s breach of contract claim. It is clear in North Carolina that, in the absence of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). This Court has held, however, that in some circumstances employee manuals setting forth reasons and procedures for termination may become part of the employment contract even where an express contract is nonexistent. Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986). Plaintiff argues initially that defendant’s personnel manual constituted part of her employment contract. She contends the contract was breached because defendant failed to follow the disciplinary procedure outlined in the manual. In her deposition, plaintiff testified she was given a copy of AAI’s personnel manual on or about her first day of work at the company. Each employee, including plaintiff, was required to sign a statement verifying the receipt of the manual. Employees were also required to sign periodic verifications acknowledging they had read revisions to the manual. According to the defendant’s manual, employees were classified as either “probationary” or “tenured.” An employee would be classified as probationary for the first six months of satisfactory performance. The employee then is classified as a tenured employee. The manual made no specific reference to “employment at-will.” The section of the manual describing disciplinary procedures provided: “[T]he Company reserves the right, with or without guideline notification to: Terminate an employee at any time. Suspend from work any employee . . . [or] [r]eturn to probationary status from tenured status any employee . . . .” These rights were reserved for a “severe violation” of standards or rules by a “permanent” or “tenured” employee. The handbook’s illustrations of “severe violations” included, but were not limited to: “blatant safety rule violations which endanger the health and safety of the employee and/or his fellow workers, falsification of Company records or data, misappropriation or misuse of Corporate assets, soliciting or engaging in outside activities of any kind or for any purposes on Company property at any time.” For non-severe violations committed by a “tenured” employee, the manual provided for a verbal warning upon the first violation and written notices for the second and third violations. A tenured employee would be terminated after a fourth non-severe violation. Plaintiff contends she never received a verbal or written notice prior to termination, in violation of the prescribed disciplinary procedure. It is clear that “unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.” Walker, 77 N.C. App. at 259, 335 S.E.2d at 83-84. In Rosby v. General Baptist State Convention, 91 N.C. App. 77, 370 S.E.2d 605, disc. review denied, 323 N.C. 626, 374 S.E.2d 590 (1988), this Court found no breach of contract by an employer when the employer’s personnel policies were not incorporated into the oral contract for employment. The plaintiff received the employment manual when he was hired, and was told it would be his “work bible.” The manual included a salary scale, conditions of employment, expected conduct of employer and the employee, and procedures to be followed for disciplinary actions. Id. at 81, 370 S.E.2d at 608. The Rosby court stated: While we are sensitive to the “strong equitable and social policy reasons militating against allowing employers to promulgate for their employees potentially misleading personnel manuals while reserving the right to deviate from them at their own caprice” as enunciated in Westinghouse, supra, at 259, 335 S.E.2d at 83 (1985), we find that in the case sub judice, the material contained within the manual was neither inflexible nor all-inclusive on the issue of termination procedures. The manual, although presented as plaintiff’s “work bible” when he was hired, was not expressly included within his terminable-at-will contract. Id. In contrast, in Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617, disc. review denied, 316 N.C. 557, 344 S.E.2d 18 (1986), this Court held that plaintiff stated a claim for breach of contract based on her allegation that the employer’s policy manual was part of her employment contract. There the plaintiff was required to sign a statement indicating she had read the defendant’s policy manual which provided she could be discharged “for cause” only and which stated that certain procedures must be followed in order for her to be discharged. Id. at 760, 338 S.E.2d at 618. The plaintiff alleged she was discharged without cause and without the benefit of the personnel manual procedures. Id. The Court concluded that “on hearing on a Rule 12(b)(6) motion the plaintiff has sufficiently alleged that the policy manual was a part of her employment contract which was breached by her discharge to survive her motion.” Id. at 762, 338 S.E.2d at 620. In Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987), the North Carolina Supreme Court limited the rule in Trought to those specific facts. The plaintiff in Harris contended that his employment manual was part of his contract for employment with defendant and that he was entitled to recover for breach of contract when he was discharged in violation of the manual’s provisions. Id. at 630, 356 S.E.2d at 358. The Court distinguished Trought, finding that Harris had not been told that he could be discharged only “for cause.” Id. The Court also noted that the employment manual in Harris provided rules of conduct which were directed specifically toward management and not targeted at employees. Id. It is clear from the evidence below that the handbook given plaintiff by defendant cannot be considered part of her original contract. As a result, plaintiff’s breach of contract claim based on this theory must fail. Plaintiff next argues that the employment handbook was an independent unilateral contract made by defendant to her. She argues she is entitled to recover for defendant’s breach of that unilateral contract. We disagree. North Carolina has recognized a unilateral contract theory with respect to certain benefits relating to employment. In Brooks v. Carolina Telephone, 56 N.C. App. 801, 290 S.E.2d 370 (1982), the Court found severance payments part of a unilateral contract. In Welsh v. Northern Telecom, Inc. 85 N.C. App. 281, 354 S.E.2d 746, disc. review denied, 320 N.C. 638, 360 S.E.2d 107 (1987), the court acknowledged vacation and retirement benefits. In White v. Hugh Chatham Memorial Hosp. Inc., 97 N.C. App. 130, 387 S.E.2d 80, disc. review denied, 326 N.C. 601, 393 S.E.2d 890 (1990), the Court accepted disability payments. However, in Rucker v. First Union Nat’l Bank, 98 N.C. App. 100, 389 S.E.2d 622, disc, review■ denied, 326 N.C. 801, 393 S.E.2d 899 (1990), the Court declared, “We decline to apply a unilateral contract analysis to the issue of wrongful discharge. . . . [T]o apply a unilateral contract analysis to the situation before us would, in effect, require us to abandon the ‘at-will’ doctrine which is the law in this State. This we cannot do.” Id. at 103, 389 S.E.2d at 625. We find Rucker to be dispositive in this case. Plaintiff next alleges she contributed additional consideration which would remove the contract from the scope of the employment at-will doctrine. In Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985), this Court carved out a significant exception from the employment at-will rule. There the plaintiff did not have an employment contract and thus was employed at-will. The plaintiff’s complaint alleged that she was assured by Duke she could be discharged only for “incompetence,” and these assurances induced her to move from Michigan to accept a job in Durham. Id. at 333, 328 S.E.2d at 821. The Court stated: Generally, employment contracts that attempt to provide for permanent employment, or “employment for life,” are terminable at will by either party. Where the employee gives some special consideration in addition to his services, such as relinquishing a claim for personal injuries against the employer, removing his residence from one place to another in order to accept employment, or assisting in breaking a strike, such a contract may be enforced. (Emphasis added.) Id. at 345, 328 S.E.2d at 828 (quoting Burkhimer v. Gealy, 39 N.C. App. 450, 454, 250 S.E.2d 678, 682, disc. review denied, 297 N.C. 298, 254 S.E.2d 918 (1979)). The Court then determined: The additional consideration that the complaint alleges, her move from Michigan, was sufficient, we believe, to remove plaintiff’s employment contract from the terminable-at-will rule and allow her to state a claim for breach of contract since it is also alleged that her discharge was for a reason other than the unsatisfactory performance of her duties. Id. We find the facts below distinguishable from Sides. In Sides, the defendant assured the plaintiff “both at her job interview and again when the job was offered to her that nurse anesthetists at [the hospital] could only be discharged for incompetence.” Id. at 333, 328 S.E.2d at 821. In the case at bar, the plaintiff cannot point to any specific assurances given to her which compare to the assurances given to the plaintiff in Sides that she would not be discharged except for “incompetence.” The assurances upon which plaintiff here bases her breach of contract theory do not contain any specific terms or conditions, as in Sides. Plaintiffs deposition reveals: Q. When you had your discussions with [the general manager], did you tell him that you would not take the job unless you understood that you had a permanent position there? A. Not in those particular words, but— Q. What did you tell him? A. —I feel like we established the fact that if I were leaving my job at Burroughs Wellcome then I was going into a job — well, he told me he felt like I could have some career growth there, that there were things that they wanted me to do in the future as far as their microbiology lab and at the time it didn’t exist but they wanted me to help them with the microbiology lab. And, we just talked about things that were far into the future that I couldn’t just go to work there and just do. And, he felt like I had a chance for some real career growth there and, you know, that it was for a permanent job. Furthermore, a reading of defendant’s letter confirming plaintiff’s employment indicates no assurances concerning the duration of plaintiff’s employment or relating to the discharge policies of the company. The letter’s reference to “continued career growth” does not suffice. Plaintiff can show no more than an offer of employment for an undetermined time. The trial court’s entry of summary judgment on plaintiff’s breach of contract claim was properly granted. We now turn to the claims plaintiff raised by the amendment to her complaint. Plaintiff asserts a claim against defendant for breach of implied covenant of good faith and fair dealing implicit in her employment contract. Plaintiff contends that defendant breached its implied covenant of good faith and fair dealing by discharging plaintiff in violation of defendant’s personnel policy, by breaching defendant’s assurance of permanent employment and by communicating to third parties false reasons for discharging plaintiff. We conclude the trial court properly granted summary judgment on this claim. In Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 381 S.E.2d 445 (1989), the North Carolina Supreme Court created an exception to the employment at-will doctrine by authorizing a tort claim for wrongful discharge for an at-will employee whose discharge is in violation of a public policy. The Court specifically approved language from Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985). The Court, quoting Sides, stated: [W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different int

William S. Reilly vs. Local 589, Amalgamated Transit Union & another (and a companion case). Nos. 89-P-713 & 90-P-366. Suffolk. April II, 1991. December 9, 1991. Present: Warner. C.J., Dreben, & Ireland. JJ. Labor, Fair representation by union, Apportionment of damages. Laches. Indemnity. Practice, Civil, Appeal. In a civil action based on a claim of wrongful discharge from employment, the judge properly apportioned the damages assessed between the employer and the employee’s union, having found no merit in the plaintiffs assertion that the equitable doctrines of loches and “unclean hands” or that the provisions of G. L. c. 23IB, § 4, barred allocation of damages against the union. [638-639] In circumstances in which an employee had released his union from liability in an action based on his wrongful discharge from employment, no principle set forth in Bowen v. United States Postal Serv., 459 U.S. 212 (1983), supported the employee’s claim that his employer was secondarily liable for damages allocated against the union for the union’s breach of duty of fair representation. [640] In a civil action, the judge did not abuse his discretion by basing the apportionment of damages between the plaintiffs employer and his union on a hypothetical arbitration award date. [640-641] There was no merit to a plaintiffs claim that the trial judge had excluded portions of the plaintiffs testimony. [641] This court declined to reconsider an issue decided in an earlier appeal in the same case. [641-642] Bill in equity filed in the Superior Court on August 3, 1973. Civil action commenced in the Superior Court Department on May 8, 1981. After review reported in 22 Mass. App. Ct. 558 (1986), the cases were consolidated for trial in the Superior Court Department and were heard by Thomas R. Morse, Jr., J. Edward B. Ginn for William S. Reilly. Harrison A. Fitch {Phinorice J. Boldin with him) for Massachusetts Bay Transportation Authority. Massachusetts Bay Transportation Authority. Massachusetts Bay Transportation Authority vs. John J. Gallahue, Jr., & others. Ireland, J. This is an appeal by the plaintiff, William S. Reilly, from an award of damages by a Superior Court judge acting after this court held that damages may be apportioned between an employer and a union where the employer wrongfully discharged an employee and the union violated its duty to fairly represent him. See Reilly v. Local 589, Amalgamated Transit Union, 22 Mass. App. Ct. 558 (1986) (hereinafter Reilly T). In his appeal, Reilly claims that the judge erred in (1) assessing damages against the union; (2) basing the apportionment in part upon a hypothetical date; (3) excluding testimony offered by Reilly; (4) upholding the arbitrator’s award excluding preaward interest; and (5) assessing contributions to the retirement fund. We affirm. The facts pertaining to this dispute are set out in full in Reilly I. We therefore summarize only the facts relevant to this appeal. On January 12, 1972, Reilly, then an employee of the Massachusetts Bay Transportation Authority (MBTA) and a member of the Boston Carmen’s Union, Division 589, the Amalgamated Transit Union (union), was suspended for five days and demoted from motorman to collector for allegedly violating certain rules of employee conduct. Thereafter, instead of returning to work, Reilly took sick leave. On September 7, 1972, by letter, the MBTA requested that Reilly report to the MBTA’s doctor for a physical examination to determine if he was qualified “to return to work as a [cjollector.” Reilly failed to do so and, on September 26, the MBTA’s general manager notified him by certified letter that he was discharged from employment. Reilly’s Equity Case Reilly filed a grievance based on his suspension, demotion, and discharge; When the union refused to submit his claim to arbitration, Reilly brought an action in the Superior Court to: (1) compel the union and MBTA to arbitrate; (2) recover damages froin the union for breach of its duty of fair representation; and (3) recover damages from the MBTA for wrongful discharge. On June 22, 1979, Reilly and the union signed: (1) a “Release and Indemnity Agreement,” whereby Reilly agreed to indemnify the union for liability resulting from Reilly’s complaint; and (2) a “Stipulation and Agreement for Judgment” that Reilly had effectively demanded arbitration and that Reilly’s grievances “were not processed to arbitration for reasons other than the merits of his cases.” Pursuant to the stipulation, on August 3, 1979, a Superior Court judge entered findings, order and judgment as to the union and directed the union to arbitrate Reilly’s grievances if the MBTA were subsequently ordered by the court to arbitrate. On March 12, 1980, the second day of Reilly’s Superior Court trial, the trial judge ordered the MBTA and the union to arbitration and stayed Reilly’s equity case pending the final arbitration award. Thereafter, an arbitrator found there was “not sufficient cause” for Reilly’s suspension, demotion and discharge and reduced Reilly’s discharge to a two-day suspension. On January 14, 1981, the arbitrator ordered that Reilly be “made whole for all benefits lost” due to his suspension, demotion, and discharge, “including back pay, less the two-day suspension and less interim, outside earnings and other appropriate deductions.” Despite the MBTA’s urgings, the arbitrator found it was beyond his authority “to render a determination on the question of apportionment of damages.” On March 20, 1981, a Superior Court judge confirmed the arbitrator’s award and returned the case for assessment of “damages due [Reilly] without respect to the question of apportionment.” On September 27, 1982, the arbitrator awarded and, on January 31, 1985, a judgment was entered ordering the MBTA to pay Reilly $189,278.67 with interest from December 20, 1982, and costs. The MBTA’s Civil Action On May 8, 1981, based on the union’s wrongful refusal to pursue Reilly’s grievances, the MBTA filed an action against the union seeking indemnity or contribution for all or part of any judgment for Reilly. The union answered on July 2, 1981, and, on March 7, 1984, brought a third-party action against Reilly to enforce the June 22, 1979, release and indemnity agreement. A Superior Court judge ruled that under the release and indemnity agreement, amounts the union owed the MBTA should be deducted from Reilly’s recovery. Unsure whether Massachusetts law permitted apportionment of damages between the MBTA and the union, the judge reported that issue to this court. In Reilly I, we upheld the propriety of apportionment of damages between an employer and a union under Massachusetts law. Id. at 580. However, as there was insufficient evidence to determine whether Reilly’s damage award should be apportioned between the MBTA and the union, we remanded the MBTA’s civil action and directed the judge to apply the principles of Bowen v. United States Postal Serv., 459 U.S. 212 (1983) (hereinafter Bowen), in assessing damages (if any) against the union. Reilly I, 22 Mass. App. Ct. at 580. We also remanded Reilly’s equity case to the Superior Court, with leave to vacate the judgment to provide for Reilly’s indemnification of the union (under the release and indemnity agreement) and to consolidate that case with the MBTA’s action, if appropriate. Ibid. On August 10, 1987, the two remanded actions were consolidated for trial. At trial, the MBTA offered evidence of five other arbitration proceedings between the union and the MBTA. Based on the average length of those prior proceedings, the MBTA argued that, had the union pursued Reilly’s grievances in a timely manner, the probable length of his arbitration would have been ten months. The union’s deadline to request arbitration of Reilly’s grievance under the collective bargaining agreement was February 26, 1973 (sixty days after the MBTA denied Reilly’s grievance). The MBTA asserted that had the union requested arbitration by February 26, an award would have issued by December 31, 1973, ten months thereafter. Therefore, the MBTA argued, the union was responsible for Reilly’s damages from December 31, 1973, to January 14, 1981, when the arbitration award actually issued. Reilly contested use of a hypothetical award date, arguing that twenty-eight months, “the actual length of arbitration” (i.e., October 31, 1978 [union notified MBTA of its wrongful failure to pursue Reilly’s grievance] to March 20, 1981 [award confirmed]), should determine the MBTA’s liability. The trial judge agreed with the MBTA and set a hypothetical arbitration award date of December 31, 1973. The judge concluded that: (1) the MBTA was liable for any damages suffered by Reilly from January 12, 1972 (the date of Reilly’s suspension) through December 31, 1973; (2) the union was liable from January 1, 1974, through October 31, 1978 (when the union notified the MBTA of its error in failing to pursue Reilly’s grievance to arbitration); (3) the MBTA and the union were equally liable from November 1, 1978, through July 31, 1979 (the date of the stipulation for judgment in the equity case); (4) the MBTA was liable from August 1, 1979, through March 31, 1981 (when the arbitration award was confirmed); and (5) the union was entitled to indemnity under the release and indemnity agreement. Discussion 1. Apportionment of damages. In Reilly I, supra at 580, we ordered the trial judge to apply the principles of Bowen to apportioning Reilly’s damages. In Bowen, the Supreme Court held that a union could be held liable for back pay if the union’s breach of its duty of fair representation increased the employee’s loss beyond that caused by the employer’s wrongful discharge. Id. at 230. On appeal, Reilly argues certain equitable principles preclude any assessment of damages against the union in this case. Although the judge addressed none of those principles specifically, we conclude from the entry of judgment allocating some damages against the union that the judge found Reilly’s equitable arguments to be without merit. Fales v. Glass, 9 Mass. App. Ct. 570, 575 (1980). We agree. Reilly first argues allocation against the union is barred by loches due to the MBTA’s lengthy failure (from at least 1973, when Reilly filed his equity case, to 1981) to seek contribution or indemnification. While the MBTA’s delay in asserting its contribution claim was considerable, see, e.g., Myers v. Salin, 13 Mass. App. Ct. 127, 139 (1982) (loches established on delay of two years); Stokes v. Commissioner of Correction, 26 Mass. App. Ct. 585, 590 (1988) (three years); and Chiuccariello v. Building Commr. of Boston, 29 Mass. App. Ct. 482, 487-489 (1990) (six months), in order to establish loches, Reilly was also required to demonstrate that he relied on that substantial delay to his detriment. Kenny v. Commissioner of Correction, 399 Mass. 137, 140 (1987). Matter of Kerlinsky, 406 Mass. 67, 75-76 (1989). Myers, supra at 137-138. This he did not do. While in an affidavit in support of summary judgment based on loches, Reilly averred that had the MBTA “asserted any claim whatsoever alleging apportionment, contribution or indemnity against the Union before June 22, 1979, [he] certainly would not have entered into the Release and Indemnity Agreement,” at trial he testified he signed the indemnity agreement because he “knew that if there was ever a judgment against the Carmen’s Union . . . [Reilly] could never go back and run for office.” Based on that testimony, the trial judge could properly have found that Reilly exeouted the indemnity agreement to further his political aspirations rather than because of the MBTA’s inaction. Myers, supra at 138 (“A finding concerning loches, based upon oral evidence, however, will not be disturbed unless clearly erroneous”). Reilly next argues apportionment is barred by the MBTA’s “unclean hands.” Specifically, he argues that because the MBTA “inequitably” failed to settle his case before arbitration, it should not be permitted the equitable remedy of apportionment. The question whether to deny relief based on “unclean hands” is committed to the broad discretion of the trial judge. Fales v. Glass, 9 Mass. App. Ct. at 575. As the trial evidence suggested the MBTA relied on the union’s decision not to pursue Reilly’s grievance, the judge, in the proper exercise of his discretion, could conclude there was nothing inequitable in the MBTA’s decision not to settle prior to the order to arbitrate. Reilly I, supra at 576 (MBTA not bound to correct Reilly’s grievances where evidence suggested that union did not press those grievances). See also Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 572-573 (1976) (Stewart, J., concurring); Bowen, supra at 225-228; and Niro v. Fearn Intl., Inc., 827 F.2d 173, 179 (7th Cir. 1987) (recognizing employer’s justifiable reliance on union’s arbitral decision). Finally, based on G. L. c. 23IB, § 4, as appearing in St. 1962, c. 730, § 1, Reilly urges apportionment is barred by the release and indemnity agreement. However, G. L. c. 23IB, § 4, applies only to tortfeasors jointly and severally liable. See, e.g., Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 165 (1987); Grace v. Buckley, 13 Mass. App. Ct. 1081, 1082 (1982). As neither the union nor the MBTA participated in the other’s breach, see Bowen, supra at 223 n.11; Vaca v. Sipes, 386 U.S. 171, 197 (1967); and Pitts v. Frito-Lay, Inc., 700 F.2d 330 (6th Cir. 1983), Reilly’s reliance on G. L. c. 23IB, § 4, is misplaced. In the event that assessment against the union is not barred, Reilly contends that, under Bowen, the MBTA is secondarily liable for damages assessed against the union. While there is some language in Bowen which supports Reilly’s contention, where, as here, Reilly voluntarily released his union from liability, no principle set forth, in Bowen allows Reilly to collect the union’s apportioned damages from the MBTA. 2. Use of a hypothetical date. Reilly also argues the judge erred in basing apportionment of damages on a hypothetical arbitration award date. In particular, Reilly argues that as arbitration actually occurred in his case, the trial judge erred in not apportioning damages based on the full twenty-eight month arbitration period rather than on a “hypothetical” ten-month period. We do not agree. Determination of a fair apportionment of damages between employer and union necessarily involves the exercise of discretion. See Reilly I, supra at 575-576 & n.22. See also San Francisco Web Pressmen & Platemakers’ Union No. 4 v. NLRB, 794 F.2d 420, 424 (9th Cir. 1986) (recognizing NLRB’s broad discretion in fashioning back pay award in wrongful discharge/breach of fair representation cases). Indeed, while Bowen did not expressly legitimize use of a hypothetical arbitration period in apportioning damages, it left “considerable flexibility as to methods of making an apportionment between an employer and a union of the expense caused by each in an unfair representation case.” Reilly I, supra at 576 n.22. Several courts since Bowen have approved the use of a hypothetical award date in apportionment cases. See, e.g., Camacho v. Ritz-Carlton Water Tower, 786 F.2d 242, 245 (7th Cir. 1986); San Francisco Web Pressmen & Platemakers’ Union No. 4, supra; Velez v. Puerto Rico Marine Mgt., Inc., 693 F. Supp. 1335, 1344-1346 (D. Puerto Rico 1988); Martino v. Transport Wkrs. Union, 505 Pa. 391, 409 (1984). In keeping with our order “to appraise the extent to which the award was caused by the [ujnion’s failure to press promptly and reasonably a fair adjustment of Reilly’s grievances,” Reilly I, supra at 576, the trial judge found, based on evidence of other arbitrations between the union and the MBTA, that had the union properly pursued arbitration of Reilly’s grievances, Reilly would have been reinstated by December 31, 1973. As the period between the court order for arbitration of Reilly’s grievance (March 12, 1980) and the arbitrator’s award (January 14, 1981) was ten months, we cannot say the judge abused his considerable discretion in imposing a ten-month hypothetical period (February 26 through December 31, 1973). Bowen, supra at 230. 3. Exclusion of testimony offered by Reilly. Reilly also suggests that the judge erred in “disallowing” his testimony of the MBTA’s “outrageous” conduct to establish the MBTA’s long-standing pattern of his mistreatment and the MBTA’s intent to get rid of him at all costs. Our review of the trial transcript, however, shows that, after extended argument, the judge did not exclude Reilly’s testimony but rather admitted the testimony de bene, subject to a motion to strike. As the MBTA made no such motion, the testimony was admitted and given full probative effect. Peterson, petitioner, 354 Mass. 110, 115 & n.l (1968). Palmer v. Palmer, 23 Mass. App. Ct. 245, 249 (1986). 4. Other claims. Reilly’s remaining claims, for interest on the damage award “from the date of the breach established by the arbitrator” and for an additional $13,817.20 retirement contribution award, were disposed of in Reilly I. “Reilly is entitled to no other prejudgment interest or attorney’s fees than what the arbitrator included in his award.” Id. at 577. “[T]he judgment entered on February 1, 1985 [awarding Reilly $189,278.67], should be taken as establishing the aggregate award to Reilly to be met by the MBTA and the Union . . . .” Id. at 578. As is our practice, we “decline [] to reconsider questions which have been decided in an earlier appeal in the same case . . . [unless] we are persuaded that a previous holding in the same case was in error.” New England Merchants Natl. Bank v. Old Colony Trust Co., 385 Mass. 24, 26 (1982). See also Frank D. Wayne Assocs., Inc. v. Lussier, 394 Mass. 619 (1985). This is not such a case. See Sansone v. Metropolitan Property & Liab. Ins. Co., 30 Mass. App. Ct. 660 (1991). Judgment affirmed. Reilly’s equity case and the MBTA’s civil action had previously been consolidated on June 2, 1983. However, the consolidation order was vacated on November 22, 1983, pursuant to a stipulation entered into by the parties. Reilly I, supra at 578 n.25. The MBTA has neither appealed from the judgment nor argued error in the apportionment of damages. See Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 287-288 (1991). On appeal, Reilly claims the MBTA’s action for contribution or indemnification was waived or is barred by the statute of limitations. As those affirmative defenses were not pressed at trial, they are not open on appeal. See, e.g., Leahy v. Local 1526, AFSCME, 399 Mass. 341, 351-352 (1987). “When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury ...(b) [i]t shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.” Bowen, supra at 223 n.12. We note also that in discussing the prospect of secondary liability, the Bowen Court did not eliminate the possibility that the employer might still seek contribution from the union. See Bowen, supra at 223 & n.12. “We need not decide whether the District Court’s instructions on apportionment of damages were proper. The Union objected to the instructions only on the ground that no back wages at all could be assessed against it. It did not object to the manner of apportionment if such damages were to be assessed.” Bowen, 459 U.S. at 230 n.19.

GONYEA v MOTOR PARTS FEDERAL CREDIT UNION Docket No. 118351. Submitted May 22, 1991, at Detroit. Decided November 19, 1991, at 9:30 a.m. Tena Gonyea brought an action in the Oakland Circuit Court against her former employer, Motor Parts Federal Credit Union, and her former supervisor, Donald Major, claiming defamation, intentional infliction of emotional distress, negligent termination of employment, and wrongful discharge. The court, Alice L. Gilbert, J., granted summary disposition for the defendants with respect to all claims. The plaintiff appealed. The Court of Appeals affirmed, granted a rehearing on its own motion, and issued an order amending its original opinion. In its amended opinion, the Court of Appeals held: 1. The trial court did not err in granting summary disposition of the defamation claims, which related to alleged statements by Major to the Employment Security Commission that the plaintiff had been discharged for dishonesty, alleged statements by Major to certain credit union employees that plaintiff was a thief and should not be trusted, and information transmitted to prospective employers that caused them not to hire the plaintiff. The statements made to the Employment Security Commission were not actionable because they were subject to an absolute privilege pursuant to MCL 421.11(b); MSA 17.511(b). The statements made to other credit union employees were subject to the employer’s qualified privilege to defame an employee by publishing statements to other employees whose duties interest them in the subject matter, and the statements to the prospective employers were subject to the employer’s qualified privilege to divulge information regarding a former employee to prospective employers. In both instances of qualified privilege, the plaintiffs general allegations of actual malice were insufficient to defeat the privilege. 2. Summary disposition of the claim of intentional infliction of emotional distress was proper. Even if the tort of intentional infliction of emotional distress is a viable cause of action in Michigan, the plaintiffs factual allegations were not sufficient to establish that the defendants’ conduct was outrageous and constituted intentional infliction of emotional distress. References Am Jur 2d, Libel and Slander §§ 270, 271, 273-275. Libel and slander: privileged nature of communication to other employees or employees’ union of reasons for plaintiffs discharge. 60 ALR3d 1080. 3. The trial court did not err in granting summary disposition of the claim of negligent termination of employment. A breach of an employment contract does not give rise to a tort claim where, as in this case, the alleged breach of duty is indistinguishable from the alleged breach of contract. 4. Summary disposition of the wrongful discharge claim was proper. That claim was based on the plaintiffs belief that, on the basis of conversations with former fellow employees, her employment had been pursuant to a contract providing for discharge only for just cause. However, an employee’s expectation of termination only for just cause must be grounded on representations by the employer. Affirmed. Libel and Slander — Qualified Privilege — Employers — Actual Malice. An employer has a qualified privilege to divulge information regarding a former employee to a prospective employer and a qualified privilege to defame an employee by publishing a statement to other employees whose duties interest them in the subject matter of the defamatory material; such qualified privileges can be overcome only by showing that the information was given or the statement was uttered with actual malice, i.e., with knowledge of its falsity or with reckless disregard of the truth; the issue of actual malice is generally one of fact for the jury; general allegations of malice are insufficient to establish a genuine issue of material fact. Ronald J. Gricius, P.C. (by Jeffrey W. Rentschler), for the plaintiff. Harvey, Kruse, Westen & Milan, P.C. (by Thomas R. Bowen and Lisa T. Milton), for the defendants. Before: Holbrook, Jr., P.J., and Sullivan and Doctoroff, JJ. Per Curiam. Plaintiff appeals as of right two orders of the Oakland Circuit Court, one granting defendants summary disposition of plaintiffs breach of employment contract claim and the other granting summary disposition of her claims of negligent termination, intentional infliction of emotional distress, and defamation. We affirm. Plaintiff was employed by defendant credit union as a teller beginning on September 16, 1986, and defendant Major was designated her immediate supervisor. Upon commencement of her employment, plaintiff received from the credit union written material that was identified as an employee handbook. Plaintiff alleges, however, that the written material she received dealt only with hours of work, overtime, insurance, vacation, and benefits. Plaintiff admitted that although no one from management ever told her she would be terminated for cause only, she believed this to be the case. On September 17, 1987, Mr. Major approached plaintiff around 2:30 p.m. and instructed her to determine the balance of the contents of her cash drawer. Plaintiff took her cash drawer to the back room, where she was joined by Major and Sandra Sullivan, the credit union’s bookkeeper. Mr. Major, in Ms. Sullivan’s presence, told plaintiff that she was fired because of allegations of theft made against her by two credit union members. i Plaintiff first argues that it was error to grant summary disposition of the defamation count for failure to specifically plead dates and places of defamation where defendants did not raise the issue and where plaintiffs trial counsel orally moved for leave to amend. We disagree. The elements of a claim of defamation are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statements irrespective of special harm, or. the existence of special harm caused by the publication. Hodgins Kennels, Inc v Durbin, 170 Mich App 474, 479-480; 429 NW2d 189 (1988). These elements must be specifically pleaded, including the allegations with respect to the defamatory words, the connection between the plaintiff and the defamatory words, and the publication of the alleged defamatory words. Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583, 589; 349 NW2d 529 (1984). Plaintiff alleges three instances of defamation by defendants: (1) that on or about November 12, 1987, defendant Major defamed her by stating to the Michigan Employment Security Commission that she was "discharged for dishonesty” when it requested employment information; (2) that on September 19, 1987, Major told numerous individuals that plaintiff was a thief and should not be trusted; and (3) that information transmitted to two prospective employers caused them not to hire plaintiff. Pursuant to MCL 421.11(b); MSA 17.511(b), any statement made to the mesc in the course of its administrative functions is absolutely privileged and the party making it is immune from suit. Annabel v C J Link Lumber Co, 115 Mich App 116, 122; 320 NW2d 64 (1982), modified 417 Mich 950 (1983). Thus, Major’s statements to the mesc were not actionable given the statutory grant of absolute privilege. Regarding plaintiff’s second and third claims of defamation, the pleadings for each of those claims are in some way deficient. The claim concerning Mr. Major’s statements to credit union employees that plaintiff was a thief and should not be trusted fails to state to whom publication was made. Plaintiffs claim concerning Major’s alleged statements to two prospective employers is insufficient because it fails to state the substance of the defamatory statements. Although plaintiff argues here, as she did below, that she should have been granted leave to amend her complaint, we do not believe that plaintiff could have overcome the deficiencies through amendment of the complaint. While leave to amend is to be freely granted absent undue delay, bad faith, or dilatory motive, leave may be denied where an amendment would be futile. McNees v Cedar Springs Stamping Co, 184 Mich App 101, 103; 457 NW2d 68 (1990). An amendment is futile where, ignoring the substantive merits of the claim, it is legally insufficient on its face. Formall, Inc v Community Nat’l Bank of Pontiac, 166 Mich App 772, 783; 421 NW2d 289 (1988). We believe that although plaintiff could amend her claim by naming the specific parties to whom Major made statements, she could not be specific about the statements with respect to the two prospective employers because she admitted in her deposition that she was unsure about what was said and just presumed it was defamatory because she did not get either job. Moreover, even if plaintiff could accumulate sufficient facts to amend the complaint, the amendments would still be futile for lack of the element requiring the communications to be unprivileged. The statements plaintiff alleges Major made to other employees were protected by a qualified privilege. An employer has the qualified privilege to defame an employee by making statements to other employees whose duties interest them in the subject matter. Smith v Fergan, 181 Mich App 594, 597; 450 NW2d 3 (1989). The only person plaintiff could identify as having heard the statements made by Major at the credit union was Ms. Sullivan, the credit union’s bookkeeper. Sullivan’s position obviously gave her an interest in the allegations against plaintiff; therefore, the statements by Major were made under a qualified privilege. Likewise privileged were the statements made by Major to the two prospective employers; an employer has a qualified privilege to divulge information regarding a former employee to a prospective employer. Moore v St Joseph Nursing Home, Inc, 184 Mich App 766, 768; 459 NW2d 100 (1990). The elements of a qualified privilege are (1) good faith, (2) an interest to be upheld, (3) a statement limited in scope to this purpose, (4) a proper occasion, and (5) publication in a proper manner and to proper parties only. Bufalino v Maxon Bros, Inc, 368 Mich 140, 153; 117 NW2d 150 (1962). Plaintiff may overcome this qualified privilege only by showing that the statement was made with actual malice, that is, knowledge of its falsity or reckless disregard of the truth. Smith, supra, p 597. There is a conflict in this Court regarding whether general allegations of malice are sufficient to establish a genuine issue of material fact. Grostick v Ellsworth, 158 Mich App 18; 404 NW2d 685 (1987), held that malice can be alleged generally and that a plaintiff should be given ample opportunity to demonstrate actual malice. Id., p 23. Trial courts therefore should be reluctant to prevent the issue from reaching the jury. Id. Smith v Fergan, supra, held that because the issue of actual malice is one for the jury, supporting facts must be given and general allegations of malice are therefore insufficient to establish a genuine issue of material fact. Smith, supra, p 594. We believe that Smith represents the better view and adopt it as our own. In the case before us, plaintiff made general allegations that statements made by defendant Major were false, malicious, and slanderous, and were made after repeated denials of plaintiff’s request for some sort of hearing so that she could clear her name. These general allegations were not a sufficient allegation of malice. We therefore hold that summary disposition of the defamation claims was proper. ii Plaintiff next argues that it was error for the trial court to grant summary disposition of the claim of intentional infliction of emotional distress where the allegations were made in addition to and separate from plaintiff’s alternate count of breach of contract and wrongful discharge. Although the Michigan Supreme Court considers the existence of this tort an open question, Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985), this Court has recognized such a cause of action since Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386; 239 NW2d 380 (1976), and continuing at least through McCahill v Commercial Ins Co, 179 Mich App 761, 768; 446 NW2d 579 (1989). No decision of this Court that binds other panels pursuant to Administrative Order No. 1990-6 has been issued with respect to this issue after November 1, 1990. We consider it unnecessary to determine in this case whether the tort of intentional infliction of emotional distress remains viable as an independent cause of action. Because we have already held that plaintiff has failed to plead actionable malice and that the defendants’ actions giving rise to the alleged tort were subject to at least a qualified privilege, the facts of the case establish that defendants merely "have done no more than to insist upon their legal rights in a permissible way, even though they are well aware that such insistence is certain to cause emotional distress.” Warren, supra, p 391, citing Restatement Torts, 2d, § 46, Comment g, p 76. Accord Roberts, supra. We note that defendants’ conduct occurred in the presence of only a small coterie of business principals and allegations of wrongdoing by plaintiff were not bandied about unnecessarily in a manner "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” such that, upon "recitation of the facts to an average member of the community,” resentment would be aroused so as to lead that hypothetical person "to exclaim, 'Outrageous!’ ” Restatement Torts, 2d, § 46, Comment d, pp 72-73. in Next, plaintiff argues that the trial court erred in granting summary disposition of the count alleging negligence by defendants in discharging her where she had pleaded no loss or damage as a result of any personal injury. In making her argument, plaintiff asserts that the exclusive remedy provision of the Workers’ Disability Compensation Act was the basis for the grant of summary disposition and that the trial court erred in its reliance upon this provision because plaintiff made no allegation of industrial injury. Rather, plaintiff argues that defendants were negligent in failing to investigate the charges alleged against her. We begin by noting that plaintiff is correct in her assertion that the exclusive remedy provision of the workers’ compensation act does not apply to the case at bar. Her claim is nonetheless barred. This Court adheres to the rule that a breach of an employment contract does not give rise to a tort claim where the breach of duty is indistinguishable from the breach of contract. See Kostello v Rockwell Int’l Corp, 189 Mich App 241; 472 NW2d 71 (1991); Mitchell v General Motors Acceptance Corp, 176 Mich App 23; 439 NW2d 261 (1989); Dahlman v Oakland University, 172 Mich App 502; 432 NW2d 304 (1988); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641; 378 NW2d 558 (1985). Plaintiff bases her allegation of negligent discharge on her claim that defendants had a duty to act in good faith toward her and a duty not to discharge her without cause. Because her claim of negligence is based on duty she claims existed as part of her employment contract, plaintiff has not alleged a breach of duty separate and distinct from the alleged breach of contract, and her claim therefore fails as a matter of law. There was no error in the trial court’s grant of summary disposition. IV Lastly, plaintiff argues that the trial court erred when it granted summary disposition of her wrongful discharge claim, because it made findings of fact rather than allowing the matter to go to the jury. We disagree. In her argument, plaintiff asserts that because of statements made to her by supervisors and the employment relationships she observed between defendant credit union and other employees, she was justified in believing that she was employed pursuant to a contract providing for discharge for just cause only. A just-cause employment contract may be created by an express agreement or as a result of an employee’s legitimate expectations grounded in the policy statements of the employer. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). The employee’s legitimate expectations may be based on stated employment policies and established procedures. Id., pp 618-619. The expectation, however, must be based on both a subjective and objective belief that the employee is employed under a just-cause contract. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 465; 436 NW2d 389 (1988). Although statements made by management personnel to employees, as alleged by plaintiff, may create a legitimate expectation of termination for cause only, Richards v Detroit Free Press, 173 Mich App 256, 257; 433 NW2d 320 (1988), a review of the record below clearly contradicts plaintiff’s assertion that these statements were made to her by management personnel. Rather, in her deposition testimony, plaintiff testified that nothing was discussed at either of her two interviews regarding the terms and conditions of her employment other than job duties; the nature of termination of employment was not discussed. She specifically stated that during the time she was employed at the credit union, neither defendant Major nor any management personnel ever discussed the reasons or conditions for termination or told her she would be terminated for just cause only. She testified that she gained this understanding only through her conversations with her fellow employees. Her sole basis for believing she was a just-cause employee were these discussions with her fellow employees. This is insufficient to create a genuine issue of fact regarding whether plaintiff had a legitimate expectation of employment with termination for cause only. Summary disposition was therefore properly granted. Affirmed.

Leslee A. Willitts vs. Roman Catholic Archbishop of Boston & another. Middlesex. September 9, 1991. November 18, 1991. Present: Liacos, C.J.. Nolan, O’Connor, & Greaney, JJ. Contract, Employment, Construction of contract, Termination. Employment, Termination. Public Policy. Civil Rights, Termination of employment, Coercion. A school teacher’s written contract of employment, covering a one-year school term and explicitly stating its expiration date, was not automatically renewed for a subsequent term by the school’s failure to follow its written policy, incorporated in the contract by reference, that, in the event of a contract not being renewed, the teacher “should be formally notified of [the] decision by April 15.” [206-208] Where a form of contract for a teacher’s employment at a religious school, consistent with the employer’s written policies incorporated in the contract by reference, contained signature lines for both the principal of the school and the pastor of the parish with which the school was affiliated, the pastor’s signature alone was not sufficient to create a binding contract. [208-209] An employer’s decision not to renew a contract providing a definite period of employment, allegedly in consequence of the employee’s attempt to form an association of her follow employees, was not actionable as a discharge for reasons contrary to public policy. [209-210] A nonprofit school’s decision not to renew a school teacher’s contract providing a definite period of employment, allegedly in consequence of the teacher’s attempt to form an association of her follow teachers, did not constitute “threats, intimidation, or coercion” intefering with her exercise of free speech or association rights, so as to be actionable under the State Civil Rights Act, G. L. c. 12, § 11H. [210-211] Civil action commenced in the Superior Court Department on November 30, 1988. The case was heard by David M. Roseman, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. James F. Lamond for the plaintiff. Richard W. Murphy (Thomas J. Hobin, Jr., & Jon R. Maddox with him) for the defendants. St. Tarcisius School. Greaney, J. The plaintiff, Leslee A. Willitts, brought this action in the Superior Court against the defendants, the Roman Catholic Archbishop of Boston and St. Tarcisius School (school), claiming that the school had unlawfully terminated her employment. Her complaint sought declaratory relief under G. L. c. 231A (1990 ed.), and damages on the basis of alleged breach of contract, termination of employment in disregard of public policy, and violation of the State Civil Rights Act, G. L. c. 12, § 111 (1990 ed.). Both the plaintiff and the defendants moved for summary judgment pursuant to Mass. R. Civ. P. 56 (a) and (b), 365 Mass. 824 (1974). A judge of the Superior Court allowed the defendants’ motion, and judgment entered for the defendants. The plaintiff appealed. We transferred the case to this court on our own motion. We affirm the judgment of the Superior Court. Summary judgment “shall be rendered . . . [if] there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). In setting out the facts from the documents, affidavits and depositions in the record, we resolve any conflicts in the summary judgment materials, and we make all logically permissible inferences, in the plaintiff’s favor. Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). St. Tarcisius School is an elementary school affiliated with Saint Tarcisius Church of Framingham, a Roman Catholic church, The plaintiff worked there as a kindergarten teacher from September, 1980, until June, 1987. Her employment was governed by yearly written contracts, each covering one school-year term. Each contract set forth the terms of employment for the upcoming school year, including beginning and ending dates, and contained signature lines for the teacher, the principal of the school, and the parish pastor. The contract incorporated by reference the “Regulations and directives of the Archdiocese Department of Education,” from the Policy Book for Catholic Schools (Directives), a guide to the administration of parish schools published by the archdiocese of Boston. The school’s practice for renewing the contracts of its teaching staff was to conduct a yearly performance review in the spring and at that time to present the teacher with a contract for the upcoming school year. In keeping with this procedure, the plaintiff met with the principal of the school, Sister Rita Welch, on March 31, 1987, to receive her annual performance review and her contract for the 1987-1988 school year. Her performance review was uniformly positive. During the meeting, she signed the contract, which had already been signed by Father Alfred Almonte, the pastor of the church, and returned it to Sister Welch. The plaintiff mentioned to Sister Welch that she had applied for a teaching position in the Framingham public schools, but had not received an offer as of that time and was therefore not pursuing any other positions. In response to this disclosure, Sister Welch said that she could not sign the contract under the circumstances and told the plaintiff that she had until May 31 to decide whether or not to return to the school. The plaintiff told Sister Welch that she had already decided to stay at St. Tarcisius, and she left the meeting with the understanding that she would meet again with Sister Welch before May 31 to reaffirm her intention to remain at St. Tarcisius for the next school year. While employed at St. Tarcisius, the plaintiff had attended meetings of the Boston Archdiocesan Teachers’ Association, which represented teachers at some of the archdiocesan high schools in collective bargaining. She became interested in forming a teachers’ association at her school in order to address issues of concern to the faculty there. On May 22, 1987, she posted a notice in the teachers’ lounge- at the school, calling for a meeting of the teachers to discuss various matters, including collective bargaining. The notice included statements from authorities in the Roman Catholic Church in support of the rights of workers to organize and to bargain collectively. On the same date, the plaintiff distributed a memorandum to the teachers announcing the date and time of the meeting and stating as its objective “the airing of views, ideas and concerns” toward the end of “establishing direction towards a ‘just’ teaching atmosphere.” After learning of the notice that the plaintiff had posted in the teachers’ lounge, Sister Welch and Father Almonte called a meeting of all the teachers on May 29, 1987, to discuss it. At that meeting, Father Almonte referred to problems that another school was experiencing because of union organization, and he declined Willitts’ offer to arrange a meeting with a group of concerned teachers. In response to the plaintiff’s comment that there were “discrepancies” in the working conditions at the school which in her opinion should be dealt with, Father Almonte said that her proposed topics of discussion all involved money, and that the school was at its financial limit. He told the teachers that if they were unhappy at the school, they should leave. He offered to release any teacher who wished to go, and he gave the teachers one week to reach a decision. At the end of the meeting, the plaintiff told Sister Welch that since she had already signed her contract for the forthcoming school year, she had already made up her mind. Sister Welch informed her that she (Welch) would not sign the contract “under these conditions.” At a subsequent meeting on June 8, 1987, Sister Welch criticized the plaintiff for her attempt to organize the teachers. She offered to renew the plaintiff’s contract, but only on the condition that the plaintiff refrain from such efforts in the future. When the plaintiff refused to agree to that condition, Sister Welch, on behalf of the school, declined to renew her contract, which expired by its terms on June 30, 1987. Following the school’s decision, the plaintiff requested both the National Labor Relations Board (board) and the Massachusetts Labor Relations Commission (commission) to pursue an unfair labor practice charge on her behalf. The board declined to do so on tiie ground that it lacked jurisdiction over the school. The commission also dismissed the plaintiff’s claim on the ground that, as a professional employee of a nonprofit institution, she was not covered by G. L. c. 150A, § 2, which protects the rights of workers to organize and to - bargain collectively. No appeal was taken by the plaintiff from either of these decisions and her complaint to the Superior Court followed. 1. Breach of contract.* The plaintiff advances two theories in support of her contention that, despite Sister Welch’s refusal to sign the contract, she held a valid employment contract for- the 1987-1988 school year. She first argues that her contract with the school for 1986-1987 was automatically renewed for the following year by the school’s failure to follow its own provisions for the notification of teachers whose contracts are not to be renewed. Section 4420(3) of the Directives, which are incorporated by reference into the school’s contracts with its teachers, specifies that “[t]he teacher should be informed prior to February 15 that because of unsatisfactory performance, there is a possibility that the contract might not be renewed. The teachers should be formally notified of a decision prior to April 15, so that opportunities to seek other employment will not be lost.” Relying on this provision, the plaintiff argues that the school’s failure to follow its own notice provisions resulted in the automatic renewal of her contract for the following school year, and that the school committed a breach of this contract by terminating her employment. We reject this claim. First, neither the contract itself nor the Directives state that failure by the school to follow the provisions of § 4420(2) results in automatic renewal of a teacher’s contract. Furthermore, the word “should,” as used in that provision of the Directives, is merely advisory rather than mandatory language; its purpose is to facilitate whenever possible the employment search of a teacher whose contract the school does not intend to renew. To interpret this provision of the Directives as the plaintiff does would render the school powerless to avoid rehiring a teacher where the basis for the decision not to rehire arose, as it did in this case, after April 15. Such an interpretation would contradict the letter of the contract, which contained definite beginning and ending dates, and which stated “[tjhis agreement expires on June 30, 1987 unless definitely renewed.” “The intent of the parties must be gathered from a fair construction of the contract as a whole and not by special emphasis upon any one part.” Crimmins & Peirce Co. v. Kidder Peabody Acceptance Corp., 282 Mass. 367, 375 (1933). Ucello v. Cosentino, 354 Mass. 48, 51 (1968). Lydon v. Allstate Ins. Co., 5 Mass. App. Ct. 771 (1977). We therefore reject the plaintiff’s argument that a contract was formed automatically when, on April 15, the school failed to notify the plaintiff that her contract was not to be renewed. “Expectations and negotiations fall far short of a binding agreement.” Brighton Packing Co. v. Butchers’ Slaughtering & Melting Ass’n, 211 Mass. 398, 405 (1912). Phoenix Spring Beverage Co. v. Harvard Brewing Co., 312 Mass. 501, 506 (1942), and cases cited. The plaintiff argues in the alternative that a binding agreement was formed on the date of her performance review, when she signed the contract that had previously been signed by Father Almonte. Although Sister Welch had not yet signed the contract, her signature was not required, the plaintiff claims, because only the parish pastor had authority to enter contracts with the teachers. Relying on § 4120 of the Directives, which states that “the final contracting of the teacher should be the responsibility of the pastor who may delegate this responsibility to the principal,” the plaintiff argues that nothing in the record indicates that Father Almonte had in fact delegated this responsibility, and so his signature alone was sufficient to bind the school. We disagree. The contract contains a signature line for the principal, and all previous contracts between the parties contained her signature, in keeping with § 2200 of the Directives which designates the principal as “the administrative head of the school.” “Effect is to be given if possible to every word of an instrument and to every signature upon it.” Gloucester Mut. Fishing Ins. Co. v. Boyer, 294 Mass. 35, 39 (1936). Summary judgment was properly granted in favor of the defendants on the plaintiffs claim of breach of contract. 2. Termination in violation of public policy. The plaintiff argues that, even if the school was not contractually bound to employ her for the 1987-1988 term, it nevertheless was prohibited from terminating her employment for reasons that violate public policy. See DeRose v. Putnam Management Co., 398 Mass. 205, 210 (1986); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-151 (1989); Flesner v. Technical Communications Corp., 410 Mass. 805, 810-812 (1991). The common law doctrine granting an employee a cause of action for wrongful discharge, if the reason for the discharge is contrary to public policy, is limited to at-will employees. Because the plaintiffs employment contract contained a definite period of employment, she was not an employee at will. See Jackson v. Action for Boston Community Dev. Inc., 403 Mass. 8, 9 (1988), and cases cited. And because she was not an employee at will, the school’s decision not to renew her contract did not constitute termination actionable under the public policy exception stated in the DeRose decision, supra. The plaintiff would extend that exception to employees under contract for a term; we decline to do so. The school’s decision not to reappoint the plaintiff was simply a determination, within its complete discretion, to discontinue a relationship that had expired by the terms of the contract, and is not conduct actionable under the public policy exception to the at-will employment doctrine. Summary judgment was properly granted for the defendants on this claim. 3. State Civil Rights Act claim. The plaintiffs final claim is that the school’s action, in ending her employment amounted to “threats, intimidation, or coercion” interfering with her rights to free speech and association in violation of G. L. c. 12, § 11I, the State Civil Rights Act. We do not agree. That act provides a remedy when “any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the commonwealth.” G. L. c. 12, § 11H (1990 ed.) (incorporated into G. L. c. 12, § 11I). As noted in Bally v. Northeastern Univ., 403 Mass. 713, 719-720 (1989), relief under the Act may be granted where the “threat, intimidation or coercion” involves either a physical confrontation accompanied by a threat of harm, see Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (1985); Bell v. Mazza, 394 Mass. 176, 183-184 (1985); O’Connell v. Chasdi, 400 Mass. 686, 687-688 (1987), or the loss of a contract right, see Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 95 (1987). Because the plaintiff did not have a contract for the 1987-1988 school year, the violation of the Act she alleges consists only in the defendant’s failure to renew its contract with her. Such action by the school falls outside the scope of what we recognize as “threats, intimidation or coercion” required to state a claim under the Act. In declining to continue the plaintiffs contract, the school exercised its discretion under the terms of employment it chose to offer its teachers. There was no improper interference by the defendant with a secured right. Summary judgment was therefore properly granted for the defendants on this claim. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 417-418 (1988). Korb v. Raytheon Corp., 410 Mass. 581, 585 (1991). Flesner v. Technical Communications Corp., supra at 818-819. Judgment affirmed. There is no indication in the record that the meeting the plaintiff proposed was ever held. Citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the board concluded, among other things, that because “St. Tarcisius School is a Catholic School whose purpose and function in substantial part is to propagate a religious faith and whose primary purpose is the religious education of students,” the board lacked jurisdiction over the school. In reaching the merits of the plaintiffs claims, we reject the school’s argument that the claims are beyond the subject matter jurisdiction of the civil courts because the issues raised involve “ ‘matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law,’ ” see Madsen v. Erwin, 395 Mass. 715, 723 (1985), quoting Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976). We conclude, as did the judge, that the plaintiffs claims deal with secular matters, founded on the interpretation of constitutional, common and statutory law, and thus fall within the jurisdiction of the courts to determine. To the extent that the cases cited by the plaintiff in support of this argument rely on G. L. c. 71, §41 (1990 ed.), they are inapposite, since that statute, which provides for automatic renewal of the appointments of certain public school teachers where notification requirements are not met, is inapplicable to a contract between private parties of the type involved in this case. Black’s Law Dictionary 1379 (6th ed. 1990), defines the word “should” as follows: “The past tense of shall; ordinarily implying duty or obligation; although usually no more than an obligation of propriety or expediency, or a moral obligation, thereby distinguishing it from ‘ought.’ It is not normally synonymous with ‘may,’ and although often interchangeable with the word ‘would,’ it does not ordinarily express certainty as ‘will’ sometimes does.” The school also argues that § 4420(2) of the Directives is inapplicable in this case because it applies only to the nonrenewal of contracts on the ground of “unsatisfactory performance,” and there is no dispute that the plaintiff performed her teaching duties in a satisfactory manner. Because we reject the plaintiff’s argument on other grounds, we need not decide whether her union organization efforts could properly be categorized as “unsatisfactory performance.” Moreover, the conduct of the parties shows that neither treated the contract as automatically renewed on April 15. The plaintiff informed Sister Welch on May 29 of her intention to remain at the school, and at their meeting on June 8, Sister Welch extended a conditional offer of employment, which the plaintiff rejected. The plaintiff" cites to no authority in support of her argument that the public policy exception should apply to employees under contract for a term. Because G. L. c. 150A is inapplicable to professional employees of nonprofit corporations, the plaintiff" had no “legally guaranteed right” that could serve as the basis for a public policy exception in this case. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 149-150. See Delaney v. Chief of Police of Wareham, 27 Mass. App. Ct. 398, 409 (1989), defining “threat” as “acts or language by which another is placed

HOWARD v CANTEEN CORPORATION Docket No. 120825. Submitted May 13, 1991, at Detroit. Decided October 15, 1991; approved for publication January 15, 1992, at 9:00 a.m. Carol J. Howard brought an action in the Wayne Circuit Court against Canteen Corporation and David Spender, alleging breach of an employment contract and sexual discrimination as a result of the defendants’ failure to promote her, harassment, retaliation, and wrongful termination of her employment. The jury returned a verdict for the plaintiff on the claims for breach of contract and sex discrimination, and the court, Louis F. Simmons, Jr., J., entered a judgment for $299,530 plus interest, costs, and attorney fees. The defendants appealed from the denial of their motions for directed verdict, judgment notwithstanding the verdict, a new trial, and remittitur. The Court of Appeals held: 1. There was sufficient evidence of sexual discrimination on the basis of the failure to promote, sexual harassment, retaliation, and wrongful discharge and of breach of contract to send the case to the jury and to support its verdicts regarding those claims. The trial court did not err in denying the defendants’ motions for directed verdict or judgment notwithstanding the verdict. 2. The award of $200,000 for mental anguish, emotional distress, and humiliation associated with the sex discrimination claims was supported by the evidence and was not excessive. The court did not abuse its discretion in denying the defendants’ motion for remittitur. 3. The court did not abuse its discretion in denying the defendants’ motion for a new trial. 4. A remand is necessary for an evidentiary hearing regarding the reasonableness of the attorney fees awarded to the _plaintiff because the defendants were not provided a sufficient opportunity to challenge the affidavits and other documentary evidence in support of the requested fees and the trial court did not make findings of fact with regard to the attorney fee issue. References Am Jur 2d, Costs §§ 72, 79, 261; Damages §§ 143, 144, 678; Job Discrimination § 2498. Effect of anticipated inflation on damages for future losses — modern cases. 21 ALR4th 21. 5. The use of a multiplier for the attorney fees granted under the Civil Rights Act was not justified under the circumstances of this case, and, therefore, the portion of the attorney fees awarded that are attributable to the multiplier is vacated. 6. The award of attorney fees under both the Civil Rights Act and MCR 2.403(0) was appropriate because each provision serves an independent policy or purpose. The court, on remand, must determine the reasonableness of the fees awarded as mediation sanctions. 7. The court erred in failing to reduce the award for damages for the plaintiffs future wage loss to present value or to instruct the jury to do so. Inflation is a factor that may be considered in assessing damages, but a court may not employ it to omit the present-value reduction. Remand is required for the court to reduce the future wage loss award to present value. Affirmed in part, reversed in part, and remanded. 1. Attorney and Client — Attorney Fees. Each party in a lawsuit ordinarily bears its own attorney fees unless there is express statutory authorization to the contrary. 2. Civil Rights — Attorney Fees — Findings of Fact. A trial court, in its discretion, may award reasonable attorney fees in cases involving violations of the Civil Rights Act; the court, where attorney fees are to be awarded, must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE, 413 Mich 573 (1982), and, while not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the issue of attorney fees (MCL 37.2802; MSA 3.548[802]). 3. Attorney and Client — Attorney Fees — Evidentiary Hearings. The party seeking an award of attorney fees bears the burden of establishing entitlement and documenting the appropriate hours expended and hourly rates; where the opposing party challenges the reasonableness of the requested fee, the trial court should hold an evidentiary hearing regarding the issue, and, if any of the underlying facts are in dispute, the court should make findings of fact regarding those issues. 4. Attorney and Client — Attorney Fees. A reasonable attorney fee is presumed to be based on a reasonable hourly rate multiplied by a reasonable number of hours expended; a trial court’s discretion to increase such a presumptively reasonable attorney fee is limited to rare circumstances where the attorney’s work is so superior and outstanding that it far exceeds client expectations and normal levels of competence, or where it is necessary for attracting competent counsel. 5. Civil Rights — Attorney Fees — Mediation Sanctions. Reasonable attorney fees may be awarded under both the court rule governing mediation sanctions and the attorney fee provision of the Civil Rights Act in an appropriate case because each provision serves an independent policy or purpose (MCR 2.403[O]; MCL 37.2802; MSA 3.548[802]). 6. Damages — Future Losses — Present Value. An award of damages for future losses must be reduced to its present cash value; a trial court faced with such an award either must instruct the jury regarding such reduction or reduce the award to its present value. . 7. Damages — Future Losses — Inflation. Inflation is a factor that may be considered in assessing damages, but it does not entitle a trial court to ignore the duty to reduce to present value an award of damages for future losses. Kelman, Loria, Downing, Schneider & Simpson (by Janet M. Tooley), for the plaintiff. Clark, Klein & Beaumont (by P. Robert Brown, Jr., Dorothy M. Basmaji, Amy Bateson, Sheryl A. Moody, and Nancy J. Gordon), for the defendants. Before: Cavanagh, P.J., and Neff and W. R. Beasley, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. Per Curiam. In this gender-based discrimination case, defendants appeal as of right from a judgment entered on a jury verdict of approximately $300,000. They also claim that the trial court erred in denying their posttrial motions for directed verdict, judgment notwithstanding the verdiet, a new trial, and remittitur. We affirm in part and reverse in part. Plaintiff, Carol Howard, began working at defendant Canteen’s Cadillac 5 cafeteria as a shift supervisor in 1982. In September 1984, defendant David Spender was hired as manager of Cadillac 5. Plaintiff claims that Spender performed several acts and made several statements that constituted sexual harassment. Shortly before plaintiff left Canteen’s employ, she had a meeting with Bernard Palko, manager of food services, and Spender regarding her complaints where Spender claimed that, rather than harassing, he was only complimenting plaintiff in the things he had said. Plaintiff believed that the two men were only trying to appease her and that she was not going to get anywhere with her complaint. Spender told plaintiff after the meeting that she would be terminated, removed, or reprimanded, and that he was going to make sure she was transferred out of Cadillac 5. During plaintiff’s last week of employment, Palko told her that she was being transferred to the Cadillac Main account, which was located in a dangerous neighborhood in Detroit and was a farther distance from her home. She protested the transfer, which was obviously undesirable for her, as being made only because Spender could not be controlled. She turned down the transfer because of the way it was handled, it would cause her financial hardship, she did not have reliable transportation to drive the farther distance, she would not be getting extra income, and her feelings regarding her safety. Palko told her that if she did not transfer, she would be considered terminated. Plaintiff did not return to work for Canteen. In February 1986, plaintiff filed suit against defendants, alleging, among other things, breach of contract and sexual discrimination as a result of defendants’ failure to promote her, harassment, retaliation, and wrongful termination of her employment. These issues were thoroughly ventilated before the jury, and, after trial, the jury returned a verdict in plaintiff’s favor on both the breach of contract and sex discrimination claims. The trial court entered a judgment for $299,530, plus interest, costs, and attorney fees. Defendants filed motions for directed verdict, judgment notwithstanding the verdict, a new trial, and remittitur, which were denied. Defendants appeal. First, defendants claim the trial court erred in denying their motions for directed verdict or judgment notwithstanding the verdict because there was insufficient evidence to send the case to the jury or to support the verdicts for sexual discrimination and breach of contract. When deciding motions for directed verdict and judgment notwithstanding the verdict, the trial court must view the evidence in a light most favorable to the nonmoving party. Relief is required where insufficient evidence is presented to create an issue for the jury. Conversely, relief is not required where reasonable minds could differ on issues of fact. We will not disturb the trial court’s decision unless there has been a clear abuse of discretion. To establish a prima facie case of sex discrimination, the plaintiff must show membership in a class protected under the Civil Rights Act and that, for the same or similar conduct, the plaintiff was treated differently than a member of the opposite sex. If the defendant employer asserts legitimate, nondiscriminatory reasons for its actions, the plaintiff must then show that the reasons asserted were a mere pretext for discrimination. With regard to plaintiff’s claim of sexual discrimination regarding the failure to promote her to the Cadillac 5 manager position, for which she had requested consideration, defendants argue that plaintiff did not present sufficient evidence to support her claim because Spender was more qualified for the position than she was. However, plaintiff presented evidence that she had supervisory experience before coming to work for Canteen in 1982, she had filled in for the manager at another location on numerous occasions, she had managed both shifts of the Cadillac 5 cafeteria for a few weeks before Spender was hired, and she had generally fulfilled all the job duties of a manager at some point in time. Additionally, she was told by Palko to try to assist and guide a previous manager because she had more experience. Viewing this and the other evidence of discrimination in a light most favorable to plaintiff, a jury question was raised regarding whether plaintiff had shown, by a preponderance of the evidence, that she applied for an available position for which she was qualified but was rejected under circumstances giving rise to an inference of unlawful conduct and that sex discrimination played a significant role in the decision to deny plaintiff the promotion._ With regard to plaintiffs claim of sexual harassment, defendants argue that plaintiff did not present sufficient evidence to establish either quid pro quo sexual harassment or sexual harassment that results from a hostile or offensive work environment. However, the jury heard testimony that Spender would inquire into plaintiffs personal life, asking why she was divorced and how she could get a younger man like Michael Hobson, her live-in boyfriend who also worked on her shift at Cadillac 5; that Spender asked if plaintiff paid Hobson for his sexual favors, how she could keep up with a younger man, and why she was not more sociable with a man of Spender’s age; and that Spender also told plaintiff that if it were not for Hobson, he and plaintiff would be "closer” and they would have a better "working relationship.” Additionally, the jury heard testimony that Spender would open, read, and throw away plaintiffs mail, would go through her purse, and had grabbed a personal check out of her hand, and that he told plaintiff that women should not work out in public, that she was too aggressive, and that she was wasting her time because the company did not promote women to upper management positions, but rather would stick them in lower management positions just to keep various women’s groups happy. The jury also heard testimony that Spender told plaintiff she was not going to go anywhere unless she cooperated and that Spender was responsible for food shortage problems that occurred two or three times a week. This evidence, if accepted by the jury, was sufficient to show, at least, sexual harassment resulting from a hostile or offensive work environment. Regarding plaintiffs claim of sexual discrimination concerning retaliation, defendants argue that there was nothing of an actionable nature to retaliate against, that there was no evidence of retaliation, and that plaintiffs claim of retaliation based on her transfer to Cadillac Main was pure speculation. However, plaintiff testified that, after the meeting between Palko, Spender, and herself, Spender told her she would be terminated, removed, or reprimanded and that Spender would make sure plaintiff was moved out of his account. Soon afterward, plaintiff was told she must transfer to what was for her a much less desirable situation. Further, when plaintiff refused to transfer, Canteen hired a person "off the street” to fill the position, which tends to render quite unbelievable defendants’ claim that this was a promotion or growing experience for plaintiff. Viewing this evidence in a light most favorable to plaintiff, there was ample evidence for the jury to reasonably find that the elements of plaintiffs retaliation claim were proved. With regard to plaintiffs claim of sexual discrimination concerning her discharge, there was sufficient evidence to support the jury’s findings. Plaintiff was terminated immediately after she refused the transfer to Cadillac Main. She presented evidence that, in the context of this case, working conditions there were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign and that such action was a reasonably foreseeable consequence of Canteen’s conduct. As indicated, there was evidence that plaintiffs employment situation had been made intolerable by discrimination and sexual harassment and that her employment situation was further aggravated by a transfer to an undesirable location. Defendants also argue that there was insufficient evidence to support plaintiffs claim of breach of contract. However, plaintiff testified that Palko had told plaintiff that as long as she was familiar with the company’s policies, followed those policies, and did her job well, she would have a future with Canteen. Such verbal statements can give rise to a contract that an employee will be discharged only for just cause. In addition, Palko testified that it was Canteen’s policy not to terminate employees without a fair reason or just cause. Thus, plaintiff presented sufficient evidence to support her claim for breach of contract. Viewing all the evidence in a light most favorable to plaintiff, we do not find that the trial court abused its discretion in denying defendants’ motions for directed verdict and judgment notwithstanding the verdict. Second, defendants claim that the evidence was insufficient to support the $200,000 damage award for mental anguish, emotional distress, and humiliation with regard to the discrimination count, and they contend that the trial court erred in denying their motion for remittitur. Victims of discrimination may recover for the humiliation, embarrassment, disappointment, and other forms of mental anguish resulting from the discrimination, and medical testimony substantiating the claim is not required. When a verdict is within the range of the evidence produced at trial, it should not be reversed as excessive. With regard to remittitur, the only consideration expressly authorized by the remittitur court rule, MCR 2.611(E)(1), is whether the award is supported by the evidence. However, other objective factors such as whether the verdict was induced by bias or prejudice relating to the actual conduct of the trial or to the evidence adduced may be considered. The testimony indicated that defendants’ actions left plaintiff sad and depressed and that she is still dealing with her problems today. She is behind in paying her bills and suffers from a medical problem that she believes stems from her work situation. The evidence to support these results is found in the harassment and discrimination inflicted upon her for a lengthy period of time, despite her complaints to Palko. Under these circumstances, we do not believe the award was excessive, nor do we believe, giving deference to the trial court that personally observed the witnesses and heard the testimony, that the trial court abused its discretion in denying defendants’ motion for remittitur. Third, defendants claim that the trial court abused its discretion in denying their motion for a new trial because of numerous errors or irregularities in the trial proceedings. We have reviewed each of defendants’ alleged errors and do not find that the trial court abused its discretion so as to justify a new trial. Fourth, defendants claim that the trial court erred in its award of attorney fees. They contend that the attorney fees requested and granted were unreasonable, that the use of a multiplier for the fees granted under the Civil Rights Act was not justified, and that an additional award of attorney fees as a mediation sanction constituted double-dipping. The "American Rule” provides that each party in a lawsuit ordinarily bears its own attorney fees unless there is express statutory authorization to the contrary. MCL 37.2802; MSA 3.548(802) provides the authority to award reasonable attorney fees in state civil rights cases. The decision to grant or deny attorney fees under the Civil Rights Act is discretionary with the trial court. Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE. While the court is not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the attorney fee issue. The most useful starting point for determining the amount of a reasonable attorney fee is the number of hours reasonably expended on the case multiplied by a reasonable hourly rate. The party seeking the fee bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. In plaintiffs brief in support of her motion for attorney fees submitted to the trial court, plaintiffs attorney claims that she does not keep contemporaneous time records. She stated: It may be noted that Plaintiffs firm does not ordinarily keep contemporaneous billing records, as we are strictly a plaintiffs law firm and rarely bill clients. While such records are not required to be kept, in demanding a large sum of attorney fees the lack of contemporaneous time records leaves room for doubt regarding the reasonableness of the hours expended. Where the opposing party challenges the reasonableness of the requested fee, the trial court should hold an evidentiary hearing regarding the issue. If any of the underlying facts, such as the number of hours spent in preparation, are in dispute, the trial court should make findings of fact regarding the disputed issues. In this case, no evidentiary hearing was held regarding the reasonableness of the attorney fee. Rather, plaintiffs counsel submitted affidavits and other documentary evidence in support of her requested fees, and oral arguments were heard. The trial court, in ruling on the issue, stated: [T]he Court is satisfied that both

FERRETT v GENERAL MOTORS CORPORATION Docket No. 88489. Argued May 8, 1991 (Calendar No. 3). Decided August 27, 1991. Darwin Ferrett brought an action in the Wayne Circuit Court, against General Motors Corporation, alleging breach of contract and negligent evaluation after his employment with gm was terminated because of excessive absenteeism. The plaintiff contended that gm failed to undertake a third evaluation of his job performance following his failure to maintain an acceptable attendance record after completion of a second ninety-day Performance Improvement Plan. The court, John H. Hausner, J., granted summary disposition for the defendant, holding, with respect to the breach-of-contract claim, that there was no genuine issue of material fact concerning the plaintiff’s status as an employee at will, and, with respect to the negligent-evaluation claim, that it was not based on a legal duty independent of the employment relationship. The Court of Appeals, Doctoroff, P.J., and Shepherd and McDonald, JJ., affirmed in a memorandum opinion (Docket No. 115103). The plaintiff appeals, limited to the issue whether the trial court erred in granting summary disposition for the defendant. In a unanimous opinion by Justice Levin, the Supreme Court held: The trial court did not err in dismissing the plaintiff’s claim of negligent evaluation. There is no right arising at common law as a matter of public policy, separate and distinct from any contractual right, to be evaluated or correctly evaluated before being discharged from employment. 1. Any action arising out of a dismissal from employment would not sound in tort for negligent evaluation, but could be maintained, if at all, only for breach of a contractual obligation to evaluate. Absent an employer’s agreement to provide job security or to discharge only for cause, the employment relationship is at the will of both parties. 2. In this case, the plaintiff essentially was an employee at will; therefore, he did not have a contractual right to be evaluated or correctly evaluated before the employer exercised its right to discharge him at will. Because there is no separate and distinct duty imposed by law on an employer to evaluate or correctly evaluate employees, the plaintiff cannot maintain an action in tort against the employer for failure to evaluate him before exercising its right to discharge him at will without regard to whether there was cause to terminate his employment. Affirmed. William W. Webb for the plaintiff. Stuart R. Cohen, General Counsel, and Richard M. Tuyn, Co-Counsel, for the defendant. Amici Curiae: Mark Granzotto, Monica Farris Linkner, and Charles P. Burbach for Michigan Trial Lawyers Association. Bodman, Longley & Dahling (by Lloyd C. Fell and Kathleen A. Lieder); (William H. Crabtree and V. Mark Slywynsky, of counsel) for Motor Vehicle Manufacturers Association of the United States, Inc. Levin, J. This Court granted leave to appeal, limited to the issue whether the circuit court erred in granting General Motors Corporation summary disposition dismissing Darwin Ferrett’s claim of negligent evaluation. We agree with the Court of Appeals that the circuit court did not err in dismissing Ferrett’s claim of negligent evaluation. i Ferrett was a test driver for General Motors Corporation at its proving grounds in Milford from November, 1973, until the termination of his employment in August, 1986. Although otherwise a good employee, Ferrett’s thirteen years with gm included problems with absenteeism. From early 1983 until the termination of his employment in August, 1986, he was made aware that unless he maintained consistently good attendance, his position with gm would be in jeopardy. As a salaried worker for gm, Ferrett’s employment relationship was the subject of a handbook entitled "Working with General Motors.” The handbook advised workers that their performance would be assessed at least twice annually by their supervisor, and that the assessment program consisted of four main parts: performance planning, informal discussions, written appraisal, and appraisal interview. Performance Improvement Plans, though not specifically discussed in the handbook, were a part of the appraisal and evaluation program. The employee handbook also contained the following statements, the first, under the heading "Employment Status”: As a regular employe, your employment is on a calendar month-to-month basis. [T]he policies and procedures in the booklet do not constitute a legal contract, and do not modify the month-to-month employment relationship .... Beginning in 1983, Ferrett received a number of oral and written warnings from his supervisor that his deteriorating attendance was becoming a significant problem for management. By January, 1984, Ferrett’s attendance problems caused his overall performance rating to drop from "[g]ood [c]ompetent” to "[n]eeds [s]light [ijmprovement because of excessive absenteeism . . . .” Ferrett was placed on a Performance Improvement Plan for ninety days, during which time he maintained an acceptable attendance record. After the Performance Improvement Plan was successfully completed, however, Ferrett’s attendance slackened. In 1985, a memorandum was placed in Ferrett’s file documenting the recurring attendance problems. In 1986, Ferrett was placed on a second ninety-day Performance Improvement Plan that specified strict performance standards and stated that if Ferrett did not reach an acceptable attendance level by the end of the ninety days, his performance rating would be reappraised and management would recommend termination of his employment. During this ninety-day period, Ferrett’s performance again improved. At the end of the ninety days, Ferrett’s supervisor noted that Ferrett had successfully completed the Performance Improvement Plan, and he was reevaluated to "[g]ood [competent.” The supervisor also noted that he had advised Ferrett that "his performance improvement must be sustained in the future or management will recommend termination.” In an appraisal five days later, the supervisor noted that he had told Ferrett "it is very important that he maintain a good attendance record and schedule his time off in the future or management will [recommend] termination.” Between April 22, 1986, the date of the appraisal following the conclusion of the second Performance Improvement Plan, and August 21, 1986, Ferrett missed ten days’ work. He submitted a note for the last of the ten absences, on August 20, 1986, explaining that his mother had been in an accident, and that he had gone to the hospital to visit her. According to a report to the file written by Ferrett’s supervisor, the supervisor reminded Ferrett that under the terms of the last Performance Improvement Plan, he was to maintain perfect attendance and notify the supervisor when he would not be at work, and Ferrett promised to do so. The supervisor did not, however, tell Ferrett that his employment was about to be terminated due to excessive absenteeism. One week later, on August 29, 1986, Ferrett was discharged from further employment with gm. ii Ferrett commenced this action alleging breach of contract and negligent evaluation. The circuit court granted gm’s motion for summary disposition on both the contract and the negligent-evaluation counts. On the breach-of-contract count, the court held that there was no genuine issue of material fact concerning the "at will” status qf Ferrett’s employment. On the negligent-evaluation count, the court held that Ferrett’s claim was not based on a legal duty independent of the employment relationship. The Court of Appeals affirmed. hi The Court of Appeals, and the federal courts in the Sixth Circuit applying Michigan law, have, with two exceptions, held that an employee may not maintain a tort action for negligent evaluation. Those cases, relying on this Court’s decision in Hart v Ludwig, 347 Mich 559; 79 NW2d 895 (1956), generally reason that an employee may not maintain such an action because he does not seek to recover for breach of a duty separate and distinct from any breach of contract. Loftis v GT Products, Inc, 167 Mich App 787, 796; 423 NW2d 358 (1988), typifies Court of Appeals cases holding that an employee may not maintain an action for negligent evaluation on the basis of an asserted breach of an employment contract. The employee claimed that his employer was required under the terms of the employee handbook to evaluate its employees and to use reasonable care in performing an evaluation. The Court held that the employee could not maintain an action because his complaint "did not allege a breach of duty . . . distinct from the breach of contract, an essential element of a cause of action for negligent evaluation . . . .” The Court read this Court’s holding in Hart to mean that "[a] tort action will lie if a relationship or situation of peril exists that would give rise to a legal duty without the need to enforce the contract promise itself.” Id. at 797. A number of panels of the Court of Appeals and of the United States Court of Appeals for the Sixth Circuit have reached the same result. IV We decline to recognize an action in tort for negligent evaluation. An action may be maintained, if at all, only for breach of a contractual obligation to evaluate. In Hart v Ludwig, this Court held that the plaintiff could not maintain an action in tort for nonperformance of a contract. That was the holding. Everything else that was said was obiter dictum. The effort to extract from that obiter dictum a rationale for evolving a tort action for negligent evaluation is not persuasive. A duty in tort may arise out of a relationship. The asserted relationship here is a contract that was terminable at the will of either Ferrett or gm. Whether the contract was express or implied, even if it included implied obligations arising out of policies set forth in the employee handbook, the circuit court found that the employment contract did not give rise to enforceable obligations. The Court of Appeals affirmed. The correctness of that determination is not before us because this Court’s order granting leave to appeal was limited to the question whether Ferrett’s claim of negligent evaluation was correctly dismissed. v Ferrett complains essentially that gm failed to perform an asserted obligation, arising out of the procedures set forth in the employee handbook, to undertake a third Performance Improvement Plan when he failed to maintain an acceptable attendance record following the completion of the second ninety-day Performance Improvement Plan. In Hart, supra, pp 565-566, this Court held that an action in tort may not be maintained for failure to perform a contract: We have simply the violation of a promise to perform the agreement. The only duty, other than that voluntarily assumed in the contract to which the defendant was subject, was his duty to perform his promise in a careful and skillful manner without risk of harm to others, the violation of which is not alleged. What we are left with is defendant’s failure to complete his contracted-for performance. This is not a duty imposed by the law upon all, the violation of which gives rise to a tort action, but a duty arising out of the intentions of the parties themselves and owed only to those speciñc individuals to whom the promise runs. A tort action will not lie. [Emphasis added.] In Hart, the defendant worked the plaintiff’s orchard during the spring of 1952, but "refused to go on” shortly after beginning work for the 1953 season. "He thereafter failed to remove the shoots, to prune, to fertilize, or to protect it against destructive animal life.” In the instant case, as in Hart, "[w]hat we are left with is defendant’s [alleged] failure to complete his contracted-for performance.” Here, as there, the contracted-for performance is not "a duty imposed by the law upon all,” but, rather, "a duty arising out of the intentions of the parties themselves and owed only to those specific individuals to whom the promise runs.” VI In Valentine v General American Credit, Inc, 420 Mich 256, 258-259; 362 NW2d 628 (1984), this Court said that "[ejmployers and employees remain free to provide, or not to provide, for job security. Absent a contractual provision for job security, either the employer or the employee may ordinarily terminate an employment contract at any time for any, or no, reason.” Absent an employer’s agreement to provide job security or to discharge only for cause, the employment relationship is at the will of both parties. Ferrett was essentially an at-will employee — his employment was month to month — and therefore he did not have a contractual right to be evaluated or correctly evaluated before the employer exercised its right to discharge him at will. Just as the law did not impose on the person who agreed to work the orchard in Hart v Ludwig a duty to complete the contracted-for performance, or the defendant in Valentine a duty to provide job security, neither does it impose on gm a common-law obligation to evaluate or correctly evaluate Ferrett before exercising its right to discharge him at will. There is, thus, no right arising at common law as a matter of public policy, separate and distinct from any contractual right, to be evaluated or correctly evaluated before being discharged from employment. Cases recognizing a right to maintain an action in tort arising out of a breach of contract by the defendant, generally involve a separate and distinct duty imposed by law for the benefit of the plaintiff that provides a right to maintain an action without regard to whether there was a contractual relationship between the plaintiff and the defendant. In Clark v Dalman, 379 Mich 251, 261, 262; 150 NW2d 755 (1967), the duty "imposed by law” was ”[t]he general duty of a contractor to act so as not to unreasonably endanger the well-being of employees of either subcontractors or inspectors, or anyone else lawfully on the site of the project . . . VII We conclude that because there is no separate and distinct duty imposed by law to evaluate or correctly evaluate employees, Ferrett cannot maintain an action in tort against gm because it failed to undertake a third Performance Improvement Plan, or otherwise evaluate or reevaluate him before exercising its right to discharge him at will without regard to whether there was or was not cause to terminate his employment. Affirmed. Cavanagh, C.J., and Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred with Levin, J. 437 Mich 851 (1990). In Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981), the employee alleged that the defendant, whose practice was to • periodically evaluate its employees, had negligently evaluated him. The Court of Appeals held that, although the defendant was not under an independent duty to evaluate its employees, once it undertakes periodic evaluations it becomes obligated to conduct them fairly. The Court quoted the statement in Hart v Ludwig, 347 Mich 559; 79 NW2d 895 (1956), to the effect that the law imposes an obligation on everyone who attempts to do anything, to do it fairly, so that negligent performance of a contract could give rise to a cause of action in tort. The Court added a caveat, however, that if the employee were found to be employed under an employment-at-will contract, the defendant had the right to terminate his employment at any time, even arbitrarily and capriciously, and the employee could not then maintain an action for negligent evaluation. In Chamberlain v Bissell Inc, 547 F Supp 1067, 1081 (WD Mich, 1982), the Court said that under Michigan law "a duty of ordinary care arises from the performance of a contractual obligation.” While a complete failure to perform a contractual obligation would give rise only to a breach of contract, negligent performance of the obligation is also actionable in tort. The Court found that because the defendant had a contractual obligation to conduct performance reviews under an implied just-cause contract, and it actually performed those reviews, it had a duty to use ordinary or reasonable care in performing those reviews. The Court said: Count ii of [the employee’s] complaint [for negligent evaluation] does not allege a breach of duty distinct from the alleged breach of the employment contract. Although [the employee] contends that defendant was contractually obligated according to the employee information handbook to properly evaluate his work performance, if those evaluations were indeed negligently compiled, then defendant would not have performed its obligation under the contract which would constitute a breach of the contract. If defendant then discharged [the employee] based upon the negligently compiled or inaccurate evaluations, then defendant would have breached its duty to discharge [the employee] only for good cause, which is a basis for a breach of contract action. [Loftis v GT Products, supra, pp 798-799.] Mitchell v General Motors Acceptance Corp, 176 Mich App 23; 439 NW2d 261 (1989) (no claim for negligent evaluation because the employee did not plead that gmac breached any duty independent of the alleged breach of contract); Squire v General Motors Corp, 174 Mich App 780; 436 NW2d 739 (1989) (since the tort claim for negligent evaluation arose from the same breach of duty upon which the employee’s contract claim was based, it was not a valid independent tort action); Grant v Michigan Osteopathic Medical Center, 172 Mich App 536; 432 NW2d 313 (1988) (the employee’s purported negligence claim did not state a distinct and separate cause of action from her breach of contract claim); Dahlman v Oakland Univ, 172 Mich App 502; 432 NW2d 313 (1988) (the defendant would not have evaluated the employee if the employee did not have an employment contract; therefore, there was no breach of duty to evaluate separate and distinct from a breach of contract); Sankar v Detroit Bd of Ed, 160 Mich App 470; 409 NW2d 213 (1987) (the actions complained of and characterized as a tort of negligent evaluation arose exclusively from a duty created under the collective bargaining agreement); Struble v Lacks Industries, Inc, 157 Mich App 169; 403 NW2d 71 (1987) (the employee was merely asserting that the defendant negligently fired her by breaching contractual promises arising from the defendant’s policies and procedures governing discipline; the facts were evidence in support of a breach of contract claim, but did not establish a separate cause of action in tort); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641; 378 NW2d 558 (1985) (because there was no breach of duty distinct from the breach of contract, the employee’s cause of action for negligent discharge arose from a breach of promise or the nonfeasance of a contractual obligation and her action was in contract, not in tort). In Haas v Montgomery Ward, 812 F2d 1015 (CA 6, 1987), the court held that since the employee was evaluated only because of her position, she could not maintain an independent tort action for negligent evaluation causing her discharge. See also Brock v Consoli dated Biomedical Laboratories, 817 F2d 24 (CA 6, 1987) (Michigan does not recognize a cause of action in tort for the negligent performance of a contract); Speckine v Stanwick Int’l, Inc, 503 F Supp 1055 (WD Mich, 1980) (Michigan law is clear in not recognizing a cause of action for tort in a contract setting unless there is a relationship that gives rise to the duty from some source other than the contract itself). Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person. [Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977).] Id., p 560. Id., p 565. Id., pp 565-566. In Valentine, supra, p 259, "an action for breach of contract and not a tort action,” this Court af

Boston Police Superior Officers Federation vs. Labor Relations Commission. Suffolk. May 9, 1991. - August 13, 1991. Present: Liacos. C.J. Wilkins. Abrams. Nolan, O’Connor. & Greaney, JJ. Labor Relations Commission. Labor, Judicial review. The Labor Relations Commission erred as matter of law in dismissing a prohibited practice charge as time-barred under 456 Code Mass. Regs. § 15.03 (1986), where the alleged prohibited practice was of a continuing nature and occurred within the six-month limitation period for filing the charge. [892-894] Appeal from a decision of the Labor Relations Commission. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Alan J. McDonald for the plaintiff. Jean Strauten Driscoll for the defendant. Wilkins, J. The Boston Police Superior Officers Federation (federation) has appealed, pursuant to G. L. c. 150E, § 11 (1990 ed.), from a prehearing dismissal by the Labor Relations Commission (commission) of a charge alleging that the Boston police department (department) engaged in prohibited practices. See G. L. c. 150E, § 10(a) (1), (3) and (5) (1990 ed.). In this appeal, which we transferred here from the Appeals Court, the federation challenges the commission’s determination that the charge was time-barred by its rule, contained in 456 Code Mass. Regs. § 15.03 (1986), limiting the commission from entertaining a charge based on a prohibited practice occurring more than six months prior to the filing of the charge, except for good cause shown. The facts on which the commission based its decision are not in dispute. In January, 1988, Sergeant William Broder-ick, then a vice president of the federation, sought permission from the department to practice law during his off-duty hours. Prior to this request, the department had promptly granted such permission to several police officers, in accordance with a rule permitting employees to engage in off-duty employment subject to certain limitations and to approval by the police commissioner. In March, 1988, the department told Broderick that the off-duty employment policy was under review and that no action would be taken on his application pending this review. In December, 1988, a department attorney testified in another matter that Broderick’s request would be held until review of the policy was completed. In November, 1989, having heard nothing further, Broderick sent a letter to the police commissioner, stating in effect that he would assume that the department had approved his request unless it notified him in writing and provided the basis for denial. On December 16, 1989, Broderick received a letter from the department stating that his request had “not been approved” and that it, along with the off-duty practice rule, were “under review.” On January 17, 1990, the federation filed the charge with the commission, alleging that since December 1, 1989, the department had denied “Broderick permission to practice law on off duty time in retaliation for his exercise of protected concerted activities, and to discourage him in the exercise of union activity.” On May 21, 1990, after conducting an investigation, the commission dismissed the charge on the ground that there was no probable cause to believe that the charge was filed within six months of the date when Broderick should have known that the department was unlawfully failing to respond to his request. See City of Pittsfield, 4 M.L.C. 1905, 1908 (1978) (six-month period does not begin to run until complainant knew or should have known of the alleged violation). The commission also concluded that there was no probable cause to believe that the alleged violation was' of such a continuing nature that the six-month rule of limitations could be avoided. We conclude that, as a matter of law, the reasons the commission advanced for its dismissal of the complaint lack merit. The commission’s prehearing dismissal was a “final order” reviewable under G. L. c. 150E, § 11. Quincy City Hosp. v. Labor Relations Comm’n, 400 Mass. 745, 747 (1987). In conducting this review, we are governed “insofar as applicable” by the provisions of G. L. c. 30A, § 14 (1990 ed.). G. L. c. 150E, § 11 (1990 ed.). We may not disturb the commission’s decision unless “the substantial rights of any party have been prejudiced” for one of the reasons set forth in G. L. c. 30A, § 14 (7). We generally accord considerable deference to the commission’s disposition of a charge. See Quincy City Hosp. v. Labor Relations Comm’n, supra at 748; Brookline v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 398 Mass. 404, 411 (1986). No such deference is appropriate, however, when the commission commits an error of law. See G. L. c. 30A, § 14 (7) (c) (agency decision “[bjased upon an error of law”). The federation alleged that since December 1, 1989, the department had engaged in a prohibited practice by denying Broderick permission to practice law on his off-duty time in retaliation for his exercise of protected union activities. The commission did not decline to issue a complaint against the department based on its assessment of the substance of the claim, but rather it decided that the federation came to the commission too late. In so ruling, the commission committed an error of law. Even if the department may have wrongfully denied Brod-erick his rights from some time early in 1988 and even if Broderick should reasonably have known of that denial sometime in 1988 (a doubtful point on this record which we shall assume in favor of the commission), the fact remains that, on the federation’s allegations, the department continued to deny Broderick his rights to a time within six months of the filing of the charge. The commission could not properly dismiss the charge simply because § 15.03 speaks of a prohibited practice that occurred more than six months before the filing of the charge. Although certain prohibited practices may have occurred more than six months before the federation filed its charge, an alleged prohibited practice occurred more recently. The department’s response of December, 1989, to Broderick’s request was within six months of the filing of the charge. The department’s failure to act at that time was an alleged independent wrong, making the bar of § 15.03 inapplicable to the charge in this case. See Chesapeake & Potomac Tel. Co. v. National Labor Relations Bd., 687 F.2d 633, 638 (2d Cir. 1982). Broderick was entitled to an answer from the department within a reasonable time. As to his future right to practice law part-time, he remained entitled to an answer even more than six months after a reasonable time had passed. If in December, 1989, the department failed to act in unlawful retaliation against Broderick, it would be unfair to deny Brod-erick any chance of agency relief simply because he should have known that the department had committed the same wrong, as to his earlier right to practice, more than six months earlier. There is no warrant for denying Broderick prospective relief simply because he could have complained sooner. The commission’s interpretation of its regulation encourages the filing of possibly premature charges and certainly encourages the filing of unnecessary charges. More importantly, the commission’s interpretation of its regulation unlawfully rejected a charge based on a wrong allegedly committed within six months of the filing of the charge. The order of the Labor Relations Commission dismissing the charge is vacated, and the matter is remanded to the commission for further consideration whether the matter should proceed to complaint. Another portion of the commission’s decision has not been challenged on appeal and stands unaffected by this opinion. So ordered. Section 15.03 of 456 Code Mass. Regs, provides: “Except for good cause shown, no charge shall be entertained by the Commission based upon any prohibited practice occurring more than six months prior to the filing of a charge with the Commission.” Section 15.03 is not expressed precisely in the form of a statute of limitations, that would become important in a proceeding only if pleaded by one charged with the violation of certain rights. It is phrased somewhat in the nature of a jurisdictional test. The federation does not argue that the department may not invoke § 15.03 on its own motion. We do not consider reasons in support of the commission’s decision that are advanced for the first time in its brief filed in this appeal. We need not reach the question whether the department’s conduct was a continuing wrong, a position the commission rejected without explanation. See Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 522-523 (1990) (continuing violation in employment discrimination); Mack v. Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179, 183 (1st Cir. 1989) (same).

Jeffrey Flesner vs. Technical Communications Corporation & others. Middlesex. April 1, 1991. - August 8, 1991. Present: Liacos. C.J.. Wilkins. Abrams, Lynch. O’Connor, & Greaney. JJ. Contract, Employment. Employment, Termination. Public Policy. Emotional Distress. Fraud. Privacy. Civil Rights, Termination of employment. Practice, Civil, Summary judgment. Damages, Emotional distress. A cause of action for wrongful discharge in violation of public policy was stated by a plaintiffs allegation that his discharge from employment was motivated by his employer’s desire to interfere with or retaliate for the plaintiffs cooperation with a United States Customs Service investigation [810-811], and where the motive for the discharge was a contested issue, summary judgment was incorrectly entered for the employer [811-812], In a civil action in which the plaintiff sufficiently alleged and supported a claim of misrepresentation the judge incorrectly dismissed the claim. [814] In a civil action based on an allegation of wrongful discharge from employment, the employer’s contention that the plaintiff was precluded from recovering damages because of alleged misrepresentations on his résumé and in his job interview involved disputed issues of material fact not appropriately resolved at the summary judgment stage of the proceedings. [815-817] In a civil action in which the plaintiff claimed damages for invasion of privacy pursuant to G. L. c. 214, § IB, the judge correctly ordered entry of summary judgment for the defendants where the only evidence on the claim was the plaintiffs hearsay testimony or statements of his personal belief. [817-818] In a civil action based on the plaintiffs alleged wrongful discharge by his employer, the plaintiff failed to identify any “secured right” under the Constitution or laws of the Commonwealth or the United States to entitle him to relief on a claim under the Massachusetts Civil Rights Act, G. L. c. 12, § 111, and summary judgment properly entered for the employer on that claim. [818-819] Civil action commenced in the Superior Court Department on January 25, 1985. The case was heard by Robert J. Hallisey, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard L. Neumeier (Paul M. Moretti with him) for the plaintiff. D. Alice Olsen (Thomas M. Elcock with her) for the defendants. Arnold McCalmont and James McCalmont. Abrams, J. Jeffrey Flesner claims that his former employer, Technical Communications Corporation (TCC), constructively discharged him in retaliation for his cooperation in a United States Customs Service investigation of TCC. A Superior Court judge awarded summary judgment in favor of TCC. Flesner now appeals, contending that the judge erred in dismissing his claims for (1) wrongful discharge; (2) misrepresentation; (3) invasion of privacy; and (4) violation of the Massachusetts Civil Rights Act, G. L. c. 12, § 111 (1990 ed.). In addition, the defendants claim that Flesner is precluded from recovering damages by his own misrepresentations. We transferred the case to this court on our own motion. We reverse the summary judgment on the wrongful discharge and misrepresentation claims. We affirm on the other claims. From the materials submitted to the court in conjunction with the summary judgment motion, the undisputed facts are as follows. TCC is a Massachusetts corporation that produces, develops, and sells internationally communications systems, including communications security systems. Arnold McCalmont and his son, James McCalmont, also defendants, are president and sales manager, respectively. Flesner worked as a salesman for TCC from January 31, 1983, until his resignation on September 1, 1983. Flesner planned a sales trip to Argentina in July, 1983, to demonstrate certain TCC security equipment to potential buyers. He claims that before he left he repeatedly asked James McCalmont whether a temporary export license was needed to transport the equipment to Argentina. McCalmont told Flesner that because he was only demonstrating the equipment rather than making a permanent sale, no such license was required. At the time, TCC had applied for a temporary export license for Argentina but the application was returned with no action taken. On the date of departure, Flesner was met at Logan International Airport in Boston by a TCC employee who delivered the equipment to Flesner and handed him a manila envelope containing Customs documents. Flesner checked the equipment through to Argentina. At a stopover in Miami, Flesner was detained by Customs officials. He handed them the documents that TCC had provided him in the manila envelope, but they did not satisfy the officials. The officials told Flesner that if he did not cooperate, he would be handcuffed and arrested on the spot. Flesner said he would cooperate. The officials further questioned Flesner for approximately two and one half hours about TCC’s business, and Flesner’s planned Argentina trip. Afterward, he was told to return to Boston the next day, but the equipment was seized. When Flesner arrived back at Logan, he was met by other Customs officials who also told him that he would not be arrested or handcuffed if he cooperated. Again, he was questioned intensively. The officials instructed Flesner not to tell TCC that he was cooperating with them unless asked directly. They then released him. Later that night, Flesner met with the McCalmonts and Herman Wolz, another TCC employee, to relate the events of the past two days. He did not tell them, because they did not ask, that he was cooperating with Customs. The Customs agents met with Flesner several times after the incident to ask further questions. They also interviewed Arnold McCalmont. At one point, Flesner was summoned to a meeting with Arnold McCalmont and TCC’s lawyer at which Flesner informed them that he was cooperating with Customs. The lawyer advised Flesner that they might become adversaries and that Flesner should watch what he said to them. Flesner claims that the employer-employee relationship deteriorated thereafter. He asserts that he was forbidden to travel until the investigation was cleared up, and that he was not allowed to telephone or telex potential customers. All of his correspondence was to be reviewed by Wolz, and little, if any, of it was approved for mailing. Because he was denied access to his customers, he asserts that he was prevented from making sales or earning commissions, although he had not made any sales prior to the incident either. On August 31, 1983, Flesner told Arnold McCalmont and Wolz that he had met with Customs agents the previous week. Wolz told Flesner to inform them of any further contacts with Customs. Later, Flesner asked Wolz about his future with TCC. Wolz’s response was not positive. He told Flesner that he should resign so that he could receive two weeks’ severance pay or he would be fired the next day. On September 1, 1983, Flesner tendered his resignation. In January, 1985, Flesner filed an eight-count complaint against the defendants. TCC counterclaimed for misrepresentation. In September, 1989, the defendants moved for summary judgment on Flesner’s claims. On September 27, 1989, the judge allowed the motion except as to the counts for misrepresentation, wrongful discharge, and negligence. In October, he allowed the motion for all counts, and filed a memorandum of decision explaining his order. Flesner appeals the order as to five of those counts. 1. Motion for summary judgment. In ruling on a motion for summary judgment, “a judge . . . must consider ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ in determining whether summary judgment is appropriate. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). The burden on the moving party is to ‘show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Id.” Madsen v. Erwin, 395 Mass. 715, 719 (1985). This burden need not be met by affirmative evidence negating an essential element of the plaintiff’s case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial. See Kourouvacilis v. General Motors Corp., ante 706 (1991). Where a moving party properly asserts that there is no genuine issue of material fact, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A judge’s mere belief that the movant is more likely to prevail at trial is not a sufficient basis for granting summary judgment. See Byrd v. Roadway Express, Inc., 687 F.2d 85, 87 (5th Cir. 1982); American Int’l Group v. London Am. Int’l Corp. Ltd., 664 F.2d 348, 351 (2d Cir. 1981). 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, at 104-105 (1983). In cases where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) (“the generally accepted rule is that the ‘granting of summary judgment in a case where a party’s state of mind . . . constitutes an essential element of the cause of action is disfavored’ ”), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984). See also Sweat v. Miller Brewing Co., 708 F.2d 655, 657 (11th Cir. 1983); Baldini v. Local 1095, UAW, 581 F.2d 145, 151 (7th Cir. 1978). 10A C. Wright, A. Miller, & M. Kane, supra at § 2730. In such cases, “[mjuch depends on the credibility of the witnesses testifying as to their own states of mind. In these circumstances, the jury should be given an opportunity to observe the demeanor, during direct and cross-examination, of the witnesses whose states of mind are at issue.” Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir. 1971). With these principles in mind, we consider the merits of Flesner’s arguments. 2. Wrongful discharge. Flesner claims that TCC constructively discharged him in violation of public policy because of his cooperation with the Customs officials. We have recognized an exception to the traditional doctrine that at-will employees may be discharged for any reason or no reason at all, where the discharge is for reasons that violate public policy. See DeRose v. Putnam Management Co., Inc., 398 Mass. 205 (1986). We have held, for example, that a cause of action will lie when an employee is fired for disobeying the employer’s instruction to testify falsely at a trial, see id., or for enforcing safety regulations for which she was responsible, see Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988). In Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 149-150 (1989), we stated that redress is available for employees who are terminated “for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Flesner claims he was discharged for cooperating with the Customs officials. The law did not require him to cooperate; he had the right to remain silent. Nevertheless, it is the public policy of this Commonwealth to encourage cooperation with ongoing criminal investigations. See, e.g., G. L. c. 262, § 29 (1990 ed.) (providing compensation and travel costs reimbursement for any person who attends the Attorney General or the offices of a district attorney for the purpose of assisting an investigation); G. L. c. 233, § 20D (1990 ed.) (permitting a grant of immunity for specified crimes for witnesses in a grand jury investigation); Correllas v. Viveiros, ante 314 (1991). Cf. 18 U.S.C. § 6002 (permitting a grant of immunity to witnesses testifying or providing information in a proceeding ancillary to an agency of the United States). We think that the reasons for imposing liability in the categories of cases set forth in Smith-Pfeffer also justify legal redress in certain circumstances for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed. In such a situation, as in the Smith-Pfeffer categories, allowing the employer to terminate employees for reasons that directly contradict the public policy of the Commonwealth would seriously impair that policy. See Petermann v. International Bhd. of Teamsters, 174 Cal. App. 2d 184 (1959). Cooperating with an ongoing governmental investigation is an important public deed which fits this category. See Palmateer v. International Harvester Co., 85 Ill.2d 124 (1981) (cause of action stated where plaintiff claims he was discharged in retaliation for supplying information to law enforcement agency that a fellow employee might have committed a crime and for agreeing to assist in the investigation and trial). The judge, however, granted summary judgment because “TCC never urged Flesner not to cooperate with Customs officials or otherwise hamper an investigation.” This assertion does not demonstrate an absence of evidence on an essential element of the claim. See Kourouvacilis, supra. Flesner’s claim is that the discharge itself was motivated by a desire to interfere with or retaliate for his cooperation with the investigation. Such intentional interference, if found by a jury, would constitute a wrongful discharge in violation of public policy. Moreover, the judge asserted that, while “Flesner may be said to have been fired for participating in an illegal scheme in which the employer was involved, . . . such a termination does not fall within the public policy exception.” Although a reasonable jury may conclude that such was the cause for Flesner’s termination, it would not be required to so con-elude. Where a jury can draw opposite inferences from the evidence, summary judgment is improper. See Anderson v. Liberty Lobby, Inc., supra at 248-250. Flesner’s deposition asserts that he asked about export licenses and TCC told him they were not necessary. Thus, it is permissible to conclude that Flesner left on his trip completely unaware that he was acting in violation of the law. *He describes his ongoing cooperation with Customs authorities and a corresponding deterioration in his working relationship with TCC. He asserts that he was told to resign with two weeks’ pay or be fired. This evidence sufficiently raises a question of material fact as to whether Flesner was discharged in retaliation for his cooperation with a law enforcement investigation. The defendants contend that Flesner was discharged, if at all, for other legitimate business reasons. Thus, the motive for the discharge is a primary contested issue of fact. In such circumstances, the grant of summary judgment on these claims was improper. See Sweat v. Miller Brewing Co., supra (where employer’s intent in discharging plaintiff was contested, summary judgment was improper); Padway v. Palches, 665 F.2d 965, 967 (9th Cir. 1982) (same). 3. Damages. In addition to economic damages, Flesner claims damages for emotional distress and mental anguish as well as punitive damages.* * Punitive damages are not allowed in this Commonwealth unless expressly authorized by statute. See Santana v. Registrars of Voters of Worcester, 398 Mass. 862, 867 (1986); USM Corp. v. Marson Fastener Corp., 392 Mass. 334, 353 (1984). Because no such legislative authorization applies to this case, Flesner’s claim for punitive damages cannot stand. Because the judge ordered summary judgment for the defendants on liability for the wrongful discharge count, he did not decide whether such a cause of action gives rise to tort damages, such as those for emotional distress claimed by Flesner, in addition to contract damages. There is, therefore, no ruling before us to review. The parties focused on liability in the motion for summary judgment. Therefore, the factual background on damages is undeveloped. Indeed, no facts alleged in the complaint or submitted on summary judgment evidence any suffering by Flesner of mental anguish due to the defendant’s conduct in wrongfully discharging him. We decline to adopt a hard and fast rule on whether tort damages in general and emotional distress damages in particular are recoverable in wrongful discharge cases in the absence of a well-developed factual record. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 417 n.3 (1988). If at trial no facts are brought out supporting damages for emotional distress due to the defendant’s intentional conduct, then the question need not be reached. We therefore decline to address this issue. 4. Misrepresentation. The judge also granted summary judgment on Flesner’s misrepresentation claim because the complaint did not allege damages independent of those alleged in connection with the termination of his employment. “Therefore,” according to the judge, the “plaintiffs cause of action, if one lies, must be for Wrongful Discharge.” Even if the judge were correct that the only damages Flesner alleges are those arising out of his termination, a point we do not decide, the overlap does not justify dismissal of the claim. Flesner, of course, cannot recover double damages for the two claims, but he is entitled to proceed on more than one theory of recovery. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979); Laurendeau v. Kewaunee Scientific Equip. Corp., 17 Mass. App. Ct. 113, 120-121 (1983). Mass. R. Civ. P. 8 (e) (2), 365 Mass. 749 (1974). The judge does not conclude that Flesner insufficiently alleged or supported his claim of misrepresentation. Summary judgment should not have been allowed on the misrepresentation claim. Cf. Presto v. Sequoia Sys., Inc., 633 F. Supp. 1117 (D. Mass 1986) (claims for breach of employment contract and misrepresentation allowed to go forward; wrongful discharge claim dismissed on other grounds). 5. Flesner’s alleged misrepresentation. The defendants argue that Flesner is precluded from recovering damages because he misrepresented several facts on his résumé and in his job interview leading to his employment with TCC. According to the defendants, TCC would not have hired Flesner had they known these representations were not true. Therefore, they conclude that even though they did not discover these misrepresentations until after Flesner resigned, he cannot recover any damages because TCC would have been justified in firing him even absent any wrongful motives. Because the judge ordered summary judgment for the defendants on all counts, he did not reach this issue. The defendants cite a line of Federal wrongful discharge and employment discrimination cases in support of their argument. See, e.g., East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988); Smallwood v. United Airlines, Inc., 728 F.2d 614 (4th Cir.), cert, denied, 469 U.S. 832 (1984); Murnane v. American Airlines, 667 F.2d 98 (D.C. Cir.), cert, denied, 456 U.S. 915 (1982). These cases all deal with the question of the appropriate remedy once discrimination or a wrongful discharge has been established. In Mt. Healthy, a teacher was fired, in part because of his exercise of rights secured him by the First Amendment to the United States Constitution. Several other permissible reasons could have supported the discharge, however. The Supreme Court remanded the case to the District Court to determine whether the school board in fact would have fired the plaintiff even absent the impermissible reason. The court reasoned that the plaintiff should not be put in a better position than he would have been in had the wrong not b

DUMAS v AUTO CLUB INSURANCE ASSOCIATION Docket No. 83982. Argued October 2, 1990 (Calendar No. 2). Decided July 31, 1991. Dissenting opinion by Levin, J., filed August 2, 1991. Rehearing denied 438 Mich 1202. Richard Dumas and approximately 180 other current and past members of the insurance sales staff of the Auto Club Insurance Association brought an action .in the Wayne Circuit Court, alleging breach of contract, violations of civil rights, fraud and misrepresentation, unjust enrichment, and promissory estoppel as a result of a change by the employer of a compensation plan. The court, John H. Hausner, J., for purposes of clarity, divided the plaintiffs into three groups: Group A was comprised of those plaintiffs who claimed that at the time of hiring they were informed by the defendant of a seven percent commission system, but not that they were informed that the system would remain in place for a particular duration; Group b was comprised of plaintiffs who claimed that before or at the time of hiring they were told that the system would remain in place as long as they were employed or forever or words to that effect; Group c was comprised of plaintiffs who claimed that they began employment with the same understanding claimed by the plaintiffs in Group a, but later were told that the system would last as long as they were employed or forever or words to that effect. The court then granted summary disposition for the defendant. The Court of Appeals, Doctoroff, P.J., and Cynar and P. D. Hour, JJ., reversed in an opinion per curiam with regard to the claims for breach of contract and unjust enrichment (Docket No. 96212). The defendant appeals. In an opinion by Justice Riley, joined by Justices Bricrley and Griffin, and opinions by Chief Justice Cavanagh and Justice Boyle, the Supreme Court held: The plaintiffs may not maintain actions against the defendant for breach of contract or unjust enrichment. No express promises of permanent employment were made to the plaintiffs in Group a. Promises claimed by the plaintiffs in Group c to have been made subsequent to the time of hiring lacked objective support. The defendant was not unjustly benefited by virtue of changing its compensation plan: with regard to Groups a and c, the action was within the realm of defendant’s managerial powers; with regard to Group b, the claim lacked record support. Justice Riley, joined by Justices Brickley and Griffin, further stated that no express promises of permanency were made to the plaintiffs in Group a; thus, any contractual rights to that effect must result from the legitimate-expectations leg of the holding in Toussaint v BCBSM, 408 Mich 579 (1980). However, Toussaint involved a claim of wrongful discharge, and, given the traditional reluctance of courts to interfere with management decisions and the needed flexibility of businesses to alter policies to respond to changing economic conditions, its holding should not be extended to cases involving permanent compensation plans. Any promises claimed by the plaintiffs in Group b to have been made at the time of hiring that they would receive seven percent renewal commissions forever were unenforceable under the statute of frauds as not capable of being performed within one year. These provisions were severable from the remainder of the employment contracts. Justice Boyle, concurring, stated that the plaintiffs’ proofs are insufficient to support an inference of a contract providing termination only for just cause or an enforceable promise not to change the payment plan; nor was any evidence presented that the employer’s statements, interpreted in the light of trade usage or course of performance, would permit the conclusion that the factfinder could draw an inference of a durational term for the method of compensation. Chief Justice Cavanagh, concurring in the result, stated that the plaintiffs’ claims clearly rest solely on a theory of express oral contract, not a legitimate-expectations theory arising from the defendant’s policy manuals. With respect to the plaintiffs in Group a, there is no basis for the express oral contract theory. With regard to all plaintiffs, the evidence presented indicates that summary disposition for the defendant was properly granted. Reversed. Justice Levin, dissenting, stated that this is not an action for wrongful discharge, but rather an ordinary action for breach of contract for failure to pay agreed-upon compensation for services rendered and to be rendered. The plaintiffs rely solely on claims of express promise, not on implied promises arising out of legitimate expectations. Nor does the question presented concern the scope of Toussaint. The central issue, whether the plaintiffs may maintain actions for breach of an express contract, turns on whether there is sufficient evidence to justify a finding by the trier of fact that a reasonable person in the position of the plaintiffs would conclude that the defendant intended to pay a seven percent commission on renewals written while, and for as long as, they remained in the employ of the defendant. The test is objective, focusing on the understanding of a reasonable person in the plaintiffs’ position. The subjective intent of the defendant is not relevant except insofar as such a reasonable person would have been, or possibly should have been, aware of the defendant’s intent. The majority incorrectly describes the testimony of forty of the plaintiffs, who recalled being told or informed of a durational term for the promise to pay a seven percent commission on policy renewals, as a vague and precatory promise that the commission system would last forever. However, an evenhanded summary of the affidavit on which the majority’s description is based would recognize that perhaps only one, or only a handful, of those plaintiffs may have used the word "forever” to describe the durational term. The affidavit cannot properly supply the basis for this portrayal of the plaintiffs’ deposition testimony. The majority incorrectly assumes that the defendant’s promise to pay a seven percent commission on new sales and policy renewals did not, as a matter of law, express a durational term. Contrary to the majority’s assumption, the words "policy renewals” may be interpreted and understood by the plaintiffs as implicitly stating a durational term, namely, for as long as the defendant and the customer choose to renew a policy. Because the trier of fact appropriately could find that the plaintiffs reasonably might so interpret the promise, it is not, and should not be, determinative whether the plaintiffs recall being told that renewal commissions would be paid on policy renewals "for as long as they were employed” by the defendant, or "forever,” or “always.” The trier of fact reasonably could find that the promise, so interpreted, states a durational term. It appears that the plaintiffs would be able to establish at a trial with other evidence that the promise to pay renewal commissions was for renewals written while, and for as long as, the plaintiffs remained in the employ of the defendant. The duration of the contract, therefore, is determinable and sufficiently definite, although it is uncertain how long the defendant would offer to renew, the customer would choose to renew, and the plaintiffs would remain in the employ of the defendant. Justice Mallett took no part in the decision of this case. 168 Mich App 619; 425 NW2d 480 (1988) reversed. Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw and Sheldon L. Miller) for the plaintiffs. Fox & Grove, Chartered (by Kalvin M. Grove, Steven L. Gillman, and Allison C. Blakley) and Finkel, Whiteñeld & Selik (by Robert J. Finkel) for the defendant. Amici Curiae: Conboy, Fell, Stack, Lieder & Hanson (by Lloyd C. Fell) for General Motors Corporation. Clark, Klein & Beaumont (by Dwight H Vincent, J. Walker Henry, and Rachelle G. Silberberg) for Michigan Manufacturers Association. Miller, Canñeld, Paddock & Stone (by Diane M. Soubly) for American Society of Employers, Motor Vehicle Manufacturers Association of the United States, Inc., Greater Detroit Chamber of Commerce, and Michigan State Chamber of Commerce. Mark Granzotto, Monica Farris Linkner, and Charles P. Burbach for Michigan Trial Lawyers Association. Riley, J. Two questions are presented in this appeal. First, whether plaintiffs have actions for breach of contract on the basis that they were informed of a particular compensation system upon entering defendant’s work force, and the system was subsequently changed. A subissue is whether those plaintiffs who were promised the policy would remain in force "forever” have actions for breach of contract. The second question is whether plaintiffs can maintain claims for unjust enrichment against defendant. We hold that the Court of Appeals improperly determined that plaintiffs could maintain actions against defendant for breach of contract and unjust enrichment. Therefore, we reverse the decision of the Court of Appeals. I. FACTS AND PROCEEDINGS In the instant case, approximately 180 plaintiffs are suing the Auto Club Insurance Association. Plaintiffs are current and past members of defendant’s insurance sales force. Upon commencing employment, all plaintiffs were informed that they would be paid under the "Accrued Commission Plan.” Under the commission plan, they would receive seven percent commissions on insurance policies sold and upon policy renewals. The commission amounts were tied to policy premiums. Also, for the first year of employment, new salespersons received a base salary to supplant renewal commissions which were unavailable during the first year. All sales employees were on the same compensation system with regard to the seven percent commissions. Early in 1977, defendant realized a substantial drop in its cash reserves and decided to address the problem. In the wake of analyses by defendant’s outside accounting firm, defendant concluded that the payment system for the commissioned sales force was a major contributor to its cash reserve problem. On December 2, 1977, defendant notified its sales force in writing of its intent to change the compensation plan. Instead of commissions based on a percentage of the premiums, salespersons would be paid a flat rate for each policy sold. Though the new plan was implemented by January 1, 1978, during the period from January to July, defendant adjusted compensation so that no employees would experience a reduction in income unless their volume of business fell. The new "unit commission plan” became fully effective July 1, 1978. On February 8, 1978, a union was certified to represent defendant’s sales force. The union filed a complaint with the National Labor Relations Board in May of 1978, alleging unfair labor practices by defendant in unilaterally changing the commission system and refusing to bargain with the union. In August, 1979, the board ruled in favor of defendant, finding that the plan was instituted before the union was certified. On May 26, 1983, plaintiffs filed a complaint in the Wayne Circuit Court, alleging breach of contract, violations of the Civil Rights Act, fraud and misrepresentation, unjust enrichment, and promissory estoppel. On January 10, 1984, pursuant to a motion for summary disposition filed by defendant in July of 1983, the circuit court dismissed claims based on new policies, or renewals based on those policies, purchased after the date of the change in payment plans. On January 18, 1984, plaintiffs filed a motion for rehearing which was denied on February 29, 1984. Subsequently, plaintiffs’ application for interlocutory appeal was denied by the Court of Appeals. On August 19, 1986, the trial court ruled on motions for partial summary disposition filed by defendant and plaintiffs respectively. For the purpose of clarity, the court divided plaintiffs into three groups: Group a consisted ,of 139 plaintiffs who were informed of the. seven percent commission system upon being hired. This group was not promised that the payment system would be in place for any particular duration. Group b consisted of twenty plaintiffs who were told by defendant prior to or at the time of hiring that the seven percent commission plan would last "forever.” Group c consisted of twenty plaintiffs. Group c began employment with the same understanding as Group a, but after they began work they were told by defendant that the seven percent plan would last "forever.” With regard to Group a, the court determined that no claim for breach of contract existed and granted summary disposition for defendant. The court reasoned that defendant did not foreclose its right to change its compensation plan. With regard to Group b, the trial court decided a factual issue existed regarding whether the word "forever” created an enforceable promise not to change the payment plan. However, the court dismissed the claims on the basis of the statute of frauds. With regard to Group c, the court granted summary disposition for defendant because the oral promise subsequent to hiring lacked consideration. The court also dismissed plaintiffs’ claims of fraud, misrepresentation, promissory estoppel, age discrimination, and unjust enrichment. On October 3, 1986, the trial court entered the final order regarding summary disposition. Plaintiffs appealed, and the Court of Appeals reversed the trial court’s grant of summary disposition regarding the breach of contract and unjust enrichment claims. Dumas v Auto Club Ins Ass’n, 168 Mich App 619; 425 NW2d 480 (1988). Defendant appealed, and this Court held Dumas in abeyance pending decisions in In re Certified Question, Bankey v Storer Broadcasting Co, 432 Mich 438; 443 NW2d 112 (1989), and Bullock v Automobile Club of Michigan, 432 Mich 472; 444 NW2d 114 (1989). On May 4, 1990, subsequent to the issuance of opinions in those cases, this Court granted leave to appeal. 434 Mich 911 (1990). ii The first question to be addressed is whether plaintiffs can maintain claims for breach of contract where defendant unilaterally altered the terms upon which plaintiffs were compensated. Plaintiffs do not challenge the new system with regard to new policies purchased after the date of the change. Plaintiffs only challenge the system as it applies to renewals of old policies purchased before the change in compensation plan. A. GROUP A Group a was informed of the seven percent commission at the time of hiring, but defendant made no explicit promises to plaintiffs regarding the duration of the policy. In framing the breach of contract action with regard to Group A, it is important to note that because no express promises of permanency were made to plaintiffs, any contractual rights to that effect had to spring from the "legitimate expectations” leg of Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980). Thus, the threshold inquiry for Group a should be whether to extend the "legitimate expectations” leg of Toussaint beyond wrongful discharge disputes to cover an employer’s compensation policy. We choose not to extend the "legitimate expectations” cause of action to this case. In Toussaint, this Court held that a company’s written policy statements providing for dismissal for just cause may create contractual obligations if the statements give rise in the employee to legitimate expectations of dismissal for just cause. In Toussaint, this Court found that the plaintiff’s wrongful discharge claim based on written policy statements and express oral statements could be submitted to a jury. While Toussaint created a "legitimate expectations” claim in the wrongful-discharge setting, earlier cases held that written policy statements could give rise to contractual obligations outside the discharge context. Although some of the cases dealt with compensation policies, those policies created contract rights with regard to deferred compensation. As Justice Ryan stated in his dissent in Toussaint, supra, p 648:_ In each of the cases cited, policy statements by the employer announced the existence of bonus, profit-sharing or pension benefits and the employer or the claimant-employee satisfied the burden of proof that work already performed was in consideration of the announced beneñt and that what was sought was merely deferred compensation. [Emphasis added.] In other words, a change in a compensation policy which affects vested rights already accrued may give rise to a cause of action in contract. In re Certiñed Question, supra, p 457, n 17. However, in the instant case, there were no representations made to plaintiffs with regard to deferred compensation. The right to renewal commissions depends on the contract between the agent and insurance company. Stevenson v Brotherhoods Mutual Benefit, 317 Mich 575, 580; 27 NW2d 104 (1947). Unless otherwise provided by contract, renewal commissions or future commissions do not rest upon the sale of the original policy. Renewal contracts are separate from the originals, in part requiring additional effort and consideration by salespersons in keeping policies alive. Id. at 581. In the instant case, plaintiffs do not contend that their contracts provided for the vesting of renewal commissions upon the sale of original policies. In fact, each of the cases cited in n 5 operate under traditional contract principles. For instance, in Cain v Allen Electric & Equipment Co, 346 Mich 568, 579-580; 78 NW2d 296 (1956), the Court stated: In short, the adoption of the described policies by the company constituted an offer of a contract. This offer . . . "the plaintiff accepted ... by continuing in its employment beyond the 5-year period specified in exhibit b . . . .” While the deferred compensation cases are subject to contract law, the "legitimate expectations” doctrine of Toussaint does not follow traditional contract analysis. Therefore, it does not logically follow that Toussaint should be extended to the area of compensation. Also, since employees’ accrued benefits are protected by the presence of traditional contract remedies, there is no need to extend the expectations rationale to compensation. In addition to the lack of precedent extending Toussaint to facts similar to those presented here, policy considerations weigh in favor of containing Toussaint to the wrongful-discharge scenario. Were we to extend the legitimate-expectations claim to every area governed by company policy, then each time a policy change took place contract rights would be called into question. The fear of courting litigation would result in a substantial impairment of a company’s operations and its ability to formulate policy. Justice Griffin’s majority opinion in In re Certified Question, supra, p 456, discussed the nature of a business policy: In other words, a "policy” is commonly understood to be a flexible framework for operational guidance, not a perpetually binding contractual obligation. In the modern economic climate, the operating policies of a business enterprise must be adaptable and responsive to change. Our opinion in In re Certified Question was in furtherance of this Court’s traditional reluctance to limit or second guess the decision-making ability of business management. As stated in In re Butterfield Estate, 418 Mich 241, 255; 341 NW2d 453 (1983), "[a] court should be most reluctant to interfere with the business judgment and discretion of directors in the conduct of corporate affairs.” Much the same conclusion was reached by Justice Griffin in Bullock v Automobile Club of Michigan, supra, pp 521-522: Even if it can be said that policy considerations were sufficient to justify the Toussaint intervention to protect job security, it is difficult to imagine the scope of difficulties and mischief that would be encountered if Toussaint were to be extended beyond wrongful discharge into every facet of the employment relationship. Particularly

ROWE v MONTGOMERY WARD & CO, INCORPORATED Docket No. 84848. Argued October 2, 1990 (Calendar No. 3). Decided July 31, 1991. Dissenting opinion by Levin, J., filed August 2, 1991. Mary Rowe brought an action in the Kent Circuit Court against Montgomery Ward & Co., Incorporated, alleging wrongful discharge and breach of a contract not to terminate her employment except for cause. The court, Roman J. Snow, J., entered judgment on a jury verdict for the plaintiff. Thereafter, the defendant’s motions for judgment notwithstanding the verdict, a new trial, or remittitur were denied. The Court of Appeals, Maher, P.J., and L. F. Simmons, J. (Gribbs, J., dissenting), reversed in an unpublished opinion per curiam, finding that the plaintiff was an employee at will (Docket No. 93817). The plaintiff appeals. In an opinion by Justice Riley, joined by Justices Brickley and Griffin, and an opinion by Justice Boyle, the Supreme Court held: The plaintiff may not maintain an action for breach of contract as a result of her dismissal. Her proofs are insufficient to support her claim of a promise by the defendant, implied in fact, not to terminate her employment except for just cause. 1. Contracts for permanent employment are for indefinite periods of time and are presumed to provide employment at will unless accompanied by distinguishing features or provisions or additional consideration supporting a term of permanent employment. Termination for just cause may be provided in a contract of employment for indefinite duration by express agreement or may arise as a result of an employee’s legitimate expectations grounded in an employer’s policy statements. Contractual implications arising from oral statements are determined on the basis of the meaning reasonable persons might attach to the language, given the circumstances presented. Any _contractual obligation for permanent employment arising from oral representations must be based on more than an expression of an optimistic hope of a long relationship, and the statements clearly must permit a construction which supports the asserted meaning. In this case, objective evidence was lacking to permit a reasonable juror to find implied in fact a promise of termination only for just cause. The employer expressed a policy in general terms with regard to termination, clearly not intending to form a contract for permanent employment. There was no evidence from which reasonable minds could deduce mutual agreement of employment terminable only for cause. References Am Jur 2d, Master and Servant §§ 32, 45. Comment Note — Validity and duration of contract purporting to be for permanent employment. 60 ALR3d 226. 2. The defendant clearly and unambiguously gave the plaintiff reasonable notice of its policy of termination at will in its handbook, distributed in 1983, which modified any prior expectations of termination only for cause and precluded any legitimate expectation by the plaintiff of discharge only for cause. The fact that the plaintiff failed to sign employment-at-will disclaimers was not determinative. Justice Boyle, concurring, stated that where the parties have not supplied a term of duration, employment at will is inferred, but may be overcome by establishing that a contrary inference is more likely. Enforceable obligations arise from explicit promises, from promises implied in fact, or obligations implied in law. Where the communication between the parties has more than one possible meaning, a court will employ its own criteria for interpretation; where the contract fails to provide for a contingency, courts may fill the gaps to avoid failure for indefiniteness. "As long as” may be interpreted either in a temporal or a qualitative sense. It may be read literally, as an obligation to provide lifetime employment, or as an offer of steady employment. Because it is susceptible of either meaning, it cannot be said that the "plain meaning” of the phrase addresses when or how termination will occur or binds the employer for any particular length of time. Where the parties have failed to set forth a material term, the court must interpret language and conduct to determine the parties’ intent. In the employment context, "as long as,” like "lifetime” and "permanent,” are construed as offers of steady employment. In the context of employment arrangements, a promissory theory of liability is analyzed in the light of the presumption of employment at will. Where it is asserted that the proofs are insufficient to create an issue of fact, a claim of a promise implied in fact requires the court to focus on the words or actions of the defendant to determine whether there is sufficient evidence that a reasonable promisee could believe manifested an intention to make a commitment of job security. Because the defendant’s commitment-making actions do not predominate, the decision of the Court of Appeals should be affirmed. Affirmed. Justice Levin, dissenting, stated that the plaintiff’s claim for wrongful. discharge based on an express contract does not depend on Montgomery Ward’s written policy statements or on terms left to inference, but rather on Montgomery Ward’s offer, subject to the Rules of Personal Conduct that enumerated grounds for discharge, to employ her to sell appliances at a stated compensation for as long as she was able to do the work. Because the promise by the employer stated a term of duration and required no performance by the plaintiff ether than that she sell, she could be discharged only for a failure to sell, or for a cause stated in the Rules of Personal Conduct, or for a cause the employer might seek to establish by implication. Contracts with "as long as” durational terms are express contracts. By its terms such a promise is not for permanent or lifetime employment, but rather for employment for a term coextensive with the time that the employee is able to do the work. An offer by an employer to employ a person for stated compensation as long as the person is able to do the work defines clearly, specifically, and unambiguously the work to be done, the compensation to be paid, and the term of the contract, so that the trier of fact may find, upon acceptance, an express contract of employment was formed for as long as the employee is able to do the work. Because the contract provides a method for determining the length of the engagement, the duration of the contract is determinable. The duration is sufficiently definite, even though it is uncertain how long the employee will be able to do the work. The promise to provide the employee with work at a stated compensation for as long as the employee is able to do the work is express, not implied, overcoming a presumption of employment at will. The correct focus is not on what the promisor actually intended, but on what a reasonable promisee would conclude the offer meant. The question whether the words used by the parties are sufficient to support a finding of a contract of employment does not depend on whether the words are in writing or are expressed orally. There is no rule of law requiring objective support in the form of a manual or other writing, or other corroborative evidence for an oral term of a contract of employment. A term of duration of an employment contract is not negated, as a matter of law, by evidence that the employee when hired did not inquire about or negotiate for job security, or by evidence that the employee was seeking a sales position rather than a singular, executive job position. Chief Justice Cavanagh, dissenting, stated that the relevant issue regarding the terms of the plaintiff’s oral employment contract, including the durational or job security term, is what terms in fact were agreed to, not how or whether they were negotiated. To the extent that objective support for the express oral contract is relevant, such factors support the plaintiff. The majority’s newly invented requirement of objective support for an express oral employment contract from policy manuals or statements alters and misapplies the holding and reasoning in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980), and its companion case, Ebling. While it is true that Toussaint was given a manual specifically providing termination only for just cause, it was not relied on to support the existence of the oral contract providing termination only for just cause, but was relevant only to his separate claim that his dismissal without cause was barred by the legitimate expectations created by the manual. Whether two parties, by express oral statements, have entered into a contract providing termination only for just cause is a question of fact for the jury. That determination should not be disturbed unless, considering the record in the light most favorable to the verdict, there is neither competent nor sufficient evidence from which reasonable minds could reach the jury’s conclusion. In this case, the oral contract enjoys sufficient factual support to justify the jury’s verdict. For all relevant and dispositive purposes, this case is legally and factually indistinguishable from Toussaint. Justice Mallett took no part in the decision of this case. Master and Servant — Employment at Will — Termination for Cause — Implied Contracts. Termination for just cause may be provided in a contract of employment for indefinite duration by express agreement or may arise as a result of an employee’s legitimate expectations grounded in an employer’s policy statements; contractual implications arising from oral statements are to be determined on the basis of the meaning reasonable persons might attach to the language, given the circumstances presented; any contractual obligation for permanent employment arising from oral representations must be based on more than an expression of an optimistic hope of a long relationship and the statements clearly must permit a construction which supports the asserted meaning. Meana, Spruit & Bedevia, P.C. (by Richard M. Spruit), for the plaintiff. Dykema, Gossett (by Charles C. DeWitt, Jr.) for the defendant. Amici Curiae: Mark Granzotto, Monica Farris Linkner, and Charles P. Burbach for the Michigan Trial Lawyers Association. Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, and Rachelle G. Silberberg) for Michigan Manufacturers Association. Miller, Canñeld, Paddock & Stone (by Diane M. Soubly) for American Society of Employers, Motor Vehicle Manufacturers Association of the United States, Inc., Greater Detroit Chamber of Commerce, and Michigan State Chamber of Commerce. Riley, J. In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), this Court joined the forefront of a nationwide experiment in which, under varying theories, courts extended job security to nonunionized employees. In the vast outpouring of ensuing cases, there are indeed situations in which employers have in reality agreed to limit managerial discretion. However, the theory remains troubling because of those instances in which application of contract law is a transparent invitation to the factfinder to decide not what the "contract” was, but what "fairness” requires. That courts have not been successful in unraveling the logic of the theory to produce principles that distinguish the first category of cases from the second, is not necessarily a reason to abandon the experiment. As Justice Griffin put it in In re Certified Question, Bankey v Storer Broadcasting Co, 432 Mich 438, 457; 443 NW2d 112 (1989), "[fjairness suggests that a discharge-for-cause policy announced with flourishes and fanfare at noonday should not- be revoked by a pennywhistle trill at midnight.” But unless the theory has some relation to the reality, calling something a contract that is in no sense a contract cannot advance respect for the law. Thus, we seek a resolution which is consistent with contract law relative to the employment setting while minimizing the possibility of abuse by either party to the employment relationship. It is in this context that we address the question presented in this appeal: whether an employer’s oral statements and written policy statements created an employment contract terminable only for cause. FACTS AND PROCEEDINGS In August of 1976, plaintiff applied for a sales position at defendant’s North Kent Mall store in Grand Rapids. Plaintiff was interviewed by Mr. Vern Harryman who, according to plaintiff, told her that she would have a job at Montgomery Ward & Co., Incorporated, as long as she achieved her sales quota. With regard to his meeting with plaintiff, Mr. Harryman testified: When we hired commission salespeople, that’s sort of a different type of employee than a time-card person. Their main objective, the number one thing was that they must attain their draw of a hundred and twenty-six dollars a week, and generally, as long as they generated sales and were honest, why, they had a job at Wards, and that’s the way we used to hire our people. At the time of her hiring, plaintiff signed a sheet entitled "Rules of Personal Conduct.” The sheet stated that adherence to company policies would help an employee to achieve "growth, profit, security, [and a] successful career.” The rules further provided that anyone involved in the following activities would be immediately dismissed. Several years later, in January of 1982, defendant issued to all employees a handbook entitled "Welcome to Wards.” The handbook contained disciplinary guidelines which classified infractions according to severity, and allowed four types of discipline for transgression: "1) Written Warning(s); 2) Suspension without Pay; 3) Probation . . . ; and 4) Separation.” In the back of the handbook was a form designated the "New Employee Sign-Off Sheet.” The sheet provided in part: I have read and fully understand the rules governing my employment with Montgomery Ward. I agree to employment with Montgomery Ward under the conditions explained. I understand these conditions can be changed by the Company, without notice, at any time. I also understand and agree that my employment is for no definite period and may, regardless of the time and manner of payment of my wages and salary, be terminated at any time, with or without cause, and without any previous notice. Although a personnel employee informed plaintiff that the sheet was. applicable to her, plaintiff refused to sign the form. Plaintiff claimed that it applied only to new employees, and she did not "feel it’s right that you can fire somebody for no reason, at all.” Plaintiff noted on the back of the sign-off sheet, "Read and do not wish to sign. 5-20-82. [s] Mary Rowe.” Defendant issued another employee handbook to its work force in August of 1982. The August, 1982 handbook also contained an "Employee Sign-off Sheet” providing for termination with or without cause. Plaintiff received but did not sign this sheet. All Montgomery Ward employees, including plaintiff, received another handbook in May of 1983. In the 1983 handbook, there was further language providing for employment at will. Virtually the same disciplinary guidelines were included in all the handbooks. The Court of Appeals opinion aptly describes the facts surrounding plaintiff’s termination. On March 8, 1984, plaintiff was scheduled to work from 1 p.m. to 9 p.m. At 2 p.m., she was observed leaving the store from an unauthorized exit by security personnel. She returned approximately four hours later. Plaintiff did not receive permission to leave the store from her supervisor, although she claimed that she attempted to contact him several times since the previous day but was unable. She did tell her co-workers that she had to leave on an emergency but did not say where she was going or how long she would be gone. Further, even though the salaries of commissioned salespersons are not do. indent upon the hours worked, plaintiff failed t_. punch out when she left or punch in when she returned, as required by company policy. Neither did she make note of her four-hour absence on the time card which she turned in at the end of the work week. Two days later, plaintiff was called into the office of the store manager to answer for the unauthorized absence. She allegedly gave no explanation for leaving the store and refused to provide a written statement on the matter. She said only that she could not remember where she was for those four hours. As a result of this incident, plaintiff was terminated from defendant’s employ. On May 14, 1984, plaintiff filed a complaint against defendant in the Kent Circuit Court asserting claims for wrongful discharge, breach of contract, and several other causes of action which are not relevant for purposes of this appeal. A jury trial on the matter was held on February 18 and 19, 1986. At the conclusion of plaintiff’s proofs, defendant moved for a directed verdict on the ground that she was an at-will employee who was subject to dismissal at any time without cause. The court denied that motion, reasoning that an issue of fact existed for the jury to determine whether there was a just-cause employment contract or whether plaintiff’s employ was terminable at the will of defendant. The trial then continued and eventually concluded in a jury verdict of $86,500 plus interest in favor of plaintiff. A judgment to that effect was thereafter entered by the court. On May 1, 1986, defendant filed motions for judgment notwithstanding the verdict (JNOV), a new trial, or remittitur. By court order dated June 19, 1986, each of those motions was denied.[] Defendant appealed the decision, and the Court of Appeals reversed, finding that plaintiff was an employee at will. Plaintiff appealed in this Court, and we ordered Rowe held in abeyance pending resolution of In re Certified Question, supra, and Bullock v Automobile Club of Michigan, 432 Mich 472; 444 NW2d 114 (1989). On May 2, 1990, this Court granted leave to appeal. 434 Mich 910 (1990). i The issue posed by this case is whether defendant employer’s oral statements and written policy statements directed at plaintiff may be interpreted to permit a promise implied in fact not to terminate except for cause. We find that plaintiff’s allegations are insufficient to support her contention of a promise implied in fact limiting the defendant’s right to terminate her employment. Thus, plaintiff cannot maintain an action for breach of contract as a result of her dismissal. This Court has held that contracts for permanent employment are for an indefinite period of time and are presumptively construed to provide employment at will. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). When contract claims rest on proofs of oral representations, the presumption provides assurance that oral contracts for an indefinite term, which fall outside the statute of frauds, will be recognized only where circumstances suggest both parties intended to be bound. The presumption may be overcome by proof of an express contract for a definite term or a provision forbidding discharge in the absence of just cause, or it may be overcome by proofs which permit a promise implied in fact of employment security, i.e., for a particular period of time or to terminate only for just cause. In Lynas, the Court declined to imply a durational term where the plaintiff accepted an offer of a "permanent lifetime position with the defendant.” The Court observed, however, that the presumption of employment at will can be overcome if a contract is accompanied by "distinguishing features or provisions,” or additional consideration supporting a term of permanent employment. Again, in Toussaint v Blue Cross & Blue Shield of Michigan, supra, p 600, the Court stated that "[b]ecause the parties began with complete freer dom, the court will presume that they intended to obligate themselves to a relationship at will.” In general, parties to an employment contract "remain free to provide, or not to prov

MURPHY v SEARS, ROEBUCK & COMPANY Docket No. 125129. Submitted March 12, 1991, at Grand Rapids. Decided July 22, 1991, at 9:45 a.m. Thomas G. Murphy brought an action in the Muskegon Circuit Court against Sears, Roebuck & Company, alleging breach of employment contract when Sears failed to grant a promised wage increase in conjunction with a completed job transfer. The court, James M. Graves, Jr., J., granted summary disposition for Sears, ruling that it lacked subject-matter jurisdiction because the plaintiff had failed to exhaust administrative remedies in the Department of Labor as required by the wages and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. The plaintiff appealed. The Court of Appeals held: The wages and fringe benefits act provides a cumulative, rather than an exclusive, remedy for an employee who, like the plaintiff, exercises the common-law right to seek enforcement of a contract in a trial court. The trial court in this case erred in ruling that it lacked jurisdiction. Reversed. Labor Relations — Wages and Fringe Benefits Act — Remedies. The wages and fringe benefits act provides a remedy that is cumulative to, rather than exclusive of, an employee’s common-law right to seek enforcement of the wage provisions of a contract of employment in an action in a trial court; such an employee need not first file a complaint under the act with the Department of Labor before filing an action for enforcement of the contract (MCL 408.471 et seq.; MSA 17.277[1] et seq.). References Am Jur 2d, Administrative Law §§778, 784; Master and Servant §7. See the Index to Annotations under Administrative Law; Compensation; Labor and Employment. Randall D. Fielstra, for the plaintiff. Dykema Gossett (by Charles C. DeWitt, Jr.), for the defendant. Before: Shepherd, P.J., and Sawyer and Reilly, JJ. Shepherd, P.J. Plaintiff appeals as of right the trial court’s January 2, 1990, order granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(4) and (8). We reverse. Plaintiff commenced this action in July 1989, alleging that defendant, his employer, breached its agreement to pay him a particular hourly wage upon his transfer to Central Services. Plaintiff, who was employed as a service technician at $8 an hour, claims that he was notified in writing that effective October 28, 1984, he would be transferred and his wage would be increased to $12.94 an hour. Plaintiff did not receive this increase, but received instead only an increase of 75 cents an hour on the anniversary date of his hire and modest increases thereafter. It appears that plaintiff is still in defendant’s employ. Defendant later moved for summary disposition pursuant to MCR 2.116(C)(4) and (8), alleging that the trial court lacked jurisdiction because plaintiff had failed to exhaust his administrative remedies as provided in the wages and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. Plaintiff then filed an affidavit in which he stated that in May 1989 he contacted the wage and hour division of the Department of Labor to initiate a complaint against defendant but was informed that the department would not process the complaint because the twelve-month limitation period had expired. Plaintiff then contacted an attorney and instituted the present action. The trial court granted defendant’s motion after finding that it lacked jurisdiction because plaintiff "failed to exhaust his administrative remedies in the Michigan Department of Labor.” We find, however, that plaintiff was not required to proceed under the wages and fringe benefits act before instituting this action. Plaintiff contends on appeal, as he did below, that the language of MCL 408.481(1); MSA 17.277(H)(1), governing pursuit of a claim against one’s employer for violation of the act, is permissive and does not require that a complaint be filed with the Department of Labor before proceeding with a lawsuit. That section states in pertinent part: An employee who believes that his or her employer has violated this act may file a written complaint with the department within 12 months after the alleged violation. The act further provides the procedure by which such a complaint is to be processed, the means by which the matter is to be resolved and, if necessary, ultimately appealed. Judicial construction or interpretation of a statute is precluded where the statute is clear and unambiguous. Land v George Schmidt Co, 122 Mich App 167, 170; 333 NW2d 30 (1982). However, if construction is warranted, this Court must determine and give effect to the intention of the Legislature and assign words their ordinary, normally accepted meaning. Joy Management Co v Detroit, 176 Mich App 722, 730; 440 NW2d 654 (1989) . When determining legislative intent, statutory language should be given a reasonable construction considering its purpose and the object sought to be accomplished. Wills v Iron Co Bd of Canvassers, 183 Mich App 797, 801; 455 NW2d 405 (1990). Consistent with these rules, courts give the ordinary and accepted meaning to the word "shall,” which designates a mandatory provision, and the permissive word "may,” unless to do so would clearly frustrate legislative intent as evidenced by other statutory language or by reading the statute as a whole. Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668 (1982). While some federal courts have interpreted the act’s preamble as evincing legislative intent that the word "may” as used in MCL 408.481(1); MSA 17.277(11)(1) should be construed as mandatory, see e.g., Duncan v Rolm Mil-Spec Computers, 917 F2d 261 (CA 6, 1990), we find no language indicating such an intent, at least where, as here, the employee’s grievance is premised on a common-law action for breach of contract. Language in the preamble that the act was intended to, among other things, "provide for the settlement of disputes regarding wages and fringe benefits” indicates nothing more than a desire to facilitate expeditious and less costly dispute resolution. Cockels v Int’l Business Expositions, Inc, 159 Mich App 30; 406 NW2d 465 (1987), relied upon by defendant, and such cases as Duncan, supra, requires no different result. In Cockels, the plaintiff had demanded payment of earned commissions and then sought redress for a discharge that she alleged was in retaliation for her filing of a complaint under the act. The act made it unlawful to discharge an employee because the employee filed a complaint or exercised a right under the act. In finding that the wages and fringe benefits act provided the plaintiff’s exclusive remedy, the Cockels Court merely reaffirmed the general rule in Michigan that where a new right is created or a new duty imposed by statute, as was the case in Cockels, the remedy provided for enforcement of that right by the statute for its violation or nonperformance is exclusive. See Pompey v General Motors Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). Correlatively, a statutory remedy for enforcement of a common-law right is deemed only cumulative. Id., pp 552-553. MCL 408.481(1); MSA 17.277(11)(1) was such a remedy for the instant plaintiff. Seeking, as he did, enforcement of a contract, a common-law right, the remedy afforded to plaintiff by the statute was cumulative, not exclusive. While we do find that once an employee chooses to pursue the administrative remedy, that remedy must be utilized exclusively, including an appeal to the circuit court, we do not find that the instant plaintiff was required to file a complaint with the Department of Labor before commencing the present action. Therefore, the trial court was not without jurisdiction over this matter, and erred in granting defendant’s motion. Reversed.

HALE v COMERICA BANK-DETROIT Docket No. 115403. Submitted January 18, 1991, at Detroit. Decided May 20, 1991, at 9:35 a.m. Leave to appeal sought. Patricia Hale brought a wrongful discharge action in the 36th District Court against Comerica Bank-Detroit after her employment as a loan officer was terminated following her acceptance of $100 from a person who had obtained a loan through her from the bank. The court, Theresa Doss, J., entered a judgment in favor of the plaintiff following a bench trial, determining that while the plaintiff may have violated the defendant’s code of ethics by accepting the gratuity, the defendant nevertheless breached the contract of employment by failing to follow the four-step procedure for termination outlined in its employee manual. The Wayne Circuit Court, Louis F. Simmons, J., affirmed. The defendant appealed by leave granted. The Court of Appeals held: The district court erred in concluding that the defendant had to follow the four-step procedure before terminating the plaintiff’s employment. The defendant properly adhered to the procedures for an immediate release from employment. The defendant’s code of ethics provided that under no circumstances was an employee to accept cash from an existing or prospective bank customer and that, in the event of serious misconduct, a manager was to promptly contact a personnel representative because the offending employee could be immediately released from employment. The requirements for immediate release were met in this case because the plaintiff’s acceptance of cash was serious misconduct and a personnel representative was immediately contacted. Reversed and remanded for entry of a judgment in favor of the defendant. Hatchett, DeWalt & Hatchett (by Ronald Mc-Duffie), for the plaintiif. John Cerretani, for the defendant. Before: Marilyn Kelly, P.J., and Holbrook, Jr., and Michael J. Kelly, JJ. Marilyn Kelly, P.J. This is a wrongful discharge action. Defendant appeals by leave granted from the circuit court’s affirmance of the district court’s judgment for plaintiff. We reverse and grant summary disposition to defendant. Plaintiff was a loan officer at defendant’s bank. As part of her job, she processed several loan applications for Clarence Miller. Eventually Miller received approval for a $2,000 loan. When he picked up the check, plaintiff suggested he pay her $100 in exchange for approving the loan. Miller agreed to return with the money the next day. Miller alerted Comerica’s management. The following day, Brenda Coleman, a Comerica employee, witnessed the payment of $100 by Miller to plaintiff. She confronted plaintiff and drove her to bank headquarters. There, plaintiff was fired on the grounds that her conduct was an abuse of her position and a violation of the bank’s Code of Ethical Conduct. Plaintiff claimed she suggested the $100 payment as an alternative to Miller’s offer to buy her lunch. In her suit for wrongful discharge, she alleged that her termination was a breach of her employment contract. The district court judge found that plaintiff had violated the Code of Ethical Conduct. However he also found that when terminating plaintiff’s employment, the bank had failed to follow the procedural steps for corrective action set forth in the employee manual. The circuit court affirmed the lower court. On appeal, defendant contends the court erred in concluding that it violated the corrective action policy. It argues that the policy does not apply in this type of situation. Generally, this Court will not disturb a judgment, unless there has been an error which produces a result inconsistent with substantial justice. MCR 2.613(A). An employer’s statements of policy, such as those present in manuals, may give rise to enforceable contractual rights. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 614-615; 292 NW2d 880 (1980). The defendant’s ethical code provided in part: Employees . . . are not permitted to accept or solicit gifts, fees, entertainment, vacations, special discounts, loans or other similar gratuities from existing or prospective customers and suppliers, or competitors. These practices are highly improper and, in some instances, unlawful. However, entertainment or gifts extended in accordance with normal business practice may be accepted as long as such gifts are made in good business taste and are of moderate and reasonable value, so that no possible inference can be drawn that such gifts could influence the recipient in the performance of Bank duties. Under no circumstances may an employee accept cash or cash equivalents. [Emphasis added.] The policy manual contained a set of procedural steps for corrective action. However, it also included the following provision: In the event of serious misconduct such as theft, embezzlement, fraud, falsifying bank records, unreported absence, fighting on the job, drinking on the job, arbitrarily not performing one’s job function, sabotage or refusal to follow directions from supervisors, the manager must contact the Personnel Representative promptly, as immediate release may result. (Please note that this above list is illustrative of the type of behavior that will not be permitted and is not intended to be all inclusive.) In this case, plaintiff admitted accepting the cash. Her actions constituted serious misconduct warranting immediate release. Not only did she violate the bank’s Ethical Code, but she may have also violated state and federal law. See 18 USC 215; MCL 750.125; MSA 28.320. The trial court erred in concluding that the bank had to follow the four-step procedure before terminating plaintiff. The record reveals that defendant contacted a personnel representative before discharging plaintiff. The defendant complied with the applicable contract provisions and is entitled to judgment. MCR 7.216(A)(7). Reversed and remanded for entry of judgment in favor of defendant. We do not retain jurisdiction.

KOSTELLO v ROCKWELL INTERNATIONAL CORPORATION Docket No. 123566. Submitted February 6, 1991, at Lansing. Decided May 7, 1991, at 10:00 a.m. Edward M. Kostello brought an action in the Oakland Circuit Court against Rockwell International Corporation, and others, alleging breach of an employment contract, wrongful discharge, and negligent evaluation. The court, Hilda R. Gage, J., granted summary disposition for the defendants, finding that there was no breach of contract because the plaintiff was an at will employee, and that the alleged breach of contract did not give rise to an action sounding in negligence because the claimed breach of duty to exercise reasonable care in evaluating an employee was indistinguishable from the asserted breach of contract. The plaintiff appealed. The Court of Appeals held: 1. The trial court correctly found that the plaintiff was an employee at will, who had neither an express agreement nor a legitimate objective expectation that he would be terminated for just cause only. The mere existence of a probationary period for newly hired employees did not give rise to a legitimate objective expectation of discharge for just cause only. 2. A breach of an employment contract does not give rise to a claim in tort in a case like the present one where the breach of duty is indistinguishable from the breach of contract. Affirmed. 1. Master and Servant — Employment at Will — Probationary Terms. Employment for an indefinite term generally is presumed to be terminable at the will of either party; a contractual commitment to terminate for just cause only may arise from an oral or written express agreement or as a result of the legitimate expectation of an employee grounded in the employer’s policy statements; the mere existence of a probationary period for newly hired employees does not give rise to a legitimate objective expectation of discharge for just cause only. References Am Jur 2d, Master and Servant §§ 27, 32. Right to discharge allegedly "at-will” employee as affected by employer’s promulgation of employment policies as to discharge 33 ALR4th 120 Modem status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 2. Master and Servant — Breach of Employment Contracts — Torts. A breach of an employment contract does not give rise to a claim in tort where the alleged breach of duty is indistinguishable from the breach of contract. William J. Berardo, for the plaintiff. Plunkett & Cooney, P.C. (by Ernest R. Bazzana, James R. Kohl, and Michael G. Costello), for the defendants. Before: Danhof, C.J., and Holbrook, Jr., and Sullivan, JJ. Per Curiam. Plaintiff appeals as of right an order of the Oakland Circuit Court granting defendants summary disposition of his wrongful discharge, negligent evaluation, and breach of contract claims. We affirm. Plaintiff was hired by defendant Rockwell International Corporation as a chemist in their Automotive Operations Engineering Division in April 1972. In May 1982, he was evaluated by his supervisors as unsatisfactory and placed on probation. On September 22, 1982, plaintiff received a status report which also rated him as unsatisfactory. By October 7, 1982, plaintiff had failed to show any improvement and was terminated by Rockwell. Some six years later, plaintiff instituted the action before us. Of the original six counts, the parties agreed to the dismissal of four, and the remaining two, breach of contract and tortious wrongful discharge, were the subject of defendants’ motion for summary disposition. In granting summary disposition of the breach of contract claim, the trial court found "no express or implied promise to change the status of the plaintiff from at will employee to a discharge for just cause” employee and that "[h]e had no reason to give that expectation or come to that expectation or conclusion. I don’t see any objective evidence or promise to discharge only for just cause . . . . ” Regarding the tortious wrongful discharge claim, the trial court determined that the asserted breach of contract did not give rise to an action sounding in negligence because the claimed breach of duty was indistinguishable from the asserted breach of contract. Plaintiff’s first argument focuses on whether the trial court erred in finding no genuine issue of fact and granting defendants summary disposition on the breach of contract claim. Defendants brought their motion for summary disposition pursuant to MCR 2.116(C)(8), (10). For purposes of the breach of contract claim, in light of the parties’ reliance on matters outside of the pleadings in arguing the motion, the trial court viewed the motion as one brought pursuant to MCR 2.116(0(10). The party opposing a motion brought under MCR 2.116(0(10) has the burden of showing that a genuine issue of disputed fact exists, Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988), lv gtd 434 Mich 911 (1990), and the disputed factual issue must be material to a dispositive legal claim, Belmont v Forest Hills Public Schools, 114 Mich App 692, 696; 319 NW2d 386 (1982). Giving the benefit of reasonable doubt to the nonmovant, the court must determine whether a record might be developed which would leave open an issue upon which reasonable minds could differ. Dumas, supra. All inferences are to be drawn in favor of the nonmovant. Dagen v Hastings Mutual Ins Co, 166 Mich App 225, 229; 420 NW2d 111 (1987). As a general rule, employment for an indefinite term is presumed to be terminable at the will of either party. Bullock v Automobile Club of Michigan, 432 Mich 472, 511; 444 NW2d 114 (1989); Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 600; 292 NW2d 880 (1980), the Supreme Court stated that the underlying rationale for this rule was that "[b]e-cause the parties began with complete freedom, the court will presume that they intended to obligate themselves to a relationship at will.” Toussaint, therefore, neither abrogated the employment-at-will presumption nor did it create new or special rights. Rather, it held that the right that arose out of a promise not to terminate except for cause was completely enforceable. Valentine v General American Credit, Inc, 420 Mich 256, 258; 362 NW2d 628 (1984). Such a contractual commitment arises from an oral or written express agreement or as a result of the legitimate expectation of an employee grounded in the employer’s policy statements. Toussaint, supra, p 598. We conclude that in the case at bar, plaintiff had neither an express agreement nor a legitimate objective expectation that he would be terminated for just cause only. Plaintiffs assertion that the invention assignment agreement which he signed converted his employment from being terminable at will to being terminable for just cause only is not persuasive. Only through the most tortured construction could the agreement in question be read as providing for just-cause termination only. We find no error in the trial court’s conclusion in this regard. Plaintiff also maintains that a legitimate objective expectation arose from his successful completion of a probationary period when first hired. We disagree. In Toussaint, the Supreme Court held that statements set forth in the employer’s manual, applicable to all employees who successfully completed the probationary period, and not the mere fact a probationary period existed, is what gives rise to a contractual right to be terminated for just cause only. Toussaint, supra, p 614. Thus we conclude that the mere existence of a probationary period does not give rise to a legitimate objective expectation of discharge for just cause only. Plaintiffs second claim is that the trial court erred in granting defendants’ motion for summary disposition of his negligent evaluation claim. Plaintiff alleges that by evaluating him in a subjective and unfair manner, defendants breached their duty to exercise reasonable care in evaluating an employee. The only Michigan court to recognize a negligent evaluation claim in the context of an employment contract was the panel in Schipani v Ford Motor Co, 102 Mich App 606, 623-624; 302 NW2d 307 (1981). Since its release, Schipani has been routinely rejected by other panels of this Court. See Dahlman v Oakland University, 172 Mich App 502, 506-507; 432 NW2d 304 (1988); Sankar v Detroit Bd of Ed, 160 Mich App 470; 409 NW2d 213 (1987); Struble v Lacks Industries, Inc, 157 Mich App 169, 176; 403 NW2d 71 (1986); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 667-668; 378 NW2d 558 (1985). Instead, these panels have adhered to the rule that a breach of an employment contract does not give rise to a tort claim where the breach of duty is indistinguishable from the breach of contract. See also Grant v Michigan Osteopathic Medical Cen ter, Inc, 172 Mich App 536; 432 NW2d 313 (1988); Lopus v L&L Shop-Rite, Inc, 171 Mich App 486; 430 NW2d 757 (1988); Loftis v G T Products, Inc, 167 Mich App 787; 423 NW2d 358 (1988). We believe this to be the correct statement of Michigan law and, in so holding, pointedly reject the holdings in Schipani. In the case at bar, it is quite obvious that absent an employment contract, defendants would not have evaluated plaintiff. Thus, there could be no breach of duty to evaluate plaintiff distinct from the breach of contract and, the Schipani rule having been rejected, plaintiff cannot maintain an independent tort action for negligent evaluation. We affirm the trial court’s grant of summary disposition of plaintiffs negligent evaluation claim. Affirmed.

ZENIUK v RKA, INC Docket No. 119801. Submitted November 8, 1990, at Detroit. Decided May 6, 1991, at 10:05 a.m. Cris ton Zeniuk brought an action in the Oakland Circuit Court against R.K.A., Inc., alleging wrongful discharge. The plaintiff alleged that he was entitled to be dismissed only for just cause on the basis of the termination policy in the company’s employee handbook. The defendant moved for summary disposition on the ground that the plaintiff failed to file a timely demand for arbitration under the mandatory discharge arbitration procedure set forth in the employee handbook. The plaintiff argued that he never received an employee handbook and was unaware that his sole remedy was arbitration. The defendant responded that the plaintiff’s explicit and sworn factual Statements in his complaint regarding the handbook demonstrated that he had knowledge of and familiarity with the provisions of the handbook. The court, David F. Breck, J., denied the motion on the ground that there were questions of material fact about whether the plaintiff had received the handbook. The defendant was granted leave to appeal. The Court of Appeals held: The defendant’s motion should have been granted because there is no issue of material fact and the defendant is entitled to judgment as a matter of law. 1. If the plaintiff is entitled to rely on the handbook to support his claim that he may be terminated Only for just cause, then he is also bound by the other terms relative to the policy in the handbook which provide that any claim of termination without just cause must be made by filing a grievance and a request for arbitration. Plaintiff did not file a grievance or make a request for arbitration. Having failed to pursue his remedy as provided by the company policy, the plaintiff may not pursue in circuit court a wrongful discharge claim based on that policy. 2 The plaintiff was required to show that the just-cause policy was communicated to him in order to take advantage of the policy. Because he did not claim that the policy was communicated to him other than through the handbook, he is bound by the obligations as well as the benefits of the policy as expressed in the handbook. References Am Jur 2d, Labor and Labor Relations § 9. See the Index to Annotations under Labor and Employment. Reversed and remanded for entry of an order granting the defendant’s motion for summary disposition. Wahls, J., dissenting, stated that the plaintiff’s claim is not defeated solely because he had general knowledge of the defendant’s just-cause termination policy. The plaintiff is not required to know the specific terms of the just-cause termination clause in the handbook in order to show that he had a legitimate expectation that it would be applied to him; rather, all that is required is that he had general knowledge of the policy and its applicability to him. A question of material fact existed regarding whether the plaintiff received the employee handbook and therefore was aware of and subject to the arbitration policy. Master and Servant — Termination for Cause — Employee Handbooks. An employee who claims entitlement to dismissal only for just cause on the basis of the termination policy in a company handbook is also bound by other terms in the handbook relative to the making of claims under the policy. Poplar & Kalis, P.C. (by Michael L. Kalis), for the plaintiff. Keywell & Rosenfeld (by Gary W. Klotz and Kari J. Sperstad-McElyea), for the defendant. Before: Reilly, P.J., and Wahls and Doctorqff, JJ. Reilly, P.J. Defendant appeals by leave granted from an order of the Oakland Circuit Court denying its motion for summary disposition, MCR 2.116(0(10), of plaintiffs complaint, which alleged wrongful discharge. We reverse. Plaintiff was hired by defendant in October 1987 as a part-time general contract laborer. In July 1988, plaintiff became a full-time employee, and in October 1988, plaintiff was promoted to the position of evening supervisor. On December 23, 1988, plaintiff and his immediate supervisor were suspended without pay for allegedly misappropriating company funds. However, on January 15, 1989, plaintiff’s immediate supervisor confessed that she, acting alone, misappropriated the funds in question. Despite plaintiff’s exoneration, he was fired on February 16, 1989, on the ground that he allegedly falsified company records. Plaintiff filed his complaint alleging wrongful discharge on April 11, 1989. Plaintiff claimed he was entitled to be dismissed only for just cause because defendant promulgated a just-cause termination policy in the company handbook. Defendant moved to dismiss the complaint, arguing, inter alia, that plaintiff was an employee with seniority status. Defendant’s employee handbook contained a "discharge arbitration procedure” which stated that "discharge arbitration” was the sole remedy available to employees with seniority status. The arbitration procedure required a discharged regular employee with seniority status to file a grievance with defendant within thirty days after the discharge and a written request for arbitration within thirty days after defendant’s response to the employee’s grievance. Plaintiff did not file a grievance or a written request for arbitration. Thus, defendant argued, it was entitled to summary disposition dismissing plaintiff’s breach of employment contract claims on the ground that plaintiff failed to file a timely demand for arbitration under the mandatory "discharge arbitration” procedure set forth in the employee handbook. In response to defendant’s motion for summary disposition, plaintiff argued that he never received an employee handbook and was unaware that his sole remedy- was arbitration. Defendant responded that plaintiff made explicit and sworn factual statements in his complaint regarding the employee handbook which demonstrated that plaintiff had knowledge of and familiarity with the provisions of the handbook. The trial court denied defendant’s motion for summary disposition with respect to the breach of employment contract claims in counts i, ii, and m of plaintiffs complaint on the ground that "there are questions of material fact about whether or not plaintiff received the employee handbook.” Defendant appeals from that portion of the trial court’s decision. A motion for summary disposition premised on MCR 2.116(0(10) tests the factual support for a claim. In ruling on the motion, the trial court must consider the pleadings, affidavits, depositions, and other documentary evidence submitted by the parties. Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988). Giving the benefit of any reasonable doubt to the nonmoving party, the test is whether the kind of record which might be developed will leave open an issue upon which reasonable minds might differ. Id. This Court is liberal in finding a genuine issue of material fact. St Paul Fire & Marine Ins Co v Quintana, 165 Mich App 719, 722; 419 NW2d 60 (1988). Nonetheless, where the opposing party fails to come forward with evidence, beyond the allegations or denials in the pleadings, to establish the existence of a material factual dispute, the motion is properly granted. Morganroth v Whitall, 161 Mich App 785, 788; 411 NW2d 859 (1987); MCR 2.116(G)(4). Defendant’s motion for summary disposition under MCR 2.116(0(10) should have been granted because there is no issue of material fact and defendant is entitled to judgment as a matter of law. Plaintiff claims that he was entitled to be dismissed only for just cause because the employer promulgated a just-cause termination policy in the company handbook. Plaintiff was either an employee who could be terminated for just cause only or he was an at-will employee. If the plaintiff is entitled to rely on the handbook to support his claim that he is a just-cause employee rather than an at-will employee, then he must also be bound by the other terms of the just-cause policy in the handbook, i.e., that any claim of termination without just cause must be made by filing a grievance and a request for arbitration. Plaintiff may not claim only the benefits of a stated policy while rejecting the concomitant obligation to file a grievance and request arbitration in order to enforce those benefits. Plaintiff further argues that he is entitled to the benefits of the company policy as expressed in the handbook, even though he did not receive a copy of the handbook. If plaintiff did not receive a copy of the handbook, and didn’t know its contents, how can he claim he is a just-cause employee? Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), requires a communication of the policy, not just a subjective expectation. Plaintiff does not claim that the company’s just-cause policy was communicated to him other than through the handbook. He has not offered any basis, other than the handbook, for his claim that he is a just-cause employee. Either he is a just-cause employee because the company communicated that policy to him or he is simply an at-will employee with no remedy for his termination. If he is a just-cause employee, he is bound by the obligations as well as the benefits of that policy. The parties agree plaintiff filed neither a grievance nor a request for arbitration. Having failed to pursue his remedy as provided by the company policy, plaintiff cannot now pursue in circuit court a wrongful discharge claim based on that policy. Reversed and remanded for entry of an order granting defendant’s motion for summary disposition under MCR 2.116(0(10). Doctoroff, J., concurred. Wahls, J. (dissenting). In this case, I am of the opinion that the question whether plaintiff received the employee handbook and was thus aware of and subject to defendant’s arbitration policy presented a question of material fact for the fact-finder’s determination. Therefore, I respectfully dissent. In addition to his response to defendant’s motion for summary disposition, plaintiff presented his own sworn affidavit in which he argued that he never received an employee handbook and was unaware that his sole remedy, following discharge, was arbitration. In response, defendant argued that plaintiff’s sworn factual statements, in his complaint, established plaintiff’s knowledge of and familiarity with the employee handbook. However, in rebuttal, plaintiff argued that while he was told about the general terms of employment in the employee handbook, i.e., that defendant would terminate plaintiff only upon just cause, through other employees, plaintiff never received or viewed the actual handbook. Further, plaintiff argued that his reference to an "employee guide” (not an "employee handbook”) in the complaint was not so clear, intelligent, and unequivocal as to constitute knowledge of the employee handbook in its entirety. Notably, plaintiff’s complaint does not cite or reference any specific sections or paragraphs of defendant’s employee handbook. A motion for summary disposition on the ground that there is no general issue of material fact tests the factual support for a claim. Leitch v Switchenko, 169 Mich App 761, 765; 426 NW2d 804 (1988). Before granting a motion for summary disposition made pursuant to MCR 2.116(0(10), the court must consider the affidavits and the pleadings as well as all other evidence, and be satisfied that it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Schippers v SPX Corp, 186 Mich App 595, 596; 465 NW2d 34 (1990). Courts are liberal in finding that a genuine issue exists, giving all benefits of doubt and resolving all reasonable inferences in favor of the nonmoving party. Slaughter v Smith, 167 Mich App 400, 403; 421 NW2d 702 (1988). MCR 2.116(G)(4) provides that "an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial.” Thus, unlike the plaintiff in Morganroth v Whitall, 161 Mich App 785; 411 NW2d 859 (1987), who failed to file any response to the defendant’s summary disposition motion and did not come forward with evidence to support a finding that a genuine issue of material fact existed, in this case the plaintiff’s claim could not be defeated on the ground that he based his opposition to defendant’s summary disposition motion on the mere allegations and denials in his pleadings. The majority argues that if the plaintiff is entitled to rely on the handbook in support of his claim that he is a just-cause employee, then he is also bound by the other terms of the just-cause policy in the handbook, namely, that he is subject to the terms of the arbitration policy stated therein. I disagree. A provision in an employment contract which provides that an employee shall not be discharged except for cause is legally enforceable whether the provision is an express agreement, oral or written, or is the result of an employee’s legitimate expectations grounded in an employer’s policy statements. These legitimate expectations may be grounded in an employer’s written policy statements as set forth in a manual of personnel policies. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598-599; 292 NW2d 880 (1980); Renny v Port Huron Hosp, 427 Mich 415, 428; 398 NW2d 327 (1986). While an employer need not establish personnel policies or practices, where an employer chooses to establish such policies and practices and makes them known to its employees, the employment relationship is presumably enhanced. The employer secures an orderly, cooperative and loyal work force, and the employee the peace of mind associated with job security and the conviction that he will be treated fairly. No preemployment negotiations need take place and the parties’ minds need not meet on the subject; nor does it matter that the employee knows nothing of the particulars of the employer’s policies and practices or that the employer may change them unilaterally. It is enough that the employer chooses, presumably in its own interest, to create an environment in which the employee believes that, whatever the personnel policies and practices, they are established and official at any given time, purport to be fair, and are applied consistently and uniformly to each employee. [Toussaint, supra, p 613. Emphasis added.] A plaintiff is not required to know the specific terms of a just-cause termination clause in an employee handbook; only knowledge of the employer’s policy and its applicability to the plaintiff is required. See Rasch v East Jordan, 141 Mich App 336, 345; 367 NW2d 856 (1985). Therefore, in this case, plaintiffs claim is not defeated solely bécause he had general knowledge of defendant’s just-cause termination policy. While Michigan’s public policy favors arbitration in the resolution of disputes, it is well settled that arbitration is a matter of contract. Grand Rapids v Fraternal Order of Police, 415 Mich 628, 634-635; 330 NW2d 52 (1982). An arbitration agreement is a contract, requiring the mutual assent of the parties, by which all the parties agree to forego their rights to proceed with a court action and, instead, to submit their disputes to a panel of arbiters. Horn v Cooke, 118 Mich App 740, 744; 325 NW2d 558 (1982), Arbitration is a matter of contract, and a party cannot be required to submit to arbitration an issue which he has not agreed to submit. John Wiley & Sons, Inc v Livingston, 376 US 543, 546-547; 84 S Ct 909; 11 L Ed 2d 898 (1964); United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 582; 80 S Ct 1347; 4 L Ed 2d 1409 (1960); Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95, 98; 323 NW2d 1 (1982); Kaleva-Norman-Dickson School Dist No 6 v Kaleva-Norman-Dickson School Teachers' Ass’n, 393 Mich 583, 587; 227 NW2d 500 (1975); Omega Construction Co, Inc v Altman, 147 Mich App 649, 655; 382 NW2d 839 (1985). Grosse Pointe Farms Police Officers Ass’n v MERC, 53 Mich App 173, 176-177; 218 NW2d 801 (1974). Except where a compulsory arbitration is provided by statute, the first step toward the settlement of a difference by arbitration is the entry by the parties into a valid agreement to arbitrate. An agreement to arbitrate is a contract, the relation of the parties is contractual, and the rights and liabilities of the parties are controlled by the law of contracts. [Id., p 177 (quoting 5 Am Jur 2d, Arbitration & Award, § 11, p 527).] Thus, the threshold inquiry in determining whether a matter is subject to arbitration is whether an arbitration agreement exists. Roberts v McNamara-Warren Community Hosp, 138 Mich App 691, 694; 360 NW2d 279 (1984). The burden is on the defendant to show that plaintiff knowingly, intelligently, and voluntarily waived his right to court access. Id.; Moore v Fragatos, 116 Mich App 179, 186; 321 NW2d 781 (1982). In this case, plaintiff claimed in his supporting affidavit that he did not receive an employee handbook, and did not have knowledge of the arbitration agreement contained therein. Whether plaintiff is subject to the arbitration agreement is a question of material fact in this case. Where the truth of a material factual assertion of a movant’s affidavit depends on the affiant’s credibility, there inheres a genuine issue to be decided at trial by the trier of fact and a motion for summary disposition cannot be granted. Brown v Pointer, 390 Mich 346, 354; 212 NW2d 201 (1973). Close factual questions are the stuff of which trials are made and are not properly subject to disposition on motions for summary disposition. Lewis v Metropolitan Life Ins Co, 397 Mich 481, 484; 245 NW2d 9 (1976). In sum, giving the benefit of every reasonable doubt to the plaintiff and resolving all reasonable inferences in plaintiff’s favor, I am not satisfied that it would be impossible for plaintiff to support his claim at trial. Summary disposition is never proper when an issue of material fact is present, and it is an overuse of appellate authority to make what amounts to findings of fact on appeal. See Pine Ridge Coal Co v Cronin, 41 Mich App 255, 258; 199 NW2d 876 (1972); Kratochvil v Grayling, 367 Mich 682, 687; 117 NW2d 164 (1962); Warren Tool Co v Stephenson, 11 Mich App 274, 303; 161 NW2d 133 (1968).

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

McCART v J WALTER THOMPSON USA, INC Docket No. 87309. Argued October 2, 1990 (Calendar No. 4). Decided April 5, 1991. Separate opinion by Levin, J., filed April 8, 1991. Dennis McCart brought a wrongful discharge action in the Wayne Circuit Court against J. Walter Thompson U.S.A., Inc., alleging breach of an oral contract of permanent employment terminable for just cause. The court, Robert J. Colombo, Jr., granted summary disposition for the defendant, finding that the plaintiff failed to provide any evidentiary support for the claim that he was laid off for punitive and not economic reasons. The Court of Appeals, Hood, P.J., and Beasley and Shepherd, JJ., reversed in an opinion per curiam, finding that a factual issue existed regarding the reasons for termination (Docket No. 109434). The defendant appeals. In an opinion by Chief Justice Cavanagh, joined by Justices Brickley, Boyle, Riley, and Griffin, the Supreme Court held: The plaintiff failed to show the existence of a genuine issue of fact material to his wrongful discharge claim. He presented no evidence in response to the defendant’s motion for summary disposition to demonstrate that he was not discharged for bona fide economic reasons. MCR 2.116(G)(4) requires that a party opposing a motion for summary disposition must introduce additional evidence beyond its pleadings and briefs to show that there is a genuine issue of material fact. The plaintiff completely failed to carry his burden. Bona fide economic reasons for discharge constitute just cause for termination of employment. In this case, the situation, as presented by the defendant’s proofs, amounts to no more than termination resulting from an economically motivated work-force reduction. Reversed; summary disposition reinstated. Justice Levin, writing separately, stated that there was a genuine issue of material fact whether the plaintiff’s termination was a result of a reduction of work force or was punitive, in violation of his contract of employment. While the plaintiff did not dispute the defendant’s proofs that adverse business conditions existed, he did raise a genuine issue of fact regarding whether the elimination of his position truly was based on those conditions, and there was evidence to demonstrate that he was not discharged for bona fide economic reasons. In addition, the credibility of the defendant’s president clearly was in issue. Justice Mallett took no part in the decision of this case. 181 Mich App 611; 450 NW2d 10 (1989) reversed. Eric J. McCann, P.C., for the plaintiff. Hodman, Longley & Dahling (by James J. Walsh and David P. Larsen); (Richard Pollet, of counsel), for the defendant. Amici Curiae: Miller, Canñeld, Paddock & Stone (by Diane M. Soubly and John H. Willems) for American Society of Employers, Motor Vehicle Manufacturers Association of the United States, Inc., Greater Detroit Chamber of Commerce, and Michigan State Chamber of Commerce. Conboy, Fell, Stack, Lieder & Hanson (by Lloyd C. Fell) for General Motors Corporation. Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, Rachelle G. Silberberg, and Jennifer S. Buckley) for Michigan Manufacturers Association. Mark Granzotto, Monica Farris Linkner, and Charles P. Burbach for Michigan Trial Lawyers Association. Cavanagh, C.J. Defendant J. Walter Thompson U.S.A., Inc., appeals from the Court of Appeals decision reversing the trial court’s grant of defendant’s motion for summary disposition under MCR 2.116(0(10). 181 Mich App 611; 450 NW2d 10 (1989). This Court granted defendant’s application for leave to appeal, limited to the following questions: "(1) whether there was a genuine issue of fact as to whether plaintiff’s employment was terminated for economic reasons only, and (2) assuming there was a genuine issue of fact regarding the reason(s) for the plaintiff’s discharge, was that factual issue material.” 434 Mich 911 (1990). We find that plaintiff failed to show the existence of a genuine issue of fact material to his wrongful discharge claim. Plaintiff conceded that defendant was discharging employees because of economic hardship, and presented no evidence, in response to defendant’s summary disposition motion and supporting evidence, sufficient to raise a jury question whether defendant discharged him for bona fide economic reasons. Accordingly, we reverse. I. PACTS Plaintiff was senior vice-president for defendant at the time of his termination in November 1986. He had been with defendant continuously since 1976, working the last eight years on an advertising account with Burger King Corporation. At the time of his termination, plaintiff was account director for Burger King field marketing, with an annual salary of $111,140 as of 1985. Although he resided and worked out of defendant’s offices in Michigan, he was part of defendant’s New York office. Defendant informed plaintiff that his position was being eliminated as part of a work-force reduction. Plaintiff was notified of his termination by his immediate supervisor, Robert Norsworthy. A few days later, plaintiff received a letter signed by defendant’s corporate officer, Stephen Bowen, informing plaintiff that his employment would be discontinued. Plaintiff filed a complaint against defendant in April 1987, alleging: (1) plaintiff had an oral contract for employment that could only be terminated for just cause, (2) plaintiff was fired without cause, and (3) plaintiff’s discharge was in breach of his contract with defendant. Defendant’s answer included the affirmative defense that plaintiff had been terminated as a part of its work-force reduction. After discovery, defendant filed a motion for summary disposition, alleging pursuant to MCR 2.116(0(10) that no genuine issue of material fact existed regarding whether plaintiff’s employment was terminated as part of a work-force reduction. In support of the motion, defendant offered the deposition testimony of plaintiff and Bowen, and documentary evidence relating to plaintiff’s employment history and a Burger King restaurant franchisee application. Bowen’s testimony cited economic factors affecting the company, efforts to reduce the work force in unprofitable areas, and the nonessential nature of plaintiff’s position. For purposes of its motion only, defendant conceded that plaintiff had an oral contract of permanent employment terminable only for good cause. Additionally, defendant allowed that plaintiff’s performance was not at issue. Defendant contended nonetheless that it was entitled to judgment because plaintiff’s position was eliminated for economic reasons as part of the work-force reduction, and, therefore, his termination was for nonactionable just cause as a matter of law. In opposition to defendant’s motion, plaintiff contended that (1) plaintiff’s termination had "nothing to do with the reduction in work-force,” but was actually a punitive discharge by Bowen, (2) plaintiff had a lifetime good-cause employment contract, (3) Norsworthy would testify "in support of Plaintiff’s case, and will verify the facts contained herein,” (4) defendant attempted to disguise the true nature of plaintiff’s discharge by doing it in the course of a work layoff, (5) plaintiff was offered a bonus and raise shortly before his termination, indicating his value to the company and, in a typical work-force reduction, a highly paid and valued employee would not be let go, and (6) "numerous factual disputes” existed such as the terms of the contract, the reason for discharge, and the method utilized by defendant to accomplish the discharge. Plaintiff conceded, however, that defendant was, at the time, reducing its work force for economic reasons. The trial court granted defendant’s motion for summary disposition. Citing MCR 2.116(G)(4), which requires that the adverse party on a motion for summary disposition must introduce additional evidence beyond its pleadings and briefs to show there is a genuine issue of material fact, the court held: "Plaintiff has failed to provide any evidentiary support for his claim that he was laid off for punitive reasons and not economic reasons.” The Court of Appeals reversed, reasoning that although "there is nothing in the record to indicate that plaintiff’s position was terminated for reasons other than economic motivation,” 181 Mich App 616, the evidence did not show that plaintiff was hired only for the one position he had held, and that plaintiff had cited certain incidents which allegedly contributed to Bowen’s dislike of him. The Court held that "the employer must establish economic motivation to terminate the particular employee, as opposed to the employee’s position, where the employee has a just cause contract and the employer has reasonable alternative options for the employee within the organization.” Id. at 617-618. The Court concluded that "[b]ecause we are unable to say that it will be impossible for plaintiff to factually support his position at trial, we hold that the grant of summary disposition was inappropriate.” Id. at 618. II. ANALYSIS Plaintiff argues that this Court’s decision in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), governs this dispute. In Toussaint, this Court held that an employee may have an enforceable right not to be terminated except for just cause, grounded in either an express oral or written contract or in legitimate expectations arising from an employer’s policy statements. See id. at 598-599. We conclude, however, as the Court of Appeals has held, that bona fide economic reasons for discharge constitute "just cause” under Toussaint. See Friske v Jasinski Builders, Inc, 156 Mich App 468, 472; 402 NW2d 42 (1986); Bhogaonker v Metropolitan Hosp, 164 Mich App 563, 565-566; 417 NW2d 501 (1987). In the instant case, while plaintiff alleges that Bowen disliked him, he has failed to raise any genuine issue of fact regarding the validity of defendant’s proofs that adverse business conditions existed and that the elimination of plaintiff’s position was necessitated by those conditions. Indeed, plaintiff conceded that defendant was instituting layoffs for economic reasons at the time. The objective circumstances, as presented by defendant’s proofs, indicate no more than a termination resulting from an economically motivated workforce reduction. "When properly challenged, plaintiff must establish that he has a case on the law and that there are some evidentiary proofs to support his allegations as to any material fact.” Durant v Stahlin, 375 Mich 628, 638; 135 NW2d 392 (1965). Under MCR 2.116(G)(4), a party opposing a motion for summary disposition is required to respond with affidavits or other evidentiary materials to show the existence of a factual dispute, rather than relying on the allegations or denials in the pleadings. In this case, plaintiff did not specify any facts in opposition to defendant’s motion in any "Affidavits, depositions, admissions, or other documentary evidence,” MCR 2.116(G)(3), instead simply stating in his responsive pleading that he would produce at trial evidence that defendant’s economic necessity rationale was a pretext. This case thus stands in marked contrast to the recent Court of Appeals decision in Ewers v Stroh Brewery Co, 178 Mich App 371; 443 NW2d 504 (1989), where "plaintiff relied on deposition and documentary evidence which he argued indicated that defendant was experiencing substantial economic growth and operating at a substantial profit before and after his discharge.” Id. at 375. Because plaintiff failed to carry his burden under MCR 2.116(G)(4), we need not address the issue discussed by the Court of Appeals regarding whether the defendant must demonstrate economic reasons not only for the elimination of a just-cause employee’s position, but for the termination of the employee as an individual as well. See 181 Mich App 617-618. In the absence of any sufficient response from plaintiff, defendant’s proofs in this case were adequate to support summary disposition on the ground that plaintiff’s termination was for bona fide economic reasons. The following opinion was filed with the Clerk of the Supreme Court on April 8, 1991, after the release of the opinion of the Court on April 5,1991 — Reporter. III. conclusion For the reasons stated, we reverse the judgment of the Court of Appeals and reinstate the trial court’s grant of summary disposition for defendant. Brickley, Boyle, Riley, and Griffin, JJ., concurred with Cavanagh, C.J. Levin, J. Dennis McCart was a senior vice president of J. Walter Thompson U.S.A., Inc., an advertising agency. McCart commenced this action against J. Walter Thompson after he was discharged from his employment in November, 1986. McCart claimed that J. Walter Thompson had agreed that he could not be discharged except for good cause, and that his employment was terminated without good cause. J. Walter Thompson moved for summary disposition on the ground that there was no genuine issue as to any material fact. For purposes of the motion, J. Walter Thompson did not dispute McCart’s contention that he had an "oral contract for permanent employment that could be terminated only for good cause.” J. Walter Thompson asserted that it was entitled to a judgment of dismissal because "it is not disputed” that McCart’s employment was terminated when his position was eliminated "as part of a reduction in force.” i J. Walter Thompson’s assertion that there is no genuine issue whether McCart’s employment was terminated when his position was eliminated as part of a reduction in force is, in a sense, undisputed. The timing of the termination of his employment did, indeed, coincide with a reduction in the work force and the discharge of a number of other employees. McCart did, however, dispute whether the reason for his discharge was a reduction in work force. McCart asserted, in an answer to J. Walter ■Thompson’s motion, that the termination of his employment "had nothing to do with the reduction in work force, but was a punitive discharge by Defendant’s President, Steve Bowen, in violation of Plaintiff’s contract of employment.” McCart asserted that J. Walter Thompson had "attempted to disguise Plaintiff’s discharge by doing it in the course of a work reduction layoff, but such attempt was a ruse.” McCart added that he would "produce[] the testimony of his former boss, Robert Norsworthy, who will testify in support of Plaintiff’s case, and will verify the facts contained herein.” ii The majority faults McCart because he did not file an affidavit or other evidentiary materials, but "simply statfed] in his responsive pleading that he would produce at trial evidence that defendant’s economic necessity rationale was a pretext,” and concludes that McCart "failed to carry his burden” under the court rule. Motions for summary disposition asserting that there is no genuine issue as to any material fact are, indeed, generally supported and opposed with affidavits. The court rule does not, however, require that the motion be supported or opposed in all events by affidavit. The court rule states, rather, that the showing required by an opposing party cannot be made by "resting] upon the mere allegations or denials of his or her pleading . . . .” (Emphasis added.) The showing must be made, instead, "by affidavits or as otherwise provided in this rule . . . ,” The rule provides that "affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose the grounds asserted in the motion.” hi J. Walter Thompson pleaded as an affirmative defense that McCart’s "employment was terminated as part of a contraction of defendant’s work force.” The standard jury instructions, applicable in a "wrongful discharge” case, provide that where the plaintiff has carried his burden of showing that the employment relationship could not be terminated except for good or just cause, "[t]he defendant [J. Walter Thompson] has the burden of proving that it had good or just cause to terminate the plaintiff’s employment.” The question then arises whether it is J. Walter Thompson’s burden to show that the asserted good or just cause — reduction in work force/economic necessity — was not, as McCart asserts, pretextual. In an employment discrimination case, the plaintiff has the burden of establishing discrimination, whether it be discrimination based on age, religion, race, or sex. When the plaintiff proffers prima facie evidence of discrimination, the employer must then offer a reason for its action or nonaction negating age, religious, racial, or sexual discrimination. The plaintiff-employee may assert that the reason is pretextual, but nevertheless continues to have the ultimate burden of showing and persuading the trier of fact that there was discrimination. J. Walter Thompson, which has the ultimate burden of proving its reduction in work force/ economic necessity affirmative defense, may, as an aspect of that burden, similarly have the burden of proving that the reason for discharging McCart was its stated reason, economic necessity, and not personal animus. The burden on a party, such as McCart, opposing a motion for summary disposition, is to show that there is a genuine issue as to an essential element of the opposing party’s case. If the bona fides of the asserted good cause — the absence of pretext — is an essential element of J. Walter Thompson’s case, and J. Walter Thompson has the burden of proving that essential element, it is entitled to summary disposition only if it, not McCart, establishes that there is no genuine issue whether McCart was discharged because of economic necessity or personal animus. The parties have neither briefed nor argued the question whether the ultimate burden of proof and persuasion on the issue of good cause remains with the defendant in a "wrongful discharge” case where the defendant asserts as an affirmative defense good or just cause on the basis of reduction in force/economic necessity and the plaintiff contends that this is pretextual. IV Summary disposition is not appropriate when the moving party’s factual assertions depend on the credibility of a witness. The United States Supreme Court has said, in this context, that an affiant who, like Bowen, was an officer of the moving party was "clearly an interested witness” requiring " 'the credibility of his testimony to be submitted to the jury as a question of fact.’ ” Sartor v Arkansas Natural Gas Corp, 321 US 620, 624, 628; 64 S Ct 724; 88 L Ed 967 (1944). MCR 2.116(0(10), "no genuine issue as to any material fact,” is derived word for word from corresponding FR Civ P 56. The advisory committee on the federal rule stated: Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. J. Walter Thompson’s assertions that McCart was discharged as part of a work-force reduction, necessitated by the need to economize and reduce overhead, and was not prompted by personal animus, depends entirely on the credibility of Stephen Bowen’s testimony on deposition. McCart was not discharged in accordance with the terms of a facially neutral plan for determining who should be discharged. It appears that Bowen ordered that McCart be discharged, and then left it to Robert Norsworthy, McCart’s immediate superior, to determine how the rest of the work-force reduction would be achieved. Bowen’s assertions in his deposition that he directed that McCart be discharged only because of economic necessity, that he bore McCart no ill will, and that McCart was not discharged because of personal animus, constituted assertions regarding Bowen’s state of mind when he ordered McCart discharged. This Court has said that in such a case summary disposition may not be granted: The probative value of a witness’s testimony as to his own state of mind depends upon his credibility, a

SCHOLZ v MONTGOMERY WARD & CO, INCORPORATED Docket No. 80709. Argued October 2, 1990 (Calendar No. 1). Decided April 5, 1991. Jane Scholz brought an action in the Kent Circuit Court against Montgomery Ward & Co., Incorporated, alleging age and religious discrimination and breach of contract. The plaintiff claimed that oral assurances by the defendant at the time of hiring that she would not be required to work on Sundays modified her subsequent written acknowledgment by completing a sign-off sheet supplied by the employer that she was an employee at will. The court, George R. Cook, J., entered judgment on a jury verdict for the plaintiff. Following trial, the defendant’s motions for judgment notwithstanding the verdict or for a new trial were denied. The Court of Appeals, Burns, P.J., and Gribbs and R. I. Cooper, JJ., affirmed the rulings on the motions in an unpublished opinion per curiam, reasoning that Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980), does not permit an employer to unilaterally modify a contract, and concluding that because the question whether the defendant retained the right to unilaterally change the terms of the oral agreement with the plaintiff not to work on Sundays was one of fact, the jury reasonably could have concluded that the oral agreement remained in force (Docket No. 86118). The defendant appeals. In an opinion by Justice Riley, joined by Chief Justice Cavanagh and Justices Brickley, Boyle, and Griffin, the Supreme Court held: The signing by an employee of a disclaimer providing employment at will, unless subsequently modified, permits termination of the employee for any or no reason. 1. Employers may provide employment at will by way of express disclaimers in statements of employment policies. In this case, as a matter of law, the plaintiff’s employment relationship at the time of discharge was governed by the employer’s disclaimer. Thus she was an employee at will, and unable to maintain an action for wrongful discharge. 2. Failure to obtain an explanation of a contract is ordinary negligence, estopping avoidance of the contract on the ground of ignorance. In this case, the plaintiff assented to the terms of the employment agreement by signing the sign-off sheet and returning it to her employer. The disclaimer included in the sign-off sheet was unambiguous on the subject of discharge and comprehensive on the subject of termination. Regardless of whether an implied contract arose with respect to Sunday work, as a matter of law, it did not apply at the time of discharge because the express modified contract under the terms of the sign-off sheet was in effect at the time of her discharge. Affirmed in part, reversed in part, and remanded for entry of judgment notwithstanding the verdict. Justice Levin, writing separately, stated that modification of an employment contract, in general, is subject to the same rules of law applicable to the modification of other contracts. These rules seek to achieve a reasoned balance between competing values and policies and to protect and enforce the true agreement. There are no special rules of law designed to lighten the burden of an employer who seeks to modify an express oral agreement. Employers have full freedom of contract and managerial control; however, when they enter into an agreement with an employee, they give up something and generally obtain something worthwhile in return. The law recognizes the utility of and the employer’s need for standardized agreements. Where, however, as in this case, before an agreement is standardized, a separate agreement is entered into with a person with whom a standardized agreement is later signed, rules of law designed to protect the enforceability of the earlier agreement of the parties come into play, if it appears, on an examination of all the facts and circumstances, that it continues to represent the true agreement of the parties. These rules should not be brushed aside or ignored. Justice Mallett took no part in the decision of this case. Pinsky, Smith, Fayette & Hulswit (by H. Rhett Pinsky) for the plaintiff. Dykema, Gossett (by Charles C. DeWitt, Jr., and Bruce G. Davis) for the defendant. Amici Curiae: Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, and Rachelle G. Silberberg) for Michigan Manufacturers Association. Conboy, Fell, Stack, Lieder & Hanson (by Lloyd C. Fell) for General Motors Corporation. Miller, Canñeld, Paddock & Stone (by Diane M. Soubly) for American Society of Employers, Motor Vehicle Manufacturers Association of the United States, Inc., Greater Detroit Chamber of Commerce, and Michigan State Chamber of Commerce. Mark Granzotto, Monica Farris Linkner, and Charles P. Burbach for Michigan Trial Lawyers Association. Sommers, Schwartz, Silver & Schwartz, P.C. (by Lionel J. Postic), and Charles Gottlieb for Michigan Employment Lawyers Association. Riley, J. I. INTRODUCTION AND FACTS This case is a wrongful discharge/religious discrimination action brought against the defendant, Montgomery Ward & Co., Incorporated, by Jane Scholz, a- former employee of defendant at its North Kent Mall Store in Grand Rapids, Michigan. The Court held in abeyance defendant’s application for leave to appeal pending decisions in Bullock v Automobile Club of Michigan, 432 Mich 472; 444 NW2d 114 (1989), and In re Certified Question, Bankey v Storer Broadcasting Co, 432 Mich 438; 443 NW2d 112 (1989). On May 2, 1990, we granted leave to appeal. The sole issue to be decided in this appeal is whether plaintiff had a contract not to be terminated for refusing to work on Sundays on the basis of oral statements and circumstances surrounding her employment. We hold, as a matter of law, that at the time of her discharge plaintiff’s employment relationship was governed by the employer’s 1982 sign-off sheet, and that plaintiff was an employee at will. Thus, plaintiff cannot maintain an action for wrongful discharge. Accordingly, the decision of the Court of Appeals is reversed to the extent it found that plaintiff could bring an action for breach of contract, and the case is remanded to the trial court for entry of an order pursuant to this opinion. The facts of this case are set forth in the Court of Appeals decision, unpublished opinion per curiam of the Court of Appeals, decided January 27, 1987 (Docket No. 86118): Plaintiff was hired by defendant as a sales person on August 31, 1970, at defendant’s location at the North Kent Mall in northern Kent County. At the time of her hiring, she discussed Sunday working hours with the personnel director, Donald Hansen. At that time, the North Kent Mall store was not open for business on Sundays. Nevertheless, plaintiff indicated her desire not to work on Sundays. Hansen took the matter up with the store manager, Robert Bergman. Bergman indicated that, although he did not anticipate the store opening on Sundays, there would be no difficulty in honoring plaintiff’s request in the event the store opened on Sundays. Hansen relayed this decision to plaintiff, who accepted a position with defendant. Four or five months later, the store opened for Sunday trade. Two years after that, plaintiff was asked to work on Sundays. She refused, citing religious convictions. The matter was dropped. Sometime later, in 1977, plaintiff was formally notified by defendant that she would have to work on Sundays. Plaintiff’s pastor, Wesley A. Samuelson of Bethlehem Lutheran Church in Grand Rapids, sent a letter to defendant indicating that plaintiff’s religious convictions prevented her from working on Sundays. Although she was scheduled to work three Sundays in 1977, she refused. No action was taken by defendant. In 1982, defendant issued a policy manual. On the face of the manual, there was a sheet entitled "new employees sign-off sheet,” which plaintiff signed on May 10, 1982. That sheet contained, inter alia, the following paragraph: "I have read and fully understand the rules governing my employment with Montgomery Ward. I agree to employment with Montgomery Ward under the conditions explained. I understand these conditions can be changed by the Company, without notice, at any time. I also understand and agree that my employment is for no definite period and may, regardless of the time and manner of payment of my wages and salary, be terminated at any time, with or without cause, and without any previous notice.” In 1983, plaintiff was informed that if she refused to work on Sundays, she would be terminated. She responded by letter that it was her understanding at the time of hiring that she would not be required to work on Sundays. She was scheduled for work on Sundays, she refused to work on Sundays, and she was terminated. Defendant admits plaintiff had an excellent work record and that the sole reason for her discharge was her failure to report for Sunday work. [Slip op, pp 1-2.] Plaintiff brought suit in Kent Circuit Court on January 16, 1984, against Montgomery Ward, alleging age and religious discrimination and breach of contract. A jury awarded her $8,250 on the religious discrimination claim and $16,503 on the breach of contract claim, plus costs, interest, and attorney fees. Scholz, supra, slip op, p l. Following the trial, defendant moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied both motions. Defendant appealed, and the Court of Appeals affirmed the trial court’s ruling on the motions, reasoning that Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980), does not permit an employer to unilaterally modify a contract. Scholz, supra, slip op, p 4. The Court of Appeals concluded that since the question whether defendant retained the right to unilaterally change the terms of the oral employment contract with plaintiff was one of fact for the jury and not one of law for the trial court, the jury reasonably could have concluded that provisions of the 1970 oral contract remained in force. Therefore, the trial court properly denied the motion for judgment notwithstanding the verdict and similarly did not abuse its discretion in refusing to grant a new trial. Scholz, supra, slip op, pp 5-6. ii A In Toussaint, we recognized that employers may provide a contract of employment at will by way of express disclaimers in their employment policies. In Valentine v General American Credit, Inc, 420 Mich 256, 258-259; 362 NW2d 628 (1984), we reaffirmed: Employers and employees remain free to provide, or not to provide, for job security. Absent a contractual provision for job security, either the employer or the employee may ordinarily terminate an employment contract at any time for any, or no, reason. In the instant case, plaintiff relies on the prehiring statements made by Mr. Hansen, Montgomery Ward’s personnel director, to allege an express contract that she was not required to work Sundays. Plaintiff also relies on several instances during her employment where defendant acquiesced in her refusal to work Sundays. Even if we were to assume plaintiff had an express oral contract with Montgomery Ward that she did not have to work on Sundays, she reached a new understanding with Montgomery Ward governing the terms of her employment status once she signed the disclaimer providing employment at will in May of 1982. Montgomery Ward took action which we expressly approved of in Toussaint and entered into a contract with plaintiff making her employment terminable at will. On the basis of this agreement, Montgomery Ward properly terminated plaintiff’s employment. This case is analogous to Ledl v Quik-Pik Stores, 133 Mich App 583; 349 NW2d 529 (1984). In Ledl, the plaintiff was given assurances at the time she accepted employment that she would continue to be employed as long as her performance was satisfactory. Approximately seven and one-half years after being hired, she signed an employment agreement which provided that the defendant could terminate her employment with or without cause. The Court of Appeals concluded that the plaintiff failed to state a claim for breach of an employment contract because the language of the contract negated any prior oral agreements she may have had that were based on her employer’s assurances. In the instant case, on May 16, 1982, thirteen years after plaintiff was hired, she signed an employment agreement which provided that her employment was at will. A closely related sign-off sheet was involved in Dell v Montgomery Ward & Co, Inc, 811 F2d 970 (CA 6, 1987). In Dell, the plaintiff alleged a breach of contract claim under Toussaint against Montgomery Ward after being fired for deceptively covering up the wrongful conduct of one of his subordinates. The plaintiff executed the sign-off sheet, expressly acknowledging that his employment was at will and was terminable with or without just cause. The trial court granted the defendant’s motion for summary judgment. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the trial court’s ruling on the Toussaint issue. Writing for the court, Judge Ryan concluded: It is difficult to imagine what more the defendant might have done to make it crystal clear to Dell, and all Montgomery Ward employees, that, unless some other arrangement were made directly with the President and Chief Executive Officer or Executive Vice President of Human Resources, Montgomery Ward employees are employees "at will” who may be discharged with or without cause. [Id., p 974. See also Haas v Montgomery Ward & Co, Inc, 812 F2d 1015 (CA 6, 1987).] Plaintiff argues that although she read and understood the written employment-at-will agreement, she did not believe it applied to her Sunday work arrangement. Plaintiff contends that because mutual assent is lacking, the executed sign-off sheet defining her status as an employee at will did not alter the fact that she would not be terminated for refusing Sunday employment. It is well settled that the failure of a party to obtain an explanation of a contract is ordinary negligence. Accordingly, this estops the party from avoiding the contract on the ground that the party was ignorant of the contract provisions. As this Court has previously held: The stability of written instruments demands that a person who executes one shall know its contents or be chargeable with such knowledge. If he cannot read, he should have a reliable person read it to him. His failure to do so is negligence which estops him from voiding the instrument on the ground that he was ignorant of its contents, in the absence of circumstances fairly excusing his failure to inform himself. [Sponseller v Kimball, 246 Mich 255, 260; 224 NW 359 (1929).] If plaintiff did not understand the terms of the sign-off sheet, she had a duty to inquire about its contents. The record does not reflect any attempt by plaintiff to find out whether or not she was excused from Sunday employment under the terms of the disclaimer. In any case, we find the disclaimer unambiguous on the subject of discharge and comprehensive on the subject of termination. It does not suggest that she was immune from discharge for refusing Sunday work. In sum, Montgomery Ward took the action expressly approved in Toussaint and entered into a contract with plaintiff making her employment terminable at will. Plaintiff assented to the terms of the employment agreement by signing the sign-off sheet and returning it to Montgomery Ward. Upon the basis of this agreement, Montgomery Ward terminated plaintiff’s employment. Therefore, regardless of whether an express oral contract actually existed at the time of her hiring, as a matter of law, plaintiff and Montgomery Ward later reached a mutual understanding with regard to termination through the sign-off sheet. We find that plaintiff’s employment with Montgomery Ward was, as a matter of law, an employment-at-will relationship. Therefore, plaintiff cannot prevail in her breach of contract action. B Plaintiff also argues that defendant acquiesced in her refusal to work Sundays, thus creating a contract implied in fact that she not be terminated for such refusal. Regardless of whether an implied contract arose, as a matter of law, it did not apply to plaintiff at the time she was discharged because the express modified contract under the terms of the sign-off sheet was in effect at the time of her discharge. An implied contract cannot be enforced where the parties have made an express contract covering the same subject matter. In re De Haan Estate, 169 Mich 146; 134 NW 983 (1912); Steele v Cold Heading Co, 125 Mich App 199, 202-203; 336 NW2d 1 (1983); Hickman v General Motors Corp, 177 Mich App 246, 251; 441 NW2d 430 (1989). Under the rule set forth above, plaintiff cannot prevail on her claim for breach of contract. III. CONCLUSION Our decision recognizes that once a disclaimer providing employment at will is signed by an employee, excepting any subsequent modification, the employee may be terminated for any, or no, reason. Thus, in the present case, plaintiff cannot prevail on a claim for breach of contract. The decision of the trial court and Court of Appeals is reversed with regard to the breach of contract claim, and a judgment notwithstanding the verdict shall be entered. However, we affirm the trial court’s ruling on the religious discrimination issue because of defendant’s failure to object to the instructions given at trial. We do not retain jurisdiction. Cavanagh, C.J., and Brickley, Boyle, and Griffin, JJ., concurred with Riley, J._ Levin, J. The jury found that Montgomery Ward —agreed that Jane Scholz would not be required to work on Sunday, and —wrongfully discharged her when she refused to work on Sunday. The majority does not challenge the jury’s findings of fact. It states rather that "[e]ven if we were to assume plaintiff had an express oral contract with Montgomery Ward that she did not have to work on Sundays,” a contract Scholz claimed was entered into when she was hired, Scholz subsequently reached a "new understanding” with Montgomery Ward, in May, 1982, when she signed the sign-off sheet, "governing the terms of her employment status” and providing for employment at will. (Ante, pp 89-90.) The majority concludes that because Scholz was an employee at will she cannot maintain an action for wrongful discharge. It affirms the verdict for Scholz on the religious discrimination claim, and to that extent I concur. I The "new understanding” is embodied in the following paragraph of the "new employee sign-off sheet” that Scholz was asked to and did sign in May, 1982, although she was not a new employee: I have read and fully understand the rules governing my employment with Montgomery Ward. I agree to employment with Montgomery Ward under the conditions explained. I understand these conditions can be changed by the Company, without notice, at any time. I also understand and agree that my employment is for no definite period and may, regardless of the time and manner of payment of my wages and salary, be terminated at any time, with or without cause, and without any previous notice. Scholz testified that she did not understand that by signing the sign-off sheet she could be required to work on Sundays. Scholz argued that the rules and regulations in the Welcome to Montgomery Ward Handbook that accompanied the new employee sign-off sheet had nothing to do with Scholz’ "other agreement,” entered into when she was hired, whereby she had conditioned her employment on not working on Sundays, and to which Montgomery Ward had agreed. ii The facts are essentially undisputed. This is not a case where the testimony of the witnesses for the employer differed significantly from the testimony of the employee’s witnesses. Employer claims that juries are inclined to be sympathetic to employees, and, on that basis, in defiance of the evidence, resolve against employers

KAUFFMAN v THE CHICAGO CORPORATION Docket Nos. 117155, 125965. Submitted October 12, 1990, at Detroit. Decided February 4, 1991, at 9:00 a.m. Leave to appeal sought. Keith L. Kauffman, a registered stockbroker, brought an action in the Oakland Circuit Court against The Chicago Corporation, Paul Greening, and Michael Purcell, alleging breach of an employment contract, wrongful discharge, and defamation. The court, Fred M. Mester, J., found that the plaintiff, in registering with the New York Stock Exchange, had agreed to submit to arbitration any claims arising out of the termination of his employment. A final order compelling the arbitration of the breach of contract and wrongful discharge claims was entered, and the plaintiff appealed as of right from that order. The court also entered an order denying the defendants’ motion to compel the arbitration of the defamation claim. The defendants appealed by leave granted. The appeals were consolidated. The Court of Appeals held: 1. The federal arbitration act, 9 USC 1-15, governs actions in both the federal and state courts arising out of contracts involving interstate commerce, including disputes between a member of a national stock exchange and its employees if there is a binding arbitration agreement. The plaintiff signed an agreement to arbitrate any claim arising between plaintiff and his firm or customers, as required under the rules governing the New York Stock Exchange. The defendant corporation had the right to enforce the agreement and the trial court did not err in compelling arbitration as a matter of law. That order is affirmed. The trial court properly found that the plaintiff agreed to the arbitration of the claims arising out of the termination of his employment. However, the court erred in failing to order arbitration of the plaintiff’s defamation claim. 2. A posttermination defamation claim is arbitrable under _NYSE Rule 347 if it involves significant aspects of the employment relationship, i.e., those claims which depend upon an evaluation of a party’s performance either as a broker or as an employer of brokers during the time of the contractual relationship. The statements at issue relate to the plaintiff’s performance, his dealings with customers, and his skills as a manager. The statements therefore are related to the employment relationship and are arbitrable. References Am Jur 2d, Arbitration and Award §§ 6, 42. See the Index to Annotations under Arbitration and Award; Discharge from Employment or Office; Exchanges and Boards of Trade; Stockbrokers. 3. The defendants did not waive their right to arbitration as a result of their participation in the litigation in circuit court and have not acted inconsistently with their claim of the right to arbitration, requiring reversal of the order denying the defendants’ motion to compel arbitration of the defamation claim and remand for entry of an order compelling arbitration of the defamation claim. Affirmed in part, reversed in part, and remanded. 1. Arbitration — Federal Arbitration Act — National Stock Exchanges. The federal arbitration act governs actions in both federal and state courts between a member of a national stock exchange and its employees where there is a binding arbitration agreement; questions regarding the existence of a contract containing a binding arbitration agreement are governed by general contract principles found in state law (US Const, art VI, § 2, 9 USC 1-15). 2. Arbitration — National Stock Exchanges — Posttermination Defamation Claims. Under New York Stock Exchange Arbitration Rule 347 a claim by a stockbroker against a former employer for posttermination defamation is arbitrable where it involves significant aspects of the employee’s job performance and the communications at issue are the sort that an employer foreseeingly would make upon an employee’s termination. 3. Arbitration — Federal Policy — Waiver of Rights. Federal policy strongly favors enforcement of arbitration agreements; where waiver of a contractual right to arbitration is alleged, the party opposing arbitration must demonstrate knowledge of an existing right to compel arbitration, acts inconsistent with the right, and prejudice to the party opposing arbitration resulting from the inconsistent acts. Barlow & Lange, P.C. (by Thomas W. H. Barlow and Donna A. Lavoie), for the plaintiff. Marietta S. Robinson, and Arnstein & Lehr (by Michael R. Turoff and Hal R. Morris), for the defendants. Before: McDonald, P.J., and Hood and Reilly, JJ. McDonald, P.J. These consolidated appeals arise out of plaintiffs suit for breach of an employment contract, wrongful discharge, and defamation. In Case No. 117155 plaintiff appeals from a June 14, 1989, order making final a February 22, 1989, order compelling arbitration of plaintiff’s breach of employment contract and wrongful discharge claims. In Case No. 125965 defendants appeal from a January 17, 1990, order denying their motion to compel arbitration of plaintiff’s defamation claim. We affirm in part and reverse in part. Plaintiff claims the trial court erred in finding he agreed to arbitration of the claims arising out of the termination of his employment. We disagree. The federal arbitration act, 9 USC 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Southland Corp v Keating, 465 US 1; 104 S Ct 852; 79 L Ed 2d 1 (1984); Scanlon v P & J Enterprises, 182 Mich App 347; 451 NW2d 616 (1990). More specifically, disputes between a member of a national stock exchange and its employees are within the federal act if there is a binding arbitration agreement. Coenen v R W Pressprich & Co, Inc, 453 F2d 1209 (CA 2, 1972). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Scanlon, supra. The only question presented by plaintiff is whether he agreed to submit to arbitration all claims arising out of his employment and the termination of his employment. The question regarding the existence of a contract is governed by general contract principles found in state law. Plaintiff signed the Uniform Application for Securities Industry Registration form that included a provision indicating plaintiff’s agreement to arbitrate any dispute, claim, or controversy arising between plaintiff and his firm or customers, as required under the rules of any stock exchange. Additionally plaintiff concedes that he registered with the New York Stock Exchange. New York Stock Exchange Arbitration Rule 347 requires arbitration of disputes "arising out of the employment or termination of employment.” Because plaintiff admits that he was a broker registered with the New York Stock Exchange, his reliance on Brown v Merrill Lynch, Pierce, Fenner & Smith, Inc, 664 F Supp 969 (ED Pa, 1987), is misplaced. Additionally, plaintiff’s contention that his employment agreement with the defendant corporation superseded any agreement contained in the securities application must fail. The submission of the application was a pledge that plaintiff would abide by the constitutions, rules and bylaws of any exchange of which he became a member. Coenen, supra. Those constitutions, rules, and bylaws in turn constitute a contract by all members of the exchange with each other and with the exchange itself. Together, they evidence an enforceable agreement to arbitrate disputes defined by those rules. Coenen, supra. Thus, the defendant corporation, a member of the exchange, had the right to enforce the agreement. The only issues material to compelling arbitration were whether plaintiff signed the form containing the arbitration agreement and whether plaintiff registered with one of the exchanges. There being no dispute regarding either of these issues, the trial court did not err in compelling arbitration as a matter of law. MCR 3.602(B)(3). On appeal, defendants claim the trial court erred in failing to order that plaintiffs defamation claim must be arbitrated. We agree. The arbitrability of posttermination defamation claims under Arbitration Rule 347 of the nyse has been the subject of much litigation in the federal courts. See Fleck v E F Hutton Group, Inc, 891 F2d 1047 (CA 2, 1989), and cases cited therein. The rule provides as follows: Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules. Defendants contend this rule, and the cases construing it, requires arbitration of virtually any claim of posttermination defamation concerning a member-employee by a member-employer. Plaintiff contends the same cases require arbitration only of those claims which arise out of the employment contract or require evaluation of the claimant’s performance as a broker. We find defendants’ interpretation too broad and plaintiffs too narrow a reading of the cases. In Fleck, the second circuit rejected its own decision in Coudert v Paine Webber Jackson & Curtis, 705 F2d 78 (CA 2, 1983), and adopted instead the test developed by the eighth circuit in Morgan v Smith Barney, Harris Upham & Co, 729 F2d 1163 (CA 8, 1984). The test previously had been adopted in the ninth and sixth circuits. Zolezzi v Dean Witter Reynolds, Inc, 789 F2d 1447 (CA 9, 1986); Aspero v Shearson American Express, Inc, 768 F2d 106 (CA 6, 1985). This test of arbitrability, as gleaned by the court in Fleck from its reading of Morgan and Aspero, is whether the claim involves significant aspects of the employment relationship, that is, those claims for which resolution depends upon evaluation of a party’s performance either as a broker or as an employer of brokers during the time of the contractual relationship. Fleck, p 1053. A dispute may be arbitrable under this rule even if it does not involve customer accounts or broker-dealer functions, as long as it raises a significant issue of the claimant’s job performance. Pearce v E F Hutton Group, Inc, 264 US App DC 246; 828 F2d 826 (1987). The timing of the tort, whether the statements were made during or after the claimant’s employment, is relevant to whether the tort arose out of the employment relationship, but is not determinative. Fleck, p 1052. The more pertinent inquiry is whether the statements were made during communications of the sort that an employer would foreseeably make upon an employee’s termination. Applying these principles to the facts in this case, we find plaintiff’s defamation claim to be arbitrable. The circuit court denied defendants’ first motion to compel arbitration of the defamation claim, finding: [T]he claim of defamation is so dissimilar to the other three (3) counts that it was not contemplated by the parties when executing the arbitration agreement. ... It is entirely separate and a distinct cause of action from the Employment Agreement. This conclusion reflects the court’s application of an inappropriate test for determining the arbitrability of the claim. It should be noted that the parties did not refer the court to any applicable case law. Nonetheless, restricting arbitrable issues to those arising out of the employment contract is contrary to federal law which governs this case. During the hearing on the second motion to compel arbitration, the parties did cite and discuss the applicability of the relevant cases. In denying that motion, the trial court stated: This Court is satisfied that there is a serious question as to whether the allegedly defamatory statement as to Plaintiffs alcoholism relates to his employment to come under Fleck. Also, the Motion to Compel was made earlier. Because there’s been so much activity and intensity in this case since then, it would be unfair to the Plaintiff to send it to arbitration at this late date. Therefore the Motion to Compel is denied. It appears the court had some doubt about the arbitrability of the defamation claim, and resolved that doubt against arbitration by balancing judicial economy with possible prejudice to the plaintiff. The federal arbitration act does not authorize such a balancing test. Any doubt about the arbitrability of an issue is to be resolved in favor of arbitration. Moses H Cone Mem Hosp v Mercury Construction Corp, 460 US 1; 103 S Ct 927; 74 L Ed 2d 765 (1983). Moreover, judicial economy is not an overriding concern. The federal act requires courts to compel arbitration even where the result would be inefficient or involve duplicative proceedings, because the purpose of the act is to ensure judicial enforcement of privately made agreements to arbitrate, not to promote the expeditious resolution of claims. Dean Witter Reynolds Inc v Byrd, 470 US 213; 105 S Ct 1238; 84 L Ed 2d 158 (1985). Having concluded that the trial court applied the wrong tests in denying defendants’ motions to compel arbitration, the question remains whether plaintiffs defamation claim is arbitrable under federal law, that is, whether each alleged statement involves significant aspects of the employment relationship, involving evaluation of plaintiffs performance as a broker or deriving from his occupational duties as a registered representative. The alleged defamatory statements at issue include comments made by defendants Greening and Purcell that plaintiff was discharged because he had changed positions within the company and breached an agreement to keep the terms of that change confidential, because of his inability to manage women and the personnel turnover the problem caused, and finally because plaintiff had a drinking problem. Although the communications made by the individual defendants may not concern directly plaintiff’s handling of accounts as broker, they do relate to his performance of the employment agreement, his dealings with customers, and his performance as a manager. We therefore find them to be significantly related to the employment relationship and, thus, arbitrable. Finally, plaintiff argues even if the defamation claims were arbitrable, defendants waived the right to compel arbitration by participating in the litigation in circuit court. The trial court’s ruling does not expressly find a waiver. Rather, as noted above, it applied a fairness test to the question of arbitrability. Waiver of a contractual right to arbitration is not favored. Fisher v A G Becker Paribas Inc, 791 F2d 691 (CA 9, 1986). Any examination of whether the right to compel arbitration has been waived must be conducted in light of the strong federal policy favoring enforcement of arbitration agreements. Moses, supra. A party arguing there has been a waiver of the right to arbitration bears a heavy burden of proof. The party must demonstrate knowledge of an existing right to compel arbitration, acts inconsistent with the arbitration right, and prejudice to the party opposing arbitration resulting from the inconsistent acts. Fisher, p 694. Even accepting the trial court’s finding that plaintiff has been prejudiced, there has been no showing that defendants acted inconsistently with their right to arbitration. Defendants’ motion to compel arbitration in this case was their first responsive pleading to plaintiffs complaint. They raised the arbitration agreement as an affirmative defense. They engaged in discovery and brought and responded to motions in the circuit court only after the court erroneously denied their motion to compel arbitration. Their counterclaim for a preliminary injunction, although not referring to their claim that the disputes between the parties were subject to arbitration, asked only for injunctive relief to preserve the status quo, not for money damages for any claimed breach of plaintiffs covenant not to compete. There is no showing on these facts that defendants have at any time acted inconsistently with their claim of right to arbitration. Rush v Oppenheimer & Co, 779 F2d 885 (CA 2, 1985). We believe any prejudice suffered by plaintiff in terms of time and expense, although unfortunate, was self-inflicted. Fisher, p 698. Plaintiff chose the forum in violation of his agreement to arbitrate disputes. The strong federal policy in favor of enforcing arbitration agreements in transactions affecting commerce requires the conclusion that defendants did not waive their right to arbitration. We therefore conclude the trial court properly found plaintiffs three claims of breach of an employment contract to be arbitrable, but erred in declining to find plaintiffs defamation claim not to be. Affirmed, in part, reversed in part, and remanded for entry of an order compelling arbitration of plaintiffs defamation claim and staying further proceedings.

Nina Pattison vs. Labor Relations Commission (and a companion case). Nos. 89-P-383 & 89-P-384. Suffolk. September 13, 1990. January 24, 1991. Present: Dreben, Kaplan, & Porada, JJ. Labor Relations Commission. Labor, Fair representation by union, Collective bargaining, Damages. Damages, Fair representation by union. Contract, Collective bargaining contract. In a proceeding before the Labor Relations Commission on an employee’s charge of prohibited practice under G. L. c. 150E, § 10 (¿0(1), against a union alleging breach of its duty of fair representation, the commission was warranted in concluding that the union had failed to give equal representation to all members of the bargaining unit and that the union had acted arbitrarily in handling the employee’s grievance. [15-17] In a proceeding before the Labor Relations Commission in which an employee established that a union, as her collective bargaining representative, had breached its duty of fair representation in that it failed arbitrarily to press a grievance on her behalf, the commission, in determining whether the employee was entitled to material relief, properly adopted the policy that the employee must first establish that the grievance was not clearly frivolous and that the burden then shifts to the union to demonstrate that the employee could not have succeeded if arbitration had taken place; in the circumstances, where the record showed confusion as to this rule on burdens of proof, the union, on remand, was to be afforded an opportunity to offer additional evidence. [17-21] Where an order of the Labor Relations Commission awarded back pay damages to an employee against a union which, as her collective bargaining representative, had failed arbitrarily to press a grievance against her employer for wrongful termination, the union’s responsibility was to be mitigated by any amount recovered from the employer, either by arbitration or by a court action in the employee’s name. [21-23] In a proceeding before the Labor Relations Commission, an employee, acting separately from her exclusive collective bargaining representative, did not have standing to charge her employer with a prohibited practice under G. L. c. 150E, § 10 (a)(5) & (6), for alleged failure to carry out a collective bargaining obligation. [23-24] Appeals from a decision of the Labor Relations Commission. Alan J. McDonald for Nina Pattison. Jean Strauten Driscoll for Labor Relations Commission. David F. Grunebaum for the employer. Robert M. Schwartz for Quincy City Employees Union, H.L.P.E. Quincy City Employees Union, H.L.P.E. vs. Labor Relations Commission. Kaplan, J. On March 18, 1985, Nina Pattison, a public employee serving at the Quincy City Hospital as director of volunteer services, received a letter from Margaret Corbett, on behalf of the employer Hospital, “terminating” her. She wished to “grieve” her dismissal but, she asserts, her relevant collective bargaining agent, Quincy City Employees Union, H.L.P.E, failed arbitrarily to press the grievance on her behalf and ultimately to request arbitration, thus encompassing violations of its duty of fair representation (DFR). In undertaking litigation, Pattison would have done well to seek a forum that would allow her to join both the union and the employer, for those parties putatively committed related wrongs. The decisional law in 1985, before the ruling in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341 (1987), left unsettled (and largely unthought of) the question whether or to what extent the Labor Relations Commission (Commission) had “primary jurisdiction” in DFR cases. So Pattison’s attorney might have considered choosing between starting an action in Superior Court and bringing charges before the Commission. There would be little difficulty in joining the two parties in the court action. Attempting to charge both in Commission proceedings would encounter difficulties, as will appear. Pattison’s counsel chose the Commission route. On August 29, 1985, Pattison filed a charge of prohibited practice under G. L. c. 150E, § 10(b)(1), against the union by reason of its breaches of DFR (Charge MUPL-2883). Recognizing, apparently, that an employer’s breach of a “just cause” provision of a labor contract is not itself cognizable as a prohibited practice under the statute, Pattison, with some ingenuity, attempted instead to charge the employer with a prohibited practice under G. L. c. 150E, § 10(a)(5) and (6) for failing to carry out an alleged collective bargaining obligation. This was framed as an obligation to refrain from changing unilaterally the terms and conditions of employment, including changes in the progressive disciplinary procedures for employees and in the just cause standard for dismissal (Charge MUP-6037). When the Commission proceedings were already under way, as described below, Pattison, for better assurance, on December 31, 1985, did commence an action in Superior Court against the union and the employer; the action remains at issue but has not proceeded further. After investigation, the Commission issued complaints corresponding to the charges (although, as to the collective bargaining complaint, the Commission was doubtful of its own jurisdiction). Initially the Commission ruled that the complaints should be “bifurcated,” but it soon changed its mind and ordered them to be consolidated and tried together. Trial before two Commissioners* occurred in ten installments over a period of eight months, from August, 1986, to April, 1987. On January 24, 1989, the Commission filed its “Decision” upholding the DFR complaint but dismissing the collective bargaining complaint. The union appeals to this court from the former disposition (appeal No. 89-P-384), Pattison from the latter (No. 89-P-383). See G. L. c. 150E, § 11, par. 4. To sum up our views. In No. 89-P-384: (1) Pattison had the full burden to establish that the union discriminated against her or acted with egregious disregard of her rights as a grievant. The Commission’s findings for Pattison on these issues are well supported by substantial evidence, G. L. c. 30A, § 14(7)(e). (2) As to Pattison’s right to a material remedy, burdens of proof are adjusted in the light of the union’s delinquency, which aborted the arbitral process: Pattison had to show that her claim of dismissal without just cause was not clearly frivolous; once she did so, the burden shifted to the union to show that the grievance was clearly nonmeritorious. The Commission’s findings that Pattison made her prima facie showing, and the union failed in its opposition, are also well supported by substantial evidence. (3) Pattison, having thus succeeded on the facts, was entitled to a “provisional make whole remedy” against the union (the only defending party properly before the Commission), that is, recovery for wrongful dismissal, which, however, is subject to offset by the union. Among other things, this may take the form of a division of the liability between the union and the employer. To revert to the point that the union failed in its burden of overcoming a prima facie case, the union has claimed that the policy of the Commission in imposing that burden was not made clear in the course of the hearings, with the consequence that the union was unsure about the weight of the evidence it had to present. Upon a reading of the whole record, we think the complaint is justified, and will therefore remand the case to the Commission if the union expresses an election to offer additional proof. No. 89-P-383: We agree with the Commission’s dismissal of the complaint. Pattison, as employee, could not complain of the alleged bargaining violation on the part of the employer. No. 89-P-384 — Duty of Fair Representation (1) Union’s violations. From the inordinately extended record, the Commission has abstracted the following statement, which we consider to be a fair summary of the basic facts. “Nina Pattison was hired on or about August 14, 1984, as the Director of Volunteer Services at Quincy City Hospital. Her duties were to direct and administer the Hospital’s program of volunteer services, including recruiting, orienting, assigning, supervising and evaluating volunteer workers. Her direct supervisor, Margaret Corbett, became dissatisfied with Pattison’s progress in recruiting new volunteers, organizing a program to orient volunteers to the Hospital, and decentralizing the volunteer program. In weekly meetings with Pattison, Corbett discussed these problems and finally met with Pattison and Corbett’s supervisor, Doris Sincevich, the Director of Nursing, in January of 1985 about Pattison’s progress. After Corbett failed to see sufficient improvement in Pattison’s performance, Corbett recommended to Sincevich in March, 1985, that Pattison be terminated. Early in March Corbett met with Pattison, told her she was considering Pattison’s termination, and asked her to think about resigning. The following day Corbett told Pattison that she was going to recommend to the Director of Human Resources, James Tzamos, that Pattison be terminated unless she agreed to resign. Corbett did so and her recommendation that Pattison be terminated for poor performance was accepted. During the meeting between Tzamos and Corbett, Tzamos noted that Pattisori’s probationary period had already expired and stated that they would have to discuss the termination with the Union. “The Hospital’s disciplinary guidelines provide a progressive system for discipline based on ‘poor performance,’ beginning with a verbal warning, then a written warning, then a suspension and finally termination. Pattison had not received either a formal written warning or a suspension before she was terminated. “Corbett and Tzamos met with a Union representative and told her that Pattison was to be terminated and that she had been employed for several days beyond the six-month probationary period. The Union representative told Corbett and Tzamos that there could be a problem, and also informed the Union steward of the discussion. “On March 8, 1985, Corbett and Tzamos met with Pattison and notified her that she was being terminated. Pattison subsequently received a letter of termination from Corbett on March 18. On March 11, Pattison had telephoned the Union’s office and spoke with John Keefe, the Executive Director. After hearing that she had not received any written warnings, Keefe told her that he thought he could get her reinstated if she wanted her job back. Pattison told Keefe she was uncertain about that, but Keefe said he would check into her case and get back to her. When Keefe called her back, he told Pattison he could find no record of her being a dues-paying member, and asked her to call the Hospital payroll department and-see what she could find out. Pattison found out that no union dues had been deducted from her paychecks, and she tried to call Keefe back on March 13, 14 and 15, and left messages for him. Keefe never returned her calls and Pattison never spoke with Keefe again about her termination. “After Pattison received the March 18 termination letter from the Hospital, she contacted the Union steward, Dorothy Wassmouth. Pattison told Wassmouth that she wanted to file a grievance about her termination. Wassmouth said, ‘You can file a grievance if we say you can file a grievance, and we’ll get back to you.’ Pattison told Wassmouth that she didn’t know why she was terminated, and Wassmouth said she would check into it. After telephoning Wassmouth several times without reaching her, Patti-son found a recorded message on her answering machine which stated, ‘You have no grievance. As far as we are concerned, you have no grievance. Everything is taken care of, and please don’t call this office again.’ This was Pattison’s last contact with any representative of her Union. “Pattison then contacted an attorney and on his advice delivered a letter to Corbett on March 25 stating that she was grieving the decision to terminate her employment. Pattison sent a copy of the letter to Keefe, with a cover letter requesting the Union’s assistance in processing the grievance and asking for a copy of the current collective bargaining agreement. On April 2, Pattison, having had no reply from the Employer, wrote to Sincevich that she was now grieving the decision at step two of the grievance procedure. Pattison also sent a copy of this letter to Keefe. After receiving no response at step two, Pattison’s attorney sent a similar letter to the Mayor on April 9, with a copy to Keefe, seeking a step three review. A meeting was eventually held between Pattison, her attorney, Tzamos and the Hospital’s attorney, but the grievance remained unresolved. On June 19, Pattison’s attorney wrote to Keefe requesting [that] he file a demand for arbitration (under the collective bargaining agreement, only the Union could demand arbitration). The Union did not respond and Patti-son’s attorney wrote a second letter on June 27. The Union received both letters but did not reply. The Union did not assist Pattison in processing her grievance and did not file a demand for arbitration.” It will be seen that union help to Pattison in forwarding her grievance stopped with the revelation that she was (unwittingly, as it turned out) not on the union roll. The Commission drew an inference of cause and effect and held that Pattison had carried her burden of demonstrating that the union was in breach of its DFR, for it is a discriminatory and illegal act for a union to fail to give equal representation in grievance and other matters to all members of the bargaining unit regardless of their union allegiance. See G. L. c. 150E, § 5, inserted by St. 1973, c. 1078, § 2: “The exclusive representative . . . shall be responsible for representing the interests of all such employees [those in the unit] without discrimination and without regard to employee organization membership.” See also Leahy, 399 Mass, at 348; Carbone v. School Comm. of Medford, 12 Mass. App. Ct. 948 (1981). The Commission likewise upheld Pattison in her submission that, putting the question of discriminatory motive to one side, the union was arbitrary — perfunctory or worse — in handling her grievance, and this likewise encompassed a violation of DFR. See Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 606 (1990); Trinque v. Mount Washington Community College Faculty Assn., 14 Mass. App. Ct. 191, 199 (1982). The Commission acknowledged that the level of proficiency required of union management is not an exalted one; it tolerates honest mistake or simple negligence. See Graham at 606; Trinque at 199; Baker v. Local 2977, State Council 93, Am. Fedn. of State, County & Mun. Employees, 25 Mass. App. Ct. 439, 441 (1988). See also Vaca v. Sipes, 386 U.S. 171, 190 (1967); Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 301 (1971); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-567 (1976); Early v. Eastern Transfer, 699 F.2d 552, 555 (1st Cir. 1983). Here the union’s fault was egregious. The Commission’s decision on both scores seems to us unimpeachable even if we were to attach no significance to the respect that is due to this agency with its accumulated expertness in the field. See Quincy City Hosp. v. Labor Relations Commn., 400 Mass. 745, 749 (1987); G. L. c. 30A, § 14. See also note 5, supra. The union, with some support from the employer, has offered several possible justifications of its behavior. It sought to establish that Pattison was not in fact a member of the bargaining unit. However, her immediate predecessor in the job, although having a different title, did roughly the same work, and was admittedly a member. Then it was suggested that Pattison held a “managerial” post. But the predecessor’s position was not so characterized, and examination of Pattison’s relation to her superiors also tended to belie the characterization. These contentions have evidently been abandoned on the present appeal. The union tries to demonstrate that Pattison, in pursuing her grievance from step to step without union help, did not follow the timetable prescribed in the collective bargaining agreement, and thus forfeited any claim. Pattison says that in point of fact she did comply with the time requirements. There is evidence, too, that in practice the parties permitted considerable leeway in meeting the formal time limits of the agreement. So also there is ground for belief that the issue of timeliness is not a real one, but is interposed as an afterthought. After her dismissal, Pattison said she was not sure she wanted reinstatement, and she said repeatedly that she wanted to know why she had been fired, wherein her performance had been deficient. The union claims it acted reasonably in taking Pattison at her word and assuming that she was interested in an explanation, but not in a positive remedy. On the other hand, Pattison did proceed to “grieve,” and Wassmouth evinced an understanding that Pattison wanted more than an explanation. The attorney’s final demand upon the union to request arbitration is of course explicit to the same effect. The Commission did not err in rejecting the union’s attempted justifications. (2) Pattison’s right to a remedy. Notwithstanding the union’s breach of DFR, in logic Pattison should not be entitled to material relief if her basic grievance was in fact so weak, her performance on the job so poor, that her chances before a reasonable arbitrator were minimal or hopeless. Accordingly, in light of all the equities, the Commission has here adopted as a policy the proposition that an employee in Pattison’s position must establish that his or her grievance was not clearly frivolous; the burden then shifts to the union to demonstrate that the grievance was clearly without merit, that the employee could not have succeeded if arbitration had taken place. On the present record, the Commission could well decide that Pattison presented a prima facie case of wrongful dismissal. Whether her handling of the difficult and rather amorphous volunteer problem in the short period of her tenure was reasonably adequate, is perhaps open to debate. But it is certain that she was not given the benefit of the hospital’s progressive discipline policy nor furnished with the culminating pretermination written warning. The Commission could also hold that the union on its part did not overcome Pattison’s prima facie case and sustain its burden of countervailing proof. As noted above, the union does seem to have reason for the contention that the ground rule on burdens of proof was left in some confusion during the hearings. In fairness, if the union indicates a wish to offer additional proof, the case will be remanded to the Commission to receive and evaluate it. The Commission’s very policy or ground rule is challenged but appears quite tenable as a determination by the responsible agency with specialized knowledge and experience in the field. The Commission could hold that it would be little short of incongruous to cast on the employee the whole burden of convincing the Commission that he or she would more probably than not have succeeded before a rational arbitrator in the normal course. The opportunity to lay the matter before an arbitrator in the ordinary way has been lost precisely because the union has failed in its duty to represent the employee. Therefore, the union should bear the ultimate risk of uncertainty as to how an arbitrator would have decided the grievance. The Commission’s policy regarding the relative burdens of employee and union accords with that of the National Labor Relations Board (Board) as enunciated in United Rubber, Cork, Linoleum & Plastic Wkrs. of Am., Local 1250 (Mack-Wayne Closures), 290 NLRB No. 90 (July 29, 1988) (Mack-Wayne II). The Board said, discussing the union’s “shifted burde

MOURAD v AUTOMOBILE CLUB INSURANCE ASSOCIATION Docket No. 109985. Submitted April 11, 1990, at Detroit. Decided January 8, 1991, at 9:35 a.m. Roger Mourad, after he was demoted from head of the legal department to executive attorney, brought an action in the Wayne Circuit Court against the Automobile Club Insurance Association, his former employer, and three of its employees, alleging breach of an employment contract providing for termination for just cause only, retaliatory demotion and constructive discharge, intentional infliction of emotional distress, and conspiracy. The court, Henry J. Szymanski, J., entered judgment consistent with a jury verdict awarding the plaintiff compensatory damages for breach of contract and retaliatory demotion and exemplary damages for retaliatory demotion, but overturned an award of exemplary damages for intentional infliction of emotional distress. The defendants appealed. The plaintiff cross appealed. The Court of Appeals held: The plaintiff can maintain a cause of action against Auto Club for breach of a contract providing termination for just cause only as a result of retaliatory demotion and constructive discharge. However, because the cause of action for retaliatory demotion and constructive discharge merges with the breach of contract claim, that award must be set aside. Damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. 1. The jury did not err in finding that there was a contract providing termination of employment for just cause only and that the defendants breached the contract when they constructively discharged the plaintiff by demoting him for his failure to take action which he claimed would have violated the Code _of Professional Responsibility. Accordingly, the trial court did not err in denying the defendants’ motion for a directed verdict regarding the claim of constructive discharge. References Am Jur 2d, Damages § 118; Master and Servant §§ 44, 62, 63. See the Index to Annotations under Attorney or Assistance of Attorney; Discharge from Employment or Office; Emotional Injury. 2. The plaintiffs breach of contract claim is not precluded by the general rule that an attorney’s client has a right to discharge an attorney at any time, with or without cause. The plaintiffs relationship with the defendants was more than merely that of attorney and client. 3. The plaintiff cannot properly recover damages for breach of contract and retaliatory demotion and discharge because each cause of action is an alternative type of wrongful discharge. Thus, the award of damages for retaliatory demotion must be vacated. 4. The trial court erred in instructing the jury with regard to the availability and adequacy of defendants’ internal appeal procedures upon the plaintiffs demotion inasmuch as the defendants did not assert that the plaintiff was precluded from maintaining his action because an internal appeal procedure was available. The error, however, does not require reversal because the verdict was consistent with substantial justice. 5. Damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. The trial court erred in submitting the claim of intentional infliction of emotional distress to the jury, but properly refused to grant judgment with regard to the jury’s award of exemplary damages for intentional infliction of emotional distress. 6. The trial judge, an Auto Club policyholder, did not abuse his discretion in failing to disqualify himself as an interested party. The defendants failed to show actual bias sufficient for disqualification. The trial judge’s comments and questions at trial were not improper or prejudicial, nor did they deny the defendants a fair and impartial trial. Affirmed in part, reversed in part, and remanded. 1. Master and Servant — Attorney and Client — Wrongful Discharge. An action for wrongful discharge by an in-house attorney against an insurer-employer, claiming breach of a just-cause employment contract was not barred by the general rule that an attorney’s client has a right to discharge an attorney at any time, with or without cause, where the attorney, aside from serving as counsel for the insurer, also served as counsel for the insurer’s policyholders and as administrator for the insurer. 2. Master and Servant — Termination of Employment — Wrongful Discharge. A jury, having found a breach of a just-cause contract of employment, cannot rely on the same factual basis to award additional damages for a claim of retaliatory demotion and retaliatory constructive discharge. 3. Damages — Emotional Distress — Breach of Employment Contracts. Damages for infliction of emotional distress are not recoverable in an action for breach of an employment contract. Weinstein, Gordon & Hoffman, P.C. (by William J. Weinstein and Joel L. Hoffman), for the plaintiff. Dykema Gossett (by Donald S. Young, Kathleen McCree Lewis, and Suzanne Sahakian), for the defendants. Before: Holbrook, Jr., P.J. and McDonald and Jansen, JJ. Jansen, J. Defendants appeal as of right from a March 3, 1988, Wayne Circuit Court jury verdict in the amount of $1,773,000 for breach of an employment contract, demotion without cause, constructive discharge, retaliatory demotion, intentional infliction of emotional distress, and conspiracy. Plaintiff cross appeals the trial court’s refusal to enter an additional $500,000 in exemplary damages which the jury had awarded on a special verdict form for intentional infliction of emotional distress. We hold that plaintiff, an attorney, can maintain a cause of action against defendant, Automobile Club Insurance Association (Auto Club), his former client and employer, for breach of a just-cause contract. However, we reverse the jury verdict regarding the claims of retaliatory demotion, intentional infliction of emotional distress, and conspiracy. We therefore affirm in part and reverse in part. In 1980, plaintiff was named legal area manager and in that capacity headed Auto Club’s in-house legal department from August 1980 until March 1983 when he was demoted to an executive attorney position. Auto Club’s legal department represents the insurance association in first-party cases and represents policyholders in third-party cases. The legal department attorneys supervise outside counsel and provide legal counsel and advice to Auto Club’s claims staff regarding nonlitigation matters. As legal area manager, plaintiff served as the attorney who advised management regarding the implementation of Auto Club’s policies within the department. Specifically, plaintiff formulated budget requests and administered the legal department within the budget approved by Auto Club. Plaintiff also supervised the attorney staff in its representation of insureds in pending litigation. Specifically, plaintiff gave settlement authority in certain cases, dealt with personnel problems and questions from attorneys and staff, evaluated executive attorneys, and reviewed senior attorneys’ evaluations of associate attorneys. Plaintiff described his function as a "managing lawyer.” As legal area manager he did not directly handle individual third-party cases. It appears that plaintiff was an excellent lawyer. However, Thomas Bowman, Auto Club’s claims director and plaintiff’s direct supervisor, concluded that plaintiff was unable to implement Auto Club’s policies and did not have the "administrative talents” necessary to effectively implement cost-containment measures in the legal department. In September 1982, Bowman assigned defendant Leonard Bach, who is not a lawyer, but who had twenty years of claims experience, to oversee the legal department. On March 16, 1983, plaintiff was removed as legal area manager and demoted to executive attorney. Plaintiff lost his use of a company car and approximately $700 in annual salary. Following his demotion, plaintiff was an executive attorney who handled first-party catastrophic claims. On March 16, 1984, plaintiff resigned his employment with Auto Club and opened a sole practice. On July 11, 1984, plaintiff filed a complaint alleging breach of a just-cause contract, retaliatory demotion and constructive discharge, intentional infliction of emotional distress, and conspiracy to commit the tort of retaliatory demotion or intentional infliction of emotional distress. Plaintiff claimed that his demotion was the result of his refusal to comply with alleged unethical and illegal orders from the individual defendants who were not attorneys. Plaintiff further claimed that had he complied with such orders and instructions he would have violated the Code of Professional Responsibility and Canons. On March 3, 1988, the jury returned its verdict. As compensatory damages, the jury awarded $1,250,000 as past, present, and future loss of wages and employment benefits for the breach of contract claim and $23,000 as past, present, and future loss of wages and employment benefits for the retaliatory demotion claim. For retaliatory demotion, the jury added $500,000 as compensatory damages for mental anguish. The jury also awarded $500,000 as exemplary damages for intentional infliction of emotional distress. Following an April 15, 1988, hearing, the court entered a judgment on the jury verdict, less the exemplary damages for intentional infliction of emotional distress, which the court found inconsistent, duplicative and punitive. Defendants argue that plaintiff cannot sustain a cause of action for wrongful termination, because plaintiff was defendants’ attorney. Specifically, defendants allege that a just-cause contract as established in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980), cannot exist under these circumstances. We disagree. The issue before us is whether plaintiff can maintain an action for wrongful termination of a just-cause employment contract. In Toussaint, supra, our Supreme Court held that an employer’s statements of company policy and procedure that an employee will be terminated only for cause can give rise to an enforceable contract right. The existence of a just-cause contract and whether defendants’ actions constituted a breach of that contract is a question for the jury to determine. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 464; 436 NW2d 389 (1988); Struble v Lacks Industries, Inc, 157 Mich App 169, 175; 403 NW2d 71 (1986). Initially, we note that the jury did not err in finding that there was a just-cause contract and that defendants, by demoting plaintiff for his failure to comply with policy decisions which plaintiff claimed would have violated the code of professional conduct, breached that contract. In a special jury form, the jury found that defendants’ policy manual and pamphlets had in fact created a contract to terminate for just cause. The jury also found that defendants did not have just cause to demote plaintiff and that defendants constructively discharged plaintiff by making the conditions of plaintiff’s work so intolerable that plaintiff felt compelled to leave. We are unpersuaded by defendants’ argument that the trial court erred in failing to direct a verdict for defendants on the constructive discharge claim. A constructive discharge occurs when an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation or, stated differently, when working conditions become so difficult or unpleasant that a reasonable person in the employee’s shoes would feel compelled to resign. Fischhaber v General Motors Corp, 174 Mich App 450, 454-455; 436 NW2d 386 (1988). In reviewing a trial court’s ruling on a motion for a directed verdict or judgment notwithstanding the verdict, the testimony and all legitimate inferences that may be drawn from that testimony are viewed in the light most favorable to the plaintiff. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986). If reasonable jurors could honestly reach different conclusions, the motion should be denied, and the case should be decided by the jury, because no court under such circumstances has authority to substitute its judgment for that of the jury. Id.; Feaheny v Caldwell, 175 Mich App 291, 299-300; 437 NW2d 358 (1989). We hold that the trial court did not err in refusing to grant defendants’ motion for a directed verdict. Evidence presented at trial indicated that plaintiff was demoted from the highest position in the legal staff to a lesser position with the resultant loss of authority and various benefits. Evidence indicated that plaintiff was essentially isolated from the operation of the law department. Further, after plaintiff’s demotion, plaintiff alleged that defendants continued to make unethical requests and demands concerning plaintiff’s representation of insureds. Under these facts, we find that a reasonable juror could find that plaintiff was constructively discharged. Defendants claim that plaintiff’s cause of action should be precluded by the general rule that a client has a right to discharge his attorney at any time, with or without cause. See comments to MRPC 1.16, formerly DR 2-110; Brown v Brown, How NP 94, 95 (Wayne CC, 1876). We disagree. In support of their position, defendants cite Herbster v North American Co, 150 Ill App 3d 21; 103 Ill Dec 322; 501 NE2d 343 (1986), and Willy v Coastal Corp, 647 F Supp 116 (SD Tex, 1986), rev’d on other grounds 855 F2d 1160 (CA 5, 1988). In Herbster, the plaintiff brought suit for retaliatory discharge against his employer, North American Company, stemming from the plaintiff’s refusal to destroy or remove inculpatory documents requested in lawsuits pending in federal court. The plaintiff was North American’s chief legal officer and vice-president in charge of the legal department under an employment-at-will contract. In Illinois the tort of retaliatory discharge is an exception to the general rule that an employee at will has no recourse for discharge. The tort requires that the employer discharge the employee in retaliation for the employee’s activities and that the discharge be in contravention of clearly mandated public policy. The Illinois court granted summary judgment for North American on the basis of the attorney-client relationship. The Illinois Court of Appeals affirmed, refusing to extend the tort of retaliatory discharge to cases involving general in-house counsel. The Illinois Court of Appeals noted that the right to terminate is a necessary aspect of the attorney-client relationship and a preventive measure against the evils created by any friction or distress between an attorney and his client. Likewise, in Willy, the federal district court held that an in-house attorney is required to withdraw from employment when a client elects to terminate the attorney-client relationship. In that case, the court granted the defendant’s motion to dismiss a cause of action for wrongful termination from the plaintiffs employment as in-house counsel. The plaintiff alleged that he was fired because he required the defendant to comply with environmental laws. The Willy court held that the public policy exception, which creates a cause of action for retaliatory discharge in the context of an employment-at-will contract, does not apply to the termination of in-house attorneys. The Willy court noted that the ethical canons and the disciplinary rules set forth the standards for attorneys to follow and that they require an attorney presented with ethical conflicts to withdraw from representation. Thus, the Willy Court declined to extend the retaliatory discharge claim to include the wrongful termination of in-house attorneys. However, the appeals court of New Jersey, in Parker v M & T Chemicals, Inc, 236 NJ Super 451; 566 A2d 215 (1989), held that the New Jersey Whistleblower’s Act compels an employer to pay damages to an employee-attorney who is wrongfully discharged or mistreated for any reason which is violative of law, fraudulent, criminal, or incompatible with a clear mandate of New Jersey public policy concerning public health, safety, or welfare. Id. at 220. Thus, Parker held that the attorney-client relationship was not a bar to recovery on the basis of a retaliatory discharge claim. We distinguish the Willy, Herbster, and Parker opinions. These cases dealt with the question whether the state will recognize a public policy exception to the typical employment-at-will contract. In the present case, the jury found a just-cause contract and a breach of that contract. The determination of the existence of a public policy exception to an employment-at-will contract, as discussed in Willy, Herbster, and Parker, is a different inquiry from the establishment of a breach of a just-cause contract. The present case involves the creation of contractual rights by the parties, not the imposition of restrictions on employment termination on the basis of public policy grounds. Further, we decline to adopt a complete bar to suits brought by an attorney for wrongful termination and breach of a just-cause contract on the basis of the attorney-client relationship. The general rule that a client has the right to discharge his attorney at any time, with or without cause, does not affect the present action for breach of contractual rights. Although at the time of plaintiffs demotion and constructive discharge DR 2-110 required that an attorney withdraw from employment if he knows or if it is obvious that his continued employment will result in a violation of a disciplinary rule, the present case does not simply involve an attorney-client relationship between plaintiff and Auto Club. In many ways, plaintiff, in his relationship as supervisor of the legal staff and subsequently as supervisor over lawsuits involving catastrophic injury, was an attorney for the insureds. As such, he had a duty of loyalty and zealous representation to the insured client alone. American Employers’ Ins Co v Medical Protective Co, 165 Mich App 657, 660; 419 NW2d 447 (1988). In this role, plaintiffs "sole loyalty and duty is owed to the client alone.” Atlanta Int’l Ins Co v Bell, 181 Mich App 272, 274; 448 NW2d 804 (1989). The Bell Court summarized: [T]he fact remains that an insurance defense attorney represents the insured and not the insurance company. The only attorney-client relationship which exists is between the attorney and the insured client. Indeed, whenever the interests of the insured and the insurance company differ, the attorney’s ethical obligation is to pursue the interests of the insured client the attorney is representing and not the interests of the insurance company who pays the bill. . . . Indeed, the insurance company’s relationship is, in reality, with its insured; that is, the insurance company is obligated to pay the attorney fee incurred by its insured in defending litigation covered by an applicable insurance policy. The fact that an insurance company may directly pay the attorney fee rather than merely reimbursing its insured does not affect the nature of the attorney-client relationship nor does it change the fact that the attorney represents the insured client and only owes a duty to that insured client. [Bell, supra at 274-275, citation omitted.] However, it should also be noted that in some respects plaintiffs relationship with Auto Club was as counsel for Auto Club. Auto Club’s legal department represented Auto Club in first-party cases, i.e., where a policyholder sues Auto Club, seeking benefits under an insurance contract. Plaintiff also acted as in-house counsel who advised management on the operation of the legal department in supervising attorneys who represented various policyholders in separate actions. Finally, we note that plaintiff was also a supervisor acting in an administrative role. In this sense, plaintiff did not

SCHIPPERS v SPX CORPORATION Docket No. 117549. Submitted May 10, 1990, at Grand Rapids. Decided December 17, 1990, at 9:40 a.m. Leave to appeal sought. Joseph Schippers brought an action in the Muskegon Circuit Court against SPX Corporation and Ryder Truck Rental, Inc., claiming wrongful discharge and negligent evaluation. The trial court, Michael E. Kobza, J., granted summary disposition in favor of SPX Corporation, ruling that there were no genuine issues of material fact and that spx was entitled to judgment as a matter of law. The plaintiff appealed. The Court of Appeals held: The grant of summary disposition was improper. Material issues of fact exist regarding whether an employment contract providing termination only for just cause existed between the plaintiff and spx. Reversed and remanded. McCroskey, Feldman, Cochrane & Brock, P.C. (by John P. Halloran), for the plaintiff. Culver, Lague & McNally (by William F. Mc-Nally and Kevin B. Even), for SPX Corporation. Before: Neff, P.J., and Maher and Murphy, JJ. Neff, P.J. Plaintiff appeals as of right from a judgment and order of dismissal entered by the circuit court granting summary disposition pursuant to MCR 2.116(0(10) to defendant SPX Corporation regarding plaintiff’s claims for wrongful discharge and negligent evaluation. We reverse and remand. I The sole issue on appeal is whether a genuine issue of material fact exists regarding whether a just cause employment contract providing termination only for just cause existed between plaintiff and defendant spx. We hold that material issues of fact exist on the bases of defendant’s employee handbook and testimony concerning oral representations made by spx personnel. ii When ruling on a motion for summary disposition made pursuant to MCR 2.116(0(10), courts are liberal in finding that a genuine issue exists, drawing all inferences in favor of the nonmovant and granting the motion only when the court is satisfied that it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 371; 207 NW2d 316 (1973); Langeland v Bronson Methodist Hosp, 178 Mich App 612, 615-616; 444 NW2d 146 (1989). hi An employer’s statements of company policy to the effect that an employee will be terminated only for just cause can give rise to enforceable contract rights. Toussaint v Blue Cross & Blue Shield of Mich, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980); Richards v Detroit Free Press, 173 Mich App 256, 258; 433 NW2d 320 (1988), remanded 433 Mich 913 (1989). Here, plaintiff’s deposition testimony was sufficient to create a question of fact with respect to whether the oral representations made to him by spx personnel constituted a promise to discharge only for just cause. See Toussaint, supra, p 613; Hetes v Schefman & Miller Law Office, 152 Mich App 117, 121; 393 NW2d 577 (1986). Plaintiff testified that he had "[v]erbal assurances from three individuals,” on which he relied, for his belief that he could be discharged only for good cause. He named the three individuals, one of whom was his immediate supervisor. The essence of the claimed assurances was that plaintiff was chosen from among seven drivers for his job and that it was his until retirement, "unless something was really wrong.” Plaintiff testified that he inquired about his future with the company because he was moving into a division that had only one truck and he was concerned that the decision might be made to eliminate the truck and his job. It is worthy of note that one of the three employees on whom plaintiff relied indicated at deposition that the custom and practice at spx was to discharge for "good reason” only. This man had heen employed by defendant for more than twenty-five years. While this testimony, of itself, does not create a question of fact, because the employee testified that he never communicated this to plaintiff in those words, it is relevant to plaintiff’s assertions at deposition that he had verbal assurances about the conditions of his employment with SPX. On the basis of the testimony noted above, it was error to grant summary disposition for defendant. iv Mixed signals from employer to employee in employee handbooks can also raise a question of fact about reasonable employee expectations. Toussaint, supra, p 619; Dalton v Herbruck Egg Sales Corp, 164 Mich App 543; 417 NW2d 496 (1987); Butzer v Camelot Hall Convalescent Centre, Inc, 183 Mich App 194; 454 NW2d 122 (1989). Defendant’s handbook promises fairness to all employees and good working conditions. In return, the manual expresses the company’s expectation of the best efforts of the employees. It speaks of mutual trust, responsibilities, and standards of conduct. The handbook also sets out certain prohibited practices in eight numbered paragraphs. In explaining the consequences of violating these rules, the handbook explains, "For the protection of yourself and your fellow workers, disciplinary action up to and including discharge may be made necessary by the violation of these rules.” The disclaimer under a heading of "In Conclusion” at the end of the handbook says that the book is for information only and that no contract is created, but that the employer believes "wholeheartedly” in the plans, policies, and procedures set out. This single paragraph on page seventeen of the handbook also reserves to the employer the right to change anything in the book, with or without notice. We hold that the handbook raises a genuine issue of fact regarding whether a contract of employment providing termination only for just cause existed in this case. Defendant created an appearance of fair dealing throughout sixteen pages of the handbook, particularly with the mention of "disciplinary action up to and including discharge” (emphasis added). By way of the "Conclusion” on the last page, the company then claims the prerogative to deny its employees any rights to fair treatment under the discipline policy (or any of the other policies stated in the handbook) by simply ignoring it. This at least raises the specter of an illusory promise meant to benefit the employer by inducing the workers to conduct themselves as if they have job security, all the while retaining the benefit of denying that security when it sees fit. We conclude that the evidence before the trial judge created a question of fact regarding whether plaintiff had a reasonable expectation that he could be discharged only for just cause. Summary disposition was improper, and we reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

FARRELL v AUTOMOBILE CLUB OF MICHIGAN (ON REMAND) Docket No. 124209. Submitted December 26, 1989, at Lansing. Decided October 25, 1990; approved for publication January 16, 1991, at 9:10 a.m. Bruce Farrell brought an action for wrongful discharge in the Kent Circuit Court against the Automobile Club of Michigan, alleging that the termination of his employment as a sales representative was both a breach of an express agreement based on an oral promise by his supervisors and a breach of the implied contract of employment which arose out of the legitimate expectations he formed from the policies implemented by the defendant. Following a jury trial, the court, George R. Cook, J., denied the defendant’s motions for judgment notwithstanding the verdict, a new trial, or remittitur and entered judgment on the jury’s award of $150,000. The Court of Appeals affirmed the finding of liability, but remanded for reduction to present value the award of future damages. 155 Mich App 378 (1986). The Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for reconsideration in light of Bullock v Automobile Club of Michigan, 432 Mich 472 (1989), and In re Certified Question, Bankey v Storer Broadcasting Co, 432 Mich 438 (1989). 433 Mich 913 (1989). On remand, the Court of Appeals held: An employment contract providing that an employee may not be discharged except for good cause may be established either by oral or written express agreement or as a result of the employee’s legitimate expectations grounded in an employer’s policy statements. The plaintiff’s claim in this case includes both express-agreement and legitimate-expectations aspects. Thus, because neither the trial court nor the Court of Appeals in its earlier decision, analyzed these theories separately, and because the trial court’s instructions to the jury failed to differentiate between these theories, the initial jury verdict must be set aside and a new trial held. Upon retrial, the jury must be instructed separately with respect to both the express-agreement and legitimate-expectations aspects of the plaintiffs claim. References Am Jur 2d, Master and Servant §§ 27, 32, 33, 37, 43, 45, 67. See the Index to Annotations under Discharge from Employment or Office. 1. The legitimate expectations of an employee formed as a result of employment policies adopted by the employer may create an enforceable contractual right; however, the employer, in the absence of an express reservation to the contract, may unilaterally modify its employment policies. A modified employment policy is legally effective if the employee is given reasonable notice of the change and the change is not made in bad faith. In this case, the legal effect of the policy change is dependent upon resolution of unresolved questions of fact regarding the manner in which the change was made. 2. There was sufficient evidence to create questions of fact regarding whether there was an express agreement, whether the defendant’s quota system constituted an offer to modify contrary terms of the express agreement, and whether the plaintiff accepted without protest. Reversed and remanded for a new trial. Master and Servant — Wrongful Discharge — Jury Instructions — Legitimate Expectations — Express Contracts. An employment contract providing that an employee may not be discharged except for good cause may be established either by oral or written express agreement or as a result of the employee’s legitimate expectations grounded in an employer’s policy statements; in a wrongful discharge action in which the employee claims that discharge could have been had for good cause only and the employer claims that the employment was terminable at will, instruction of the jury must clearly differentiate between claims based on legitimate expectations and claims based on an express agreement. Schenk, Boncher & Prasher (by Gary P. Schenk and Fred D. Hartley), for the plaintiff. Fox & Grove (by Kalvin M. Grove and Steven L. Gillman), and Finkel, Whitehead & Selik (by Robert J. Finkel), for the defendant. ON REMAND Before: Maher, P.J., and Sawyer and Weaver, JJ. Per Curiam. This matter is before us on remand from our Supreme Court for reconsideration in light of In re Certified Question, Bankey v Storer Broadcasting Co, 432 Mich 438; 443 NW2d 112 (1989), and Bullock v Automobile Club of Michigan, 432 Mich 472; 444 NW2d 114 (1989). The parties filed supplemental briefs, and oral argument again was held. Previously, we affirmed a jury verdict in favor of plaintiff, but remanded for adjustment of damages. Farrell v Automobile Club of Michigan, 155 Mich App 378; 399 NW2d 531 (1986). Upon reconsideration, we reverse and remand for a new trial. Plaintiff, who had been employed by defendant as a sales representative in Grand Rapids and compensated by commissions since October 1976, commenced this breach of contract action, alleging that his termination on May 21, 1982, for failure to fulfill the requirements of a minimum production level imposed in September 1981 was without good cause because an employment contract had been established in which defendant agreed not to impose enforceable minimum production levels on him. As reported in our prior decision, plaintiff relied on four pieces of evidence to support his claim that such a contract had been established: The first piece of evidence consisted of the parties’ stipulation that prior to 1981 defendant had not enforced any sales quotas on its sales representatives and had not dismissed or demoted any of its sales representatives for failure to achieve quotas or production standards. Secondly, plaintiff presented evidence that his branch manager, Mr. Fennech, had informed him at the time he was hired that his responsibility was to sell some insurance and to make his "book” of insurance grow. According to plaintiff, Fennech told him at the time of his hiring that he need only handle his book of business, sell some insurance and he would be set financially for the rest of his life if he worked at it for three or four years. Thirdly, plaintiff established at trial that at the time of his hiring Fennech handed him a Sales Rules Manual which provided that he was required to sell some insurance as a condition of continued employment, but which did not refer to a quota or minimum level of sales that he was required to meet. Plaintiff testified that the only requirements imposed by the Manual were that he produce some new business, memberships and insurance. Finally, plaintiff also presented evidence to the effect that at the time defendant’s employee union in Detroit was negotiating with defendant, regarding a new contract with defendant which included minimum sales production requirements, the regional manager, Mike Mallott, informed plaintiff that he need not be concerned about the union contract because it would not apply to the Grand Rapids employees. According to plaintiff, Mallott told him that if the union contract contained something better than what the employees currently had, the Grand Rapids employees would also be benefitted, but if it contained something worse, it would not affect them. [Id., pp 383-384.] Defendant contends that it had a legal right to impose additional requirements on its employees as a condition of continued employment, that its imposition of a minimum production level in September 1981 constituted a valid term of plaintiffs employment contract, and that plaintiff properly could be discharged for failing to comply with the new requirement. Farrell, pp 381-382. In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980), our Supreme Court held that an employment contract providing that an employee may not be discharged except for good cause may be established in alternative ways, "either by express agreement, oral or written, or as a result of an employee’s legitimate expectations grounded in an employer’s policy statements.” The differences between these alternative theories (legitimate expectations versus express agreement), including the right of an employer to unilaterally modify an employment relationship through policy changes, was discussed in Bullock and In re Certified Question. Indeed, Bullock noted that prior decisions had done little to clarify the relationship between these two theories. Id., p 479, n 7. In the instant case, both parties agree that plaintiffs claim includes both express-agreement and legitimate-expectations aspects. The policy-based legitimate-expectations aspect of plaintiffs claim is reflected in his asserted reliance on the provisions of defendant’s sales manual, as well as defendant’s failure to enforce any sales quotas prior to 1981. The express agreement aspect of plaintiffs claim is based upon the oral statements of both Fennech and Mallott. In neither the trial court nor in our prior decision were these two theories analyzed separately. Accordingly, in light of Bullock and In re Certified Question, we do so now. THE LEGITIMATE-EXPECTATIONS CLAIM To the extent that an employee’s relationship with his employer is controlled by his policy-based legitimate expectations, the Supreme Court has made clear in In re Certified Question that an employer may, without an express reservation of the right to do so, modify the employment relationship through unilaterally imposed policy changes so as to change a discharge-for-cause relationship to one of termination at will. Id., p 441. Thus, we find in this case that, with respect to the legitimate-expectations aspect of plaintiff’s claim, defendant had a legal right to modify the employment relationship through the unilateral adoption of its policy requiring adherence to minimum production levels. Nevertheless, this right is not without limitations, and, in this case, we conclude that the legal effect of the policy change is dependent on resolution of unresolved factual issues which remain concerning the manner in which the change was instituted by defendant. First, as the Court stated in In re Certified Question, supra, p 457, "to become legally effective, reasonable notice of the change must be uniformly given to affected employees.” In this case, one week’s notice was provided prior to the institution of enforceable minimum sales levels. Considering the nature of the change, we agree with plaintiff that the question whether "reasonable notice” was given is one for the jury. Second, the Supreme Court also cautioned against the assumption that its holding would be applicable to bad-faith policy changes. Id., pp 456-457. Considering plaintiff’s suggestion throughout this matter that the quota system was instituted in response to employee unionizing activity, and also, as a means of forcing commission-based salesmen into potentially less lucrative positions as salary-based "member-advisors,” the question whether defendant enacted its policy change in good faith is also one for the jury. THE EXPRESS-CONTRACT CLAIM As previously discussed, plaintiff also claims to have had an express agreement with defendant that any minimum sales quotas would not be enforced against him. Initially, we disagree with defendant that there was insufficient evidence of an express contract to submit this claim to a jury. In making this argument, defendant first contends that the Fennech and Mallott statements were too indefinite as a matter of law to create an express oral contract. We disagree. In Bullock, supra, pp 480-481, the Court noted that in Toussaint and its companion case, Ebling v Masco Corp, the testimony concerning promises by the defendants’ corporate officers that the plaintiffs would not be discharged as long as they were doing their job had been held to be sufficient to justify submitting to a jury the issue whether an express agreement existed. We further note that in Bullock an express agreement was alleged on the basis of statements similar to those made in this case. See Id., pp 475-476. Concerning these statements, Justice Levin stated in his separate opinion: Nor did the oral statements made to Bullock at the time of hiring necessarily lack the definiteness required to form a binding contract as a matter of law. Oral statements may be as binding as written statements. [Id., p 501.] It is suggested that the expressions relied on by Bullock were not " 'clear and unequivocal.’ ”... [T]here is no rule of law requiring that a contract that need not be in writing be more specific or clear and less equivocal when it is oral than when it is in writing. [Id., pp 508-509.] The testimony in this case described promises that were no less definite than those statements referred to above. Accordingly, we similarly conclude that the testimony was sufficient to justify submitting to a jury the issue whether an express agreement existed. Defendant further argues that Fennech’s and Mallott’s statements were improperly considered by the jury because they were made without authority, not based upon sufficient consideration, or void under the statute of frauds. These same arguments were raised, discussed, and rejected in our prior decision, in which we concluded that defendant’s arguments were largely factual and that sufficient evidence had been presented by plaintiff to establish that reasonable minds could differ concerning the factual disputes. See Farrell, supra, pp 384-386. Because those issues were not addressed either in In re Certified Question or Bullock, we conclude that our prior resolution of them remains unaffected. Having decided that sufficient evidence was presented to enable the jury to find an express agreement, our attention now shifts to consideration of the effect of defendant’s unilateral adoption of minimum sales quotas to the extent that the adoption conflicts with the terms of any express agreement found to exist. The ability of an employer to modify, through generally applicable policy changes, contract terms controlled by an express agreement was only briefly touched upon in Bullock. As discussed in Bullock, supra, pp 481-482, amendment of an employer’s generally applicable policies will not necessarily modify a prior express agreement: Likewise, it cannot be said that where an express agreement is alleged preceding an employment manual, the alleged promise is, as a matter of law, unenforceable. ... [In re Certified Question] does not establish that amendments to employment manuals must be construed to be modifications of a distinct, express, or implied-in-fact contract. However, Bullock did recognize that policy amendments could be construed as an "offer to modify” contrary terms of a prior express agreement. Id., p 483. Citing Bullock, defendant argues that its imposition of a policy requiring adherence to minimum sales levels constituted an offer to modify any contrary express agreement alleged by plaintiff and that acceptance of this offer was manifested where plaintiff "clearly continued employment thereafter, without protest.” We cannot accept this argument, however, because we conclude from our review of the record that a sufficient factual dispute existed concerning whether plaintiff’s continued employment was "without protest.” Moreover, we agree with plaintiff that acceptance cannot be presumed from the mere fact of continued employment; otherwise, how would such an offer ever be rejected, absent one leaving employment? Rather, to the extent defendant’s policy change constituted an offer to modify contrary terms of a prior express agreement, the question whether plaintiff accepted such an offer must be determined from the acts and circumstances of the parties, including their written or spoken words or by other acts or conduct. Ludowici-Celadon Co v McKinley, 307 Mich 149, 153; 11 NW2d 839 (1943). Accordingly, to the extent that a contrary express agreement is found to have been established, it is up to the factfinder to further determine whether the agreement was subsequently modified by virtue of an acceptance, on plaintiff’s part, of defendant’s policy-based "offer to modify.” CONCLUSION A primary area of dispute in both the lower court and in the parties’ initial appeal concerned the instructions to the jury. The jury instructions in this case failed to differentiate between plaintiff’s separate express-agreement and legitimate-expectations theories. While traditional contract-forming mechanisms such as mutual assent or individual detrimental reliance need not be present to establish contractual rights under a legitimate-expectations theory, Toussaint, supra, pp 614-615; In re Certified Question, supra, p 454, the same is not true for those rights asserted under an express agreement. Further, the employer’s ability to modify those rights determined to have been established also differs under the two theories. In light of the differences with respect to both the formation and modification of contractual rights under the two theories, we conclude that the absence of jury instructions appropriately differentiating between them requires that the initial jury verdict be set aside and a new trial held. Upon retrial, the jury must be instructed separately with respect to both the express-agreement and legitimate-expectations aspects of plaintiff’s claim in light of both In re Certified Question and Bullock, as well as this opinion. Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

GARNER v MICHIGAN STATE UNIVERSITY Docket No. 116980. Submitted April 3, 1990, at Lansing. Decided October 15, 1990. Leave to appeal applied for. David Garner brought a wrongful discharge action in the Ingham Circuit Court against Michigan State University and its Board of Trustees, the College of Human Medicine and Department of Psychiatry. Plaintiff filed a complaint for mandamus and other relief. After a show cause hearing, the trial court, Lawrence M. Glazer, J., found that plaintiff had been granted tenure status by the university and that the Board of Trustees’ policy on dismissal of tenured faculty for cause governed the dispute. The court issued a writ of mandamus ordering defendants to return plaintiff to his employment and the employment to continue until such time as action is taken pursuant to the university’s policy on dismissal of tenured faculty for cause. Defendants appealed by leave granted. The Court of Appeals held: 1. Plaintiff had constitutional property rights which could only be terminated by procedures that met due process. Defendants’ reliance on the rescission doctrine is a "retrospective fiction” that cannot be interposed to justify a deprivation of property without due process. Plaintiff had a clear right to be returned to his employment and to be terminated only in conformity with defendants’ policy on dismissal of tenured faculty for cause. 2. Plaintiff was denied, without due process, his property right to continued employment because he received no posttermination hearing. 3. The writ of mandamus was properly issued. 4. The use of mandamus to enforce a property right was appropriate. Alternate legal remedies available to plaintiff would not have been truly adequate. _5. Defendants’ claim that the courts should defer, on public policy grounds, to those responsible for academic administration was denied. References Am Jur 2d, Mandamus §§ 4, 64, 69, 248. Construction and effect of tenure provisions of contract or statute governing employment of college or university faculty member. 66 ALR3d 1018. Affirmed. 1. Mandamus — Duty — Legal Remedies. A plaintiff must have a clear legal right to the performance of the specific duty sought to be compelled and the defendants must have a clear legal duty to perform the same in order for the plaintiff to obtain a writ of mandamus; in addition, the plaintiff must be without an adequate legal remedy. 2. Mandamus — Appeal. A trial court’s decision to grant a writ of mandamus will not be reversed absent an abuse of discretion, nor will the trial court’s findings of fact underlying the granting of the writ be disturbed unless they are clearly erroneous. 3. Master and Servant — Public Employees — Due Process. A public employee, including a tenured professor employed by a public university, enjoys a property right in continued employment which the state may only take away in accordance with due process. 4. Master and Servant — Public Employees — Due Process. A posttermination hearing may be required in order to afford a tenured public employee due process where, prior to his termination, the employee was entitled to no more than oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. 5. Mandamus — Disputed Facts. A writ of mandamus may not be issued when based on disputed facts; the writ may be issued when some facts are in dispute where the only facts relevant to the determination whether the writ should be issued are undisputed. 6. Mandamus — Contracts — Property. Where a right or duty sought to be enforced rests wholly on contract, mandamus cannot issue to enforce it, because legal and equitable remedies afford relief; mandamus may lie, under appropriate circumstances, to enforce a property right. 7. Actions — Constitutional Rights — Remedies. The temporary loss of a constitutional right constitutes irreparable harm which cannot be adequately remedied by an action at law. White, Beekman, Przybylowicz, Schneider & Baird, P.C. (by Arthur R. Przybylowicz), for plaintiff. Office of the General Counsel, Michigan State University (by Michael J. Kiley and Kurt E. Krause), for defendants. Before: Wahls, P.J., and Marilyn Kelly and G. S.. Allen, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. G. S. Allen, J. In this suit for wrongful discharge, we are asked to decide the propriety of a writ of mandamus issued April 24, 1989, by the Ingham Circuit Court, ordering defendants to reinstate plaintiff, although not to "any particular position,” and further ordering defendants not to dismiss plaintiff without a hearing as mandated by defendant university’s policy on the dismissal of tenured faculty for cause. We find the writ properly issued and, therefore, affirm. Plaintiff is a psychologist and renowned expert in the field of "eating disorders,” primarily anorexia and bulimia. From early 1978 until December, 1987, he was employed by the University of Toronto, first as a lecturer and later as a full professor. In November, 1987, plaintiff’s certification to practice clinically was suspended for two years for professional misconduct involving sexual contact with one of his former patients at the University of Toronto. He was subsequently asked to resign from the university and he did so in December, 1987. In early 1988, Lionel Rosen, M.D., a professor of psychiatry at the Michigan State University College of Human Medicine, contacted plaintiff regarding possible appointment to the university. Rosen advised plaintiff to write W. Donald Weston, Dean of the College of Human Medicine, and explain the circumstances regarding his suspension from clinical practice and his resignation from the University of Toronto. Plaintiff did so by letter February 28, 1988. In April and May of 1988 plaintiff was interviewed by Weston and Donald Williams, chairman of the university’s Department of Psychiatry, and on June 21, 1988, was offered a tenured position as a professor of psychiatry in the Colleges of Human and Osteopathic Medicine at a beginning annual salary of $56,000. At a meeting of the university’s Board of Trustees on July 30, 1988, the board approved plaintiff’s appointment as professor "with Tenure, effective September 1, 1988.” On January 16, 1989, plaintiff informed Weston and Williams that a new charge of sexual misconduct had been filed against him in Ontario. On January 20, 1989, Weston wrote Provost David Scott recommending that plaintiff’s employment with Michigan State University be terminated. The letter stated in pertinent part: In preemployment discussions with both me and Dr. Williams, the focus was on Dr. Garner’s professional and ethical fitness. Dr. Williams and I each inquired of Dr. Garner regarding the possibility of other outstanding complaints of sexual inpropriety [sic]. He denied the same and steadfastly maintained that the complaint which led to his resignation from the University of Toronto and the professional discipline meted out by the obep [Ontario Board of Examiners in Psychology] was an isolated instance and that his gorss [sic] misjudgment was an aberration in an otherwise unblemished career as a psychologist. Dr. Williams specifically asked Dr. Garner whether he had ever had sexual relations with any other of his patients and Dr. Garner was unequivocal in his denial. He was clear in this point, the only point of concern that really mattered in our evaluation as to the viability of his candidacy. On Monday, January 16, 1989, Dr. Garner advised me that the obep had, on December 29, 1988, notified him of a new hearing of a charge of professional misconduct relating to an alleged sexual relationship with another of his former patients. He did not deny the charges. Dr. Garner further stated that he had intimate relations with a number of other former patients over the years. On the same date Williams wrote to Weston recommending plaintiffs dismissal. In the letter, Williams stated that he telephoned plaintiff on the evening of January 16, inquiring about the new allegation of sexual misconduct, and that plaintiff admitted to him that the new allegations were true. The letter continued as follows: I then reminded him that during his preemployment interviews I had asked him if he had had any other instances of sexual contact with his patients and he told me no. Dr. Garner then said that he thought I was asking if he had any other charges of sexual misconduct pending. I then asked him again whether he has had additional sexual contact with his patients. Dr. Garner then told me he had had sexual contact with a patient in 1983 and numerous sexual contact [sic] with patients in the 1970’s. Many of these contacts in the 1970’s occurred 3-6 months after he had terminated treatment. I then asked him if I was to conclude that he had engaged in sexual relations with most of his patients or former patients he treated in the 1970’s. Dr. Garner replied my conclusion was correct. I then asked him why he had not told me these facts when I had, in fact, asked him about his sexual contact last Spring. Dr. Garner replied, "I was afraid I wouldn’t get the job.” I replied, "You’re right—you wouldn’t have.” Provost Scott requested that plaintiff attend a meeting on January 26, 1989, to discuss the letters which he had received regarding the new allegations of sexual misconduct. Present at the meeting were plaintiff, his attorney, Provost Scott and two members of the university’s general counsel. Neither Weston nor Williams attended the meeting. According to plaintiff, the meeting consisted of plaintiff’s being asked a series of questions which he answered to the best of his ability. He may have been asked for his side of the story. At no time, however, was plaintiff given the opportunity to confront his accusers, to cross-examine them, or to call witnesses in his own defense. After reviewing plaintiff’s remarks made during the January 26, 1989, meeting, conferring with Weston and Williams, consulting with the university’s counsel, and meeting with the university’s Board of Trustees, Provost Scott, under authorization from the board, rescinded plaintiff’s employment contract on February 6, 1989. It is undisputed that the university established a policy, approved by the Board of Trustees on June 24, 1977, entitled "Dismissal of Tenured Faculty for Cause.” The policy provides for full adversarial proceedings before termination, which the university in the instant case did not provide. Instead, the university chose to rescind plaintiffs contract. When plaintiffs attempts to have the dispute resolved by the university’s Committee on Faculty Tenure were rejected, plaintiff filed a complaint for mandamus and other relief in the Ingham Circuit Court on March 21, 1989. At a show cause hearing held April 17, 1989, plaintiff testified that at no time was he given an opportunity to cross-examine his accusers or call witnesses on his own behalf. He also testified that, if granted a hearing, he would deny that he lied in his preemployment interviews or made any misrepresentations during the initial interviews. Finally, plaintiff testified that, if granted a hearing, he would contest the allegation of Williams that, in a telephone conversation with Williams on January 16, 1989, plaintiff admitted to sexual misconduct with numerous former patients. At the conclusion of the show cause hearing, the trial court found that plaintiff was granted tenure status by the university and that the Board of Trustees’ policy on dismissal of tenured faculty for cause governed the dispute. Accordingly, the court issued a writ of mandamus ordering defendants to return plaintiff to his employment and the employment to continue until such time as action is taken pursuant to the university’s policy on dismissal of tenured faculty for cause. By order dated June 16, 1989, this Court granted defendants’ application for leave to appeal but denied stay of the trial court’s order._ On appeal, defendants raise four issues which we have reformulated as five issues, hereinafter addressed. i WERE DEFENDANTS RELIEVED OF THEIR DUTY TO AFFORD PLAINTIFF DUE PROCESS BECAUSE PLAINTIFF ALLEGEDLY LIED IN HIS PREEMPLOYMENT INTERVIEW, THEREBY AFFORDING DEFENDANTS THE RIGHT TO RESCIND PLAINTIFF’S EMPLOYMENT CONTRACT? We begin our analysis by stating the rules of law governing the issuance of mandamus. To obtain a writ of mandamus, "the plaintiff must have a clear legal right to the performance of the specific duty sought to be compelled and the defendants must have a clear legal duty to perform the same.” State Bd of Ed v Houghton Lake Community Schools, 430 Mich 658, 666; 425 NW2d 80 (1988). In addition, the plaintiff must be without an adequate legal remedy. Cyrus v Calhoun Co Sheriff, 85 Mich App 397, 399; 271 NW2d 249 (1978). A trial court’s decision to grant a writ of mandamus will not be reversed absent an abuse of discretion. The trial court’s findings of fact underlying the granting of the writ will not be disturbed unless clearly erroneous. Michigan Waste Systems, Inc v Dep’t of Natural Resources, 157 Mich App 746, 760; 403 NW2d 608 (1987), lv den 428 Mich 900 (1987). Defendants argue that plaintiff’s otherwise existing right to a tenure hearing was abrogated because, under common law, defendants had the right to rescind plaintiff’s contract upon learning that plaintiff had lied during his preemployment interviews. In support of this position defendants rely primarily oh Morgan v American University, 534 A2d 323 (DC App, 1987). In Morgan, the plaintiff applied for a "tenure-track” faculty position with American University but failed to disclose that he already held a position at another university. Upon discovering this fact, American University rescinded the plaintiff’s contract without complying with the contractual notice and hearing procedures set forth in the faculty manual. Id., p 324. The Morgan court held that the common-law right to rescission was not abrogated by the notice and hearing provisions in the plaintiff’s contract. Therefore, the university could rescind the plaintiff’s contract. Id., pp 330-331. Morgan is distinguishable in two material respects. First, in Morgan the plaintiff conceded that, in his preemployment interview, he did not inform the university that he was employed at another school. In the instant case, plaintiff denied that he ever admitted to his accusers that, while employed at the University of Toronto, he had sexual relations with numerous former patients. Thus, unlike in Morgan, in the instant case a dispute exists as to the underlying facts relied upon by defendants to justify an exercise of the common-law right of rescission. Second, Morgan involved a private university, whereas the instant case involves a public university. This distinction is crucial. Procedural due process guarantees apply only in the presence of a "property” or "liberty” interest within the meaning of the Fifth or Fourteenth Amendment. Williams v Hofley Mfg Co, 430 Mich 603, 610; 424 NW2d 278 (1988), reh den 431 Mich 1202 (1988), app dis 489 US 1001; 109 S Ct 1102; 103 L Ed 2d 168 (1989). Any right to continued employment enjoyed by an employee of a private employer arises out of the employment contract. Such contractual rights do not rise to the level of a protected property interest. Morgan, 534 A2d 331; See also Matulewicz v Governor, 174 Mich App 295, 304; 435 NW2d 785 (1989), lv den 434 Mich 866 (1990). However, a public employee enjoys a property right in continued employment which the state may only take away in accordance with due process. Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 160-161; 365 NW2d 93 (1984). This includes tenured professors employed by a public university. Bd of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972). Therefore, plaintiff, as a public employee and tenured professor, enjoyed a greater right to continued employment than did the privately employed plaintiff in Morgan. Having distinguished Morgan, we find the United States Supreme Court’s decision in Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985), dispositive. In Loudermill, the plaintiff, a public employee, was terminated from his position as a security guard after the school board discovered he had falsely stated on his employment application that he had not been convicted of a felony. He received no pretermination hearing. However, a posttermination hearing was held. Id., p 535. The Supreme Court held that some kind of pretermination hearing was required to comply with due process. Id., pp 542-548. The board of education’s argument that Louder-mill had no property right because he obtained his employment by lying was rejected in a footnote early on in the opinion: The Cleveland Board of Education now asserts that Loudermill had no property right under state law because he obtained his employment by lying on the application. It argues that had Loudermill answered truthfully he would not have been hired. He therefore lacked a "legitimate claim of entitlement” to the position. For several reasons, we must reject this submission. First, it was not raised below. Second, it makes factual assumptions—that Loudermill lied, and that he would not have been hired had he not done so—that are inconsistent with the allegations of the complaint and inappropriate at this stage of the litigation, which has not proceeded past the initial pleadings stage. Finally, the argument relies on a retrospective ñction inconsistent with the undisputed fact that Loudermill was hired and did hold the security guard job. The Board cannot escape its constitutional obligations by rephrasing the basis for termination as a reason why Louder-mill should not have been hired in the first place. [470 US 539, n 5. Citation omitted.] Accordingly, we conclude that plaintiff in the instant case, like Loudermill, had constitutional property rights which could only be terminated by procedures that met due process. Defendants’ reliance on the rescission doctrine is a "retrospective fiction” that cannot be interposed to justify a deprivation of property without due process. Therefore, plaintiff had a clear right to be returned to his employment and to be terminated only in conformity with defendants’ policy on dismissal of tenured faculty for cause. Defendants had a concomitant duty to perform the same. ii DID THE PRETERMINATION PROCEDURE FOLLOWED IN THE INSTANT CASE AFFORD PLAINTIFF DUE PROCESS? Defendants next argue that even if they were required to afford plaintiff due process, they were not necessarily required to afford plaintiff the due process set forth in that portion of the faculty handbook entitled "Dismissal of Tenured Faculty for Cause.” According to defendants, the nearly three-hour meeting between Provost Scott and plaintiff and his attorney satisfied the due process required by Loudermill. We disagree. In support of their claim, defendants cite the following language from Loudermill: The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. To require more than this prior to termination, would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee. [470 US 546. Citations omitted.] The flaw in defendants’ claim is the conclusion that, in so ruling, the Court in Loudermill held no posttermination hearing need be provided. The Loudermill decision clearly provides that the minimal pretermination procedure which it outlined is not alone adequate to satisfy due process. The Court noted that it had formerly stated that " '[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature

STEFANAC v CRANBROOK EDUCATIONAL COMMUNITY (AFTER REMAND) Docket No. 82317. Argued March 8, 1989 (Calendar No. 7). Decided July 5, 1990. Judith Stefanac brought an action in the Oakland Circuit Court against Cranbrook Educational Community, alleging wrongful discharge, sex discrimination, and termination of employment in violation of public policy. The court, Robert C. Anderson, J., relying on Leahan v Stroh Brewery Co, 420 Mich 108 (1984), granted the defendant’s motion for accelerated judgment because plaintiff failed to tender consideration, and therefore the release executed by the plaintiff barred her claims. Thereafter, the plaintiff, on rehearing, sought the court’s consent to tender the disputed consideration and refile her suit. The court affirmed its previous ruling, dismissing the complaint with prejudice. The Court of Appeals, Beasley and C. L. Horn, JJ. (Bronson, P.J., not participating), affirmed in an unpublished opinion per curiam (Docket No. 89512). The Supreme Court vacated the judgment of the Court of Appeals and remanded the case for consideration of plaintiff’s alternate argument whether her offer to tender the disputed consideration was made within a reasonable time. 428 Mich 903 (1987). On remand, the Court of Appeals, Beasley, P.J., and Michael J. Kelly and Maher, JJ., held that the offer to tender the disputed consideration had been made within a reasonable time and instructed the trial court to issue an order allowing the plaintiff thirty days to make restitution (Docket No. 101319). The defendant appeals. In an opinion by Justice Brickley, joined by Chief Justice Riley and Justices Cavanagh, Boyle, and Griffin, the Supreme Court held: Where a plaintiff has entered into a settlement agreement, of consideration recited in the agreement must occur not only within a reasonable time after execution of the agreement, but, in all cases, prior to or simultaneously with the commencement of any proceeding raising a legal claim in contravention of the agreement. References Am Jur 2d, Compromise and Settlement §§ 7, 8,13. Timeliness of tender or offer of return of consideration for release or compromise, required as condition of setting it aside. 53 ALR2d 757. 1. Settlement agreements are binding until rescinded for cause. Tender of consideration received is a condition precedent to the right to repudiate a contract of settlement. The law favors settlements, and a party entering into a settlement agreement, offering adequate consideration, is entitled to rely on the terms of the agreement. A compromise and release should not be confused with the law of contract. The very essence of a release is to avoid litigation, even at the expense of strict right. One who seeks to repudiate or avoid a compromise settlement or release and revert to the original right of action must place the other party in statu quo, absent waiver or fraud in the execution. In this case, the plaintiff’s allegations of fraud are insufficient to bring the claim within the exception, and the defendant has not waived the obligation to tender. The plaintiff made no effort to raise the validity of the release; rather, she merely ignored the existence and terms of the agreement and brought an action in contravention of it, while retaining its benefits. 2. A plaintiff must tender restitution promptly and without unreasonable delay upon discovery of fraud or be held to have ratified the release. Long acquiescence and failure to complain promptly operates, as a matter of law, to reaffirm a contract of settlement and bars litigation. A settlement agreement is binding until rescission by repudiation and tender. Tender is a prerequisite to the right to repudiate. Commencement of a lawsuit is not a proper means to repudiate a settlement. Tender must occur within a reasonable time after learning of the grounds upon which the release and settlement could be repudiated. What is reasonable under the circumstances is a matter of discretion for the trial court. In this case, the trial court had no occasion to rule on the issue because, instead of repudiating the agreement, the plaintiff filed suit in contravention of the terms of the release. 3. Independent of the issue what constitutes a reasonable time within which to repudiate a settlement is the question whether tender is permissible after commencement of an action in contravention of the agreement. As a matter of law, in all cases where a legal claim is raised in contravention of an agreement, the plaintiff must tender the consideration recited in the agreement prior to or simultaneously with filing suit. A defendant is entitled to rely on the binding nature of an agreement. A plaintiff is not entitled to retain the benefit of an agreement and at the same time bring suit in contravention of the agreement. Reversed. Justice Levin, dissenting, stated that where a plaintiff claims, and the court finds, that there would be entitlement to retain recited consideration after a release is set aside because the amount recited as consideration represents payment that accrued and was owing to the plaintiff separate and apart from the claims that were settled by the release, and that no consideration in fact was paid to settle those claims, tender is not required. In deciding whether tender is required before suit in this case the Supreme Court is obliged to accept as true the allegations in the plaintiff’s complaint and in her response to the motion for summary disposition, and to proceed on the assumptions, absent judicial determination at the trial level to the contrary, both that the release in fact was obtained by fraud or duress and that the defendant indeed owes the plaintiff two weeks’ vacation pay and thus an amount equal to the consideration recited in the release. In addition, it exalts form over substance to require tender before suit where it is apparent that the defendant would not have accepted the tender had it been promptly offered. A person who has signed a release should not be permitted to proceed in an action in disaffirmance of the release until the consideration actually paid for the release itself has been returned. The purpose of the tender rule is not to provide a fair and necessary check against the instability of contracts, but rather to provide a check against the unjust enrichment of the rescinding party that would result if the rescinding party were allowed to retain the benefits of the contract attacked. The factual dispute in an action to set aside a release does not involve the merits of the plaintiff’s underlying claim against the defendant that were resolved by the release if it is valid. It is only if and when the release is set aside that the plaintiff should be able to put the defendant to the expense of defending against the underlying claim. The consideration paid by the defendant to the plaintiff at the time the release is signed does not provide protection against a claim that the release itself was procured by fraud or duress, or protect the very instrument that is intended to ensure forbearance of litigation. If it is judicially determined in this case that the plaintiff was coerced into signing the release, the release should be set aside and she should be required to return the payment before obtaining a determination on the merits of her claims of wrongful discharge unless it is also so judicially determined that the defendant owes her that amount as additional vacation pay. The majority’s reading of Leahan is incorrect and contradicts a well-established tenet of the law of contracts. Parol evidence is always admissible to show that a statement in a document is not true. Tender of consideration, although a precondition to an action at law, is not a precondition to commencement of an action seeking equitable relief. The majority errs in concluding that the abolition of the procedural distinction between law and equity in some way diminishes the power of a court to order rescission in accordance with the rules and practices developed in equity. Modem procedural reforms, in conjunction with the consolidation in one court of jurisdiction of both equitable and legal claims, eliminate the necessity of tender as a prerequisite to commencement of an action seeking to obtain rescission. Under unified proceedings, a court may enter a judgment conditioning rescission on the return of consideration received by the plaintiff, thus effectuating the purpose of the tender rule, the avoidance of unjust enrichment of the residing party. Contracts to relinquish the enforcement of legal rights warrant at least as much judicial surveillance as other contracts. Justice Archer, dissenting, stated that an inflexible application in this case of the rule of Leahan that a party to a contract of settlement must tender any consideration received as a condition precedent to repudiating the contract is neither complete nor fair. Where there is a bona fide, good-faith dispute regarding whether consideration recited in a release agreement actually amounted to consideration, the rule of Leahan is unworkable. Where, aside from the transaction, the person seeking restitution would be entitled to retain what the other gave as a result of the agreement, there is no enrichment as a result of the agreement even though what was given is retained, nor does it diminish the net assets of the other. Clearly, a plaintiff who contests the sufficiency of the consideration supporting a release agreement should be allowed to withhold tender of the alleged consideration until there is a judicial determination that consideration was in fact paid. If it is found that the consideration was paid, the plaintiff should be required to tender that amount. However, if the court determines that the amount paid to the plaintiff for the release was already owed to the plaintiff, the plaintiff should be allowed to retain that amount and proceed with any legal action. In this case, the plaintiff unquestionably was owed her wages find accrued vacation pay. A question of fact exists regarding whether additional vacation pay was owed, and any amount determined to be in excess of that owed the plaintiff should be tendered to the defendant within a reasonable time following resolution. However, the plaintiff should be allowed to amend her complaint to request rescission. 164 Mich App 709; 417 NW2d 582 (1987) reversed. Compromise and Settlement — Release — Consideration — Tender — Reasonable Time. Where a plaintiff has entered into a settlement agreement, tender of consideration recited in the agreement must occur not only within a reasonable time after execution of the agreement, but, in all cases, prior to or simultaneously with the commencement of any proceeding raising a legal claim in contravention of the agreement. Bell & Gardner, P.C. (by Mary E. Rosick and Cynthia Yott), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O’Meara, Thomas G. Kienbaum, and Elizabeth Hardy) for the defendant. AFTER REMAND Brickley, J. The issues presented in this case are whether a plaintiff, before commencing a suit which disregards the terms of a release, must tender the consideration recited in the release and, if so, at what point before or during the proceedings must this tender take place. We hold that when a plaintiff has entered into a settlement agreement tender of consideration recited in the agreement must occur not only -within a reasonable time after execution of the agreement, but in all cases prior to or simultaneously with the commencement of any proceeding raising a legal claim in contravention of the agreement. i On November 16, 1983, plaintiff resigned as personnel director of Cranbrook Educational Community. In connection with her termination, plaintiff signed a document entitled "Release of Claims.” The release is dated November 16, 1983, and reads in pertinent part as follows: For and in consideration of Cranbrook Educational Community’s (Cranbrook) acceptance of the voluntary resignation of Judith Stefanac (Stefanac) and Cranbrook’s further agreement to pay Stefanac for two weeks, less applicable state and federal withholding taxes, Stefanac, for herself, her heirs, administrators and executors, does hereby fully and forever release, acquit and discharge Cranbrook, its agents, servants and representatives, of and from any and all claims, demands, actions and causes of action of every kind, nature and description which Stefanac may have had, may now have or may hereafter have by reason of any matter, cause, act or omission arising out of or in connection with Stefanac’s employment with and/or resignation from Cranbrook. After signing the release plaintiff received a check from defendant for $2,090.65. The check was purportedly intended to be payment for four weeks accrued vacation time and two weeks’ severance pay. Plaintiff filed suit against Cranbrook on August 9, 1984, alleging wrongful discharge, sex discrimination, and termination in violation of public policy. Subsequently, defendant filed a motion for accelerated judgment, arguing that the release barred plaintiff’s claims. In response, plaintiff filed an affidavit challenging the validity of the release. The parties agreed that plaintiff's affidavit raised a question of fact, and therefore the motion was denied without prejudice. Following a discovery period of one year, defendant again moved for dismissal of the action on the grounds that the release barred suit. Defendant also argued at this point, that plaintiff’s failure to tender the consideration received in exchange for the release prevented her from now attempting to rescind the agreement. Defendant’s position was based on this Court’s decision in Leahan v Stroh Brewery Co, 420 Mich 108; 359 NW2d 524 (1984). Plaintiff conceded that Leahan merely reaffirmed the law as it had existed in the past, but asserted that the facts of Leahan differed from the instant case. Further, plaintiff maintained that the release was void for lack of consideration and that she was entitled to all money received as a result of her termination. The trial court interpreted Leahan as dispositive of the issue and granted defendant’s motion. Three weeks later, plaintiff filed a motion for rehearing. On rehearing, plaintiff sought the trial court’s consent to tender the disputed consideration and, following tender of the money, the opportunity to refile her suit against defendant. This is the first indication that plaintiff was willing to repay the consideration recited in the release. The trial judge affirmed the previous ruling, dismissing plaintiff’s complaint with prejudice. Plaintiff appealed as of right, raising two issues. Plaintiff continued to argue that she was entitled to all the money received and therefore that tender was not required in order to maintain the action. Alternatively, plaintiff argued that her offer to tender back the disputed consideration was within a reasonable time under the circumstances of the case. Basing its analysis on an examination of Leahan, the Court of Appeals held: [T]he consequence of the Leahan decision is that if a release recites that consideration was paid and if money was in fact paid, a plaintiff may not argue that the money was not actually consideration, regardless of any evidence to that effect. That seems to be what Leahan holds. If not, we believe it is up to the Supreme Court to say so. Consequently, we affirm.[] [Emphasis added.] However, the Court of Appeals did not directly address plaintiff’s alternate argument that tender of the disputed consideration occurred within a reasonable time. Consequently, we issued an order vacating the judgment of the Court of Appeals and remanded the case for consideration of the second issue raised by plaintiff. 428 Mich 903 (1987). On remand, the Court of Appeals ruled that “plaintiff’s offer to tender back the disputed consideration was within a reasonable time.” The Court instructed the trial judge to issue an order which would allow plaintiff thirty days to make restitution to the defendant. Further, the trial court held: If such restitution is made, trial shall be had on the merits, including determination of the validity of the release. If such restitution is not made, judgment may enter for defendant. Nothing in this opinion is intended to preclude the trial judge from making appropriate findings of fact after trial, including resolution of how much, if any, of the monies paid plaintiff were in consideration of the release.[] We granted defendant’s application for leave to appeal. 430 Mich 892 (1988). ii It is a well-settled principle of Michigan law that settlement agreements are binding until rescinded for cause. Further, tender of consideration received is a condition precedent to the right to repudiate a contract of settlement. See, generally, Randall v Port Huron, St C & M C R Co, 215 Mich 413; 184 NW 435 (1921); Kirl v Zinner, 274 Mich 331; 264 NW 391 (1936); Leahan v Stroh Brewery Co, supra. The policy consideration underlying the general rule is that the law favors settlements. A party entering into a settlement agreement, offering adequate consideration, is entitled to rely on the terms of the agreement. The rationale for the rule was explained further by this Court in Kirl v Zinner:___ A compromise and release is not to be confused with the law of contract, in which equivalents are exchanged, for the very essence of a release is to avoid litigation, even at the expense of strict right. * * * It is a general and salutary rule that one repudiating or seeking to avoid a compromise settlement or release, and thereby revert to the original right of action, must place the other party in statu quo, otherwise the very fact of payment, in consideration of the compromise or release, will likely operate as a confession of liability. [274 Mich 334-335. Emphasis in original.] Plaintiff asserts that she should be excepted from this rule because the release was void and not merely voidable. The validity of the release was challenged by plaintiff on the grounds that it lacked consideration and was procured under duress and fraud. Specifically plaintiff asserts that defendant misrepresented the terms of the agreement. Moreover she asserts that defendant knew that plaintiff was legally entitled to the money she received, that she needed the money to support her family, and that defendant waved the checks at her refusing to give plaintiff any funds unless she signed the release. Plaintiff contends that although the release recites that consideration was received, she in fact did not get anything in exchange for signing the settlement agreement. Therefore tender was not necessary prior to filing suit because "there is nothing to be returned to restore the status quo ante.” However, plaintiff admits that she signed the release and that she received four checks. Subsequently she endorsed and cashed the checks received. We start with the presumption that the plaintiff executed the release knowingly and that the recited consideration was received. Porth v Cadillac Motor Car Co, 198 Mich 501; 165 NW 698 (1917). Kirl v Zinner, supra. The plaintiff has the burden of showing, by a preponderance of the evidence, that the release is unfair or incorrect on its face. Id. Even in light of these presumptions and the plaintiff’s burden, the plaintiff must tender the recited consideration before there is a right to repudiate the release. Id. The only recognized exceptions in Michigan are a waiver of the plaintiff’s duty by the defendant and fraud in the execution. Plaintiff has not raised either exception and thus is not relieved of the duty to tender the consideration recited in the release. Our reports are replete with authority that negate plaintiff’s contentions. In Niederhauser v Detroit Citizens’ St R Co, 131 Mich 550, 552; 91 NW 1028 (1902), we held: The law is well settled that, if one seeks to rescind a settlement on the

Christine A. Graham vs. Quincy Food Service Employees Association and Hospital, Library and Public Employees Union. Norfolk. March 6, 1990. June 12, 1990. Present: Liacos, C.J., Wilkins, Abrams, Nolan, & Lynch, JJ. Practice, Civil, Summary judgment. Labor, Fair representation by union, Action against labor union. Administrative Law, Primary jurisdiction. Jurisdiction, Labor case, Primary jurisdiction. Limitations, Statute of. Labor Relations Commission. Practice, Civil, Parties, Complaint. In an action by an employee of a public school system against a labor union for breach of the duty of fair representation, based on allegations that the union failed to assist her in her efforts to seek reinstatement to her position of cook from which she alleged she had been improperly demoted, the judge erred in granting summary judgment in favor of the defendant where the facts presented did not establish that the plaintiff’s grievances were unmeritorious as a matter of law, and where there were factual issues to be resolved at trial as to the motive for the defendant’s refusal to assist the plaintiff in her efforts at reinstatement. [606-611] Dismissal of a claim brought in the Superior Court by an employee against a labor union alleging a breach of the duty of fair representation was not required on the ground that the Labor Relations Commission had primary jurisdiction over such claims where, at the time the plaintiff filed her complaint, she had no notice that prior resort to the commission would be required, inasmuch as she reasonably relied on Federal and State precedent indicating that the courts had concurrent jurisdiction over cases concerning the duty of fair representation, and where there was no indication that the plaintiff had engaged in forum shopping to seek an undue advantage. [611] In an action by an employee against a labor union for breach of the duty of fair representation arising under G. L. c. 150E, this court concluded that, whether the three-year limitation period applicable to an action in tort (G. L. c. 260, § 2A) or the three-year limitation period applicable to an action for attorney malpractice (G. L. c. 260, § 4) was appropriate, the claims of the plaintiff were not time-barred. [612-614] In an action by an employee against a labor union for breach of the duty of fair representation, there was no merit to the union’s claim that the action must be dismissed for failure to join the employer as a party. [614-615] In a civil action, matters placed in issue by the parties’ affidavits filed during summary judgment proceedings were properly before the court, notwithstanding the plaintiffs failure to address these matters in her pleadings. [615-616] Civil action commenced in the Superior Court Department on February 28, 1986. A motion for summary judgment was heard by Ernest S. Hayeck, J., sitting under statutory authority. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kathryn M. Noonan (Lisa J. Brandzel with her) for the plaintiff. Robert M. Schwartz for the defendant. Abrams, J. The plaintiff, Christine Graham, appeals from a final judgment entered for the defendant, the Quincy Food Service Employees Association and Hospital, Library and Public Employees Union (union) after the denial of her motion for summary judgment and the grant of summary judgment for the.union. See Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). The plaintiff argues that the judge erred in not granting summary judgment for her. Alternately, she contends that the case should be remanded for trial. We transferred the case to this court on our own motion. We reverse the judgment below and remand the case to the Superior Court for trial. The plaintiff, an employee in the Quincy public school system, filed this suit in February, 1986, against the city, the school committee, various school officials, and the union. The plaintiff alleged that she had been demoted improperly from her position as a cook. The count against the union was for breach of the duty of fair representation, based on allegations that the union failed to assist her, beginning in April, 1985, in her efforts to seek reinstatement. I. Summary judgment. “Rule 56 (c) of the Massachusetts Rules of Civil Procedure, 365 Mass. 824 (1974), provides that a judge shall grant a motion for summary judgment ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ‘The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial.’ Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). See Layne v. Superintendent, Massachusetts Correctional Institution, Cedar Junction, [406 Mass.] 156, 161 & n.6 (1989). See also Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982).” Doherty v. Hellman, 406 Mass. 330, 333 (1989). Generally, in reviewing a grant of summary judgment, we view the facts in the light most favorable to the party opposing summary judgment. Alioto v. Marnell, 402 Mass. 36, 37 (1988). Thus, we assume that “all of the facts set forth in the [opposing party’s] affidavits [are] true . . . .” Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). When the court below grants summary judgment for the nonmoving party, we invert the usual standard and “view the record in the light most flattering to . . . the summary judgment loser,” here, the plaintiff. Quaker State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1513 (1st Cir. 1989). The plaintiff began working in the food services department of the Quincy public schools on October 15, 1973. She was promoted to the position of cook in 1978. In 1982, because of financial constraints, the Quincy school committee decided to demote four cooks to the position of cafeteria helper. The cooks were to be demoted in reverse order of their civil service seniority, in accordance with the provisions of G. L. c. 31, § 39. The plaintiff was chosen for demotion on the basis of civil service records that listed an erroneous date adversely affecting her seniority. Despite the plaintiff’s efforts to bring the error to the attention of the school committee, it voted to proceed on the basis of the official dates in the civil service records, although it promised to reinstate the plaintiff if it were later determined that she had been wrongly demoted due to an incorrect seniority date. Subsequently, the union filed an appeal to the Civil Service Commission to correct the seniority dates of the plaintiff and several other employees whose records listed incorrect seniority dates. While awaiting action from the Civil Service Commission, the plaintiff worked as a cafeteria helper for the 1982-1983 school year. In early 1984, union officials effected what was, in essence, a merger with another union. The plaintiff vigorously opposed the merger and testified at a Labor Relations Commission hearing concerning her opposition. The plaintiff contends that “[t]he events surrounding the merger gave rise to hostility and discrimination by the union towards the plaintiff.” After the merger was effected, the plaintiff continued to speak out against the arrangement and questioned union officers about the possibility that union funds had been improperly used. In response, the union president, Ruth DeCristofaro, removed the plaintiff from the union’s grievance committee, on which she had served for about two years. The plaintiff continued to pursue the matter of the incorrect seniority date. In February, 1985, the school committee offered to settle the matter of the incorrect seniority date in a manner unsatisfactory to the plaintiff. She refused the school committee’s offer. On February 28, 1985, the Civil Service Commission held a hearing regarding seniority dates. Shortly thereafter, the Civil Service Commission decided that the plaintiff’s seniority date as listed was incorrect and that it should be adjusted. In April, 1985, the plaintiff asked the union to assist her in seeking reinstatement to the position of cook, in light of the favorable result she had received from the Civil Service Commission. DeCristofaro, one of the plaintiff’s principal opponents in matters of union politics, informed the plaintiff that the union would not represent her regarding the seniority matter, “because [the plaintiff] could not win.” When the plaintiff asked for a written memorandum to that effect, DeCristofaro responded, “Don’t hold your breath.” In June, the plaintiff again asked the union to assist her. The union’s executive board refused. Despite the union’s refusal to assist her, the plaintiff pursued the matter with the school committee. In July, 1985, the school committee voted to reinstate the plaintiff and grant her back pay. In August, however, the plaintiff received a check from the school committee in an amount substantially less than she thought was due. She initially refused the check and then accepted it in partial payment. Despite the school committee’s vote in her favor, when she reported to work in September, 1985, she was assigned to work fewer hours per week than other cooks and was assigned the tasks of a cafeteria helper, not a cook. The plaintiff wrote a letter to the union’s executive director, John Keefe, asking for the union’s help in “resolvfing] these conditions.” There was no reply. No grievance was filed on the plaintiffs behalf. In December, 1985, the plaintiff again resorted to self-help and appealed to the school committee. The school committee voted not to award any further back pay and did not address the plaintiffs complaint that she was not being permitted to work as a cook. Because she was unsuccessful in her efforts to gain work as a cook, rather than as a cafeteria helper, she again requested that the union file a grievance on her behalf in September, 1986. The plaintiff received no helpful response from the union. The plaintiff stated that, during the time she served on the union’s grievance committee, the committee never refused to assist a union member in pursuing a grievance. Breach of the duty of fair representation occurs if a union’s actions toward an employee are “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967). “[A] union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion . . . .” Id. at 191. Unions are permitted “a wide range of reasonableness” in representing the often-conflicting interests of employees; hence, unions are vested with considerable discretion not to pursue a grievance, as long as their actions are “not improperly motivated, arbitrary, perfunctory or demonstrative of inexcusable neglect.” Baker v. Local 2977, State Council 93, Am. Fed’n of State, County, & Mun. Employees, 25 Mass. App. Ct. 439, 441 (1988), quoting Local 285, Serv. Employees Int’l Union, 9 M.L.C. 1760, 1764 (1983). Therefore, “[although ordinary negligence may not amount to a denial of fair representation, lack of a rational basis for a union decision and egregious unfairness or reckless omissions or disregard for an individual employee’s rights may have that effect.” Trinque v. Mount Wachusett Community College Faculty Ass’n, 14 Mass. App. Ct. 191, 199 (1982). Under this standard, the grant of summary judgment to the union was improper. The facts, when taken in the light most favorable to the plaintiff, do not warrant a conclusion that, as a matter of law, the union did not violate its duty of fair representation. The union’s argument that summary judgment was proper rests on two contentions: (1) that the plaintiff’s grievances were unmeritorious; and (2) that their meritlessness was the reason for its refusal to assist the plaintiff before the school committee. 1. The facts presented in the motion for summary judgment do not establish that the plaintiff’s grievances were unmeritorious as a matter of law. Indeed, the union’s argument that they were flies in the face of the plaintiff’s limited but genuine successes before the Civil Service Commission and the school committee. In order to survive summary judgment, the plaintiff need not show with complete certainty that her grievances were meritorious, so that if the union had not failed to represent her, she would have been entirely successful in obtaining the full relief sought. Rather, she need show on this point only that her grievances were arguably meritorious. See, e.g., Zimmerman v. Foundation of the French Int’l School Rochambeau of Washington, 830 F.2d 1316 (4th Cir. 1987) (union not entitled to summary judgment in fair representation action when it refused to press arguably meritorious grievance); San Francisco Web Pressmen & Platemakers’ Union v. NLRB, 794 F.2d 420 (9th Cir. 1986) (union liable for breach of the duty of fair representation if it fails to process nonfrivolous grievance fairly). Accord Harrison v. United Transp. Union, 530 F.2d 558 (4th Cir. 1975), cert. denied, 425 U.S. 958 (1976). Cf. Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332 (5th Cir. 1980). The union’s principal legal argument in support of its contention that the plaintiff’s grievances were unmeritorious is that they were untimely, i.e., that the plaintiff did not bring them to the attention of the union in time for the union to file them within the brief period permitted by the collective bargaining agreement. The plaintiff presents several arguments to counter this contention. First, she points out that the untimeliness of a grievance is a defense generally raised by employers, not unions, and that it was not the employer’s practice to insist on the time limits outlined in the collective bargaining agreement. Indeed, the school committee’s willingness to hear the plaintiffs complaint supports the plaintiffs argument on this point. Second, the plaintiff argues that her grievances, or complaints, were of continuing violations, and thus, that their timeliness would not affect their meritoriousness. “The miscalculation of [the plaintiff’s] seniority and the resulting underpayment was an ongoing harm, not an isolated incident” (emphasis added). Leahy v. Local 1526, Am. Fed’n of State, County, & Mun. Employees, 399 Mass. 341, 354 (1987). Cf. Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515 (1990). Third, the plaintiff argues that what she asked from the union was not that it file a grievance, but that it assist her in presenting her favorable result from the Civil Service Commission to the school committee. She contends that she would only have asked the union to file a grievance if the school committee had refused to grant her relief after being presented with the results of the Civil Service Commission proceeding that adjusted her seniority date. All of these arguments, taken together, carry the plaintiffs grievances (or complaints) well over the threshold of arguable meritoriousness. The union also contends that the plaintiff’s grievances concerning the period in which she was asked to perform the duties of a cafeteria helper, rather than a cook, are unmeritorious because there were no specific job descriptions in force. We have declared previously, however, that “a collective bargaining agreement impliedly includes past practices of the employee group as duties of employment.” Lenox Educ. Ass’n v. Labor Relations Comm’n, 393 Mass. 276, 283 (1984). The plaintiff also notes that the collective bargaining agreement provides that “[practices which are not expressly provided for or modified in specific terms of this agreement may remain in full force and effect during the life of this Agreement.” The union’s argument on this point, then, also is insufficient to bring the plaintiff’s grievances concerning her job duties below the threshold of arguable meritoriousness. 2. Demonstration that her grievances were arguably meritorious is insufficient, by itself, for the plaintiff to survive summary judgment. If the union’s failure to press her grievances was the result of a reasonable and good-faith belief that her grievances were unmeritorious, the union was vested with the discretion not to pursue them. See Vaca v. Sipes, 386 U.S. 171, 192 (1967); Baker v. Local 2977, supra at 441; Trinque, supra at 199. Cf. Peabody Fedn. of Teachers, Local 1289, v. School Comm. of Peabody, 28 Mass. App. Ct. 410, 415 (1990). There must be “substantial evidence” of bad faith that is “intentional, severe, and unrelated to legitimate union objectives” in order to show a breach of the duty of fair representation. Amalgamated Assoc. of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 301 (1971). Moreover, in order to survive summary judgment, the plaintiff must adduce “more than a ‘skeletal set of bland allegations’ ” in support of her contention that the union officials’ motivations were improper. Williams v. Sea-Land Corp., 844 F.2d 17, 21 (1st Cir. 1988). In her complaint and affidavit, the plaintiff presented facts tending to show a history of hostility and animosity between herself and union officials, including the fact that she strongly and vocally opposed the merger that was effected in 1984; that she had testified, with success, before the Labor Relations Commission against the merger; that she had raised questions concerning union finances; and that, in response, she had been removed by the union president from her former position on the union’s grievance committee. Moreover, the plaintiff observed that, during her time on the grievance committee, the union never refused to process any grievance raised by other employees. In contrast to the union’s solicitude for other members, the union in this case refused to assist her. When the plaintiff requested written confirmation of that fact, the union president responded, “Don’t hold your breath.” The union also did not reply to a letter the plaintiff later wrote asking for assistance. Finally, the union’s refusal to accept the Civil Service Commission’s adjustment of the plaintiff’s seniority date provides evidence of bad faith. See Zimmerman, at 1320. Thus, the plaintiff has made a sufficient showing to survive summary judgment. The plaintiff’s position, however, is that there are no triable issues of fact and that she is entitled to summary judgment as a matter of law. Nonetheless, considering the facts in the light most favorable to the union, as we must for purposes of determining whether the plaintiff is entitled to summary judgment, we conclude that the union has shown that there are factual issues to be resolved at trial. The union points to the fact that the union’s president in April, 1985, said that the union would not assist the plaintiff because of the president’s belief that the plaintiff could not win. The union asserts that if that fact is believed by the fact finder, it would support the union’s contention that it was lack of merit of the grievances, not improper motive, that caused the union to refuse to represent the plaintiff. The union also argues that some of the facts, including its failure to answer the plaintiff’s letter, could be viewed by the fact finder as negligence, which is not sufficient, by itself, to constitute a breach of the duty of fair representation. See Allen v. Allied Plant Maintenance Co. of Tennessee, 881 F.2d 291, 297 (6th Cir. 1989); Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43-44 (2d Cir. 1989); MacKnight v. Leonard Morse Hosp., 828 F.2d 48, 51 (1st Cir. 1987). Thus, although it is a close question, we conclude that the union has demonstrated that there are triable factual issues. Moreover, “[t]he granting o

CARLSON v HUTZEL CORPORATION OF MICHIGAN Docket No. 102776. Submitted February 5, 1990, at Detroit. Decided May 7, 1990. Patricia Carlson and other nonunion nursing administrators for Hutzel Corporation of Michigan doing business as Hutzel Hospital brought an action against the hospital in the Wayne Circuit Court, alleging constructive discharge from employment in breach of their just-cause employment contracts and in violation of public policy. Defendant hospital laid off several unionized licensed practical nurses and reassigned plaintiffs, who were registered nurses, to jobs of performing or supervising patient care. Plaintiffs resigned rather than accept reassignment. Following the presentation of plaintiffs’ case, the court dismissed the claim of violation of public policy. The jury returned a verdict for plaintiffs and the court, Charles S. Farmer, J., entered a judgment for plaintiffs. Defendant appealed and plaintiffs cross appealed the dismissal of their public policy claim. The Court of Appeals held: 1. Plaintiffs’ claims are not preempted by the National Labor Relations Act. 2. Defendant’s unilateral change of a written policy statement to provide for binding arbitration in cases of disputes over discharge of employees was effective upon notice to employees and did not require the assent of the employees to become part of the employment contract. Thus, plaintiffs should have submitted their claims to arbitration. Reversed. 1. Conflict of Laws — Preemption — Labor Relations. State law is not preempted by the National Labor Relations Act where the conduct at issue is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility; in determining whether state law is preempted by the National Labor Relations Act, the court should balance the state’s interest in regulating or promoting a remedy for the conduct against the intrusion into the National Labor Relations Board’s jurisdiction and the risk that the state’s determination will be inconsistent with provisions of the National Labor Relations Act. References Am Jur 2d, Labor and Labor Relations §§ 922, 940, 1727, 1830, 1894-1896, 2003. See the Index to Annotations under Arbitration and Award; Discharge from Employment or Office; Labor and Employment; Preemption. 2. Labor Relations — Policy Statements — Unilateral Changes. Where policy statements by an employer give rise to enforceable contract' rights of employees without mutual consent, an employer may unilaterally change his policy and it will be effective upon notice to the employees. Mueckenheim & Mueckenheim, P.C. (by Robert C. Mueckenheim), for plaintiffs. Dykema Gossett (by Charles C. DeWitt, Terrence E. Haggerty and Susan E. Mason), for defendant. Before: Sullivan, P.J., and Doctoroff and J. W. Fitzgerald, JJ. Former Supreme Court justice, sitting on the Court of Appeals by assignment. Sullivan, P.J. This is a wrongful discharge case. Plaintiffs were nonunion nursing administrators at defendant Hutzel Hospital. The only claims pertinent to this appeal are plaintiffs’ claims that defendant constructively discharged them in breach of their alleged just-cause employment contracts and in violation of public policy. Only the former claim was submitted to the jury, which returned verdicts in favor of plaintiffs. The latter claim was dismissed by the trial court on defendant’s motion for a directed verdict following plaintiffs’ case in chief. Defendant now appeals, raising several issues. We reverse the jury verdicts because we conclude that the grievance and arbitration procedure was a part of plaintiffs’ employment contract and, as such, was plaintiffs’ sole remedy. Because of our resolution of that issue, we need not reach plaintiffs’ issues on cross appeal. Defendant hospital was experiencing severe financial problems in 1983. To help alleviate these problems to some extent, Frank Iacobell, president and chief executive officer at defendant hospital, devised a plan whereby several unionized licensed practical nurses would be laid off. In turn, the nursing administrators and educators who were registered nurses, including plaintiffs, would be assigned to work on hospital floors either caring for patients or overseeing patient care. Plaintiffs resigned rather than implement what they believed to be Iacobell’s plan because they did not feel competent to care for patients. i The first issue raised by defendant is whether plaintiffs’ claims are preempted by the National Labor Relations Act, 29 USC 151 et seq. We conclude that they are not. Defendant argues that plaintiffs’ claims are preempted because they concern an activity that is actually or arguably protected or prohibited by the nlra. San Diego Building Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959). However, if the conduct at issue "is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility,” Belknap, Inc v Hale, 463 US 491, 498; 103 S Ct 3172; 77 L Ed 2d 798 (1983), then the state law claims survive. See also 359 US 243-244. "The court balances the state’s interest in regulating or promoting a remedy for the conduct against the intrusion in the nlrb’s jurisdiction and the risk that the state’s determination will be inconsistent with provisions of the nlra.” Bullock v Automobile Club of Michigan, 432 Mich 472, 493; 444 NW2d 114 (1989), reh den 433 Mich 1201 (1989). Moreover, in Sears, Roebuck & Co v Carpenters, 436 US 180, 197; 98 S Ct 1745; 56 L Ed 2d 209 (1978), the United States Supreme Court announced the following focus for a preemption analysis: The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to ... or different from . . . that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court’s exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid. Here, even though defendant’s conduct is arguably prohibited by the nlra, it nevertheless can be challenged in state court to the extent that it forms the basis of plaintiffs’ claims. Plaintiffs’ breach of contract claim involves a significant state interest because this state has a substantial interest in adjudicating contractual disputes arising within its jurisdiction. See Belknap, 463 US 511-512, and Roberts v Automobile Club of Michigan, 138 Mich App 488, 497; 360 NW2d 224 (1984), lv den 424 Mich 867 (1986), cert den sub nom Automobile Club of Michigan v Roberts, 479 US 889; 107 S Ct 289; 93 L Ed 2d 263 (1986). Furthermore, because plaintiffs’ public policy claim alleges that defendant’s conduct violated Michigan public policy and threatened the health, safety and welfare of patients at defendant hospital, that claim also concerns a significant state interest. On the other side of the scale, we note that exercise of this state’s jurisdiction would not interfere with the jurisdiction of the nlrb. We so conclude because the controversy presented to the state court was different from that which might have been, but was not, presented to the nlrb. Plaintiffs’ breach of contract claim required the jury to determine whether plaintiffs’ employment contract with defendant provided that they could be discharged only for just cause, whether defendant had just cause to discharge plaintiffs and whether defendant made plaintiffs’ working conditions so intolerable that they justifiably resigned. See, e.g., Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980), and Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985). Plaintiffs’ public policy claim, had it gone to the jury, would have required the jury to determine whether defendant’s conduct violated the public policy of this state. On the other hand, the controversy which could have been presented to the nlrb under the nlra would have required the nlrb to determine whether the act of replacing laid-off union employees with their nonunion supervisors was an unfair labor practice. In other words, the issue in the state law controversy was not whether defendant’s conduct was an unfair labor practice, the unfair labor practice having to do with the fact that the laid-off lpns were unionized but, rather, was whether defendant’s conduct violated an alleged employment contract or public policy, which issue is unrelated to the fact that the lpns were unionized. Therefore, we conclude, plaintiffs’ claims were not preempted by federal law. n The second issue defendant raises on appeal is whether an employer can unilaterally change a written policy statement to provide for a binding arbitration procedure without having first obtained the consent of the existing employees to whom the procedure applies. We answer in the affirmative. Therefore, plaintiffs’ wrongful discharge claims were barred because plaintiffs failed to use the arbitration procedure. The trial court thus erred by failing to grant defendant’s motion for accelerated judgment on this basis. (Prior to trial, defendant had moved for accelerated judgment under GCR 1963,116.1[2].) In Toussaint, supra, our Supreme Court held that "an employer’s express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract.” Id., p 610. See also id., pp 598-599, 613, 614-615, 618-619, 620-621. Although those rights are enforceable in contract, they do not necessarily arise under general contract principles. As the Toussaint Court explained, once an employer establishes personnel policies or procedures and makes them known to employees, the employment relationship is presumably enhanced. Preemployment negotiations need not take place. Nor do the parties’ minds have to meet on the subject. It is enough that the employer opted to create an environment in which the employee believes that the personnel policies and practices, whatever they may be, are "established and official at any given time, purport to be fair, and are applied consistently and uniformly to each employee. The employer has then created a situation 'instinct with an obligation.’ ” Toussaint, supra, p 613. The policy statements can give rise to contractual rights even though the parties did not mutually agree that the policy statements would create contractual rights in the employee. Toussaint, supra, pp 613-615. Moreover, our Supreme Court recently held that, when contract rights have arisen outside the operation of normal contract principles, the application of strict rules of contractual modification may not be appropriate. In re Certified Question, 432 Mich 438, 447-448; 443 NW2d 112 (1989). In In re Certified Question, the plaintiff argued that the employer’s attempt to change an existing discharge-for-cause policy to an at-will policy was no more than a proposal for modification of the contract for which mutual assent was required. Our Supreme Court rejected this argument because the contractual obligation which the plaintiff argued may not be modified without mutual assent could have arisen without mutual assent under a Toussaint theory. Under Toussaint, written policies are enforceable because of the benefit the employer derives by establishing such policies. When the employer changes its discharge-for-cause policy to one of employment at will, the employer’s benefit is correspondingly extinguished, as is the rationale for the court’s enforcement of the discharge-for-cause policy. In re Certified Question, supra, pp 447, 453-454. Therefore, the In re Certified Question Court held, an employer can unilaterally change a written discharge-for-cause policy to one of termination at will, provided the employer gives affected employees reasonable notice of the policy change. Id., p 441. An employer can provide a procedure for resolution of disputes concerning the discharge of employees. Toussaint, supra, p 624; Dahlman v Oakland University, 172 Mich App 502, 505; 432 NW2d 304 (1988), lv den 431 Mich 911 (1988). Defendant herein provided for such a procedure by way of a written supplement amending the previously issued employee manual. This procedure was a part of the employment contract of employees hired after the effective date of the procedure by virtue of the fact that it was included in the employee manual. Mutual assent was not necessary. See, e.g., Dahlman, supra, p 505, and Vander Toorn v Grand Rapids, 132 Mich App 590, 598; 348 NW2d 697 (1984), lv den 424 Mich 886 (1986). Under the reasoning of In re Certiñed Question, it also became a term of employment of existing employees as soon as they received notice of the change. Mutual assent was not required. Therefore, the trial court erred by failing to grant defendant’s motion for accelerated judgment. We therefore reverse the jury verdicts which were rendered in favor of plaintiffs. Reversed._ The evidence presented at trial with regard to what Iacobell’s plan actually was and the reason plaintiffs resigned was conflicting. However, for the purpose of the issues we address on appeal, it is not necessary to note and explain the conflicts. Our brief statement of facts is suiflcient. We agree with the trial court that the arbitration procedure was mandatory notwithstanding the fact that the court ultimately sent the issue to the jury and the jury found that the plaintiffs did not have to follow the procedure.

GENEVA N. RUCKER v. FIRST UNION NATIONAL BANK OF NORTH CAROLINA, and FIRST UNION CORPORATION No. 8921SC352 (Filed 3 April 1990) 1. Master and Servant § 10.2 (NCI3d)— discharge of employee — employment manual — not part of contract The trial court did not err by granting defendants’ motion for dismissal of plaintiffs claim for wrongful discharge where plaintiff contended that defendants’ issuance of two employee handbooks created a unilateral contract between the parties and removed plaintiff from the status of an at-will employee, but plaintiff did not receive the first of the manuals until she had worked for defendants for almost five and one-half years; plaintiff does not allege nor was there any evidence that the manuals were expressly included in any employment contract; and plaintiff did not allege that she had signed a statement that she had read the policy manual or had taken some other step which would evidence that the manuals were expressly included in her employment contract; and applying a unilateral contract analysis to the issue of wrongful discharge would in effect abandon the at-will doctrine. Am Jur 2d, Master and Servant §§ 32, 48.3. 2. Master and Servant § 10.2 (NCI3d)— wrongful discharge-misrepresentation of employment manual —not part of employment contract The trial court did not err by dismissing plaintiff’s claim for punitive damages based on alleged misrepresentation of the terms of employment manuals where the manuals were not expressly included in plaintiff’s employment contract and could not be considered part of plaintiff’s employment contract. Am Jur 2d, Master and Servant §§ 32, 48.3. 3. Master and Servant § 10.2 (NCI3d)— wrongful discharge— vacation pay The trial court erred in dismissing plaintiff’s claim for vacation pay following her dismissal where plaintiff stated a prima facie claim by alleging that she was not terminated for cause and that defendants’ employment manual entitled her to compensation for unused vacation time. Furthermore, this claim is not preempted by federal law. N.C.G.S. § 95-25.12. Am Jur 2d, Master and Servant § 80. 4. Master and Servant § 10.2 (NCI3d) — wrongful discharge — severance pay — claim preempted by ERISA A claim for severance pay was properly dismissed because the Fourth Circuit Court of Appeals has specifically held that N.C.G.S. § 95-25.7 is preempted by ERISA. Am Jur 2d, Master and Servant § 81. APPEAL by plaintiff from judgment entered 15 December 1988 by Judge Thomas W. Boss in FORSYTH County Superior Court. Heard in the Court of Appeals 17 October 1989. Plaintiff, Geneva N. Rucker, was employed by defendants, First Union National Bank and First Union Corporation (“First Union”) from 6 September 1978 until her termination on 12 June 1987. On 6 September 1988 she brought this action against her former employers for compensatory and punitive damages alleging (1) failure to pay vacation and severance pay; (2) breach of contract; (3) negligence and negligent misrepresentation; and (4) intentional and fraudulent misrepresentation. On 5 October defendants moved to dismiss all of plaintiff’s claims pursuant to G.S. sec. 1A-1, Rule 12(b)(6). On 6 December plaintiff amended her complaint to include an alternative claim for vacation and severance pay pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. sec. 1001 et seq. After a hearing the trial court granted defendant’s motion to dismiss all of plaintiff’s claims except her claim for vacation and severance pay pursuant to ERISA. The court certified the order as a final judgment from which appeal may be taken, there being no just reason for delay. Plaintiff appealed to this Court in apt time. Morgan & Morgan, hy J. Griffin Morgan and J. Kevin Morton, and North Carolina Academy of Trial Lawyers, hy J. Wilson Parker and Deborah Leonard Parker, for plaintiff-appellant. Smith, Currie & Hancock, by J. Thomas Kilpatrick and R. Steve Ensor, and Petree Stockton and Robinson, by W. R. Loftis, Jr. and Penni P. Bradshaw, for defendant-appellees. JOHNSON, Judge. Plaintiff’s complaint alleges the following: During the years she worked for First Union, plaintiff received praise from her supervisors and was promoted to the position of teller supervisor. On 12 June 1987, she was told that she was being discharged for failing to check the night depository on 17 April 1987. Prior to the next business day following 17 April 1987, approximately $22,000 had been taken from the depository. All employees, including plaintiff, were cleared of any involvement in the theft. Plaintiff received no prior warning or disciplinary action before her termination. Also, she alleges she had never previously been told to check the night depository. Plaintiff contends that a memo circulated ten days after her dismissal made it clear that it had not been part of her duties. Plaintiff alleges that she has been unable to find similar work since her discharge, and that the termination has caused her to lose substantial income and fringe benefits and suffer extreme mental distress. In this appeal plaintiff recognizes that North Carolina adheres to the doctrine that, in the absence of an employment contract for a definite time period, both employer and employee are generally free to terminate their association at any time and without any reason. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). She admits that she was not working under an employment contract for a definite period of time, but contends that defendants’ issuance of two employee handbooks to plaintiff, one in January, 1984 and a second in March, 1987, created a unilateral contract between the parties and removed plaintiff from the status of an “at-will” employee. It is well settled in North Carolina that “unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.” Rosby v. General Baptist State Convention, 91 N.C. App. 77, 81, 370 S.E.2d 605, 608, disc. rev. denied, 323 N.C. 626, 374 S.E.2d 590 (1988), quoting Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 259, 335 S.E.2d 79, 83-84 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986). In the case sub judice plaintiff did not receive the first of her employment manuals until she had already worked for defendants for almost five and one-half years. Plaintiff does not allege nor is there evidence that the employment manuals were expressly included in any employment contract. Therefore, the manuals may not be relied on by plaintiff as being part of, or creating, an employment contract. Id. This case is distinguishable on its facts from the situation in Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617, disc. rev. denied, 316 N.C. 557, 344 S.E.2d 18 (1986), in which this Court held that the discharged plaintiff-employee sufficiently alleged that a policy manual was part of her employment contract to withstand the employer’s Rule 12(b)(6) motion. In Trought the plaintiff alleged that she was required to sign a statement that she had read the employer’s policy manual when she was hired. In the instant case, plaintiff does not allege that she signed such a statement or took some other step which would be evidence that the manuals were expressly included in her employment contract. We therefore must conclude that the manuals were not part of plaintiff’s contract and she may not legally rely upon them for relief. Plaintiff argues essentially that we should not have to find that the manuals were expressly included in an employment contract because, she contends, her continued employment after distribution of the handbooks created a unilateral contract which bound defendants to the terms of the manuals. In support of this argument, she cites cases in which a unilateral contract analysis has been either implicitly or expressly recognized in North Carolina cases relating to various types of employment benefits. Morton v. Thornton, 257 N.C. 259, 125 S.E.2d 464 (1962) (unpaid wages); Roberts v. Mays Mills, 184 N.C. 406, 114 S.E.2d 530 (1922) (bonus); Welsh v. Northern Telecom, Inc., 85 N.C. App. 281, 354 S.E.2d 746, disc. rev. denied, 320 N.C. 638, 360 S.E.2d 107 (1987) (vacation and retirement benefits); Brooks v. Carolina Telephone, 56 N.C. App. 801, 290 S.E.2d 370 (1982) (severance payments). We decline to apply a unilateral contract analysis to the issue of wrongful discharge. This Court has previously distinguished between issues of benefits or compensation earned during employment and the issue of an employee entitlement to continued employment. Id. The former addresses earned benefits, while the latter concerns a future benefit not yet earned. Further, to apply a unilateral contract analysis to the situation before us would, in effect, require us to abandon the “at-will” doctrine which is the law in this State. This we cannot do. We find no error in the trial court’s granting defendants’ motion for dismissal as it concerns plaintiff’s claim for wrongful discharge. We turn now to plaintiffs appeal of the trial court’s denial of her claims for relief based on negligence, negligent misrepresentation, intentional misrepresentation, and fraudulent misrepresentation. Each of these tort claims involves allegations that defendants misrepresented the terms of the employment manuals, and that defendants failed to follow the policies set forth in the manuals. We have concluded above that the employment manuals cannot be considered part of plaintiffs employment contract since they were not expressly included in it. Walker v. Westinghouse, supra. Therefore, plaintiff cannot establish a legal claim to having been mislead based on the manuals. Id. We find no error in the dismissal of plaintiffs tort claims. Because we find plaintiff has no cognizable tort claims, we must also conclude that the trial court was correct in dismissing her claim for punitive damages. Last, we address plaintiffs argument that the trial court erred in dismissing her claims for vacation pay and severance pay pursuant to G.S. sec. 95-25.1 et seq. Plaintiff alleges in her brief that she was not discharged for cause, and that at the time of her termination she had accumulated unused vacation time under First Union’s vacation policy. Pursuant to defendants’ manual, an employee not dismissed for cause is entitled to compensation for unused vacation time. Also, G.S. sec. 95-25.12, entitled “Vacation pay,” provides that if an employer provides vacation for employees, the employer shall give all vacation time off or payment in lieu of time off in accordance with the company policy or practice. Employees shall be notified in accordance with G.S. 95-25.13 of any policy or practice which requires or results in loss or forfeiture of vacation time or pay. Employees not so notified are not subject to such loss of forfeiture. Therefore, by alleging that she was not terminated for cause and the terms of the manual concerning vacation pay, plaintiff has stated a prima facie claim for vacation pay. Further, as defendants properly concede, this claim is not preempted by federal law, the United States Supreme Court having recently held that an employer’s policy of paying discharged employees vacation pay for unused vacation time does not constitute an “employee welfare benefit plan” within the meaning of the Employment Retirement Income and Security Act of 1974 (ERISA), as amended, 29 U.S.C. sec. 1001 et seq. Massachusetts v. Morash, — U.S. —, 104 L.Ed.2d 98 (1989). We therefore reverse the trial court’s dismissal of plaintiffs statutory claim for vacation pay. The Fourth Circuit Court of Appeals has specifically held that G.S. sec. 95-25.7, which concerns severance pay, is preempted by ERISA. Holland v. Burlington Industries, Inc., 772 F.2d 1140 (4th Cir. 1985), affirmed, Brooks v. Burlington Industries, Inc., 477 U.S. 901, 91 L.Ed.2d 559 (1986). Therefore, the trial court did not err in dismissing plaintiff’s claim pursuant to G.S. sec. 95-25.7 for severance pay. In sum, we affirm the trial court’s dismissal of plaintiff’s actions for breach of contract, negligence and negligent misrepresentation, intentional and fraudulent misrepresentation, and plaintiffs state statutory claim for severance pay. We reverse the trial court’s dismissal of plaintiff’s state claim for vacation pay. Plaintiffs alternative claims for vacation and severance pay pursuant to ERISA are unaffected by this opinion and remain viable causes of action. Affirmed in part; reversed in part. Judges WELLS and ORR concur.

WILSON v GENERAL MOTORS CORPORATION Docket Nos. 106198, 109438. Submitted October 18, 1989, at Detroit. Decided April 2, 1990. Leave to appeal applied for. Gail L. Wilson was discharged from her employment with General Motors Corporation. Wilson brought an action for damages against General Motors in Wayne Circuit Court, alleging race and gender discrimination in violation of the provisions of the Civil Rights Act and wrongful discharge by breach of an implied contract of continued employment. The jury found that race or gender was a determining factor in defendant’s decision to discharge plaintiff, that an implied contract existed between plaintiff and defendant to the effect that defendant would only be discharged for good cause, and that plaintiff was not discharged for good cause. The jury awarded plaintiff $500,000 for lost wages and benefits and $750,000 for pain and suffering. Defendant moved for judgment notwithstanding the verdict, a new trial or remittitur. The trial court, Richard P. Hathaway, J., denied judgment notwithstanding the verdict, denied the motion for a new trial if plaintiff agreed to remittitur and reduced the award for pain and suffering to $375,000. Defendant appealed. Plaintiff cross appealed. Plaintiff moved for costs and attorney fees pursuant to the Civil Rights Act. The trial court entered an award for costs and attorney fees of $86,730.24. Defendant appealed from the award of costs and attorney fees. The Court of Appeals held: 1. The record fails to support defendant’s claim of prejudice arising out of the alleged misconduct of plaintiff’s counsel during the trial. 2. The trial court did not err in refusing to permit the testimony of a defense witness who had not been put on the witness list as required under a local court rule then in effect. References Am Jur 2d, Appeal and Error §§ 352, 355; Job Discrimination §§1985, 2502, 2503, 2511, 2515, 2520; New Trial §576; Trial §219. Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions. 85 ALR3d 351. 3. No error requiring reversal arose out of the trial court’s instructions to the jury. 4. The trial court properly allowed plaintiff and another employee of defendant to testify as to their perception of the racial overtones of statements made by a supervisor employed by defendant to plaintiff and other similarly situated employees. 5. Since there was sufficient evidence to support the jury’s determinations that there was both a civil rights violation and an implied contract of continued employment, the trial court properly denied the motion for judgment notwithstanding the verdict. 6. The trial court did not abuse its discretion by entering the award of remittitur on the pain and suffering award. 7. The jury’s award of economic damages clearly reflects inclusion of the sought, but unproved, damages for loss of life insurance and loss of cost of living. Accordingly, the $500,000 award for economic damages should be reduced to $373,578.11. 8. Since the question of entry of costs and attorney fees was not reserved in the order of judgment and the motion for such costs was made subsequent to the claim of appeal, the trial court lacked jurisdiction to amend its prior judgment by an award of costs and attorney fees. The award of costs and attorney fees is set aside without prejudice to plaintiff’s right to renew that motion in the trial court. Affirmed in part and reversed in part. Murphy, J., concurred in part with the majority, but would not have granted remittitur as to economic damages and would not have held that the use of a multiplier in the calculating of attorney fees is improper under the Civil Rights Act. 1. Appeal — Attorney Misconduct — Fair Trial. An attorney’s comments at trial will usually not be cause for reversal on appeal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial or where counsel’s comments were such as to deflect the jury’s attention from the issues involved and had a controlling influence upon the verdict. 2. Civil Rights — Employment Discrimination — Jury Instructions — Standard Jury Instructions. The standard jury instructions relative to employment discrimination are sufficient in themselves to inform the jury as to its duty; it is not error for a trial court to refuse to give supplemental instructions concerning employment discrimination (SJI2d 105.02-105.04). 3. Evidence — Opinion Testimony — Employment Discrimination — Race Discrimination. Minority employees testifying in an employment discrimination suit based on alleged race discrimination may give opinion testimony as to whether a supervisor’s comments to them during the course of their employment had a racial overtone since such testimony is rationally based upon the perception of the witness and would be helpful to a clear understanding of the fact at issue (MRE 701). 4. New Trial — Remittitur — Acceptance of Remittitur — Mail. Acceptance by a plaintiff of remittitur rather than a new trial, when the acceptance is done by mail, is complete at the time of mailing rather than on the date that it is received or processed by the court clerk (MCR 2.107[C][3]). 5. Appeal — Orders — Attorney Fees. A trial court is without jurisdiction to award attorney fees after a claim of appeal has been filed unless the trial court’s order granting judgment provided that the trial court would award such fees (MCR 7.208A). 6. Civil Rights — Attorney Fees — Contingency Fee Agreements. The existence of a contingent fee. arrangement does not preclude an award of attorney fees to a successful plaintiff under the Civil Rights Act; however, the existence of a contingent fee arrangement is one of the factors which a trial court should consider in determining what constitutes a reasonable fee award (MCL 37.2802; MSA 3.548[802]). 7. Civil Rights — Attorney Fees — Evidentiary Hearings. A trial court, when confronted with a challenge to the reasonableness of the attorney fees requested pursuant to the provisions of the Civil Rights Act, should conduct an evidentiary hearing at which an inquiry is made as to the actual services which were rendered and the reasonableness of the requested fees. 8. Civil Rights — Attorney Fees. It is improper for a trial court in awarding attorney fees pursuant to the Civil Rights Act to determine the award of attorney fees by multiplying the total of the actual hourly and daily rates incurred by a plaintiff’s counsel by a multiplier greater than unity without explaining why the case is so exceptional as to warrant application of a multiplier factor. Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. (by Angela J. Nicita and Courtney Morgan, Jr.), for plaintiff. Bodman, Longley & Dahling (by Joseph A. Sullivan, Robert G. Brower and Martha B. Goodloe), for defendant. Before: McDonald, P.J., and Michael J. Kelly and Murphy, JJ. Michael J. Kelly, J. Defendant, General Motors Corporation, appeals from a jury verdict and award of attorney fees in favor of plaintiff, Gail Leslie Wilson. Plaintiff appeals from the circuit court’s grant of remittitur in favor of defendant. Plaintiff, a black woman, was employed by GM’s Assembly Division as a. data preparation operator from December of 1976 to October of 1981, when she was discharged. At the time of her discharge, plaintiff was on a performance improvement plan to increase her rate of production. This plan put her on six months employment probation. Plaintiff became pregnant in April or May of 1981, and this evidently caused her work quality to decline during this performance improvement period. Following her discharge, plaintiff filed suit against defendant for race and gender discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and for wrongful discharge under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). Plaintiff claimed that defendant discriminated against her on the basis of her race and gender by transferring and promoting other workers, who were white women, while refusing to transfer or promote plaintiff. Plaintiff claimed that she was fired because she confronted her supervisor regarding gm’s failure to transfer or promote black female employees and because of her pregnancy. Plaintiff’s Toussaint claim was based upon the verbal promise of one of defendant’s personnel employees at the time plaintiff was hired. Defendant denied discriminating against the plaintiff or otherwise wrongfully discharging her. It claimed that plaintiff was discharged due to her poor job performance. Following trial, the jury found that race or gender was a determining factor in defendant’s decision to discharge plaintiff. It found that a contract existed between plaintiff and defendant that defendant would fire plaintiff only for good cause and that plaintiff was not discharged for good cause. The jury awarded plaintiff $500,000 for lost wages and benefits, plus $750,000 for pain and suffering. Defendant moved for judgment notwithstanding the verdict, a new trial, and remittitur. The circuit court denied defendant’s motions for judgment notwithstanding the verdict or a new trial, but granted remittitur of the pain and suffering award to $375,000 for a total award of $875,000. Plaintiff moved for costs and attorney fees, which the court granted, in the amount of $86,730.24. i Defendant argues that the jury’s verdict must be reversed because improper conduct by plaintiff’s counsel denied defendant a fair and impartial trial. Gm claims that plaintiff’s counsel made improper inflammatory statements regarding unrelated incidents, made repeated references to matters outside the record, and made improper comments regarding defense witnesses. We find no error requiring reversal. When reviewing asserted improper conduct by a party’s lawyer, we must first determine whether the lawyer’s action was error and, if so, whether the error requires reversal. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 103; 330 NW2d 638 (1982). A lawyer’s comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Guider v Smith, 157 Mich App 92, 101; 403 NW2d 505 (1987), aff'd 431 Mich 559 (1988). Reversal may also be required where counsel’s remarks were such as to deflect the jury’s attention from the issues involved and had a controlling influence upon the verdict. Id. Defendant complains about the following comments made by plaintiffs counsel during his opening statement: It [discrimination] can be a bunch of guys in white sheets standing on your front lawn burning a cross, or it could be ... . Discrimination can be brutally beating a black boy out in front of a pizza parlor in New York. It can be telling of racial jokes over a radio station, or [sic] one of the finest institutions in the country. ... It was just an analogy. Obviously it can, also, be telling someone who complains to you about why they are not being given an opportunity to advance that they are lucky to have a job, and there are plenty more where you came from. It can, also, be consistently transferring white women out of a department and leaving the black women behind. That’s in a racial situation. It can, also, be being insensitive to a woman’s needs as caused by her pregnancy, and this can be sexual discrimination. Defense counsel objected to these comments, but the circuit judge permitted them. The court did instruct the jury that the opening statements were not evidence and that anything that the attorney said was not evidence. What constitutes a fair and proper opening statement is left to the discretion of the trial court. Guider, supra, p 102. Here, plaintiffs lawyer was evidently pointing out that there are Obvious, overt forms of discrimination and subtle, less easily discerned forms of discrimination, such as in plaintiffs case. The examples cited in plaintiffs counsel’s opening statement were not related to gm and were not attacks on gm. The circuit court did not abuse its discretion by permitting these remarks. Defendant complains that plaintiffs counsel commented in closing on defendant’s failure to present the testimony of a Doctor Golusin and on defendant’s failure to present data entry operator logs which would verify defendant’s claims that plaintiff was a poor worker. In Reetz, supra, 416 Mich 109, our Supreme Court pointed out: [I]t is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party. This is permissible even though the same witnesses could have been produced by both parties. These comments did not result in error. Defendant also argues that plaintiffs counsel improperly belittled defense witness Nina Shepard and James Rupkey. In closing arguments, counsel may discuss the character of a witness and characterize their testimony. DeVoe v C A Hull Inc, 169 Mich App 569, 581; 426 NW2d 709 (1988), lv den 431 Mich 862 (1988). Plaintiffs attorney’s comments did not deny defendant a fair trial and did not result in error. ii Defendant argues that the circuit court erred by excluding the testimony of a crucial defense witness. We find no error. Defendant attempted to present the testimony of Valerie Martin, a gm personnel representative, to rebut plaintiff’s evidence indicating that defendant made plaintiff, while pregnant, return to work against the advice of physicians. Defendant argued that Martin would testify that she received a report from an independent physician, Dr. Golusin, which indicated that plaintiff was free to return to work. Martin had been previously deposed by the parties but was not listed on defendant’s witness list in accordance with Wayne Circuit Court Rule 2.301. The court precluded Martin from testifying pursuant to LCR 2.301(4) on the ground that she was not listed as a witness. Wayne Circuit Court Rule 2.301(4), which was in effect at the time of the trial, provided in relevant part: An unlisted witness may not be called at the trial, except as the court orders for good cause shown or as permitted by paragraphs (5) and (6). [Emphasis added.] Under this local court rule, defendant could not present Martin as a witness unless it convinced the court of good cause. The record indicates that defendant did not show good cause for presenting Martin’s testimony regarding Dr. Golusin’s report. Martin’s deposition testimony indicated that she was not aware of the conclusions of Golusin’s report or the results of his examination of plaintiff and that Martin herself had not signed the report. Additionally, Martin’s testimony regarding the contents of Golusin’s report appears to be inadmissible hearsay under MRE 801. See Slayton v Michigan Host, Inc, 144 Mich App 535, 551; 376 NW2d 664 (1985); Carlisle v General Motors Corp, 126 Mich App 127, 129; 337 NW2d 4 (1983). The circuit court properly excluded Martin’s testimony. hi Defendant claims that reversal is required because the circuit court refused to instruct the jury regarding the authority of defendant’s employees to bind defendant to statements or promises made to plaintiff. We disagree. Plaintiff testified at trial that, at the time she was hired by gm, an employee of gm in its personnel department, Leona Zyber, told plaintiff that she would remain employed so long as she did her work and followed the rules. One of plaintiff’s witnesses also testified about similar statements made to her by employees in gm’s personnel department. These statements served as the basis for plaintiff’s Toussaint claim for breach of employment contract. Defendant did not call Zyber as a witness or present evidence regarding whether Zyber or other gm employees had actual or apparent authority to bind it with a verbal Toussainttype contract. Defendant requested the following jury instructions regarding the authority of employees to bind the employer: Plaintiff claims that one or more employees of General Motors Corporation made statements or promises to her that she would only be terminated for good cause. If you find that statements or promises were actually made by the defendants, you must then determine whether the person who made the statement or promise had the authority to bind General Motors to that statement or promise. Authority of an employee to make statements or promises which bind General Motors can be of two types: 1. Actual Authority. This type of authority exists when the employee has been expressly authorized by General Motors to make such statements or promises. 2. Apparent Authority. This type of authority exists only if the plaintiff reasonably believed that the person who made promises or statements to her was authorized by General Motors to make those statements or promises. If you find that one or more persons actually made statements or promises to the plaintiff, those statements or promises are not binding on General Motors unless you also find that the person who made the statement or promise had the actual or apparent authority to make the statement or promise. The court declined to give this instruction and instead gave the following instruction: Members of the jury, I instruct you that a corporation such as the Defendant, General Motors, in this case is operated through its employees. If you find that there was wrongdoing on the part of any employee which caused injury to Gail Wilson, then such wrongdoing would be chargeable to General Motors. Defendant argues that the court, through this instruction, improperly took from the jury the factual issue of whether its personnel employees had actual or implied authority to make contracts with plaintiff. We agree that the instruction as given was incomplete and should have applied only to plaintiff’s discrimination claims. However, any error due to this instruction is harmless and does not require reversal. An instructional error does not require reversal where it did not result in a jury verdict inconsistent with substantial justice. MCR 2.613(A); Johnson v Corbet, 423 Mich 304, 327; 377 NW2d 713 (1985); Caliesen v Grand Trunk W R Co, 175 Mich App 252, 263; 437 NW2d 372 (1989). The jury found in favor of plaintiff on bbth her claims. The jury’s verdict of liability for .race and gender discrimination alone supports the damages awarded under both claims. Additionally, we note that defendant offered no evidence to rebut plaintiff’s testimony or to establish that Leona Zyber had no authority to enter into á Toussaint-type contract with plaintiff. Our Suprerhe Court in Renda v International Union, UAW, 366 Mich 58, 94; 114 NW2d 343 (1962), stated: Where the facts are either admitted or undisputed as to the existence of the principal agent’s relationship and as to the scope of the agent’s authority, the lower court may properly instruct the jury that the principal, as a matter of law, is responsible for the acts of the agent. Gm did not present evidence disputing Zyber’s apparent authority. The circuit court’s instruction does not require reversal; IV Defendant argues that reversal is required because the circuit court refused to instruct the jury that plaintiff bore the burden of proving that she reasonably relied upon Leona Zyber’s statements. We find no error. At trial, defendant argued that, because the only basis for plaintiff’s Toussaint claim was the statements of Leona Zyber, the trial court must instruct the jury that, in order to find a valid Toussaint claim, the jury would have to find either that plaintiff was not provided with gm’s employee handbook or that the statements contained in the handbook were not inconsistent with Zyber’s statements to plaintiff. Defendant requested the following jury instruction, which the court refused to give: Statements or promises made by employees to the plaintiff can only become a part of the plaintiffs emplo